White Rage

Prof. Carol Anderson on the history of white rage and resentment in the U.S.; Ian Millhiser on where SCOTUS is headed with its new right-wing supermajority; PLUS: TalkPoverty’s Pat Garofalo drops by with a roundup of ballot measures getting voted on next week.

In the wake of the horrifying mass shooting at the Tree of Life synagogue in Pittsburgh that killed 11 Jewish Americans, the killing of an African-American couple at a Kentucky grocery store, and numerous pipe bombs sent to progressive leaders, it’s hard not to feel like we’re staring down the barrel of a new American civil war. Many are saying our nation feels “more divided than ever,” which might ring true — if you were sick the day they taught U.S. history in history class. Rebecca talks with Carol Anderson, professor of African-American Studies at Emory University and author of White Rage: The Unspoken Truth of our Racial Divide, to help put the current moment in historical context, and to connect the dots not just between the recent violence and Trump’s hate-mongering rhetoric but also his, and his Republican colleagues’, policy agenda.

Later in the show, it’s not just the midterm elections that will determine the future of our democracy — the now right-wing-dominated Supreme Court is poised to become a tool for democracy’s dismantlement at the hands of the GOP as well. So we at Off-Kilter decided now was the perfect moment to bring our Supreme Court correspondent and Justice Editor over at ThinkProgress, Ian Millhiser, back to help us take stock of where the court is headed with its new right-wing supermajority — and ask the million dollar question: will the court become a wholly owned subsidiary of the Republican party? And what does that mean for American democracy?

But first: it’s not just current and aspiring political leaders on the ballot next week — Americans will be voting on a whole slew of ballot measures, affecting everything from health care to taxes to criminal justice and more. So in lieu of Off-Kilter’s usual ICYMI shtick, Rebecca sits down with Pat Garofalo, TalkPoverty.org’s new managing editor, who’s been covering several of the most noteworthy state and local ballot measures for TalkPoverty in recent weeks, to hear what’s on the ballot next Tuesday.

This week’s guests:

• Carol Anderson, professor of African-American Studies at Emory University and author of White Rage: The Unspoken Truth of Our Racial Divide
• Ian Millhiser, justice editor at ThinkProgress and Off-Kilter’s SCOTUS Correspondent
• Pat Garofalo, managing editor at TalkPoverty.org

For more on this week’s topics:

• Read Carol Anderson’s op-ed on the politics of white resentment and her op-ed on white rage vs. black rage in the wake of Ferguson (an oldie but goodie) — and if you’re left wanting more (trust us, you will be), find her book White Rage here
• Shot, chaser: she’s got lots worth reading on the voter suppression front, too, like this op-ed on the fallacy of voter fraud and her new book One Person, No Vote: How Voter Suppression is Destroying Our Democracy
• Check out Ian Millhiser’s rants about birthright citizenship here and here (paging mainstream media: can you please not cover this like you covered Hillary’s emails?) — and find all of his recent SCOTUS analysis here

For more on the ballot measures up next week:

• Read Pat Garofalo’s coverage of San Francisco’s Prop C, which would make tech companies address the homelessness crisis they helped create
• More from Pat over at TalkPoverty.org: how North Carolina Republicans are trying to add tax breaks for the rich to the state constitution
• And for a full rundown of the ballot measures getting voted on next week, check out the National Council of State Legislatures’ handy tracker

This week’s transcript:

REBECCA VALLAS (HOST): Welcome to Off Kilter, the show about poverty, inequality and everything they intersect with, powered by the Center for American Progress Action Fund. I’m Rebecca Vallas. This week on Off Kilter, in the wake of the spate of violent hate crimes including the mass shooting at the Tree of Life Synagogue in Pittsburgh that killed 11 Jewish-Americans, the killing of two African-American individuals at a Kentucky grocery store and a series of pipe bombs sent to progressive leaders, many are saying our nation feels quote, “more divided than ever.” And sure that might ring true if you were sick the day they taught U.S. history in history class. I talk with Carol Anderson, professor of African-American Studies at Emory University and author of White Rage: The Unspoken Truth of our Racial Divide, to help put the current moment in historical context, and to connect the dots not just between the recent violence and Trump’s hate-mongering rhetoric but also his, and his Republican colleagues’, policy agenda.

Later in the show, it’s not just the midterm elections that will determine the future of our democracy — the now right-wing-dominated Supreme Court is poised to become a tool for democracy’s dismantlement at the hands of the GOP as well. I talk with justice editor Ian Millhiser of ThinkProgress to take stock of where the court is headed now that Kavanaugh is on the bench.

But first, Pat Garofalo, managing editor of TalkPoverty.org is excited making his Off Kilter debut because Jeremy Slevin is out sick and also we didn’t like him anyway, so Pat thanks for coming on the show.

PAT GAROFALO: Thanks so much for having me, I will try to live up to Jeremy’s lofty, lofty example.

VALLAS: Well you’re starting off without the beard and without the sweater as we were previously discussing.

GAROFALO: Gotta up my sweater game if I’m going to compete with Jeremy week by week.

VALLAS: Or find other ways to outshine, which I’m sure you’re about to do. So part of the reason, Pat I wanted to have you on this week is as we approach next week’s midterm elections, almost all of the media attention and focus ends up being concerted around the individuals who are running for office. And there’s a lot of reasons for that and that’s I’m not saying there’s anything wrong about focusing on the people who are on the ballot but there’s more on the ballot than just the people who are running to hold elected office. There also are a whole slew of ballot measures that are putting choices to the voters in states across the country and in DC on everything from health care to taxes to homelessness to criminal justice reform and a whole bunch more. So you’ve been doing a lot of looking over at Talk Poverty and also writing about what’s on the ballot in the form of these ballot measures and let’s maybe start with health care. So this has been a health care election, it’s continuing to be a healthcare election in a lot of ways and what most people are focused on when they say that and when they think about that of course is holding Republicans accountable for trying to take healthcare away in the form of repealing the Afforable Care Act and gutting Medicaid but there’s actually a lot on the ballot that is putting choices to voters about Medicaid expansion. So tell us a little bit about what’s coming up next week in the Medicaid expansion department?

GAROFALO: So on Medicaid expansion specifically, three states, Idaho, Nebraska and Utah will be voting on whether or not to basically accept the Affordable Care Act’s Medicaid expansion. These are states that have not done that yet and now voters have the chance to do what their lawmakers have decided not to do. And actually in Idaho, red, red, red state, the Republican governor there has supported the measure to expand Medicaid via this ballot initiative. These three states all pass and actually accept the expansion it will cover about 325,000 people who do not currently have Medicaid coverage.

VALLAS: Now for folks keeping score at home, there’s 17 states currently that have not taken up the Affordable Care Act’s Medicaid expansion. These are three of those states. We mentioned last week on this show that analysis coming out of the Center for American Progress, another plug for my brilliant colleague and your brilliant colleague Rachel West found that if all 50 states were to take up Medicaid expansion we would see 14,000 lives saved every single year. These are three of those states that have that opportunity right now. Do we expect them to pass?

GAROFALO: They all look pretty good. They’re all polling at about 60% so cautiously optimistic. And there’s actually a fourth state, which is Montana, where they’re voting make their expansion permanent. Their expansion would sunset but this ballot initiative would tax tobacco products to pay for making the expansion permanent.

