Best of: Part II
Part two of our summer review: ahead of the Kavanaugh confirmation hearings, we recap what Kennedy’s retirement means with Ian Milhiser; plus legal aid attorney Pat Levy-Lavelle on his work representing people facing evictions. Subscribe to Off-Kilter on iTunes.
Earlier this summer, Supreme Court Justice Anthony Kennedy dropped a bombshell when he announced his retirement. It didn’t take long for Trump nominate his replacement, Brett Kavanaugh, a hardline conservative hellbent on repealing landmark rulings like Roe v. Wade. When the retirement was first announced, we asked Ian Milhiser, justice editor at ThinkProgress and Off-Kilter’s SCOTUS correspondent, to break down what it all means and, this week, we revisit his analysis ahead of the Kavanaugh confirmation hearings.
Next up, the country is still in the midst of an affordable housing crisis with no sign of aid coming from the Trump Administration or Congress. We revisit our conversation with legal aid lawyer Pat Levy-Lavelle, who joined to discuss his work representing people facing eviction in Virginia.
This week’s guests:
- Ian Millhiser, justice editor, ThinkProgress and author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted
- Pat Levy-Lavelle, an attorney at the Legal Aid Justice Center in Richmond, Virginia, who represents low-income families facing eviction
This week’s transcript:
REBECCA VALLAS (HOST): Hey Off Kilter listeners, the show is on a break this week so we’ve rounded up some of our favorite conversations to hold you over in the meantime.
You’re listening to Off Kilter, I’m Rebecca Vallas. Last week the Supreme Court wrapped up its term and its last round of decision was a doozy. But the horror show wasn’t limited to the final decisions it decided, from Janus to the Muslim Ban and more, it was capped off by the sudden announcement that Justice Anthony Kennedy is stepping down, leaving Donald Trump to name his replacement on the court. To unpack what this means for basically everything, I’m joined by Ian Millhiser, justice editor at Think Progress and Off Kilter’s Supreme Court correspondent. Ian, thanks so much for joining the show and also f***.
IAN MILLHISER: F***.
VALLAS: Also, f***.
MILLHISER: I mean, we got to live in a constitutional democracy for more than 30 decades, that’s more than most people get. I think we should be grateful for what we had and remember it fondly.
VALLAS: We had a good run, Ian.
MILLHISER: We had a great run.
VALLAS: It was a good run we had. So Ian, I’m not just joined by you, I’m also joined and you are joined by copious amounts of alcohol.
MILLHISER: Yes, this is a time for drinking.
VALLAS: There isn’t enough alcohol in the world for what we’re about to talk about. Just, spoiler alert, if you’re someone whose stomach turns when you hear about literally everything you care about being wiped away in a very short span of time, this may not be the episode for you.
MILLHISER: This is a bad time to be sober.
VALLAS: Well, so with that we’ll leave our listeners a minute or so to get out their drinks if that’s something that they do so that they can cope while they listen if they’re still listening. But Ian just before we get into what comes next because Kennedy is where all of our minds are right now. Help us unpack, what’s just a quick run down of the cases that the court just handed down, a helpful starting point for what we think about in terms of what comes next.
MILLHISER: Yes, so we just had a three-day long shit-storm. We got the Muslim ban, apparently the president now is allowed to ban people so long as he says he’s not doing it for unconstitutional reasons even though he went all over the country bragging about the unconstitutional reason he was going to do it, so that’s new. We also, for those of you who are fans of Japanese internment, they simultaneously overruled Korematsu, which was the case saying that we could have Japanese internment and reaffirmed its’ core holding that we’re just going to ignore everything that the Constitution says whenever the president screams the word ‘national security’. So that was one day. We got the Janus case, which is an attempt really just to defund a bunch of public sector unions. basically what this says, so historically unions have been able to get reimbursements from non-members of union for services that they provide to those non-members. The holding of Janus is that they will now have to provide those services for free. And of course that’s not very good for the finances of the unions, the whole point of this case is that when you strain the unions of money, some of them will collapse and then no one gets the benefit of being in a union.
VALLAS: Some people have described the Janus case, which we’ve all known was coming and I think we all expected where this was headed when the decision came down, given the make up of the court right, but some legal scholars and advocates have described this case as the thread that you pull from the sweater that makes the entire sweater unravel.
MILLHISER: Right, I mean what it is, you may have heard the term ‘right to work’ laws before. That’s what a ‘right to work’ law is.
VALLAS: ‘Right to work’ being exactly the opposite of what it sounds like. It’s actually anti-union.
MILLHISER: Right to work means that the union has to provide services free to the people who don’t want to pay them. And obviously, if I had to do my job and not get paid for it, I wouldn’t be able to do that job for very long either.
VALLAS: And we talked a little bit last week in the ‘In Case You Missed It’ segment, some of the consequences of Janus, it’s not just something that’s going to hurt unionized workers and unions, it’s potentially a huge blow to workers generally.
MILLHISER: Right.
VALLAS: Because all workers benefit from unions, they receive the benefits whether they’re a member or not; higher wages, better working conditions, a voice on the job, all of that stuff. So Janus, a huge blow to workers that we know workers are going to fight back and unions are going to fight back from but a really devastating anti-worker case. There’s another case that’s not getting a ton of attention that has to do with crisis pregnancy centers.
MILLHISER: Yeah, so crisis pregnancy centers for those who aren’t aware, are the sham health centers, some of them provide limited medical services, some of them don’t provide any medical services at all. But the whole point of them is that they make themselves look like abortion clinics so if you need an abortion, you’ll go there and they basically then try to run out the clock on you. They try to delay you from getting the abortion until it’s been so long that you can no longer legally get the abortion and then ha, they’ve tricked you, now you don’t get it. And so California passed a law which required them to make certain disclosures, which would have directed women towards abortion care in some cases and in other cases just made it clear this wasn’t a place that’s going to provide them with medical care. And the Supreme Court struck that decision down, I mean I actually, I thought this was a hard case. But the reason I thought it was a hard case is that there’s another line of decisions saying that if you’re an abortion provider, states can make you follow what are sometimes called informed consent laws where often it’s just you have to read a script whose purpose is to, the doctor has to read a script to their patients whose purpose is to convince the patient not to have an abortion. And there’s six states where the script says something like just so you know, you’re about to end the life of a human life and so like it’s not, this isn’t medical information that they’re providing.
And so there’s a whole line of cases, the First Amendment just doesn’t protect you against censorship, it protects you against forced speech. So it’s not ridiculous to say that crisis pregnancy centers don’t have to post these notices, but what the Supreme Court has said is that crisis pregnancy centers get one First Amendment where they have huge robust protections against not having to post these notices they don’t want to post. But abortion clinics get a different First Amendment, which is not as good, where their doctors can be compelled to advocate for the other side. And that’s actually really, really frightening.
VALLAS: And potentially has pretty significant implications for a whole range of issues, not just within the context of abortion.
MILLHISER: Right, so the whole point of the First Amendment, so the biggest sin that the government can commit under the First Amendment is viewpoint discrimination, where they say that people who hold one view on a debate are treated worse than people, that is the worst thing you can do under the First Amendment. And the Supreme Court of the United States whose job is to police the First Amendment and make sure that viewpoint discrimination doesn’t happen just wrote viewpoint discrimination into the First Amendment itself.
VALLAS: So essentially picking favorites.
MILLHISER: Exactly.
VALLAS: Special treatment for certain views.
MILLHISER: Exactly, which is a bizarre-o thing for the Supreme Court to do. I mean again, I think that they could have struck down both the anti-abortion informed consent laws and the California law, or they could have upheld both of them. But what they did instead is they said certain speech is better than other speech in their mind.
VALLAS: So this is what the Supreme Court just did in its last round of decisions. There’s a lot more as well, those are just a few of the low lights, not highlights. But let’s get to the Kennedy news, which I know is where my brain is going and I think I’ve had about half a glass of wine in the short period of time we’ve been talking already so I think maybe I’m ready to start going there.
MILLHISER: You really should switch to the tequila.
VALLAS: Well, I’m going to get there. I’ve had a long day, Ian.
MILLHISER: Which is why you need to switch to the tequila.
[LAUGHTER]
VALLAS: I’ve lived a lot of lives today and yesterday. We all have and the day before this, and this year and it goes on. So ok, a lot of people as soon as Kennedy made this announcement went oh f***. And in fact, that was basically the front page of The New York Daily News the day after the announcement. That was literally what was on the front page of the newspaper with a lot of little astericks and percentage signs and other characters bleeping it out. But I want to get specific about what we think the consequences of a Trump replacement for Kennedy on the court would mean. A lot of people have said bye-bye Roe v. Wade, bye-bye protections against discrimination and more. And a lot of conservatives are saying hang on, let’s not get histrionic, let’s not say that everything is going to get wiped out. It’s all going to be fine.
MILLHISER: Let’s not say that thing that we’ve been advocating for for the last 30 years is going to happen just because we’re about to get a majority on the Supreme Court.
VALLAS: But you have looked into this and you’ve actually looked area by area, case by case, at where Kennedy has been and where we would see a shift if we saw the court’s conservative block get another member in lieu of where Kennedy has been as the swing vote on the court. So I want to go through some of these important and hot button issues in turn. So let’s start with Roe v. Wade because that’s probably where we have to start.
MILLHISER: Yes. So Roe v. Wade is done. There’s a question of how it’s going to die, whether the court will write the words “Roe v. Wade is overruled” or whether they’ll just find some way to uphold every crappy anti-abortion that comes along so that in theory you have a right to an abortion but in fact no one can open an abortion clinic unless it has a operating room that is made out of gold and unless every one of their doctors’ has completely a 100,000 hour training course.
VALLAS: Which is basically the same thing as saying Roe v. Wade is overruled.
MILLHISER: Exactly.
VALLAS: It’s just a fancy, smokescreen way of doing.
MILLHISER: Exactly.
VALLAS: But Ian, just to play devil’s advocate for a second, a lot of people are saying wait a second, Kennedy was no fan of abortion rights. He wasn’t some staunch defender of Roe himself, so really are we going to see that much of a shift with him gone and potentially a Trump selected replacement on the court.
MILLHISER: I think Kennedy sat on 22 abortion cases and he voted against abortion in 20 of them. So Kennedy was not good on this issue. But one of the things that he did in his final years on the court, there was a Texas law that was much like the law that I just described, it required abortion clinics to have, spend millions of dollars on facilities they didn’t need. It required doctors to have credentials that were very hard to get and that they also didn’t need in order to be able to safety perform an abortion. The idea, it was a shame health law. You make it look like it’s a health regulation but these aren’t regulations that actually do anything to improve the health of the facilities.
VALLAS: Like the walls in the hallways have to be a certain distance apart because what if you need to push a stretcher through and it’s actually like we’re giving people the abortion pill here so that’s not even related to what we do but that kind of stuff.
MILLHISER: Or you have to have full stocked operating rooms even if your clinic only provides medication abortions and they don’t perform surgeries at all. It was a sham regulation whose purpose was the drive up the cost of being able to get abortions. And Kennedy said no, that law is no good. Kennedy said I will allow you to carve away, to make incursions on the right to choose but if you just go headlong at it and try to knock it out, that’s not allowed. That was a 5 to 4 decision.
VALLAS: That’s a pretty significant decision where he was the swing vote and he actually joined the part of the court that was protecting abortion rights in that case.
MILLHISER: Exactly. And so with him gone, there’s no longer a consensus for that, which means, one way or another Roe v. Wade is doomed.
VALLAS: So OK, I’m getting pretty scared and pretty depressed so I’m going to pour a little bit more wine.
MILLHISER: That’s a good call.
