Lever Time with David Sirota

On this week’s episode of Lever Time, David Sirota is joined by lawyer Caroline Fredrickson, who recently penned an op-ed for The Atlantic titled, “What I Most Regret About My Decades of Legal Activism.” As the former head of the American Constitution Society — the liberal counterweight to the conservative legal network The Federalist Society — Caroline speaks with David about the strengths and weaknesses of liberal legal activism over the last two decades.

Caroline’s piece explores the past errors of the liberal legal movement, specifically how focusing on social issues like abortion rights ultimately stacked federal courts with judges who are lax on antitrust enforcement and corporate power. The result gave the conservative legal movement more money and power to pursue their own goals on social issues, such as the Supreme Court’s 2022 Dobbs v. Jackson decision, which overturned Roe v. Wade and eliminated federal abortion rights.

In today’s interview, David and Caroline discuss how this dynamic created a negative feedback loop that bolstered the conservative legal movement, how think tanks like the Federalist Society have indoctrinated a generation of law students, and how the Democratic Party’s focus on identity politics have obscured the federal judiciary’s expansion of corporate power.

A transcript of this episode is available here.

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What is Lever Time with David Sirota?

From LeverNews.com — Lever Time is the flagship podcast from the investigative news outlet The Lever. Hosted by award-winning journalist, Oscar-nominated writer, and Bernie Sanders' 2020 speechwriter David Sirota, Lever Time features exclusive reporting from The Lever’s newsroom, high-profile guest interviews, and expert analysis from the sharpest minds in media and politics.

Frank Cappello: [00:00:00] Hello, and welcome to Lever Time. I am Lever producer Frank Capello, filling in for David Sirota.

On today's episode, we will be sharing David's interview with Caroline Fredrickson. Caroline is a lawyer, author, and the former president of the American Constitution Society, who recently wrote an op ed for The Atlantic titled, What I Most Regret About My Decades of Legal Activism.

the piece explores how over the last several decades Liberal legal activists have focused most of their advocacy work on social issues such as abortion rights and LGBTQ rights, And by doing so have largely ignored issues related to economics or the restraint of corporate power. which in turn has given the conservative legal movement more money to pursue their own goals when it comes to social issues.

so that interview will be coming up in a few minutes. For our paid subscribers, we're always dropping bonus episodes into our Lever Premium Podcasts feed. This past Monday, we [00:01:00] published our interview with the music writer Robin James and musician Greg Saunier about the online music platform Bandcamp, which was recently sold to the licensing company SongTrader, leading to Bandcamp laying off about half of their entire staff. It's a really fascinating story about the corporate influence on the music industry. We actually took down the paywall for this episode, so anyone can listen to it, and that is on the Lever Time podcast feed.

But if you want regular access to our premium content, just head over to LeverNews. com and click the subscribe button in the top right to become a supporting subscriber. This gives you access to the Lever Premium Podcasts feed, exclusive live events It's even more in depth reporting, and you'll be directly supporting the independent journalism that we do here at The Lever.

Alright, we're gonna get right into today's interview with David Sirota and Caroline Fredrickson. 2020, conservative legal activist Leonard Leo, The chairman of the conservative legal network, the Federalist Society, managed to achieve his decades long goal of stacking the Supreme Court with conservative justices.

as Donald Trump's top judicial advisor, Leo played a key part in the [00:02:00] nominations and appointments of Justices Neil Gorsuch. Brett Kavanaugh and Amy Coney Barrett. since then the last few years of Supreme Court rulings have been devastating for women, queer people, people of color, and many others. This has of course been the central focus of the conservative legal movement over the last several decades. Now you may be asking, why hasn't the liberal legal movement been able to stop this?

Our guest today, Caroline Fredrickson, Was the president of the American Constitution Society from 2009 to 2019. The ACS is essentially the liberal counterweight to the conservative Federalist Society. In Caroline's recent op ed for The Atlantic titled, What I Most Regret About My Decades of Legal Activism, Caroline posits that by focusing primarily on federal judges records on social issues, they largely ignored their records on economic issues, specifically antitrust enforcement.

And reigning in corporate power. this has created a sort of negative feedback loop in which the corporate class has been able to use the judiciary to accrue more and more wealth and power, granting them more capital [00:03:00] to fund the conservative legal movement, which then in turn has delivered disastrous Supreme Court rulings on social issues. In today's interview, David and Caroline discuss how this dynamic came to be, and how think tanks like the Federalist Society have indoctrinated a generation of law students through the infiltration of law schools, and how the Democratic Party's focus on identity politics have obscured the corporate power actually pulling all the strings.