VALLAS: So something to watch for sure and also just a stark reminder of what Americans actually want. It’s not to have their health care and their neighbors’ healthcare taken away, it’s more people to have access to health care and that’s what these ballot measures are a real reminder of and will be another indicator of. So moving from health care onto the tax front. We have been having a national conversation about taxes as well, notably this has stopped being a tax election in a lot of ways. I think folks had been expecting Republicans and frankly Republicans had been expecting to running on their only legislative achievement since Donald Trump took office in this Republican congress, which of course was the Trump tax scam. But we’re not hearing them run on the tax plan. They’re forgetting to mention it because they seem to have noticed how unbelievably unpopular it is with the American people. So what we are seeing at the state level is a slew of anti-tax ballot measures. Tell us about some of those.

GAROFALO: So these are in the aggregate important because I think you covered a few weeks ago that report from ITEP about how most states have really regressive tax systems. They’re upside down, they tax the poorest people at the highest rates. And a lot of the reason for that is that states have laws in place like the ones that are on the ballot and a bunch of states which require supermajorities of their legislature to increase taxes. You see these every single cycle. They crop up in a few states and it’s because anti-tax advocates know that it’s really easy to get people to vote against raising taxes. This is important because it ties the hands of not just the current lawmakers who might want to do things but for future lawmakers. They are making it that much harder to raise taxes on anybody in the future, tying these legislatures’ hands so that when they need revenue, they can’t find it.

VALLAS: Now one example of this kind of a measure is one that you actually wrote about recently for Talk Poverty and it comes from North Carolina. What’s on the ballot in North Carolina?

GAROFALO: On the ballot in North Carolina, they actually have in their constitution a cap on the highest income tax rate, which current sits at 10%. This would lower that maximum allowable tax rate down to 7%, which sounds like not a big deal because right the highest tax rate in North Carolina is only a little over 5% so people look at it and say eh, it doesn’t matter. But in times of emergency North Carolina has in the past turned to emergency taxes on the rich to pay for, to insure that they don’t have to cut vital services such as education, they did in the last two recessions. This ballot initiative would make doing that again in the future impossible.

VALLAS: So what are some of the other states that we’re seeing take up these kinds of anti-tax hand tying measures?

GAROFALO: Florida has one to require a 2/3 majority in the legislature to raise taxes. Oregon already requires a 3/5th majority to raise taxes and a lot of instances this would broaden that to include tax credits and deductions and things like that. So law makers couldn’t basically even get rid of credits or deductions that are being abused without having a supermajority.

VALLAS: And are we expecting these kinds of measures to pass?

GAROFALO: Sadly these ones usually do pass and it looks like from the polling that most of these if not all of them will go through.

VALLAS: Now is is because these kinds of measures are popular or is it because it’s really hard to oppose something that sounds so reasonable on its’ face? Walk us through the politics of these kinds of proposals.

GAROFALO: I think it’s more the latter and people don’t think about raising taxes on say the rich or corporations when they look at these things, they say well this is about my taxes. And actually if you look at polling and research people generally think their current taxes are pretty fair, what their afraid of is bad things happening in the future or other people not paying their fair share and so it’s just very hard to get folks to oppose these because they think of themselves and they say oh, what I’m paying right now is reasonable and I don’t want it to go up, versus hey maybe that corporation down the street should be paying a little more.

VALLAS: Now on the tax front, we’re not just seeing proposals to tie hands and actually one we should mention, it’s not just about tying states own hands. Some of what we’re actually seeing is statewide efforts to tie cities’ hands and that actually, there’s one example on that coming from Arizona.

GAROFALO: This ballot initiative would tie cities’ hands if they want to tax certain services, basically anything in the service sector, basically anything in the service sector from hair salons to banking to doctors. This would prevent cities from doing that. Conservatives always say that they love local control until the locality decides they want to raise some taxes on some bankers and then they don’t like local control so much anymore.

VALLAS: Funny about that. I was going to say, so on the tax front it’s not just a set of anti-tax measures like the ones that you were just describing. there actually are some efforts to tax the wealthy as well as wealthy corporations to pay for popular social goods like education and others. Where are we seeing those kinds of measures?

GAROFALO: Colorado, 73 was a great ballot initiative that would add two new tax brackets onto wealthier Colorado residents and also raise the state’s corporate tax to pay for education funding. Right now Colorado has a flat income tax, which means everyone’s taxed at the same rate. There’s no progressivity in it. That’s generally a bad way to have your state income tax because it hits poor people the hardest. This would add two new tax brackets and put that money into the classrooms. Seems like a really great idea.

VALLAS: Another one of these kinds of proposals in one that you actually also just wrote about for Talk Poverty and this one comes out of San Francisco, again about taxing wealthy corporations. Tell us about that one.

GAROFALO: This is actually a very interesting initiative. It would raise taxes on about the 300 or so biggest business in the city and all of that money would get dedicated to homelessness prevention. Right now San Francisco has about 7,000, 7,500 people experiencing homelessness in the city. Advocates who have put this plan together say that this would provide direct permanent housing for basically all of them. And that’s as research has shown, the best way to help a person who is experiencing homelessness is give them housing. This puts money directly into permanent housing for these folks. And in many ways makes this corporations pay for problems that even if they’re not directly responsible for they’ve certainly contributed to. There’s lots going on in San Francisco but part of the issue is gentrification and affordable housing and it’s just really expensive to live there. And so looking to these big companies to throw a little money into the pot to help people who can’t afford to find a home, seems like a good idea.

VALLAS: Now part of what becomes interesting about this kind of a proposal is that it’s actually a policy that matches some of the connections behind the problems that it’s actually seeking to solve. So help us understand what we know about the connection between say, growing economic inequality in California and actually in San Francisco in particular. This is a conversation that has a lot to do with the very wealthy corporations that are located there. Who are the very people opposing the tax that would then generated the revenue that would then solve the city’s homelessness problem.

GAROFALO: Yeah, there are obviously lots and lots of causes to the homelessness problem but one of them certainly is that you have these corporations who have gentrified and driven up land values. And I’m not even saying that’s malicious but it happens when you have those sort of industries come in and dominate a city and the city has been very, very active in courting this group of companies. And so this measure says hey, you guys who have done things to make housing unaffordable, throw some more money in the pot to help folks out. Unfortunately I think a lot of the coverage of this story has been framed around which tech companies for it and which company’s against it. Twitter’s Jack Dorsey has been very vocally against it whereas Salesforce’s Marc Beinoff has been very for it and has given a lot of money and so that’s how people talk about it. What they aren’t talking about is how we got here and there are lots of reasons but gentrification and lack of affordable housing in the city is certainly one of them.

VALLAS: As you put it in your piece for Talk Poverty the question at the heart of this ballot measure is will San Francisco ask its wealthiest corporation to pay slightly more so that thousands of homeless people in that city can have a roof over their heads? Are we expecting this one to pass?

GAROFALO: It’s looking pretty good, yeah. I think it will pass, and something to remember in this is that big corporations benefitted a lot from the 2017 tax bill at the federal level. So in many ways this is just offsetting a tiny portion of the giant tax break they got in that bill and applying it at the city level.

VALLAS: Now staying with the issue of homelessness, there’s another ballot measure in California and this one is actually state wide that has to with rent control.