VALLAS: And then I am going to get to the tequila that you brought and thank you for bringing it.
MILLHISER: You didn’t think I was going to bring it.
VALLAS: I didn’t actually no.
[LAUGHTER]
MILLHISER: When I told you I was bringing tequila, I will bring tequila.
VALLAS: Well I also told you I was bringing things I didn’t bring.
[LAUGHTER]
MILLHISER: I’m very disappointed in you for that.
VALLAS: We can talk about that off air. [LAUGHTER] So it’s not just Roe v. Wade that is potentially thrown in the trash. It is also protections that have been really important for racial justice.
MILLHISER: Yeah, so Kennedy again, he was no one’s hero on racial justice.
VALLAS: For anyone who’s wondering if I’m actually drinking wine, yes you just heard me pour some.
MILLHISER: Yes, no we are getting lit tonight.
VALLAS: This is really happening.
MILLHISER: So let’s take a step back. Chief Justice Roberts is now the swing vote on the Supreme Court. And Roberts’ approach to every racial question that comes before him is to stick his fingers in his ears, close his eyes and say nah, nah, nah, nah, nah I’m not listening. He refuses to acknowledge the existence of racism. He literally wrote an opinion saying that we don’t need the Voting Rights Act anymore because there isn’t enough racism in America. He wrote that three years before Donald Trump got elected.
VALLAS: Yeah, because we had Obama as president, right, so aren’t we, didn’t we fix that?
MILLHISER: Yeah, if a Black dude got into the White House, racism is done. We fixed that problem.
VALLAS: Yeah.
MILLHISER: He summarized his views on race in an opinion where he said the way to end discrimination on the basis of racism is to stop discriminating on the basis of race.
VALLAS: I remember that one, it’s the Supreme Court equivalent of Wayne LaPierre of the [National Rifle Association] saying the way to stop, what is it? It’s the good guy with the gun stopping the bad gun with the gun. That’s how we end gun violence, more guns. It’s the same thing.
MILLHISER: So Roberts’ view is that the problem isn’t racism. The problem is any consciousness of race at all, so if you pass a law whose purpose is to keep Black people out of a public school, that’s bad. But if you pass a lot whose purpose is to integrate public schools have you have to actually say, OK where do the black kids live and where do the white kids live and how do we construct districts in ways and how do we do attendance in ways that will integrate these schools; that’s just as bad for the exact same reason in John Roberts’ view. So Kennedy didn’t go all in on that. Kennedy at least left some room open to desegregate schools, Kennedy in a really important opinion dealing with the Fair Housing Act, basically didn’t nuke the Fair Housing Act when his former most conservative colleagues would have. He preserved at least some nub of affirmative action. And with him gone, the swing vote on the court is going to be John Roberts with his view that if you think about race at all you are bad. If you try to target the problem of racism you are no different from the Ku Klux Klan.
VALLAS: So another area where similar to abortion rights, with Roe Kennedy has not been some hero and champion of racial justice on the court but he has been an important vote that now we’re not going to have. I think you summed it up nicely in your piece for Think Progress, one of your pieces about Kennedy because you’ve been writing a lot since that —
MILLHISER: It’s been a lot that’s happened.
VALLAS: There’s been a lot that’s happened, you’ve written a lot about Kennedy since that retirement but in one of your pieces, “The Horrifying Consequences of Justice Kennedy’s Retirement” you write, “with Roberts in the driver’s seat, the court’s approach to race will become the jurisprudential equivalent of ‘All Lives Matter’. Not necessarily white supremacist but broadly skeptical of meaningful efforts to combat racism.” That sums it up pretty nicely and pretty terrifyingly.
MILLHISER: Yeah, ‘All Lives Matter’ is now the Supreme Court’s interpretation of the 14th Amendment.
VALLAS: So that’s race. But it doesn’t stop there, right, let’s get to LGBTQ rights. And that’s a particularly important discussion given that Kennedy, he may not have been a hero when it comes to racial justice or when it comes to abortion rights but he’s actually a pretty big deal on the court when it comes to some of the major cases having to do with LGBTQ.
MILLHISER: Yeah, he wrote every single one of at least the major gay rights decisions. So trans rights it a relatively new issue for the Supreme Court and Kennedy wasn’t so great on trans rights but for sexual orientation he was good. And he wrote the marriage equality decision, he wrote the Lawrencedecision in 2003 we actually had to have a Supreme Court decision saying this; that gay people cannot be prosecuted for having sex. So there’s now no longer a majority on the Supreme Court who supports the proposition that you can’t be thrown in jail for having sex.
VALLAS: I’m just going to pause there. We’re going to let that sink in, also I’m going to take a drink and so are you because that is a horrifying, horrifying thing that you just said. It’s like the opposite of a drinking game.
MILLHISER: No, it’s really, every time something terrible happens you have to get drunker.
VALLAS: Yeah, OK, alright so he wrote these decisions and basically what you’re saying is with him gone, there’s no longer a majority of justices on the court that even agrees with that basic proposition.
MILLHISER: Right, so here I honestly don’t know what’s going to happen. There was an opinion involving, Arkansas just had some derpy attempt to restrict marriage equality. And the Supreme Court said no, you don’t get to do that. We already told you that. Gorsuch wrote a dissenting opinion where using very spurious reasoning he tried to claim that the court’s marriage equality decision didn’t apply and Roberts interestingly did not join Gorsuch’s opinion. So Roberts may say look, I don’t like it but there’s thousands of people running around with marriage licenses and if we take those licenses away there’s going to be pitchforks and torches and I don’t want pitchforks and torches to be coming at me so I’m just going to let that one lay. But what we can say is first of all, there’s going to be no more good news on LGBT rights from the Supreme Court. The best we can hope is that things will stay in place.
VALLAS: Which compared to what we just talked about when it comes to racial justice and abortion rights actually sounds pretty good.
MILLHISER: Right, and then the other thing is that so an issue that is barreling, there’s a cert petition in front of the court right now asking them to hear this case is whether no Title VII, which is the broad law protecting against employment discrimination, protects against discrimination on the basis of sexual orientation. With Kennedy on the court, it think we were likely to win that case, with Kennedy gone I think there is close to a zero percent chance.
VALLAS: So this is a case where the question at issue is, is sexual orientation and discrimination on the basis —
MILLHISER: Can you be fired for being gay?
VALLAS: Yeah, is that a form of legal gender discrimination, right. So it’s an extension of existing precident that would be really important for gay people.
MILLHISER: Right and so that issue is done. And then of course the other really closely related issue is the anti-gay cake baker.
VALLAS: Yeah.
MILLHISER: So these cases involving people who say well I don’t want to follow the civil rights law and I claim that I don’t have to follow it because God told me to.
VALLAS: This is the area right, where we potentially sort of find the area where we’re going to see things get worse. So if we’re watching a plateau in terms of the court continuing to advance gay rights, the concept of religious freedom, this is where you think that things are going to get really bad.
MILLHISER: Yeah, and not just in the space of LGBT rights, I mean it happened to be the case that was before the court this term involves someone who didn’t want to serve a gay couple and the next case in line also is a woman who didn’t want to give flowers to a gay couple. So that’s where the bad news is probably going to happen first. But the next case in line, you’ve got a face from that tequila.
VALLAS: I told you what happens when I drink tequila.
MILLHISER: It is excellent tequila, I assure you.
VALLAS: Oh, it is, it is. I just have a long, storied history with tequila, as do many of us. Again, not something to talk about on air but maybe the bonus episode.
MILLHISER: Here’s what the next case would look like. This is an actual case that made its way through the courts in the 1980s. There was a Christian private school in California. And they had a policy where if you were a man or if you were an unmarried woman then you got health benefits if you worked there. But if you were a married woman you didn’t get health benefits because their religion told you that the man is supposed to provide for the wife. And so, no health insurance for you married women. And the court, this made it’s way up to the Ninth Circuit and the Ninth Circuit said of course you can’t do that. That’s gender discrimination, that’s not allowed. They claimed that they had a right to do it because of their religion and they were smacked down. Now what Alito has said, and Alito has been driving the ship in these so called religious liberty cases, he has said that religion can’t be used to justify race discrimination. So congratulations, no more whites only lunch counters. But he rather pointedly admitted other forms of discrimination, gender discrimination, sexual orientation based discrimination, gender identity, what have you.
VALLAS: All of that’s fine.
MILLHISER: Yeah, that’s what the fear is. We don’t know where the line is. I think I am close to 100% sure that Alito is going to say that you can discriminate against gay people all you want. I think that it is an open question, whether there are going to be five votes on the Supreme Court to say that it’s ok to discriminate against women if you claim that your religion requires you to.
VALLAS: So we are potentially entering, depending on who Trump nominates for the court an era where there’s a majority on the court who believes that the concept of a religious objection, oh my religion tells me I can’t do this or I have to do this, could give someone a license to discriminate not just against gay people and LGBTQ people broadly, but actually against women too.
MILLHISER: And it could potentially be much broader than that. Kagan and Gorsuch in the Masterpiece Cake Shop, had a fight over basically what it means to engage in religious discrimination. And normally, Kagan described the way that the laws has always been interpreted, which is that you can’t discriminate against someone because of their faith, but you can treat everyone equally. So if I own a bar and someone comes in and they’re loud and obnoxious and they start fights, I can say I kick out everyone who starts a fight so you’re gone. I could have a policy saying I kick out Catholics who start fights but not Jews because that would be religious discrimination.
VALLAS: That would cross the line.
MILLHISER: Yeah, but so long as the policy is applied neutrally regardless of your faith, it’s fine. Gorsuch said that essentially it is religious discrimination if you’re discriminated against because of an action you take that is motivated by your faith. So if i believe that Jesus told me to punch that dude over there, and I go up to him and I punch him, that is motivated by my faith and as Gorsuch understands it that would be a form of religious discrimination. Now I doubt very much because Gorsuch hates the idea of regulating businesses that he would apply that rule to the bar owner but he would apply that rule to the government. I am late to church and I believe that I have a religious obligation to be at church, so I am not going to follow the speed limit because I need to be on time to church. Under Gorsuch’s theory it is far from clear to me at all that I could be charged with speeding if I have a religious motivation for doing so.
VALLAS: I have to say, as somebody with a pretty lead foot and if you’ve ever driven with me you know this is true, I enjoy few things more than picking up minutes on the Google maps estimate of when you’re going to get somewhere. I have to say, that one sounds pretty good, I’m just going to tell people I’m sorry I was on my way to church. Jesus told me I had to be there by 3:30. I’m mean I’m joking. This is kind of terrifying, the picture that you’re painting here. In terms of how broad these implications could be.
MILLHISER: Part of the problem, I doubt that if a case came up involving someone who was driving 70 in a 45 because, that Gorsuch would say that yes you have a religious, but the problem is that these are sloppy thinkers. Of all people, Justice Scalia wrote a really great essay about the role of a judge where they said when I write something I constrain myself because if I don’t like, I might like the result that comes out in this case, but it’s going to have implications for all kinds of future cases and I have to be comfortable with the rule that I am announcing in every case I could possibly imagine because it’s going to apply to everyone. And part of what’s, it goes back to when we were talking about the crisis pregnancy center case, where there’s one First Amendment for one team and a different First Amendment for the other team. This is one of the most important constraints on the judiciary; the fact that the same rules apply to everyone. And so you have to think about, do you want your worst enemy to be able to take advantage of this thing before you hand down a new rule. These guys aren’t thinking that way. The problem with Gorsuch is opinion is either he’s serious in which case it leads to all the absurdity implications I just teased out, or he’s thinking oh no, I’ll just create a special rule when it’s my friends and then when it’s the other team, we’ll do something like ban Muslims.