David Sirota: Hey, Carolyn, how you doing?

Caroline Fredrickson: Good. How are you?

David Sirota: I'm good. Uh, I really appreciated your piece, uh, in the Atlantic entitled what I most regret about my decades of legal activism. And it speaks to something that, that I have lamented for a very, very long time. Um, and I want to start this interview by just recounting a uh, Small anecdote.

I remember back in 2005 when John Roberts was nominated for the Supreme Court. I had written a couple things about his rulings in the past [00:04:00] on economic and corporate issues and was, I had written about being surprised at how little that record played into any of his nomination process. At all, that the Supreme Court nomination process was all about what we call social issues and almost nothing about corporate power, nothing about economic issues at all.

And I think Supreme Court, uh, nominations have become that in American life, a place where, where these, these hot button important, certainly important social issues take center stage. But issues of corporate power and economics are often. Not mentioned at all. Now, your piece in the Atlantic talks a lot about this, and you talk about it from the perspective of leading the American Constitution Society.

So let's start with that leading the American Constitution Society. What is the [00:05:00] American Constitution Society? What is it supposed to be a counterweight to? How does it play into, for instance, Supreme Court fights?

Caroline Fredrickson: Well, thanks, David. First, just really appreciate being on this terrific podcast. I've been a big admirer of yours for, for so long, and it's really

David Sirota: Thank you.

Caroline Fredrickson: to be together. Um, uh, and so, you know, the, the, the, the Federalist Society is really the counter that, uh, the American Constitution Society was established to, to challenge.

Um, the idea is to build a network of, of legal professionals, law students, law professors, and provide a, a, a source of understanding of the Constitution and laws, um, for judges and others. Um, that is, um, a much different approach to the originalism. Uh, and textualism that is, um, offered by the Federalist Society is, is a way of, hiding their actual intentions, which is the outcome driven, orientation of that kind of methodology, which is, you know, give us [00:06:00] what we, what we want in the 19th century, you know, what we liked back then and we'll make it the law now, um, as we can see with the gun decisions and so forth.

Um, but, you know, the problem was... Was that we just didn't have the same expansive understanding of how to build that network and, and how to, uh, lift up our view of the Constitution and the role of Congress in passing laws to protect us. Uh, and so we were too narrowly focused, I'd say. And we also just didn't understand the political hardball that they were playing on the right.

David Sirota: And I think that's, that's such an important way to phrase it, that, that, that the Federalist Society is playing on all of these issues. And for a lot of the last 20 years, I don't think that's really been recognized. Um, in your piece you talk about the kind of the absence of corporate power, the absence of, [00:07:00] of, of an economic analysis in court nomination battles.

Talk to us a little bit more about how that came to be, why you think that absence exists when the federal judiciary is dealing so much with those particular issues.

Caroline Fredrickson: Sure. Well, David, I think as you mentioned the, the confirmation battles around Chief Justice Roberts. didn't focus on corporate power, didn't focus on, how, um, how Congress can effectively constrain, um, monopolies, um, uh, provide regulations to keep us, healthy, keep our water clean, the air is breathable.

and instead, as you rightly said, focus on incredibly important issues, um, uh, social issues, but also, you know, how do we interpret the Constitution? Are you an originalist? And what does that mean? And, you know, he famously said, I'm just calling balls and strikes. That's all we do as judges, you know, but in fact, we [00:08:00] missed this game.

It happened long before this, uh, in, um, in the Bork hearings, which I mentioned, um, he ended up not being confirmed. Until the very last day of incredibly lengthy hearing sessions, I think there were 12 days, um, nobody talked about the role that, um, Bork had played in destabilizing our competition policy, taking some very, um, clear statutes like the Sherman Act and the Clayton Act that had been interpreted over a long period of time to bar consolidation, to bar monopolies, um, that were detrimental to, um, to our economy.

And the way that economy was understood was not just corporate profits are going up, um, or maybe the cost of an item goes down for a short period of time. But in fact, the multiple stakeholders that, uh, exist in the economy, and one of the most important pieces was in protecting democracy. Democracy is something that can [00:09:00] be really harmed.

by the aggregation of corporate power. None of that came out until the very last day. As I mentioned, the Attorney General of Ohio, who happened to, be, uh, Charles Brown, who, incidentally, I believe, is Sherrod Brown's brother, said, you have to pay attention to this because of all the things you've talked about, this is the most dangerous.