GAROFALO: So this would allow cities to do more in terms of rent control. Right now rent control within California cities, it’s very hard to apply it to particularly new buildings, depending on what rules the city has in place. It could be buildings only dating back to the 70s are allowed to be rent controlled. This ballot initiative, were it to pass would give cities more leeway to use rent control when they see fit.

VALLAS: And tell me a little bit more about why that would be important. I think folks might be familiar with the concept of rent control. Sort of at the 50,000 foot level but how would that actually play out in California where we know rents are sky high?

GAROFALO: Unfortunately it’s kind of hard to play because it would depend on what city decides to do what. So I think what you would see is cities that are more progressively inclined, would do more rent control and others would just ignore this all happened. So it’s kind of hard to game out exactly what it would mean but it would at least give cities the option where as right now legislatures having their hands tied. A previous California law basically prevents cities from doing a lot of rent control even if they want to, whereas this would at least give them the option.

VALLAS: So back to that local control that we know conservatives just love and want to see happen in the form of this ballot measure. So moving onto criminal justice where we’re seeing lots and lots on the ballot in states that are really a diverse array of states. It’s not just the usual blue states, it’s a real interesting mix. One of the ballot measures that’s getting perhaps some of the most press attention comes out of Florida and it has to do with voting rights restoration.

GAROFALO: So if this ballot initiative were to pass would allow 1.5 million people who have felonies on their records to vote. Florida is currently one of three states along with Kentucky and Iowa that permanently bar felons from voting forever, you cannot vote. Were this to pass in Florida it would get rid of that restriction, 1.5 million people would have their voting rights restored.

VALLAS: And is this something that we’re expecting to see be successful?

GAROFALO: It’s looking very good, looking very good. It’s getting about 70% support in the last bunch of polls so it looks very promising

VALLAS: So another ballot measure that we’re seeing comes out of Ohio, it also has to do with people who have felony records. But this is a different type of relief and it sounds a lot like something we saw recently out of California that was known as Prop 47. What are we seeing in Ohio?

GAROFALO: Exactly, so this would make Ohio along with California, Oklahoma, Alaska, Connecticut and Utah a set of states that we classify basically all drug offenses to misdemeanors as opposed to felonies. So going forward those would be misdemeanor offenses, which is a big deal. Small amounts of possession turning into felony records can cause people all sorts of problems.

VALLAS: And we’ve talked a lot on this show over the years because it’s an issue close to my heart about how any criminal record can be a life sentence to poverty but this particularly the case for felony records which often carry the greatest stigma when it comes to trying to find a job or housing or anything else that it takes to get by. So a really big deal if we could see this one go through, a lot of people whose lives would be positively impacted although they would still have some type of criminal record.

GAROFALO: If you’re an Ohio voter and you’re interested in this it seems like it’s going to be very close, so if you’re for it make sure you get out there.

VALLAS: So that one’s a nail biter and what’s that one actually called?

GAROFALO: I believe it’s Ohio 1.

VALLAS: So good for Ohio listeners to be tracking that at home. So we have another criminal justice related ballot measure that’s a little bit different. This one comes out of Colorado and it has to do with folks who are still behind bars.

GAROFALO: So this would make it so that it is no longer legal in the state of Colorado to have prisoners labor for no money. It’s partially symbolic, there aren’t actually prisoners in Colorado currently laboring for no money but the Colorado constitution does allow, literally has the word slavery in it. And says that prisoners are allowed to work for literally nothing. Sot his would take that out of there, change the constitution. Two years ago this measure came up in 2016 but the wording on it is super confusing and so it didn’t pass even though it seemed like most people wanted it to happen. The wording made it hard to decide which way to go and a lot of people who were for it voted the other way just because it was confusing. So it looks pretty good and like this is going to pass and it’s partially symbolic but prison labor is a real thing and it happens all over the country and these people aren’t paid very much so I will take any baby steps.

VALLAS: And particularly timely in the wake of the prison strikes, where we saw a lot of advocates and a lot of folks behind bars rising up and saying prison labor for no pay or even for very small amounts of pay is modern day slavery and it’s actually something that is still enshrined in the U.S. constitution so this would represent Colorado outpacing the rest of the country and the constitution that governs the entire country in the form of this measure.

GAROFALO: I will say states do allow prisoners to work for literally nothing most states it’s a few cents here and there so it’s a much bigger problem but this would at least one symbolic move in the right direction.

VALLAS: And then the last criminal justice related measure that I wanted to mention comes out of North Dakota and it has to do with marijuana.

GAROFALO: So this would legalize marijuana in the state of North Dakota and also go back and reclassify people who have previous marijuana related offenses and I think that’s actually the more important part of it is that they’re going to go back and revisit all of that in light of legalization.

VALLAS: Really exciting to see lawmakers in that state understanding that connection and that we need to not just be thinking prospectively about legalization but also the damage and havoc that’s been wreaked in peoples’ lives by burdening them with a criminal record. We obviously know that that disproportionately impacts communities of color but anyone with a record can end up being harmed in the ways we were talking about before. So really very cool to see North Dakota lawmakers getting it that it needs to be forward looking and backward looking as well.

GAROFALO: Right, not just acknowledging that hey, maybe we shouldn’t be policing this in a certain way but that we have policed this in a certain and it’s hurt a lot of people and to go back and if not make it right, at least help a little bit.

VALLAS: That’s exactly right. So the last ballot measure and there’s a lot more on the ballot across the country than the ones we just mentioned and you can actually find more on our nerdy syllabus page about each of these if you want to dig in and nerd out a little bit more. But one last ballot measure that I wanted to call out was one we were talking about before we started taping because this is one of the most annoying ballot measures of any of those that we’ve talked about or that I’ve even become aware of in this cycle. This one comes out of Chicago and it has to do with the straw ban.

GAROFALO: Yes, so if this ballot initiative were to pass would advise the council of the city of Chicago that the resident are for or against a straw ban. It’s nonbinding, the city’s lawmakers can just throw it out and ignore it if they want to, but it’s there.

VALLAS: And part of the reason I find this one so annoying is exactly what you just said, it’s not even like it would be binding in any meaningful way it’s just trying to send some kind of a message. Now of course we’ve talked on this show in the past about straw bans being an incredibly clueless and perhaps unintentional but stupid assault on people with disabilities, many of whom need straws just for activities of daily living just to be out there, participating in normal live. And plastic straws are not something anyone’s advocating having be enormously widespread in some kind of environmentally problematic ways but access to straws is an accessibility issue and so these kinds of policies completely discount the voices and the needs of people with disabilities who’ve been railing against them since they became invoked.

GAROFALO: Ballot iniatives can often be very imperfect tools for policy making because in order to make it fair you have to make it very simple and not get into the nuance and in a situation like this you can see somebody who for the right reasons wants to vote for this even if it has negative effects that they’re unaware of.

VALLAS: So we’ll have to leave it there but I’ve been speaking with Pat Garofalo, he’s the managing editor of TalkPoverty.org, you can find his work over there as well as on our nerdy syllabus page talking about several of these ballot measures. Pat, we’ll have to have you back soon but thank you for walking us through these different measures on the ballot next week.

GAROFALO: Anytime, thanks for having me.

VALLAS: Don’t go away, more Off Kilter after the break, I’m Rebecca Vallas.