VALLAS: So there are a lot more potential implications of a replacement for Kennedy picked by Trump, you outline all of them or many of them in your piece for Think Progress, “The Horrifying Consequences of Justice Kennedy’s Retirement”, I want to pick and choose among a couple of them because we also have to talk about what comes next and how we actually fight back here. But one that I am going to pick here that’s potentially incredibly important has to do with executions, the death penalty. And this is something people totally forget about when it comes to Kennedy.
MILLHISER: Yeah we’ll just start killing kids now.
VALLAS: And you’re not actually all that far off, you’re not really kidding here.
MILLHISER: Yeah, the rule, with Kennedy there was no longer a majority for this proposition. You are not allowed to execute people who offend when they’re under the age of 18 and you’re not allowed to execute the intellectually disabled.
VALLAS: And both of these, when you consider the length of time that the United States have had a criminal justice system, these are fairly recent developments within our jurisprudence.
MILLHISER: Yeah, these are within the last 15 or 20 years.
VALLAS: Just process that for a second, listeners. That those are recent developments when it comes to how we treat the death penalty in this country.
MILLHISER: Without Kennedy, Kennedy wasn’t great on the death penalty but the last death penalty argument was a case called Glossip v. Gross, it involved whether you could use very painful execution drugs and Kennedy wound up voting yes you can, but the bloodthirstiness, I thought that Justice Alito was going to offer to travel down to the prison and personally strangle the person at the heart of the case. The stuff that, it’s just going to get bad. These are folks who think that criminal law exists to inflict grave sanctions upon people who have hurt us in some way.
VALLAS: Including people who haven’t even committed homicide.
MILLHISER: Right, Justice Scalia once said actual innocence isn’t a defense.
VALLAS: That’s right, that’s right.
MILLHISER: He said you get your process and once the process is done, that’s it.
VALLAS: Being innocent, sorry, that’s not enough to get off from being killed by the state. That is actually what that quote means.
MILLHISER: And for what it’s worth, at least one of the people on Trump’s short list had an opinion where he more or less said this. There was a case where there was a man who was in prison for 20 years, he was on death row. The prosecutors withheld evidence from the defense attorneys that would have exonerated the man. And fortunately, eventually the Third Circuit said no, no, no you can’t execute someone who is innocent. And he was let free, but this guy dissented. He said you got all the process you’re going to get, if the state wants to execute you doesn’t matter that literally they withheld physical evidence that placed him away from the scene of the crime.
VALLAS: So it comes down to a partisan difference in opinion should you be killed by state if you are innocent or should you not.
MILLHISER: Right.
VALLAS: That is actually what you are described. OK, so there is a lot more to think about, I’ll refer folks to your Think Progress piece, which will be on our nerdy syllabus page as usual for a fuller discussion of many of the other areas we haven’t had time to get to wherein a Trump appointed replacement for Kennedy could cause all kinds of horrific consequences for basically everything for humans who care about humans should care about. But let’s talk a little bit about what comes next. So in the last couple of minutes that we have, we’re going to cram a lot into this, Ian, and I as two longwinded individuals, which may or may not correlate with our legal training. I’ll let other people weigh in on whether that is actually the reason we talk for a long time about everything that we ever talk about. In the last couple of minutes that we have, so there, what’s going to happen next is Trump is going to nominate someone.
MILLHISER: Right.
VALLAS: For the court. And that person is likely to be incredibly conservative, similar to Neil Gorsuch who now we are seeing what kinds of decisions he hands down including Janus and others. But there are two very important humans in the senate for whom a lot of this is really going to come down to them.
MILLHISER: Right.
VALLAS: And those people are Susan Collins and Lisa Murkowski.
MILLHISER: Right so we have a 51–49 senate, which means that if two Republicasn flip and vote with all the Democrats Trump’s nominee is not confirmed. Collins and Murkowski at least claim to be pro-choice. And what they need to realize is that this confirmation vote, it’s about a lot of things. But one of the things it is about is whether or not Roe v. Wade is overruled.
VALLAS: That’s right.
MILLHISER: If you vote to confirm Trump’s nominee you are voting to overrule Roe v. Wade. That is your choice you have done it. And so Susan Collins in particular, the United States senator from Maine, which is a blue state and so she can either run for reelection in a blue state as the senator who saved Roe v. Wade, or she can run for reelection as the senator who singlehandedly killed Roe v. Wade because they will need her vote. So Collins and Murkowski are the people you have to watch. If you are in Maine or you are in Alaska, you should never stop calling them because they are the people who potentially hold the keys, I’m not optimistic that we can hold the seat open for the rest of the Trump presidency, but we could actually have a normal process where rather than Trump picking some guy, a nihilist like Neil Gorsuch, there’s actually an ordinary negotiation and he picks someone that’s broadly acceptable and widely respected and maybe someone in the vein of Anthony Kennedy. And whether or not we get someone who most people can live with or whether we get someone who wakes up every morning and says how am I going to own the libs today, comes down to whether there’s enough pressure put on Collins and Murkowski that they start to feel it.
VALLAS: So those are the two people to watch and to try to influence in the weeks, the months, potentially the years ahead. But there’s also a lot to learn from what Republicans did when it came to the Supreme Court not that long ago. They kept Merrick Garland from taking his rightful seat and what a different place we would be in right now if we were watching him as a member of the court as opposed to Neil Gorsuch.
MILLHISER: So here’s what I hope John Roberts is thinking. Two words that I have heard a lot in the last few days, which aren’t used very often in judicial circles.
VALLAS: I’m on tenterhooks.
MILLHISER: Are court packing.
VALLAS: That’s not what I thought you were going to say.
[LAUGHTER]
MILLHISER: What did you think I was going to say? Also, oh sh*t.
VALLAS: It was closer to what I was thinking.
MILLHISER: Court packing is the jurisprudential equivalent of nuking another country to take out their missile silos because they are presently fueling their missiles and if you don’t launch first you will die. It is an act, court packing is when you add new members to the Supreme Court in order to change it’s majority. It’s something that Roosevelt briefly tried and then would up being mooted because the court flipped on some important issues. It is what you do when your court becomes such a threat to your nation continuing to be a democracy that you have no other choice. And Roberts has the power to make sure that doesn’t happen because when he is the swing voter he can make sure that the court continues to preside over a nation where elections matter, where states cannot be incredibly aggressive in suppressing votes. Where when there’s a president he doesn’t like in power that president can still sign a health care bill and that health care bill won’t be thrown out on some ridiculous theory. And if we continue to be a democracy then the Supreme Court will continue to play a very substantial role in American life. But I fear that people are angry. I think that people are justifiably angry because of what happened to Merrick Garland, and if the court overreaches, the demands that are going to come from the Democratic base are going to be things that will fundamentally restructure how our government functions in ways that won’t be easy to reverse.
VALLAS: So no big deal but democracy sits in the hands of Justice Roberts as well as Susan Collins and Lisa Murkowski. You heard it here from Ian Millhiser who is pretty deep into some tequila but still dropping some knowledge that has been terrifying and yet incredibly helpful. Ian Millhiser is the justice editor at Think Progress, he’s the Supreme Court correspondent for Off Kilter. Don’t you like that you have a title for Off Kilter?
MILLHISER: I didn’t even know that I came with a title these days.
VALLAS: I’ve been using it for a while but maybe I should have told you.
MILLHISER: You haven’t plugged my book yet.
VALLAS: He’s also the author of “Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.”
MILLHISER: Yes, very nice.
VALLAS: Got it right.
MILLHISER: The one good thing that could come out of this is book royalties.
VALLAS: Oh man, and there we have it we’re going to leave it there. Ian Millhiser, thank you as always for coming on the show and someday, someday you will come with good news. That day is not today.
MILLHISER: When was that day?
VALLAS: In the future.
MILLHISER: Yes, we shall look forward to that.
VALLAS: Someday.
MILLHISER: Someday.
VALLAS: Ian, thanks so much.
MILLHISER: Alright.
VALLAS: Don’t go away, more Off Kilter after the break, I’m Rebecca Vallas.
[MUSIC]
Hey Off Kilter listeners, the show is on a break this week so we’ve rounded up some of our favorite conversations to hold you over in the meantime.
Those were the voices of Rachel Robinson and Daisy Franklin, two housing activists who recently attended the low income housing coalition’s National Conference in Washington, D.C. Last week Ben Carson, President Trump’s Secretary of Housing and Urban Development unveiled a proposal to triple rents for the poorest families and take housing assistance away from unemployed and underemployed workers. This announcement comes amid a nationwide affordable housing crisis. In no state in the United States can a minimum wage worker earning $7.25 [an hour] afford even a one bedroom apartment at market rent. Meanwhile, just one in five eligible low income families are lucky enough to receive help from the nation’s already massively underfunded housing assistance programs leaving others paying 50%, 60%, 70% or even more of their incomes on rent while they languish on years, sometimes decades long waitlists waiting for assistance. Many end up facing eviction. I should note Ben Carson’s proposal which in keeping with the Trump administration’s ever Orwellian talking points, he claims is about promoting self-sufficiency requires legislation that congress would need to pass before it can take effect.
But this week on Off Kilter to help Ben Carson and the rest of us get up to speed on the reality of the affordable housing crisis in this country which Ben Carson’s proposal would put on steroids, I speak with two people working to fight eviction in very different ways. A new data set produced by Matthew Desmond and his team at the Eviction Lab revealed that Richmond is a hotspot for evictions, ranking second in the country with one in nine Richmond households facing eviction in 2016 so I talk with Pat Levy-Lavelle, an attorney at the Legal Aid Justice Center in Richmond, Virginia who represents low income families facing eviction. Pat, thanks so much for joining the show. So just to kick things off, we’re talking about the affordable housing crisis, we’re talking about the eviction epidemic, what is the relationship between the affordable housing crisis and evictions?
PAT LEVY-LAVELLE: Sure, well it’s not totally intuitive but the idea of a connection between those two things is that when there’s a shortage of affordable housing the price of any given rental housing unit on the market due to laws of supply and demand tend to go up and when folks are forced to stretch financially to have a roof over their heads they’re then at greater risk of falling behind and when they fall behind, of course, they are at least of greater risk of being evicted. Moreover, when there’s more competition for any given housing unit and the landlord knows that other tenants in the wings and available, they may be quicker to decide to go ahead and pull the plug with somebody and get them out for eviction rather than trying to work with them.
VALLAS: A new data set that we’ve been talking a little bit about already that was produced by Matthew Desmond and his team at the eviction lab revealed that Richmond is a hot spot for evictions, it ranks second nationwide with one in nine Richmond households facing eviction in 2016. What is making Richmond such a hot spot for evictions?
LEVY-LAVELLE: I think several factors go into that and there’s certainly more unpacking that I and fellow advocates need to do in the days ahead but we have some idea about what’s happening. One is that Virginia law itself is very landlord friendly. It’s fairly easy and fairly inexpensive to start unlawful detainer actions against tenants and an unlawful detainer is the legal-ese that is essentially an eviction action. And there are certain basic landlord tenant protections that tenants have in some other states like being able to withhold rent for bad housing conditions that simply don’t exist in Virginia and can get tenants in trouble. Another thing that goes into the eviction crisis in Virginia and Richmond specifically is that there’s an affordable housing crisis here in Richmond. In March 2015 the national low income housing coalition published a study showing that actually Richmond was number one in the country among metropolitan areas in the increase in the shortage of affordable housing units. And as I mentioned earlier when folks are forced out of the necessity of the market to stretch farther to get a roof over their heads, they’re certainly at risk for eviction.
Certainly moreover, in the sales market and a derivative of that in the rental market, gentrification is certainly happening in certain areas of Richmond like Church Hill, neighborhoods that were once affordable aren’t affordable anymore and that can certainly have an impact on rental housing markets. At the same time we’ve got the federal government receding from it’s own commitment, historic commitments to affordable housing so agencies like the Richmond Redevelopment and Housing Authority no longer have access to money to build new housing units, or even to fully maintain the existing ones and so as a result of that they’re looking to reduce their stock of affordable housing that they own and managing by for example, demolishing some of those units or selling them off. Moreover, in Richmond, one of the poorest areas in Virginia with low wages and high rates of poverty, and then I think an important piece of the puzzle is one thing that can make a difference jurisdiction to jurisdiction is the policies and practices of individual landlords. What I mean by that for example is the Richmond Redevelopment and Housing Authority based on a recent analysis by The Richmond Times-Dispatchfound actually that they were one of the landlords in the state that most went to eviction as a recourse for disputes with tenants whereas by contrast, for example Charlottesville Redevelopment and Housing Authority adopted an anti-eviction policy in 2015 that emphasis working with tenants rather than going through the eviction process and resulted in an estimated 91% reduction in evictions.
VALLAS: I want to get back to that in just a minute because I certainly don’t want to only talk about the problem, I want to talk about solutions as well and to think and hear about what’s actually working at not just the state level but also the local level but before we get there, backing up just a little bit for folks who haven’t experienced eviction walk us through, what is the eviction process like if you’re an individual who’s struggling to pay your rent and you end up on the ropes.
LEVY-LAVELLE: Sure well the eviction process in Virginia unfortunately is somewhat complicated and for the average person on the ground facing hard times and trying to figure out what to do, it’s filled with legal-ese and uncertainty and essentially a lack of understandable information. Let’s talk about, for example, an alleged unpaid rent situation, which is a fairly typical fact pattern that can lead to eviction. The first step in the process would be for the landlord to deliver to the tenant what’s called a pay or quit notice. And a pay or quit notice has a bunch of information on it and it’s not always clearly described in clear and plain English but essentially what the pay or quit notice is intended to do is tell the tenant that they have a certain amount of time to pay the charges that are listed on the pay or quit notice or the landlord could take them to court. Now maybe because they’re written by attorneys, maybe because they’re trying to comply with state law, that very simple message often becomes several paragraphs with lots of imposing language and language that is not clear.
But if the tenant doesn’t pay the amount of the bill within a certain period of time which in Virginia is typically 5 days, the landlord can then take the next step which is to file a piece of court paperwork called a summons for unlawful detainer, another legalistic term that essentially means eviction court case. That piece of paperwork is delivered either into the tenants hand or a member of the tenants household or otherwise posted on the tenants door and mailed to the tenant, it’s a court form that has a lot of information on it but one of the most important pieces is that it lists the first date and time that the tenant is supposed to show up in court. Now again, I mentioned that’s a very complicated form that has a lot of information on it and a lot of tenants when they see that don’t know what to do, what to think or maybe they think my gosh, I owe some amount of money, the rest is history but the fact is that there are often things that are or can be done in the eviction process.
And one of the most important things is for tenants to show up at that return date which is a madhouse especially in some of the bigger urban Virginia jurisdictions where one judge will find within a very limited period of time to triage potentially dozens if not as many as a couple hundred cases very briefly by a docket, calling person after person, many of whom aren’t showing up either because they’re intimidated or scared or they think the conclusion of the case is a certainty that they’ll lose and again the judge is trying to triage all these cases and figure out what to do with them. The judges are often asking the rent cases, for example, simply if the tenant owes the landlord money as opposed to going through a more extensive series of questions that would reveal potential deficiencies with the landlords case and then if the tenant puts up a credible short explanation as to why there is some sort of meaningful dispute, those cases are typically set for trial on a different day where the tenant is expected to return, the landlord is expected to return and the trial itself happens.
The trials themselves are fairly typically fairly short, fairly rough with limited procedures and as a result at the conclusion of the trial a judge will almost always make a decision from the bench then and there as to whether the tenant gets to stay or go, whether the tenant owes money or doesn’t owe money and who wins the case. If the landlord wins the case then a typical part of the judgment is a judgment for possession. That’s distinguished from the piece of a case that might involve money but a judgment for possession, again is another legalistic term that essentially means the landlord has the right to evict somebody. The landlord typically has to wait several days before filing another legalistic piece of paperwork called a request for right of possession, essentially that means them triggering the process to actually get somebody out. And that is delivered to the sheriff and then from the sheriff to the tenant listing an actual date and time for eviction at least 72 hours after the notice is granted and over to the tenant and then at that date and time there’ll be someone from the sheriff’s office actually there, typically with somebody from the landlord’s office and the locks are being changed the person is being told to leave if they’re still there. And property may remain in it for a limited period before being removed by the tenant or otherwise moved to the curb or put in a storage unit.
There’s definitely several steps in the process but for folks who don’t know this and for folks who are on the ground facing hard times it’s complicated, it’s messy, there’s a lot of uncertainty and it’s intimidating.
VALLAS: And you’re describing a really complicated process with lots of forms, lots of legalese, something that landlords who maybe have gone through this a number of times because of the volume of folks that they provide housing to and collect rent from. They might be really accustomed to it whereas someone who is going through this process on the other side as a tenant might be incredibly confused and lost navigating this process. You’re a lawyer who helps people understand this, helps them enforce their rights and represents people in these cases among other types of cases that you work on at legal aid in Virginia. But a lot of folks going through this process don’t end up having lawyers because they don’t actually have a right to a lawyer because these are civil cases.
LEVY-LAVELLE: That’s right. Folks across the country are talking about how significant eviction cases are to individual tenants and their families trying to keep a roof over their head. There was a Supreme Court case from many years ago that said in certain types of criminal proceeding, in a case called Gideonthat folks did have a right to court appointed attorneys but that right doesn’t exist again, almost anywhere in the country in civil cases including really, really important ones like eviction cases and when folks don’t have an attorney and they’re left to navigate the process on their own, unless they’ve been through it before or have seen it extensively which is almost no one, they’re left really to try to figure out as they simultaneously deal with the onus and feel of losing their housing.
VALLAS: So you described in great detail what the eviction process can be like and I should note, what you described when it comes to a lot of the different legal pieces is specific to Virginia and is different in lots of different states, there can be lots of different variations on the theme you describe but the overall architecture you described I think gives folks a sense of what this actually looks like on the ground but what happens after a person gets evicted?
LEVY-LAVELLE: Sure, well every situation is different but a lot of folks that we see don’t necessarily have another good place to go. Some folks will have family members or friends with whom they can move into on a temporary basis but other folks are essentially looking for emergency shelter that’s provided by maybe a locality or group, most folks don’t literally end up on the streets but a lot of folks are left in the margins without good options. And that obviously creates problems not only for those families but for localities that are having to spend money on emergency housing and for school districts that are forced to pay more moneys to work with families that are experiencing homelessness or housing instability. It’s a problem for landlords who are trying to turn over units and moving money in the process of doing that, which is something that’s maybe not talked about enough. And it’s certainly a problem for those families themselves.
Whether it’s potentially losses from work and job loss, whether it’s their kids missing days from school or having to switch schools, whether it’s them potentially losing housing or having a harder time keeping up with medical assignments or even just the reality of an eviction judgment on their credit report and that being essentially a mark against them when they’re applying for other housing and trying to find another place to go.
VALLAS: And that’s one of the things that I think was probably least well understood, certainly before Matthew Desmond’s book “Evicted” shown a light on the fact that eviction is not just a consequence of poverty but that it’s actually a cause of poverty because of some of the long lasting consequences that can stem for having a scarlet ‘A’ on your chest from having been evicted.
LEVY-LAVELLE: That’s right, that’s right I don’t think folks talk enough about the problem, the ripple that comes out of an eviction. I think a lot of people think of evictions as sort of a truism that happens automatically when somebody falls behind in rent or there’s some sort of problem and they really don’t have to be that way. There’s things that can be done before evictions happen and there’s reasons why all parties should be interesting in seeking to reduce this epidemic because it hurts all parties including landlords.
VALLAS: So getting back to what you were bringing up earlier, when it comes to alternatives to this eviction machine that’s chewing people up and spitting them out and leaving them with these eviction records that can make it harder for them to find housing down the road while also gumming up the works for the courts, for the housing supply component of the situation. What model, tell us more about the model before you were describing that has actually managed to drastically reduce the eviction rate.
LEVY-LAVELLE: Sure, well there’s different models happening different places in the country. One thing that some of my colleagues worked on, the Public Housing Residence Association and Public Housing Authority in Charlottesville several years back was looking at the problem of evictions there and think how there could be a win win solution to reduce evictions. And the housing authority there had extensive consultations with the residents, with community allies and activists and attorneys at Legal Aid Justice Center and organizers at Legal Aid Justice Center and what they came up with was a new eviction policy that went into effect in early 2015 that essentially had four main pieces to it. One was that there was some sort of dispute that would traditionally lead to an eviction case being filed, the housing authority would instead first offer a one on one meeting with the tenant to have an opportunity to come in and talk with housing authority staff about the concern and figuring out whether there are ways to work with. The second piece was that when the dispute was essentially just about money or allegedly unpaid money the housing authority would offer repayment plans to try to get people back on their feet rather than moving ahead with the eviction process. The third piece was that there was a focus from reforming the lease termination notice so it was a clear common sense explanation about what tenants could do to resolve the problem in the situations where that was possible. And then the fourth thing, again focusing on unpaid money cases, the housing authority set a threshold of $50 basically a minimum threshold so amounts less than that wouldn’t lead to an eviction case being filed. In [INAUDIBLE] they had already started to implement that policy, in the period of 2011 through 2014 and over that time period the staff showed that evictions by the housing authority decreased by 91% which is of course just a seismic change that helps the housing authority by reducing it’s turnover costs and increasing its rent. And in fact those stats did happen and it also benefitted a lot of tenants by not putting them through the process and by keeping a roof over their heads.
VALLAS: In the last minute or so that I have with you if folks are listening right now and they’re themselves on the edge facing housing precarity, perhaps even being threatened with eviction what should folks know about what their rights are and where they can go for help?
LEVY-LAVELLE: Sure, I would start by saying that each state’s laws regarding eviction are different and so it’s important to know what the laws are where they live. When I say ‘know what the laws are’ every legal system as a certain degree of complexity and there’s certain wrinkles in the law so I don’t mean to suggest that folks should try to figure out the law on their own and represent themselves. If at all possible, there’s allies and activists and advocates across the country, legal aid organizations, tenant community groups, local non-profit housing providers and non-attorney housing advocates and sometimes cities or counties who themselves have informational programs for tenants. And so folks as early as possible when they think that there is or there might be a dispute with their landlord, it’s always good to talk with somebody who knows the lay of the land. Because tenants going through this process typically as you mentioned have a lot less knowledge and information about the process than landlords and certainly seeking help early is the best opportunity to try to keep your housing and when folks contact us, for example, early they stand a much better chance of keeping roofs over their head than if they contact us at the last minute.
VALLAS: I’ve been speaking with Pat Levy-Lavelle, he’s an attorney at the Legal Aid Justice Center in Richmond, Virginia who represents low income families facing eviction and other types of civil matters. Pat, thank you so much for taking the time to join the show.
LEVY-LAVELLE: Great, thanks for having me.