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You’re listening to Off Kilter, I’m Rebecca Vallas. In the wake of the horrifying mass shooting at the Tree of Life Synagogue in Pittsburg that killed 11 Jewish Americans, the killing of an African-American couple at a Kentucky grocery store and numerous pipe bombs sent to progressive leaders, it’s hard not to feel like we’re staring down the barrel of a new American civil war. Yet much of the current national conversation in this terrifying moment is largely devoid of historical context, the legacy of structural racism and repeated white backlash to civil rights gains for communities of color. To help connect the dots and to look at what the recent violence has to do not just with Trump’s rhetoric but also the GOP’s policy agenda, I spoke with Carol Anderson, a professor of African-American studies at Emory University, my own undergrad alma mater and the author of “White Rage: The Unspoken Truth of Our Racial Divide.

Professor Anderson, thank you so much for taking the time to join the show.

PROFESSOR CAROL ANDERSON: Oh, thank you so much for having me.

VALLAS: So a troupe that we hear a lot of time and especially in moments like this is that quote, “our nation is more divided than ever.” Now that’s a statement that requires pretty much a complete lack of knowledge of US history to say or to agree with and that’s a lot of what your scholarship has looked at over the years and in particular your book “White Rage”. Help us understand how to put the moment that we’re living in right now in a little bit better historical context.

ANDERSON: Yes, in “White Rage” I lay out that for every major advancement toward African-Americans receiving or getting their citizenship rights that there is a major policy backlash, a white rage that systematically undermines that advancement. And I walk us through from the civil war when the nation was really truly divided that takes us through reconstruction and beyond. Then I go to the great migration again where African-Americans are seeing that they do not have to stay in the south where they are not appropriately compensated for their hard labor, where they’re dealing with lynching, where they have no right to vote, et cetera, et cetera, et cetera. And they move north and the policy backlashes one, to keep African-Americans but also then what African-Americans had to deal with then they moved north. To the Brown decision, again this is a major triumph of separate but equal has no place in this land. And the policy backlashes that came out of the White House, out of Congress, out of the state legislatures, out of the school boards.

Again and often we think of rage of this violence, bombs and shootings. But this white rage is systematic, methodical, clinical. Then the Civil Rights Movmement and then the election of Barack Obama, and it is that election of Barack Obama that has brought us here. To this moment, that election of Barack Obama, having a black man in the White House and that the coalition that put him there. You had a fair number of whites who voted but not the majority of whites voted for Barack Obama but it was his incredible ground game that brought 15 million new voters to the polls — African-Americans, Asian-Americans, Hispanics, young and the poor. And the backlash was to go after those groups via voter suppression and to elect someone who is the absolute antithesis of all that Barack Obama represented.

VALLAS: Now a phrase that you’ve used a couple of times in giving that sweeping overview of a lot of history is policy backlash. Now a lot of what we’ve been hearing in this current moment is connecting of dots to point to Trump, President Trump inciting violence, inciting white rage and resentment through his rhetoric. He in recent days has proudly adopted the label of nationalist, he’s railed against so-called globalist which we know is code for Jewish-Americans. He’s even called out George Soros personally in stump speeches. But the point that you have made and that you’re making in using that term policy backlash is that it’s not just Trump’s rhetoric, it’s his entire policy agenda. And one way that you’ve put this is to say that, “The guiding principle in President Trump’s government is to turn the politics of white resentment into the policies of white rage.” Help us understand that.

ANDERSON: Right so we see it in multiple ways. We see it for instance in Jeff Sessions who is the Attorney General going in and arguing for, using the credibility, the power of the Department of Justice to argue for voter suppression in Texas during a court case there and in Ohio. One dealing with voter ID, the other one dealing with voter roll purges. And so you get the U.S. Department of Justice weighing in on a policy of how do we keep millions of Americans from voting? That’s a policy. You see the policy coming through in the Department of Justice also going into put military grade weapons back into the hands of local police forces while also calling for a re-emergence of the war on drugs. And the war on drugs has consistently been a war on Black and brown people. African-Americans do not use drugs more than anybody else. In fact in some categories of drug usage, they’re the least likely to use drugs but they are the most likely to be imprisoned, to be arrested and to be imprisoned. That is a war, a policy war. We see in terms of this regime’s immigration policies. The hostility to immigrants, that goes from a Muslim ban to trying to destroy DACA, to limiting the number of asylum seekers. All of these things are policies that systematically designed to fuel that white resentment that comes out in white rage.

VALLAS: And it’s a particularly timely moment to be referencing especially the immigration policy connection here where we’ve got Trump out there promising to end birthright citizenship and actually saying that he’s going to try and do it by fiat even though legal scholars are all saying in unison no actually, presidents don’t have the authority to unilaterally alter the constitution so no you don’t actually get to do that. But clearly bait that he’s throwing to his base just days out from the midterms.

ANDERSON: Yes, yes, and understand that that fuels; because this is the other thing that I think is so important to understand. It’s easy just like when we say America has never been more divided. It’s also easy, which is of course erroneous. It’s also easy to think of Trump as an aberration, that he just kind of sprung up out of nowhere, I call it like Athena out of Zeus’ head but nearly as smart. But he’s not, he is part of that larger toxic bouillabaisse that has been nurtured in the Republican party. After the 1964 Civil Rights Act and then the 1965 Voting Rights Act which President Lyndon Johnson signed after some incredible courageous work by those in the Civil Rights Movement. As Reverend Barber says, through the blood, southern Democrats who has strongly anti-civil rights, anti-Black were just besides themselves because they could not figure out how could we be in a Democratic Party that believes in African-Americans’ equality, that believes in African-Americans’ civil rights and is going to put the power of the federal government behind enforcing those rights. Where are we to go? How are we supposed to exist int his kind of realm? And the Republicans looked up and they saw an opportunity to break open the solid Democratic south and get those congressional representatives in congress to begin to try to push forward some of their agenda and they thought that they could control this toxic virulent white supremacy. And so they wooed the southern Democrats in with the Southern Strategy. By using dog whistle code words such as “law and order” and “welfare queen”, all coded black. It is like Ronald Reagan when he’s down in Neshoba Country, Mississippi where three civil rights workers had been killed in 1964 that led to the civil rights act, and he said I’m a firm believer in states’ rights.

That toxicity, that churning of the racial animus, but then being injected into a legitimate party, that virulence, that virus took over. And it had been nurtured, and you saw that over time moderate Republicans were pushed out of the party, there was no space for them. There was no way that they could win in a primary election. And so the party moved further and further to the right and that is what brings us to Donald Trump. All that he brought in that cast of 16 candidates for the presidency, for the GOP nomination. You had governors in there, you had senators in there, all that he brought was pure, uncut white supremacy. When he is birther movement, his ‘Mexicans are rapists and criminals’, that kind of racial animus is what energized his base. And of course they said oh we like that he says it like it is, but he’s not saying it like it is, he’s just talking white supremacy. And that is what Trump brings but he is not an aberration he is part of what has been nurtured, coming out of the Civil Rights Movement, part of that larger policy work of white rage.

VALLAS: And of course at the heart of so much is this, and this is a show about poverty and inequality, I would be remiss if I didn’t bring in that myth of the welfare queen that you made reference to, his entire agenda when it comes to poverty at a time where 140 million Americans are literally struggling to make ends meet is to push this divide and conquer not just rhetoric but also agenda that’s all about continuing to push myths about people who are struggling and those of course are racial myths that have their origins in Ronald Reagan’s myth of the welfare queen among other historical contexts as well.