VALLAS: Next up, to continue the conversation on the affordable housing crisis and the eviction epidemic, I’m joined by Sarah Leavitt, the curator of the “Evicted” exhibit currently underway at the National Building Museum. The exhibit is based on Princeton sociologist Matthew Desmond’s Pulitzer Prize winning book by the same name and showcases the faces and stories of people who have faced eviction in communities across the U.S. Sarah Leavitt, thanks so much for joining the show.
VALLAS: And that does it for this week’s episode of Off Kilter, powered by the Center for American Progress Action Fund. I’m your host, Rebecca Vallas, the show is produced each week by Will Urquhart. Find us on Facebook and Twitter @offkiltershow and you can find us on the airwaves on the Progressive Voices Network and the WeAct Radio Network or anytime as a podcast on iTunes. See you next week.
REBECCA VALLAS (HOST): Hey Off Kilter listeners, the show is on a break this week so we’ve rounded up some of our favorite conversations to hold you over in the meantime.
You’re listening to Off Kilter, I’m Rebecca Vallas. Last week the Supreme Court wrapped up its term and its last round of decision was a doozy. But the horror show wasn’t limited to the final decisions it decided, from Janus to the Muslim Ban and more, it was capped off by the sudden announcement that Justice Anthony Kennedy is stepping down, leaving Donald Trump to name his replacement on the court. To unpack what this means for basically everything, I’m joined by Ian Millhiser, justice editor at Think Progress and Off Kilter’s Supreme Court correspondent. Ian, thanks so much for joining the show and also f***.
IAN MILLHISER: F***.
VALLAS: Also, f***.
MILLHISER: I mean, we got to live in a constitutional democracy for more than 30 decades, that’s more than most people get. I think we should be grateful for what we had and remember it fondly.
VALLAS: We had a good run, Ian.
MILLHISER: We had a great run.
VALLAS: It was a good run we had. So Ian, I’m not just joined by you, I’m also joined and you are joined by copious amounts of alcohol.
MILLHISER: Yes, this is a time for drinking.
VALLAS: There isn’t enough alcohol in the world for what we’re about to talk about. Just, spoiler alert, if you’re someone whose stomach turns when you hear about literally everything you care about being wiped away in a very short span of time, this may not be the episode for you.
MILLHISER: This is a bad time to be sober.
VALLAS: Well, so with that we’ll leave our listeners a minute or so to get out their drinks if that’s something that they do so that they can cope while they listen if they’re still listening. But Ian just before we get into what comes next because Kennedy is where all of our minds are right now. Help us unpack, what’s just a quick run down of the cases that the court just handed down, a helpful starting point for what we think about in terms of what comes next.
MILLHISER: Yes, so we just had a three-day long shit-storm. We got the Muslim ban, apparently the president now is allowed to ban people so long as he says he’s not doing it for unconstitutional reasons even though he went all over the country bragging about the unconstitutional reason he was going to do it, so that’s new. We also, for those of you who are fans of Japanese internment, they simultaneously overruled Korematsu, which was the case saying that we could have Japanese internment and reaffirmed its’ core holding that we’re just going to ignore everything that the Constitution says whenever the president screams the word ‘national security’. So that was one day. We got the Janus case, which is an attempt really just to defund a bunch of public sector unions. basically what this says, so historically unions have been able to get reimbursements from non-members of union for services that they provide to those non-members. The holding of Janus is that they will now have to provide those services for free. And of course that’s not very good for the finances of the unions, the whole point of this case is that when you strain the unions of money, some of them will collapse and then no one gets the benefit of being in a union.
VALLAS: Some people have described the Janus case, which we’ve all known was coming and I think we all expected where this was headed when the decision came down, given the make up of the court right, but some legal scholars and advocates have described this case as the thread that you pull from the sweater that makes the entire sweater unravel.
MILLHISER: Right, I mean what it is, you may have heard the term ‘right to work’ laws before. That’s what a ‘right to work’ law is.
VALLAS: ‘Right to work’ being exactly the opposite of what it sounds like. It’s actually anti-union.
MILLHISER: Right to work means that the union has to provide services free to the people who don’t want to pay them. And obviously, if I had to do my job and not get paid for it, I wouldn’t be able to do that job for very long either.
VALLAS: And we talked a little bit last week in the ‘In Case You Missed It’ segment, some of the consequences of Janus, it’s not just something that’s going to hurt unionized workers and unions, it’s potentially a huge blow to workers generally.
MILLHISER: Right.
VALLAS: Because all workers benefit from unions, they receive the benefits whether they’re a member or not; higher wages, better working conditions, a voice on the job, all of that stuff. So Janus, a huge blow to workers that we know workers are going to fight back and unions are going to fight back from but a really devastating anti-worker case. There’s another case that’s not getting a ton of attention that has to do with crisis pregnancy centers.
MILLHISER: Yeah, so crisis pregnancy centers for those who aren’t aware, are the sham health centers, some of them provide limited medical services, some of them don’t provide any medical services at all. But the whole point of them is that they make themselves look like abortion clinics so if you need an abortion, you’ll go there and they basically then try to run out the clock on you. They try to delay you from getting the abortion until it’s been so long that you can no longer legally get the abortion and then ha, they’ve tricked you, now you don’t get it. And so California passed a law which required them to make certain disclosures, which would have directed women towards abortion care in some cases and in other cases just made it clear this wasn’t a place that’s going to provide them with medical care. And the Supreme Court struck that decision down, I mean I actually, I thought this was a hard case. But the reason I thought it was a hard case is that there’s another line of decisions saying that if you’re an abortion provider, states can make you follow what are sometimes called informed consent laws where often it’s just you have to read a script whose purpose is to, the doctor has to read a script to their patients whose purpose is to convince the patient not to have an abortion. And there’s six states where the script says something like just so you know, you’re about to end the life of a human life and so like it’s not, this isn’t medical information that they’re providing.
And so there’s a whole line of cases, the First Amendment just doesn’t protect you against censorship, it protects you against forced speech. So it’s not ridiculous to say that crisis pregnancy centers don’t have to post these notices, but what the Supreme Court has said is that crisis pregnancy centers get one First Amendment where they have huge robust protections against not having to post these notices they don’t want to post. But abortion clinics get a different First Amendment, which is not as good, where their doctors can be compelled to advocate for the other side. And that’s actually really, really frightening.
VALLAS: And potentially has pretty significant implications for a whole range of issues, not just within the context of abortion.
MILLHISER: Right, so the whole point of the First Amendment, so the biggest sin that the government can commit under the First Amendment is viewpoint discrimination, where they say that people who hold one view on a debate are treated worse than people, that is the worst thing you can do under the First Amendment. And the Supreme Court of the United States whose job is to police the First Amendment and make sure that viewpoint discrimination doesn’t happen just wrote viewpoint discrimination into the First Amendment itself.
VALLAS: So essentially picking favorites.
MILLHISER: Exactly.
VALLAS: Special treatment for certain views.
MILLHISER: Exactly, which is a bizarre-o thing for the Supreme Court to do. I mean again, I think that they could have struck down both the anti-abortion informed consent laws and the California law, or they could have upheld both of them. But what they did instead is they said certain speech is better than other speech in their mind.
VALLAS: So this is what the Supreme Court just did in its last round of decisions. There’s a lot more as well, those are just a few of the low lights, not highlights. But let’s get to the Kennedy news, which I know is where my brain is going and I think I’ve had about half a glass of wine in the short period of time we’ve been talking already so I think maybe I’m ready to start going there.
MILLHISER: You really should switch to the tequila.
VALLAS: Well, I’m going to get there. I’ve had a long day, Ian.
MILLHISER: Which is why you need to switch to the tequila.
[LAUGHTER]
VALLAS: I’ve lived a lot of lives today and yesterday. We all have and the day before this, and this year and it goes on. So ok, a lot of people as soon as Kennedy made this announcement went oh f***. And in fact, that was basically the front page of The New York Daily News the day after the announcement. That was literally what was on the front page of the newspaper with a lot of little astericks and percentage signs and other characters bleeping it out. But I want to get specific about what we think the consequences of a Trump replacement for Kennedy on the court would mean. A lot of people have said bye-bye Roe v. Wade, bye-bye protections against discrimination and more. And a lot of conservatives are saying hang on, let’s not get histrionic, let’s not say that everything is going to get wiped out. It’s all going to be fine.
MILLHISER: Let’s not say that thing that we’ve been advocating for for the last 30 years is going to happen just because we’re about to get a majority on the Supreme Court.
VALLAS: But you have looked into this and you’ve actually looked area by area, case by case, at where Kennedy has been and where we would see a shift if we saw the court’s conservative block get another member in lieu of where Kennedy has been as the swing vote on the court. So I want to go through some of these important and hot button issues in turn. So let’s start with Roe v. Wade because that’s probably where we have to start.
MILLHISER: Yes. So Roe v. Wade is done. There’s a question of how it’s going to die, whether the court will write the words “Roe v. Wade is overruled” or whether they’ll just find some way to uphold every crappy anti-abortion that comes along so that in theory you have a right to an abortion but in fact no one can open an abortion clinic unless it has a operating room that is made out of gold and unless every one of their doctors’ has completely a 100,000 hour training course.
VALLAS: Which is basically the same thing as saying Roe v. Wade is overruled.
MILLHISER: Exactly.
VALLAS: It’s just a fancy, smokescreen way of doing.
MILLHISER: Exactly.
VALLAS: But Ian, just to play devil’s advocate for a second, a lot of people are saying wait a second, Kennedy was no fan of abortion rights. He wasn’t some staunch defender of Roe himself, so really are we going to see that much of a shift with him gone and potentially a Trump selected replacement on the court.
MILLHISER: I think Kennedy sat on 22 abortion cases and he voted against abortion in 20 of them. So Kennedy was not good on this issue. But one of the things that he did in his final years on the court, there was a Texas law that was much like the law that I just described, it required abortion clinics to have, spend millions of dollars on facilities they didn’t need. It required doctors to have credentials that were very hard to get and that they also didn’t need in order to be able to safety perform an abortion. The idea, it was a shame health law. You make it look like it’s a health regulation but these aren’t regulations that actually do anything to improve the health of the facilities.
VALLAS: Like the walls in the hallways have to be a certain distance apart because what if you need to push a stretcher through and it’s actually like we’re giving people the abortion pill here so that’s not even related to what we do but that kind of stuff.
MILLHISER: Or you have to have full stocked operating rooms even if your clinic only provides medication abortions and they don’t perform surgeries at all. It was a sham regulation whose purpose was the drive up the cost of being able to get abortions. And Kennedy said no, that law is no good. Kennedy said I will allow you to carve away, to make incursions on the right to choose but if you just go headlong at it and try to knock it out, that’s not allowed. That was a 5 to 4 decision.
VALLAS: That’s a pretty significant decision where he was the swing vote and he actually joined the part of the court that was protecting abortion rights in that case.
MILLHISER: Exactly. And so with him gone, there’s no longer a consensus for that, which means, one way or another Roe v. Wade is doomed.
VALLAS: So OK, I’m getting pretty scared and pretty depressed so I’m going to pour a little bit more wine.
MILLHISER: That’s a good call.
VALLAS: And then I am going to get to the tequila that you brought and thank you for bringing it.
MILLHISER: You didn’t think I was going to bring it.
VALLAS: I didn’t actually no.
[LAUGHTER]
MILLHISER: When I told you I was bringing tequila, I will bring tequila.
VALLAS: Well I also told you I was bringing things I didn’t bring.
[LAUGHTER]
MILLHISER: I’m very disappointed in you for that.
VALLAS: We can talk about that off air. [LAUGHTER] So it’s not just Roe v. Wade that is potentially thrown in the trash. It is also protections that have been really important for racial justice.
MILLHISER: Yeah, so Kennedy again, he was no one’s hero on racial justice.
VALLAS: For anyone who’s wondering if I’m actually drinking wine, yes you just heard me pour some.
MILLHISER: Yes, no we are getting lit tonight.
VALLAS: This is really happening.
MILLHISER: So let’s take a step back. Chief Justice Roberts is now the swing vote on the Supreme Court. And Roberts’ approach to every racial question that comes before him is to stick his fingers in his ears, close his eyes and say nah, nah, nah, nah, nah I’m not listening. He refuses to acknowledge the existence of racism. He literally wrote an opinion saying that we don’t need the Voting Rights Act anymore because there isn’t enough racism in America. He wrote that three years before Donald Trump got elected.
VALLAS: Yeah, because we had Obama as president, right, so aren’t we, didn’t we fix that?
MILLHISER: Yeah, if a Black dude got into the White House, racism is done. We fixed that problem.
VALLAS: Yeah.
MILLHISER: He summarized his views on race in an opinion where he said the way to end discrimination on the basis of racism is to stop discriminating on the basis of race.
VALLAS: I remember that one, it’s the Supreme Court equivalent of Wayne LaPierre of the [National Rifle Association] saying the way to stop, what is it? It’s the good guy with the gun stopping the bad gun with the gun. That’s how we end gun violence, more guns. It’s the same thing.
MILLHISER: So Roberts’ view is that the problem isn’t racism. The problem is any consciousness of race at all, so if you pass a law whose purpose is to keep Black people out of a public school, that’s bad. But if you pass a lot whose purpose is to integrate public schools have you have to actually say, OK where do the black kids live and where do the white kids live and how do we construct districts in ways and how do we do attendance in ways that will integrate these schools; that’s just as bad for the exact same reason in John Roberts’ view. So Kennedy didn’t go all in on that. Kennedy at least left some room open to desegregate schools, Kennedy in a really important opinion dealing with the Fair Housing Act, basically didn’t nuke the Fair Housing Act when his former most conservative colleagues would have. He preserved at least some nub of affirmative action. And with him gone, the swing vote on the court is going to be John Roberts with his view that if you think about race at all you are bad. If you try to target the problem of racism you are no different from the Ku Klux Klan.
VALLAS: So another area where similar to abortion rights, with Roe Kennedy has not been some hero and champion of racial justice on the court but he has been an important vote that now we’re not going to have. I think you summed it up nicely in your piece for Think Progress, one of your pieces about Kennedy because you’ve been writing a lot since that —
MILLHISER: It’s been a lot that’s happened.
VALLAS: There’s been a lot that’s happened, you’ve written a lot about Kennedy since that retirement but in one of your pieces, “The Horrifying Consequences of Justice Kennedy’s Retirement” you write, “with Roberts in the driver’s seat, the court’s approach to race will become the jurisprudential equivalent of ‘All Lives Matter’. Not necessarily white supremacist but broadly skeptical of meaningful efforts to combat racism.” That sums it up pretty nicely and pretty terrifyingly.
MILLHISER: Yeah, ‘All Lives Matter’ is now the Supreme Court’s interpretation of the 14th Amendment.
VALLAS: So that’s race. But it doesn’t stop there, right, let’s get to LGBTQ rights. And that’s a particularly important discussion given that Kennedy, he may not have been a hero when it comes to racial justice or when it comes to abortion rights but he’s actually a pretty big deal on the court when it comes to some of the major cases having to do with LGBTQ.
MILLHISER: Yeah, he wrote every single one of at least the major gay rights decisions. So trans rights it a relatively new issue for the Supreme Court and Kennedy wasn’t so great on trans rights but for sexual orientation he was good. And he wrote the marriage equality decision, he wrote the Lawrencedecision in 2003 we actually had to have a Supreme Court decision saying this; that gay people cannot be prosecuted for having sex. So there’s now no longer a majority on the Supreme Court who supports the proposition that you can’t be thrown in jail for having sex.
VALLAS: I’m just going to pause there. We’re going to let that sink in, also I’m going to take a drink and so are you because that is a horrifying, horrifying thing that you just said. It’s like the opposite of a drinking game.
MILLHISER: No, it’s really, every time something terrible happens you have to get drunker.
VALLAS: Yeah, OK, alright so he wrote these decisions and basically what you’re saying is with him gone, there’s no longer a majority of justices on the court that even agrees with that basic proposition.
MILLHISER: Right, so here I honestly don’t know what’s going to happen. There was an opinion involving, Arkansas just had some derpy attempt to restrict marriage equality. And the Supreme Court said no, you don’t get to do that. We already told you that. Gorsuch wrote a dissenting opinion where using very spurious reasoning he tried to claim that the court’s marriage equality decision didn’t apply and Roberts interestingly did not join Gorsuch’s opinion. So Roberts may say look, I don’t like it but there’s thousands of people running around with marriage licenses and if we take those licenses away there’s going to be pitchforks and torches and I don’t want pitchforks and torches to be coming at me so I’m just going to let that one lay. But what we can say is first of all, there’s going to be no more good news on LGBT rights from the Supreme Court. The best we can hope is that things will stay in place.
VALLAS: Which compared to what we just talked about when it comes to racial justice and abortion rights actually sounds pretty good.
MILLHISER: Right, and then the other thing is that so an issue that is barreling, there’s a cert petition in front of the court right now asking them to hear this case is whether no Title VII, which is the broad law protecting against employment discrimination, protects against discrimination on the basis of sexual orientation. With Kennedy on the court, it think we were likely to win that case, with Kennedy gone I think there is close to a zero percent chance.
VALLAS: So this is a case where the question at issue is, is sexual orientation and discrimination on the basis —
MILLHISER: Can you be fired for being gay?
VALLAS: Yeah, is that a form of legal gender discrimination, right. So it’s an extension of existing precident that would be really important for gay people.
MILLHISER: Right and so that issue is done. And then of course the other really closely related issue is the anti-gay cake baker.
VALLAS: Yeah.
MILLHISER: So these cases involving people who say well I don’t want to follow the civil rights law and I claim that I don’t have to follow it because God told me to.
VALLAS: This is the area right, where we potentially sort of find the area where we’re going to see things get worse. So if we’re watching a plateau in terms of the court continuing to advance gay rights, the concept of religious freedom, this is where you think that things are going to get really bad.
MILLHISER: Yeah, and not just in the space of LGBT rights, I mean it happened to be the case that was before the court this term involves someone who didn’t want to serve a gay couple and the next case in line also is a woman who didn’t want to give flowers to a gay couple. So that’s where the bad news is probably going to happen first. But the next case in line, you’ve got a face from that tequila.
VALLAS: I told you what happens when I drink tequila.
MILLHISER: It is excellent tequila, I assure you.
VALLAS: Oh, it is, it is. I just have a long, storied history with tequila, as do many of us. Again, not something to talk about on air but maybe the bonus episode.
MILLHISER: Here’s what the next case would look like. This is an actual case that made its way through the courts in the 1980s. There was a Christian private school in California. And they had a policy where if you were a man or if you were an unmarried woman then you got health benefits if you worked there. But if you were a married woman you didn’t get health benefits because their religion told you that the man is supposed to provide for the wife. And so, no health insurance for you married women. And the court, this made it’s way up to the Ninth Circuit and the Ninth Circuit said of course you can’t do that. That’s gender discrimination, that’s not allowed. They claimed that they had a right to do it because of their religion and they were smacked down. Now what Alito has said, and Alito has been driving the ship in these so called religious liberty cases, he has said that religion can’t be used to justify race discrimination. So congratulations, no more whites only lunch counters. But he rather pointedly admitted other forms of discrimination, gender discrimination, sexual orientation based discrimination, gender identity, what have you.
VALLAS: All of that’s fine.
MILLHISER: Yeah, that’s what the fear is. We don’t know where the line is. I think I am close to 100% sure that Alito is going to say that you can discriminate against gay people all you want. I think that it is an open question, whether there are going to be five votes on the Supreme Court to say that it’s ok to discriminate against women if you claim that your religion requires you to.
VALLAS: So we are potentially entering, depending on who Trump nominates for the court an era where there’s a majority on the court who believes that the concept of a religious objection, oh my religion tells me I can’t do this or I have to do this, could give someone a license to discriminate not just against gay people and LGBTQ people broadly, but actually against women too.
MILLHISER: And it could potentially be much broader than that. Kagan and Gorsuch in the Masterpiece Cake Shop, had a fight over basically what it means to engage in religious discrimination. And normally, Kagan described the way that the laws has always been interpreted, which is that you can’t discriminate against someone because of their faith, but you can treat everyone equally. So if I own a bar and someone comes in and they’re loud and obnoxious and they start fights, I can say I kick out everyone who starts a fight so you’re gone. I could have a policy saying I kick out Catholics who start fights but not Jews because that would be religious discrimination.
VALLAS: That would cross the line.
MILLHISER: Yeah, but so long as the policy is applied neutrally regardless of your faith, it’s fine. Gorsuch said that essentially it is religious discrimination if you’re discriminated against because of an action you take that is motivated by your faith. So if i believe that Jesus told me to punch that dude over there, and I go up to him and I punch him, that is motivated by my faith and as Gorsuch understands it that would be a form of religious discrimination. Now I doubt very much because Gorsuch hates the idea of regulating businesses that he would apply that rule to the bar owner but he would apply that rule to the government. I am late to church and I believe that I have a religious obligation to be at church, so I am not going to follow the speed limit because I need to be on time to church. Under Gorsuch’s theory it is far from clear to me at all that I could be charged with speeding if I have a religious motivation for doing so.
VALLAS: I have to say, as somebody with a pretty lead foot and if you’ve ever driven with me you know this is true, I enjoy few things more than picking up minutes on the Google maps estimate of when you’re going to get somewhere. I have to say, that one sounds pretty good, I’m just going to tell people I’m sorry I was on my way to church. Jesus told me I had to be there by 3:30. I’m mean I’m joking. This is kind of terrifying, the picture that you’re painting here. In terms of how broad these implications could be.
MILLHISER: Part of the problem, I doubt that if a case came up involving someone who was driving 70 in a 45 because, that Gorsuch would say that yes you have a religious, but the problem is that these are sloppy thinkers. Of all people, Justice Scalia wrote a really great essay about the role of a judge where they said when I write something I constrain myself because if I don’t like, I might like the result that comes out in this case, but it’s going to have implications for all kinds of future cases and I have to be comfortable with the rule that I am announcing in every case I could possibly imagine because it’s going to apply to everyone. And part of what’s, it goes back to when we were talking about the crisis pregnancy center case, where there’s one First Amendment for one team and a different First Amendment for the other team. This is one of the most important constraints on the judiciary; the fact that the same rules apply to everyone. And so you have to think about, do you want your worst enemy to be able to take advantage of this thing before you hand down a new rule. These guys aren’t thinking that way. The problem with Gorsuch is opinion is either he’s serious in which case it leads to all the absurdity implications I just teased out, or he’s thinking oh no, I’ll just create a special rule when it’s my friends and then when it’s the other team, we’ll do something like ban Muslims.
VALLAS: So there are a lot more potential implications of a replacement for Kennedy picked by Trump, you outline all of them or many of them in your piece for Think Progress, “The Horrifying Consequences of Justice Kennedy’s Retirement”, I want to pick and choose among a couple of them because we also have to talk about what comes next and how we actually fight back here. But one that I am going to pick here that’s potentially incredibly important has to do with executions, the death penalty. And this is something people totally forget about when it comes to Kennedy.
MILLHISER: Yeah we’ll just start killing kids now.
VALLAS: And you’re not actually all that far off, you’re not really kidding here.