I want to dig in a little bit to a contrast that you have made and actually that you made in the wake of Ferguson. So rolling the clock back just a little bit to when people were starting to pay attention just a little bit for the first time to this increasing pattern of law enforcement and really state governments as a whole and local governments as well starting to use every opportunity they could to go after largely low income Black and brown people as revenue centers for government. That is what Ferguson really exposed and brought to the national fore, there was a moment in the wake of that realization, in the wake of some of those police involved killings where there was all this media focus, all of this public focus on black rage. People looting stores, this image of scary black anarchy in the streets and in the wake of that media characterization and that one-sided conversation that was happening, you wrote about white rage for the first time. How have we seen those two conversations, then around Ferguson and around state sanctioned killings and the response there to and now this white rage, how are we seeing those conversations differ?

ANDERSON: And so the way that they differ is that with black rage it plays into a narrative of black pathology, that black folks are just damn near feral. Look at em burning up where they live. Can you believe Black people? Who burns up where they live? This was the narrative I kept hearing from pundits during the Ferguson uprising and they were paying so much attention, as I said in White Rage, they were paying so much attention to the flanks that they had missed the kindling. And so it seems like this was just spontaneous, that it came up out of nowhere, that it was something that was just so black but what they missed was that in policing for instances, as you mentioned is that it wasn’t about protect and serve. There was a policy that you looked at that black community as revenue generators for the city. And so you harassed them. Oh, you’re doing 26 in a 25, here’s a ticket. Oh you didn’t show up for the ticket because you had to be at work? Tough, now we’ve got a warrant out for you. So the next time I catch you doing 26 in a 25, then I’m going to throw you in jail and we’re going to have a whole bunch of court costs and fines that’s going to drain you. Those kinds of tickets and those kinds of fines became 25% of the annual revenue for the city of Ferguson. And in that moment it was also very clear that African-Americans were the ones targeted. With disenfranchisement, African-Americans are 67% of the population in Ferguson but they were only 6% of those in terms of voter turnout in the 2013 municipal election and that’s because of the policies that were put in place to in fact depress the black voter turnout in that majority black city.

And then we’ve got education. Where again the policy was to not educate and so you had a school system that was supposed to, Missouri has an accreditation system where you can get up to 140 points per your school system based on graduation rate, test schools et cetera. And for 15 years the Ferguson school system could not generate more than 10 points and you had policymakers that were really fine with pushing an entire generation of black children through that kind of dysfunctional, non-functioning school system. That kindling; so until we deal with what those policies do and if what we’re saying is this is about Black pathology, that Black people don’t like education except Black people have been fighting so hard for education. We saw that during slavery. We saw that in the great migration when they were like I’ve got to get out of here so my kids can get a decent education. We saw that with the Brown decision. We saw that in Missouri when after Missouri had implemented the Brown decision for 25 years Black parents were taking them to court again. This fight for education is real. But we need the narrative of it not being real in order to justify the kinds of policy that create systemic inequality and systemic and endemic poverty.

VALLAS: Now a narrative that is completely what you just described as is 100% premised on a myth, but a myth that’s incredibly sticky and one that Republicans have found great utility in, all for the purpose of advancing an agenda that’s about keeping communities of color down is of course that of voter fraud. There is somehow rampant voter fraud, something you’ve written about extensively as it connects to this conversation around white resentment, connect those dots for us as well, especially as we look ahead to next week’s midterms.

ANDERSON: Yes absolutely and so I recently published a book called “One Person, No Vote” and in there I lay now only the kind of history of disfranchisement in America, since the Mississippi Plan of 1890 which was the rise of Jim Crow. But also how the lie of voter fraud and it is a lie, not only is it Justin Leavitt’s study that shows that over a 15 year period, from 2000 to 2014 there were only 31 cases out of one billion voters. But when the voter supressors such as Kris Kobach out of Kansas or Gregory Abbott out of Texas are required to point to the massive rampant voter fraud that requires the techniques of say, voter ID or voter roll purges, they cannot point to any cases, any viable cases that would suggest rampant, they have one or two, that’s hardly massive, rampant. But what they have done is use the lie of voter fraud, like the Reichstag fire to then create this crisis in American democracy that requires that the purveyors of all that is just, right, and good protect this democracy by keeping fraudulent voters out of the polls. And for them fraudulent voters are basically that Obama coalition. That African-Americans, Latinos, Asian-Americans, young and the poor and so when you look at these voter suppression techniques like voter ID, like voter roll purges, like limiting early voting hours. Like putting fewer resources into the voting machines in minority precincts, like gerrymandering. In all of their ways they’re targeted at African-Americans, Latinos, Asian-Americans, young and the poor. And we’re seeing in North Dakota also targeted at Native Americans. This is about trying to create a white wealthy electorate so that we have politicians choosing their voters instead of voters choosing their representatives.

And the methods are subtle. So you say voter ID and for middle class folks they’re like eh, everybody’s got an ID. But that’s not how these laws work. They have crafted these IDs to figure out who has what kind of ID. So for instance, in Alabama, Alabama said you have to have a government issued photo ID to vote. But then public housing ID does not count. 71% of those in public housing in Alabama are African-American. And so as Sherrilyn Ifill who is with the Legal Defense Fund noted for many that is the only ID they have. Then Alabama said hey but you know you can get a drivers’ license, that will work. And then Alabama shut down the Department of Motor Vehicles in the Black Belt counties, which are counties that are heavily African-American and heavily many people live below the poverty line. So when you shut down the Department of Motor Vehicles and requiring people to go about 50 miles to the nearest Department of Moto Vehicles to get a drivers license or a state ID so that they can access their right to voter but you don’t have public transportation. Alabama ranks 48th in the nation in terms of public transportation. What you have effectively done then is to disfranchise millions of American voters. That’s how these laws work.

VALLAS: Now I would ask you how we could possibly change the course that we’re on but I already know the answer —

ANDERSON: Vote.

VALLAS: But it starts, and doesn’t end, but it starts at the ballot box, that’s right and people have that opportunity coming up next week in the midterms, Tuesday November 6th. Your book “White Rage” calls on its readers to quote, “choose a different future”. Those are timely words to end on as Americans head towards the ballot box next week. Professor Anderson thank you so much for taking the time to join the show. Carol Anderson is a professor of African-American studies at Emory University, my own undergrad alma mater, she’s also the author of “White Rage: The Unspoken Truth of our Racial Divide”. Professor Anderson, thank you so much for taking the time.

ANDERSON: Thank you so much for having me.

VALLAS: Don’t go away, more Off Kilter after the break, I’m Rebecca Vallas.

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You’re listening to Off Kilter, I’m Rebecca Vallas. With Brett Kavanaugh now a senate confirmed justice on the Supreme Court bench the nation’s focus has largely moved away from the Supreme Court onto November’s midterm elections. So we at Off Kilter decided now was the perfect moment to bring our Supreme Court correspondent and justice editor over at Think Progress, Ian Millhiser back on the show to help us take stock of where the court is headed with its new right wing supermajority and ask the million dollar question — will the court become a wholly opened subsidiary of the Republican Party? And what does that mean for American democracy? Ian, thanks so much for coming back on the show.

IAN MILLHISER: Thank you for having me.

VALLAS: I feel like at some point there will be a day where I have you on this show because there’s good news. I realize now as I’m looking across this radio studio table at you that that’s never been the case ever in all the times I’ve had you on the show.

MILLHISER: No, yeah there’s an alternate reality where Obama appointed someone other than James Comey to lead the FBI and we’re very excited about all the times that Justice Merrick Garland is doing in that world.

VALLAS: God, I like that bizzaro universe.

MILLHISER: It’s really much better.

VALLAS: I don’t even want to talk about it any longer because I feel like the longer you talk about —

MILLHISER: It just makes you sad.

VALLAS: Yeah by contrast right, just living in this totally shithole is somehow better than realizing what could otherwise be. So Ian, the cameras all kind of got wheeled away after the Kavanaugh confirmation actually happened. And in a lot of ways people have moved on and everyone’s focused on the midterms and rightly so, everyone go vote. But at the same time we can’t lose our focus on the Supreme Court because as much as the court may be in a sort of wait and see place right now on what kind of cases it’s going to be taking and what it’s granting cert on and that’s a lot of why folks aren’t paying attention to the Supreme Court right now, at the same time that actually gives us a great opportunity to take a step back and take the long view and look at where the court is headed now just in terms of cases we expect it to take up and to rule on but what is the role of the Supreme Court going to become in our political ecosystem and how much is it going to become really a tool of the Republican Party in explicit ways? So that’s a big part of why I wanted to have you on this week to play that long game and look around the corner a little bit. So a great place to start actually is something that’s very much in the news this week and that’s the issue of birthright citizenship. So maybe catch us up to speed on what’s going on with that. People obviously I’m sure have seen headlines and tweets and know that Trump said he wants to do away with it. A lot of news outlets reported that somewhat uncritically and made it sound like it was maybe unclear whether he had the legal authority to do that as president.

MILLHISER: Yeah he does not have the legal authority to do that as president. Nor does congress for that matter. It would take a constitutional amendment. So the 14th Amendment says that all persons born or naturalized in the United States and subject to the jurisdiction thereof are automatically citizens. So if you are born here, and these words subject to the jurisdiction, jurisdiction means that you’re subject to American law. There are some individuals, if you’re an ambassador you have diplomatic immunity, so does your family so if an ambassador has a child while in the United States, that child is not a US citizen. Another example the Supreme Court gave is invading armies. If you have a child when you are invading force that child does not become; and then the third example this is less true now than it used to be but there used to be a lot of Native American tribes where they were sort of considered to be separate sovereign nations and even though they occupied the same territory of the United States, if you are born into one of these tribes you are not considered to be part of the United States. And so those children as well would not be US citizens. So those are the exceptions. But unless you fit into those exceptions and so we’re clear what we’re talking about, what Trump likes to call anchor babies is not one of those exceptions. If you’re undocumented, unless they’re somehow an undocumented ambassador you are a citizen. If you were born physically on the soil of the United States.

VALLAS: And so to underscore what you said in saying that this is not unclear at all the president doesn’t have the authority to change the constitution unilaterally, that’s just not something the president has the authority to do. Yet we saw these flurry of news stories and I’ll actually call out The New York Times in particular making it sound like there are two sides to this question and that there’s actually a lack of clarity about whether Trump might be able to do by fiat what he is saying he wants to do.

MILLHISER: The New York Times said it’s uncertain, I think CNN and NPR called it unclear, said we don’t know what’s going to happen with it. I will take the charitable approach. As a reporter one thing I think is very hard about reporting on the Supreme Court is I can say well here’s what the constitution says or here’s what all the legal precedents say and that is a different question that I’m answering than what will a majority of the Supreme Court do and I think that that gets us to how you started this conversation.

VALLAS: So to be clear, so that we don’t leave anyone unclear or uncertain, the president does not have the authority to remove birthright citizenship by fiat because that would be a change to the constitution so let’s just put that one in a clear place for anyone who is wondering after that flurry of not super high quality tweets and news stories from major news outlets like those that you named but this is where the court comes in. so if this is something that Trump does try to do by executive order and that’s what he’s said this week he wants to do this is an issue that would almost certainly end up before the Supreme Court and ding, ding, ding that then raises the million dollar question of would they actually uphold the law the way that it works and the constitution or would they start to look a little bit like the wild west in a way that’s super politicized?

MILLHISER: That’s exactly right. The issue here so, let’s take a step back. We have and this is not hyperbole. We have the most partisan Supreme Court that we have ever had in American history right now. We have had more ideological courts but even if you go back to the early 20th century when they were striking down minimum wage laws and hobbling unions and all of that stuff, there were Democrats and Republicans in the majority opinions. There were Democrats and Republicans in the dissents. What’s new now is we don’t just have a very ideological court, we have a conservative majority where all five of the conservatives are Republicans and we have a liberal minority where all four of the liberals are Democrats. And so the question isn’t just whether the court is going to advance very ideological agenda, the answer to that question is yes. The question is whether the court is going to see its role of advancing the political agenda and the partisan interests of the Republican Party.

And that brings us back to birthright citizenship because let’s be honest about why Republicans care so much about birthright citizenship. The reason is because Donald Trump thinks there’s a bunch of brown people coming into this country and he thinks that they’re going to have kids and their kids are going to grow up to vote for Democrats. That’s why they don’t like birthright citizenship.

VALLAS: And that connects very much to another Trump priority which not getting nearly as much attention in this moment but which is very, very much related, that’s that public charge rule that he’s moving forward that would effectively use a centurys old provision that’s buried in immigration law to also try to blow up our family based immigration system by targeting families that are here and are not super wealthy and might have needed to turn to nutrition assistance or Medicaid or something else to get by. So he’s looking for every avenue he can to do exactly what you just said which is to stop brown people from living here and having children and voting.

MILLHISER: What’s I think so scary about this moment in American history is our parties have sorted both ideologically and along cultural lines and largely along racial lines. So it’s not just that Republicans are really conservative and Democrats are more liberal. It’s that the Democratic coalition is diverse, it does have white people in it but the white people in the Democratic coalition tend to be located in cities, they tend to be more cosmopolitan. The Republican coalition is almost monochromatic. I mean there are people of color in the Republican coalition but they do not have much influence and they are not significant parts of it.

This is happening at a time where you have a cultural fight. And it’s not solely a racial cultural fight. You have a conflict between people who are more urban and more cosmopolitan and people who live in smaller communities and have more traditional views. And so you have this situation where you have this conflict of cultures. The cultural conflict is increasingly sorted on racial lines which means it is often possible to spot who does not agree with you in this cultural fight just by looking at them and they’re sorting along partisan lines. And that leads to really scary politics. It leads to not just really scary immigration politics because you start to have white nationalists thinking well we can win if we just keep people out, if we can keep people from coming into the country that don’t look like us, but it means that you start seeing really nasty underhanded voter suppression because Republicans know that if they stop people from voting in the black neighborhood or in the brown neighborhood they’re going to stop Democrats from getting elected.