MILLHISER: Yeah, the rule, with Kennedy there was no longer a majority for this proposition. You are not allowed to execute people who offend when they’re under the age of 18 and you’re not allowed to execute the intellectually disabled.
VALLAS: And both of these, when you consider the length of time that the United States have had a criminal justice system, these are fairly recent developments within our jurisprudence.
MILLHISER: Yeah, these are within the last 15 or 20 years.
VALLAS: Just process that for a second, listeners. That those are recent developments when it comes to how we treat the death penalty in this country.
MILLHISER: Without Kennedy, Kennedy wasn’t great on the death penalty but the last death penalty argument was a case called Glossip v. Gross, it involved whether you could use very painful execution drugs and Kennedy wound up voting yes you can, but the bloodthirstiness, I thought that Justice Alito was going to offer to travel down to the prison and personally strangle the person at the heart of the case. The stuff that, it’s just going to get bad. These are folks who think that criminal law exists to inflict grave sanctions upon people who have hurt us in some way.
VALLAS: Including people who haven’t even committed homicide.
MILLHISER: Right, Justice Scalia once said actual innocence isn’t a defense.
VALLAS: That’s right, that’s right.
MILLHISER: He said you get your process and once the process is done, that’s it.
VALLAS: Being innocent, sorry, that’s not enough to get off from being killed by the state. That is actually what that quote means.
MILLHISER: And for what it’s worth, at least one of the people on Trump’s short list had an opinion where he more or less said this. There was a case where there was a man who was in prison for 20 years, he was on death row. The prosecutors withheld evidence from the defense attorneys that would have exonerated the man. And fortunately, eventually the Third Circuit said no, no, no you can’t execute someone who is innocent. And he was let free, but this guy dissented. He said you got all the process you’re going to get, if the state wants to execute you doesn’t matter that literally they withheld physical evidence that placed him away from the scene of the crime.
VALLAS: So it comes down to a partisan difference in opinion should you be killed by state if you are innocent or should you not.
MILLHISER: Right.
VALLAS: That is actually what you are described. OK, so there is a lot more to think about, I’ll refer folks to your Think Progress piece, which will be on our nerdy syllabus page as usual for a fuller discussion of many of the other areas we haven’t had time to get to wherein a Trump appointed replacement for Kennedy could cause all kinds of horrific consequences for basically everything for humans who care about humans should care about. But let’s talk a little bit about what comes next. So in the last couple of minutes that we have, we’re going to cram a lot into this, Ian, and I as two longwinded individuals, which may or may not correlate with our legal training. I’ll let other people weigh in on whether that is actually the reason we talk for a long time about everything that we ever talk about. In the last couple of minutes that we have, so there, what’s going to happen next is Trump is going to nominate someone.
MILLHISER: Right.
VALLAS: For the court. And that person is likely to be incredibly conservative, similar to Neil Gorsuch who now we are seeing what kinds of decisions he hands down including Janus and others. But there are two very important humans in the senate for whom a lot of this is really going to come down to them.
MILLHISER: Right.
VALLAS: And those people are Susan Collins and Lisa Murkowski.
MILLHISER: Right so we have a 51–49 senate, which means that if two Republicasn flip and vote with all the Democrats Trump’s nominee is not confirmed. Collins and Murkowski at least claim to be pro-choice. And what they need to realize is that this confirmation vote, it’s about a lot of things. But one of the things it is about is whether or not Roe v. Wade is overruled.
VALLAS: That’s right.
MILLHISER: If you vote to confirm Trump’s nominee you are voting to overrule Roe v. Wade. That is your choice you have done it. And so Susan Collins in particular, the United States senator from Maine, which is a blue state and so she can either run for reelection in a blue state as the senator who saved Roe v. Wade, or she can run for reelection as the senator who singlehandedly killed Roe v. Wade because they will need her vote. So Collins and Murkowski are the people you have to watch. If you are in Maine or you are in Alaska, you should never stop calling them because they are the people who potentially hold the keys, I’m not optimistic that we can hold the seat open for the rest of the Trump presidency, but we could actually have a normal process where rather than Trump picking some guy, a nihilist like Neil Gorsuch, there’s actually an ordinary negotiation and he picks someone that’s broadly acceptable and widely respected and maybe someone in the vein of Anthony Kennedy. And whether or not we get someone who most people can live with or whether we get someone who wakes up every morning and says how am I going to own the libs today, comes down to whether there’s enough pressure put on Collins and Murkowski that they start to feel it.
VALLAS: So those are the two people to watch and to try to influence in the weeks, the months, potentially the years ahead. But there’s also a lot to learn from what Republicans did when it came to the Supreme Court not that long ago. They kept Merrick Garland from taking his rightful seat and what a different place we would be in right now if we were watching him as a member of the court as opposed to Neil Gorsuch.
MILLHISER: So here’s what I hope John Roberts is thinking. Two words that I have heard a lot in the last few days, which aren’t used very often in judicial circles.
VALLAS: I’m on tenterhooks.
MILLHISER: Are court packing.
VALLAS: That’s not what I thought you were going to say.
[LAUGHTER]
MILLHISER: What did you think I was going to say? Also, oh sh*t.
VALLAS: It was closer to what I was thinking.
MILLHISER: Court packing is the jurisprudential equivalent of nuking another country to take out their missile silos because they are presently fueling their missiles and if you don’t launch first you will die. It is an act, court packing is when you add new members to the Supreme Court in order to change it’s majority. It’s something that Roosevelt briefly tried and then would up being mooted because the court flipped on some important issues. It is what you do when your court becomes such a threat to your nation continuing to be a democracy that you have no other choice. And Roberts has the power to make sure that doesn’t happen because when he is the swing voter he can make sure that the court continues to preside over a nation where elections matter, where states cannot be incredibly aggressive in suppressing votes. Where when there’s a president he doesn’t like in power that president can still sign a health care bill and that health care bill won’t be thrown out on some ridiculous theory. And if we continue to be a democracy then the Supreme Court will continue to play a very substantial role in American life. But I fear that people are angry. I think that people are justifiably angry because of what happened to Merrick Garland, and if the court overreaches, the demands that are going to come from the Democratic base are going to be things that will fundamentally restructure how our government functions in ways that won’t be easy to reverse.
VALLAS: So no big deal but democracy sits in the hands of Justice Roberts as well as Susan Collins and Lisa Murkowski. You heard it here from Ian Millhiser who is pretty deep into some tequila but still dropping some knowledge that has been terrifying and yet incredibly helpful. Ian Millhiser is the justice editor at Think Progress, he’s the Supreme Court correspondent for Off Kilter. Don’t you like that you have a title for Off Kilter?
MILLHISER: I didn’t even know that I came with a title these days.
VALLAS: I’ve been using it for a while but maybe I should have told you.
MILLHISER: You haven’t plugged my book yet.
VALLAS: He’s also the author of “Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.”
MILLHISER: Yes, very nice.
VALLAS: Got it right.
MILLHISER: The one good thing that could come out of this is book royalties.
VALLAS: Oh man, and there we have it we’re going to leave it there. Ian Millhiser, thank you as always for coming on the show and someday, someday you will come with good news. That day is not today.
MILLHISER: When was that day?
VALLAS: In the future.
MILLHISER: Yes, we shall look forward to that.
VALLAS: Someday.
MILLHISER: Someday.
VALLAS: Ian, thanks so much.
MILLHISER: Alright.
VALLAS: Don’t go away, more Off Kilter after the break, I’m Rebecca Vallas.
[MUSIC]
Hey Off Kilter listeners, the show is on a break this week so we’ve rounded up some of our favorite conversations to hold you over in the meantime.
Those were the voices of Rachel Robinson and Daisy Franklin, two housing activists who recently attended the low income housing coalition’s National Conference in Washington, D.C. Last week Ben Carson, President Trump’s Secretary of Housing and Urban Development unveiled a proposal to triple rents for the poorest families and take housing assistance away from unemployed and underemployed workers. This announcement comes amid a nationwide affordable housing crisis. In no state in the United States can a minimum wage worker earning $7.25 [an hour] afford even a one bedroom apartment at market rent. Meanwhile, just one in five eligible low income families are lucky enough to receive help from the nation’s already massively underfunded housing assistance programs leaving others paying 50%, 60%, 70% or even more of their incomes on rent while they languish on years, sometimes decades long waitlists waiting for assistance. Many end up facing eviction. I should note Ben Carson’s proposal which in keeping with the Trump administration’s ever Orwellian talking points, he claims is about promoting self-sufficiency requires legislation that congress would need to pass before it can take effect.
But this week on Off Kilter to help Ben Carson and the rest of us get up to speed on the reality of the affordable housing crisis in this country which Ben Carson’s proposal would put on steroids, I speak with two people working to fight eviction in very different ways. A new data set produced by Matthew Desmond and his team at the Eviction Lab revealed that Richmond is a hotspot for evictions, ranking second in the country with one in nine Richmond households facing eviction in 2016 so I talk with Pat Levy-Lavelle, an attorney at the Legal Aid Justice Center in Richmond, Virginia who represents low income families facing eviction. Pat, thanks so much for joining the show. So just to kick things off, we’re talking about the affordable housing crisis, we’re talking about the eviction epidemic, what is the relationship between the affordable housing crisis and evictions?
PAT LEVY-LAVELLE: Sure, well it’s not totally intuitive but the idea of a connection between those two things is that when there’s a shortage of affordable housing the price of any given rental housing unit on the market due to laws of supply and demand tend to go up and when folks are forced to stretch financially to have a roof over their heads they’re then at greater risk of falling behind and when they fall behind, of course, they are at least of greater risk of being evicted. Moreover, when there’s more competition for any given housing unit and the landlord knows that other tenants in the wings and available, they may be quicker to decide to go ahead and pull the plug with somebody and get them out for eviction rather than trying to work with them.
VALLAS: A new data set that we’ve been talking a little bit about already that was produced by Matthew Desmond and his team at the eviction lab revealed that Richmond is a hot spot for evictions, it ranks second nationwide with one in nine Richmond households facing eviction in 2016. What is making Richmond such a hot spot for evictions?
LEVY-LAVELLE: I think several factors go into that and there’s certainly more unpacking that I and fellow advocates need to do in the days ahead but we have some idea about what’s happening. One is that Virginia law itself is very landlord friendly. It’s fairly easy and fairly inexpensive to start unlawful detainer actions against tenants and an unlawful detainer is the legal-ese that is essentially an eviction action. And there are certain basic landlord tenant protections that tenants have in some other states like being able to withhold rent for bad housing conditions that simply don’t exist in Virginia and can get tenants in trouble. Another thing that goes into the eviction crisis in Virginia and Richmond specifically is that there’s an affordable housing crisis here in Richmond. In March 2015 the national low income housing coalition published a study showing that actually Richmond was number one in the country among metropolitan areas in the increase in the shortage of affordable housing units. And as I mentioned earlier when folks are forced out of the necessity of the market to stretch farther to get a roof over their heads, they’re certainly at risk for eviction.
Certainly moreover, in the sales market and a derivative of that in the rental market, gentrification is certainly happening in certain areas of Richmond like Church Hill, neighborhoods that were once affordable aren’t affordable anymore and that can certainly have an impact on rental housing markets. At the same time we’ve got the federal government receding from it’s own commitment, historic commitments to affordable housing so agencies like the Richmond Redevelopment and Housing Authority no longer have access to money to build new housing units, or even to fully maintain the existing ones and so as a result of that they’re looking to reduce their stock of affordable housing that they own and managing by for example, demolishing some of those units or selling them off. Moreover, in Richmond, one of the poorest areas in Virginia with low wages and high rates of poverty, and then I think an important piece of the puzzle is one thing that can make a difference jurisdiction to jurisdiction is the policies and practices of individual landlords. What I mean by that for example is the Richmond Redevelopment and Housing Authority based on a recent analysis by The Richmond Times-Dispatchfound actually that they were one of the landlords in the state that most went to eviction as a recourse for disputes with tenants whereas by contrast, for example Charlottesville Redevelopment and Housing Authority adopted an anti-eviction policy in 2015 that emphasis working with tenants rather than going through the eviction process and resulted in an estimated 91% reduction in evictions.