VALLAS: And voting rights of course is something that a lot of attention has been paid to in the context of Georgia and voter suppression efforts that have been playing out there, championed there by the Republican candidate for governor who’s also playing the part of the Secretary of State and using that tool and that perch to try to suppress votes by largely communities of color to keep Stacey Abrams from becoming the first Black female governor of Georgia. Voting rights is not just a conversation where the Supreme Court is a part of the cast of characters in the past, it’s also, and we should talk a little bit about that and unpack what happened in 2013 to a key part of the Voting Rights Act but it’s also a part of what you and other court watching are thinking might come back before this court in a way will be another indicator of whether the Supreme Court with its current and new makeup moving forward is playing the part of political tool of the Republican Party. So help me rewind the clock for folks and give just a brief refresher of what the Supreme Court not that long ago did to the Voting Rights Act.

MILLHISER: So I’m going to really sit on the rewind button and go back to 1982.

VALLAS: Oo.

MILLHISER: Well actually, I guess I have to go back to 1980, there’s a case called City of Mobile v. Bolden. And that said that the Voting Rights Act as it was originally written did not allow for what are called disparate effects lawsuits. So the difference there is one way you can win a voting rights lawsuit is you can just prove that the people who wrote it were racist. And that was actually kind of easy to do back in the late 1960s because you had George Wallace, you had people who were proudly running on racism. It’s not that easy to do now because we’ve had a voting rights act for a really long time and so that racist lawmakers know to keep their mouth shut. And so the other way that you can win is through showing what are called disparate effects. You can show that this law would disenfranchise 80% of Black voters and only 20% of white voters and that indicates that its’ real purpose was the target Black voters.

VALLAS: So it’s a more readily actionable way to prove racism in the way that a policy plays out than having to be able to say that person is racist in his heart.

MILLHISER: Yeah, it solves the problem that judges don’t have ESP. so we have no way, unless the lawmaker comes out and says that and occasionally it happens but for the most part racist lawmakers are smart. They know if they say I voted for this law because I don’t want Latinos to win or I don’t want Black people to vote that will end badly for them. So they just don’t say it.

VALLAS: So something that’s neutral on its face, that there’s not any smoking gun track record —

MILLHISER: Exactly.

VALLAS: Of oh, somebody gave up the game and said what they were thinking, that this is what helps to get around those types of problems.

MILLHISER: So 1980 the Supreme Court nuked these disparate effects suits. In 1982 Ronald Reagan to his credit signed a bill saying no I’m going to bring them back, we’re going to make it clear that these disparate effects suits, it’s not something, you’re not not allowed to do that so he restored the Voting Rights Act. But there was a conservative faction within Reagan’s Justice Department that didn’t want him to do that. And one of the people who was spearheading that charge was a young political appointee named John Roberts. John Roberts was by some accounts the point person on the effort to convince President Reagan that he shouldn’t sign this bill which again, very much to Reagan’s credit he did sign. And so that happened in 1982. Roberts has not changed his views on the Voting Rights Act. So in 2013 as you mentioned he wrote the opinion getting rid of what’s called the preclearance requirements which basically says that if a state has a history of doing racist stuff in the voting rights space then before they can enact, before a new voting law can take effect someone has to look at it and make sure that it isn’t racist.

VALLAS: And for example, Georgia was one of those states and that’s a big part of why and we had this conversation on this show a couple weeks back with Brentin Mock from City Lab, that’s a big part of why the goat rodeo playing in Georgia’s voting registration system right now called exact match was allowed to move forward because that preclearance thing was ripped out of the Voting Rights Act.

MILLHISER: That’s the sort of thing that the Voting Rights Act was supposed to stop before it even starts so Roberts already killed that. And then a couple of years later I think in 2015 he heard a fair housing case. And this disparate effects thing that I am talking about, this comes up in a lot of civil rights contexts, you can also potentially win a fair housing case if you can show, for example, a bank is charging much higher rates to Black borrowers than it is to white borrowers. There’s all sorts of cases like that. And Roberts didn’t just want to nuke the ability to bring those suits in the fair housing context but he asked some really disturbing questions in his oral argument would suggest that he still believes the stuff he believes in 1982. He thinks that all disparate effects, that should be gone. He even suggested it’s unconstitutional. And so what’s going to happen is there’s going to be a law and it’s going to be totally neutral on its face. Voter ID laws are an example of this, there’s nothing in voter ID law saying we’re going to require Black people to bring IDs but not white people.

VALLAS: Actually the exact match registration system is a perfect example of this.

MILLHISER: Exactly.

VALLAS: It might make logical sense to someone. Oh, I think that your voter registration documents should be an exact match to what’s in the system and to your drivers license, all that kind of stuff. That doesn’t have anywhere in it and therefore Black and brown voters shall not be able to vote, right? It looks neutral.

MILLHISER: Right, so all of these things look neutral on their face. The idea is you do a little research, literally happened in North Carolina when they passed this voter suppression law several years ago that was eventually struck down is they went and they looked at what sort of IDs do white people normally have and what sort of IDs do Black people normally have and then to vote you could only show the ones that white people are likely to have. In Texas, I’m not making this up, Texas’ law said that you could use a gun permit as a voter ID, so you can vote and you can show your gun permit but you can’t use a student ID and the reason is because Republicans tend to have guns and students tend to vote for Democrats.

VALLAS: Now no one would say that so it looks neutral on its face but that’s what you would find if you were to look at disparate impact.

MILLHISER: Right, and so what, this is how voter suppression works. And if Roberts kills disparate effects then unless you can find the idiot lawmaker who actually says yes we are passing this law because we only want white people to vote, you’re not going to be able to win a voting rights suit and at that point in a world where you have sorted parties, parties sorted along racial lines where Democrats depend upon non-white voters to even be competitive. Democrats do not have a plausible coalition if they have to rely solely on white Democrats, then you have permanent Republican rule. And this is what’s so scary about the Supreme Court being so ideological and so partisan right now. Because look, I don’t agree with Donald Trump, but if Donald Trump, a, he has to stay within the constitution but if Donald Trump wins a fair election unlike the one in 2016 —

VALLAS: It’s a big if Ian.

MILLHISER: If he had actually won that election, if Hillary Clinton hadn’t gotten three million more votes he wins the right to govern. That’s what it means to be in a democracy. And you and I don’t have to like the president. But the game here is to make it so we don’t have fair elections. The game here, this is what they’re doing in Georgia where literally the candidate for Republicans is also the secretary of state is they’re trying to make it so it doesn’t matter what the voters want, the Republicans win. And the body that we rely on to stop that from happening is the judiciary. And if the judiciary is complicit, then we’re doomed. Then the avenues that are available to restore our democracy and make sure that voters’ decisions actually matter start to become really ugly.

VALLAS: It’s the opposite of what we learned in middle school civics class which had to do with checks and balances. We’ve lost a check in the form of the judiciary because it becomes a rubber stamp on what Republicans want to do as well as an avenue for them to further cement their time in power.

MILLHISER: I think it’s more than that. I want to be really careful about what I want to say because it’s scary and I don’t want to give them impression — but democracy is the means that we use to resolve important disputes peacefully. It is the mechanism that society has developed so that when there are two factions that cannot resolve something they do not resort to bullets. It is the mechanism we use so we do not have a civil war. And it is dangerous if you start chipping away. That is dangerous when, and in this case, it happens to be, again, Hillary Clinton won by 3 million votes. It happens to be the case that Democrats make up a majority in this country. And so if a majority of the country feels that they no longer have recourse to the ballot box, things get scary. I don’t know what is going to happen but it’s not going to be pleasant and it’s not going to be safe. And I hope that Chief Justice Roberts and some of his colleagues realize that they do not want to live in that country.

VALLAS: Now I don’t want to make things even scarier but that’s what I’m about to do in the last few minutes that I have with you which is to bring up the First Amendment. Because it’s not just, I feel like every week I feel like I’m some kind of infomercial where I do the ‘but wait there’s more’ and it gets even scarier and I guess maybe for a Halloween episode that’s fitting. But when you bring the First Amendment into this you have not just an issue of rubber stamps of things that say the president to do that tear up the constitution, which we talked about with birthright citizenship, not just threatening democracy through the ballot box in the ways that you were just describing but also the potential for the creation of special rights for some people in this country who are Republicans or people who agree with them and other rights for other people who don’t agree with them. So paint that picture make things a little bit scarier as well.

MILLHISER: So I guess let’s take a step back to why we have a First Amendment. The purpose of free speech is that you need it for a democracy, because if you cant have an open conversation about the various political ideas out there people don’t know what to vote for and they don’t know who will deliver it. And so you have to be able to have that sort of conversation or your democracy is a sham. And there are early warning signs, so the fundamental rule under the First Amendment is that it does not commit what is called viewpoint discrimination. The government doesn’t get to say these sides get what they want and these sides don’t, this side gets to speak and this sides doesn’t, this view is suppressed and this one isn’t. There was a case last term called Becerra and Becerra involved a California law which if I’m honest is a law that was questionable under the First Amendment, dealt with these things called crisis pregnancy centers, they’re sham clinics that are set up to try to trick women into coming there instead of an abortion clinic. The law effectively required, although it did so in a non-ideal way these clinics disclose that hey, we’re not really a health clinic.

VALLAS: Which is particularly important for folks who aren’t familiar with the concept of crisis pregnancy centers. These are places that it’s not just about trying to mislead women into going there, it’s about trying to burn the clock because there’s only so much time that you have the ability to terminate a pregnancy.

MILLHISER: Right, exacly, the idea is to run out the clock. And so what made this a difficult case is that Texas and states like that red states like to pass laws which require abortion providers to often given an entire anti-abortion speech to someone who’s just there trying to get medical care. And so the idea is both case people complain that’s compelled speech which is not allowed under the First Amendment and my view of this Becerra case and Justice Breyer’s view of the Becerra case is you just have to have the same rule for both. I think it matters less whether the California law is struck down or not than you just make sure if the California law gets to exist, then Texas gets to have its anti-abortion law too and if Texas doesn’t get to have its anti-abortion law then California doesn’t get; so just have the same rule. No viewpoint discrimination whether you’re pro-abortion or against abortion the same rule applies to you.

And what the Supreme Court said in this Becerra case which is really terrifying is they said that the California law is struck down but the Texas law ain’t. they said that there’s one First Amendment if you support abortion and a better First Amendment if you’re anti-abortion.

VALLAS: And this is where the idea of special rules for certain people comes in.

MILLHISER: Right, and it’s just one issue and it’s narrow, it’s just the beginning of the camel’s nose under the tent at this point. But if the court’s going to go down this route; and there’s another case that a lot of people are watching involving a religious football coach at a public school who thinks, the general rule when you work for the government is while you are on the clock the government is allowed to tell you what you are and aren’t allowed to say with a few exceptions and he was fired because he thought that he could say what he wanted to say while he was on the clock representing the school district and he wants a carve out to that rule. He wants to have a special First Amendment that applies to him and allows him while he’s on the clock to walk out into the middle of the football at the end of the game where all the fans are watching and as a representative of the school district you ostentatiously do the Tebow prayer. And his principal told him no. and it is well established, I used to be a school teacher. My principal would tell me lots of things that I wasn’t allowed to say.

VALLAS: I don’t think I knew you were a teacher.

MILLHISER: Oh yeah I was a teacher for two years.

VALLAS: What did you teach?

MILLHISER: 8th grade literature.

VALLAS: Oh my God of course you did.

MILLHISER: I would not do 8th grade again, definitely not the 8th grade again. When you’re a teacher there’s a ton you’re not allowed to say; you can’t curse in front of the kids, you actually have to teach the curriculum. I was a literature teacher I couldn’t wake up one morning and say actually I want to teach Japanese art. No the words that came out of my mouth were determined by my boss’s because that’s the job.

VALLAS: Part of the reason I’m raising an eyebrow is I learned that you were a teacher is I’m thinking about how almost everytime I have you on this show we have to have this conversation about how many times it’s going to be OK for our producer Will to have to bleep you so [LAUGHTER] I’m just picturing you in the classroom but no do go on.

MILLHISER: My point is that maybe this principal is wrong. Maybe the principal should just let this one slide but when the question is what does the First Amendment say, my principal told me do lots of things that I didn’t think were the right call but he was my boss and the First Amendment doctrine says he’s allowed to do that and I don’t get a special rule and neither should this guy just because Christian nationalism is hot right now amongst Republicans.

VALLAS: And this also brings in another case that we expect might become a live issue and this is Masterpiece Cake Shop take two.

MILLHISER: So it’s called Klein case, it’s the same issue that was before the court last term in Masterpiece Cake Shop, you’ve got a baker that doesn’t approve of gay people and doesn’t think that they should, that same sex marriages should exist. In this case it was a lesbian couple that wanted a wedding cake, refused to sell the wedding cake, basically the same set of facts as Masterpiece Cake Shop. And again, what this bakery is asking for is a special exemption to civil rights laws. To say because I happen to be a member of this faith that happens to be in vogue right now with Republicans I shouldn’t have to follow the law that everyone else has to follow and I shouldn’t have to follow a law that is specifically there to protect a vulnerable group of people who are a member of the, often a member of the Democrat coalition. And so it’s frightening. We are going down this road where our voting rights are in danger and where the Supreme Court when there is a cultural dispute between a group that is primarily associated with the Republican coalition and a group that is primarily associated with the Democratic coalition, they’re willing to manipulate, instead of just saying here’s the rule, applies to everyone, everyone has to follow the civil right law, everyone if you’re working for the government has to for the most part do what your boss tells you to do they’re now going to say no, no, no, no, if you’re a Democrat you’ve got to do that. But if you’re a member of these groups that are hugely influential within the Republican coalition you don’t. And that goes to a really dark place really fast.

VALLAS: So a lot to take in, a lot else to be keeping us up at night and I feel like perfect for a Halloween episode because Ian, you’re a goddamn terror when you get talking about all of these scary things.

MILLHISER: I’m not the scary one, it’s the damn justices.

[LAUGHTER]

VALLAS: You’re just the messenger that is fair. So a lot to watch in the coming weeks and months especially that Kennedy case that you mentioned on the First Amendment that will be a canary in the coal mine on many levels and Ian we’ll have to have you back and apparently not for anything good anytime soon but Ian Millhiser is the justice editor at Think Progress, he’s also the author of “Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted”.

MILLHISER: Well done.

VALLAS: And I get points every time I say it correctly.

MILLHISER: You do.

VALLAS: Ian, thank you so much for coming back on the show.

MILLHISER: I’ll buy you a drink next time we get out.

VALLAS: Happily accepted.

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.