VALLAS: I want to get back to that in just a minute because I certainly don’t want to only talk about the problem, I want to talk about solutions as well and to think and hear about what’s actually working at not just the state level but also the local level but before we get there, backing up just a little bit for folks who haven’t experienced eviction walk us through, what is the eviction process like if you’re an individual who’s struggling to pay your rent and you end up on the ropes.
LEVY-LAVELLE: Sure well the eviction process in Virginia unfortunately is somewhat complicated and for the average person on the ground facing hard times and trying to figure out what to do, it’s filled with legal-ese and uncertainty and essentially a lack of understandable information. Let’s talk about, for example, an alleged unpaid rent situation, which is a fairly typical fact pattern that can lead to eviction. The first step in the process would be for the landlord to deliver to the tenant what’s called a pay or quit notice. And a pay or quit notice has a bunch of information on it and it’s not always clearly described in clear and plain English but essentially what the pay or quit notice is intended to do is tell the tenant that they have a certain amount of time to pay the charges that are listed on the pay or quit notice or the landlord could take them to court. Now maybe because they’re written by attorneys, maybe because they’re trying to comply with state law, that very simple message often becomes several paragraphs with lots of imposing language and language that is not clear.
But if the tenant doesn’t pay the amount of the bill within a certain period of time which in Virginia is typically 5 days, the landlord can then take the next step which is to file a piece of court paperwork called a summons for unlawful detainer, another legalistic term that essentially means eviction court case. That piece of paperwork is delivered either into the tenants hand or a member of the tenants household or otherwise posted on the tenants door and mailed to the tenant, it’s a court form that has a lot of information on it but one of the most important pieces is that it lists the first date and time that the tenant is supposed to show up in court. Now again, I mentioned that’s a very complicated form that has a lot of information on it and a lot of tenants when they see that don’t know what to do, what to think or maybe they think my gosh, I owe some amount of money, the rest is history but the fact is that there are often things that are or can be done in the eviction process.
And one of the most important things is for tenants to show up at that return date which is a madhouse especially in some of the bigger urban Virginia jurisdictions where one judge will find within a very limited period of time to triage potentially dozens if not as many as a couple hundred cases very briefly by a docket, calling person after person, many of whom aren’t showing up either because they’re intimidated or scared or they think the conclusion of the case is a certainty that they’ll lose and again the judge is trying to triage all these cases and figure out what to do with them. The judges are often asking the rent cases, for example, simply if the tenant owes the landlord money as opposed to going through a more extensive series of questions that would reveal potential deficiencies with the landlords case and then if the tenant puts up a credible short explanation as to why there is some sort of meaningful dispute, those cases are typically set for trial on a different day where the tenant is expected to return, the landlord is expected to return and the trial itself happens.
The trials themselves are fairly typically fairly short, fairly rough with limited procedures and as a result at the conclusion of the trial a judge will almost always make a decision from the bench then and there as to whether the tenant gets to stay or go, whether the tenant owes money or doesn’t owe money and who wins the case. If the landlord wins the case then a typical part of the judgment is a judgment for possession. That’s distinguished from the piece of a case that might involve money but a judgment for possession, again is another legalistic term that essentially means the landlord has the right to evict somebody. The landlord typically has to wait several days before filing another legalistic piece of paperwork called a request for right of possession, essentially that means them triggering the process to actually get somebody out. And that is delivered to the sheriff and then from the sheriff to the tenant listing an actual date and time for eviction at least 72 hours after the notice is granted and over to the tenant and then at that date and time there’ll be someone from the sheriff’s office actually there, typically with somebody from the landlord’s office and the locks are being changed the person is being told to leave if they’re still there. And property may remain in it for a limited period before being removed by the tenant or otherwise moved to the curb or put in a storage unit.
There’s definitely several steps in the process but for folks who don’t know this and for folks who are on the ground facing hard times it’s complicated, it’s messy, there’s a lot of uncertainty and it’s intimidating.
VALLAS: And you’re describing a really complicated process with lots of forms, lots of legalese, something that landlords who maybe have gone through this a number of times because of the volume of folks that they provide housing to and collect rent from. They might be really accustomed to it whereas someone who is going through this process on the other side as a tenant might be incredibly confused and lost navigating this process. You’re a lawyer who helps people understand this, helps them enforce their rights and represents people in these cases among other types of cases that you work on at legal aid in Virginia. But a lot of folks going through this process don’t end up having lawyers because they don’t actually have a right to a lawyer because these are civil cases.
LEVY-LAVELLE: That’s right. Folks across the country are talking about how significant eviction cases are to individual tenants and their families trying to keep a roof over their head. There was a Supreme Court case from many years ago that said in certain types of criminal proceeding, in a case called Gideonthat folks did have a right to court appointed attorneys but that right doesn’t exist again, almost anywhere in the country in civil cases including really, really important ones like eviction cases and when folks don’t have an attorney and they’re left to navigate the process on their own, unless they’ve been through it before or have seen it extensively which is almost no one, they’re left really to try to figure out as they simultaneously deal with the onus and feel of losing their housing.
VALLAS: So you described in great detail what the eviction process can be like and I should note, what you described when it comes to a lot of the different legal pieces is specific to Virginia and is different in lots of different states, there can be lots of different variations on the theme you describe but the overall architecture you described I think gives folks a sense of what this actually looks like on the ground but what happens after a person gets evicted?
LEVY-LAVELLE: Sure, well every situation is different but a lot of folks that we see don’t necessarily have another good place to go. Some folks will have family members or friends with whom they can move into on a temporary basis but other folks are essentially looking for emergency shelter that’s provided by maybe a locality or group, most folks don’t literally end up on the streets but a lot of folks are left in the margins without good options. And that obviously creates problems not only for those families but for localities that are having to spend money on emergency housing and for school districts that are forced to pay more moneys to work with families that are experiencing homelessness or housing instability. It’s a problem for landlords who are trying to turn over units and moving money in the process of doing that, which is something that’s maybe not talked about enough. And it’s certainly a problem for those families themselves.
Whether it’s potentially losses from work and job loss, whether it’s their kids missing days from school or having to switch schools, whether it’s them potentially losing housing or having a harder time keeping up with medical assignments or even just the reality of an eviction judgment on their credit report and that being essentially a mark against them when they’re applying for other housing and trying to find another place to go.
VALLAS: And that’s one of the things that I think was probably least well understood, certainly before Matthew Desmond’s book “Evicted” shown a light on the fact that eviction is not just a consequence of poverty but that it’s actually a cause of poverty because of some of the long lasting consequences that can stem for having a scarlet ‘A’ on your chest from having been evicted.
LEVY-LAVELLE: That’s right, that’s right I don’t think folks talk enough about the problem, the ripple that comes out of an eviction. I think a lot of people think of evictions as sort of a truism that happens automatically when somebody falls behind in rent or there’s some sort of problem and they really don’t have to be that way. There’s things that can be done before evictions happen and there’s reasons why all parties should be interesting in seeking to reduce this epidemic because it hurts all parties including landlords.
VALLAS: So getting back to what you were bringing up earlier, when it comes to alternatives to this eviction machine that’s chewing people up and spitting them out and leaving them with these eviction records that can make it harder for them to find housing down the road while also gumming up the works for the courts, for the housing supply component of the situation. What model, tell us more about the model before you were describing that has actually managed to drastically reduce the eviction rate.
LEVY-LAVELLE: Sure, well there’s different models happening different places in the country. One thing that some of my colleagues worked on, the Public Housing Residence Association and Public Housing Authority in Charlottesville several years back was looking at the problem of evictions there and think how there could be a win win solution to reduce evictions. And the housing authority there had extensive consultations with the residents, with community allies and activists and attorneys at Legal Aid Justice Center and organizers at Legal Aid Justice Center and what they came up with was a new eviction policy that went into effect in early 2015 that essentially had four main pieces to it. One was that there was some sort of dispute that would traditionally lead to an eviction case being filed, the housing authority would instead first offer a one on one meeting with the tenant to have an opportunity to come in and talk with housing authority staff about the concern and figuring out whether there are ways to work with. The second piece was that when the dispute was essentially just about money or allegedly unpaid money the housing authority would offer repayment plans to try to get people back on their feet rather than moving ahead with the eviction process. The third piece was that there was a focus from reforming the lease termination notice so it was a clear common sense explanation about what tenants could do to resolve the problem in the situations where that was possible. And then the fourth thing, again focusing on unpaid money cases, the housing authority set a threshold of $50 basically a minimum threshold so amounts less than that wouldn’t lead to an eviction case being filed. In [INAUDIBLE] they had already started to implement that policy, in the period of 2011 through 2014 and over that time period the staff showed that evictions by the housing authority decreased by 91% which is of course just a seismic change that helps the housing authority by reducing it’s turnover costs and increasing its rent. And in fact those stats did happen and it also benefitted a lot of tenants by not putting them through the process and by keeping a roof over their heads.
VALLAS: In the last minute or so that I have with you if folks are listening right now and they’re themselves on the edge facing housing precarity, perhaps even being threatened with eviction what should folks know about what their rights are and where they can go for help?
LEVY-LAVELLE: Sure, I would start by saying that each state’s laws regarding eviction are different and so it’s important to know what the laws are where they live. When I say ‘know what the laws are’ every legal system as a certain degree of complexity and there’s certain wrinkles in the law so I don’t mean to suggest that folks should try to figure out the law on their own and represent themselves. If at all possible, there’s allies and activists and advocates across the country, legal aid organizations, tenant community groups, local non-profit housing providers and non-attorney housing advocates and sometimes cities or counties who themselves have informational programs for tenants. And so folks as early as possible when they think that there is or there might be a dispute with their landlord, it’s always good to talk with somebody who knows the lay of the land. Because tenants going through this process typically as you mentioned have a lot less knowledge and information about the process than landlords and certainly seeking help early is the best opportunity to try to keep your housing and when folks contact us, for example, early they stand a much better chance of keeping roofs over their head than if they contact us at the last minute.
VALLAS: I’ve been speaking with Pat Levy-Lavelle, he’s an attorney at the Legal Aid Justice Center in Richmond, Virginia who represents low income families facing eviction and other types of civil matters. Pat, thank you so much for taking the time to join the show.
LEVY-LAVELLE: Great, thanks for having me.
VALLAS: Next up, to continue the conversation on the affordable housing crisis and the eviction epidemic, I’m joined by Sarah Leavitt, the curator of the “Evicted” exhibit currently underway at the National Building Museum. The exhibit is based on Princeton sociologist Matthew Desmond’s Pulitzer Prize winning book by the same name and showcases the faces and stories of people who have faced eviction in communities across the U.S. Sarah Leavitt, thanks so much for joining the show.
VALLAS: And that does it for this week’s episode of Off Kilter, powered by the Center for American Progress Action Fund. I’m your host, Rebecca Vallas, the show is produced each week by Will Urquhart. Find us on Facebook and Twitter @offkiltershow and you can find us on the airwaves on the Progressive Voices Network and the WeAct Radio Network or anytime as a podcast on iTunes. See you next week.