Um, but in fact, all of the, uh, the minds had already been laid. And they've been blowing up ever since it was Bork. It was Scalia. It was been Judge Posner and Easterbrook who helped develop this approach to the law that said, um, forget about what the text says. Forget about that history. In fact, you know, monopoly is good.

Mr of the Chicago school taken into the law. It's called law and economics. Um, and it's taught in all the law schools. Now it has permeated our legal academy. It's Um, and the interpretation of laws by judges, and you can get laughed out of the [00:10:00] room if you, if you suggest to people that we should go back to the text and try and interpret the law the way it was actually written, if you're, you know, kicking them at their word that they're textualists and they actually believe that we should enforce the law, and they'll laugh you out of the room and that includes not just, you know, conservative judges, but also you.

Thank you. You know, progressive law professors who've just drank the Kool Aid long ago.

David Sirota: Let's talk a little bit more about that. I mean, because, because what you're reflecting, I think, is a larger shift in, uh, the Democratic Party, the Democratic coalitions, the left of center, left of center, putatively left of center America, uh, with a focus on, more of a focus on social issues, uh, less of a focus on economic issues and corporate power.

I think the question is, how much is the erasure of Uh, Corporate power and economic issues from[00:11:00] what America thinks of judicial politics, how much of that erasure has to do with the Democratic Party becoming more closely aligned with big business, big corporations, uh, over the last 20, 30, 40 years.

Caroline Fredrickson: Well, I think it's all really linked. you know, as you suggest, the Democratic Party has been, you know, um, drinking at the trough of corporate, funding, um, especially after, you know, the sort of the floodgates opened with Citizens United, but definitely before that as well. but I'd, I'd say there's, there's, there's an interesting, um, kind of dynamic here, which I describe in my.

Uh, in my piece, the insidious nature of this is that the corporations have been funding all these right wing legal groups. you know, and not so much to drive their, understanding of abortion, right? I mean, you know, ExxonMobil doesn't have a strong position on abortion. And even the Koch brothers don't really care all that much about abortion or LGBTQ [00:12:00] rights.

Um, but it's a really convenient, um, mechanism. to undermine other rights. And by that I mean, you get those groups, um, you get people energized around social issues. They vote, uh, you give money to groups like the Federalist Society and the Heritage Foundation, which, which push for judges, who, conveniently, are at least as right wing on regulatory policy and corporate power as they are on abortion.

So it's like, it's a, it's for them, it's, it's a magic. It's the magic wand, right? You give money to these groups, you make the, the, the issue, the big issue that everybody wants to talk about, abortion. and while nobody's looking, you change the law with respect to regulation. And, you know, we get judges from, you know, appointees from, you know, Ruth Bader Ginsburg went to training programs run by, um, the guy who was the dean of George Mason Law School, which is now called the Scalia Law School.

and so they all drank this Kool Aid about how [00:13:00] to understand the law, and if you look now at the so called liberal justices, when it comes to decisions on corporate issues, they're pretty much aligned, not always, but so often, with the most conservative justices.

David Sirota: So we're in a different, I feel like we're in a slightly different era right now, where I think there is more of an awareness of corporate power and economic issues in some parts of the Democratic Party. I think that's partially because of, uh, political campaigns like the Bernie Sanders 2016 and 2020 campaign.

politicians whose campaigns are, uh, centered around. corporate power and economic issues. I think it's also that the economy has become more, uh, economically dystopian, uh, than ever. and I think when I read your piece about how. Those issues have been omitted from, uh, the, or erased from the public's consciousness or the public's understanding of what the judiciary [00:14:00] does.

it, it struck me that, that what's so important about saying that is, is that it, it's being, being put into, that message is being put into, uh, a world where I do think there's more understanding of how central those, uh, issues are. But I would ask you this, for those who don't really understand how the court deals with these kinds of issues, for those who think that the court is just about abortion and, uh, and, and social issues, again, very important issues, explain to the lay, lay person who might not know how involved The court really is in all of those issues that I think lots of people think are for the Congress and the president, but that the judges have nothing to do with

Caroline Fredrickson: Right, well, I mean, there's so many areas that you can think about, but I'm gonna, I'm gonna stick with competition policy because that, I think, really illustrates, well, you know, there was back in the day, Um, before, Judge [00:15:00] Bork and, and Scalia and the others crafted this new approach to, um, anti monopoly law, um, there was an understanding that the role of government was to protect us from the aggregated power of corporations, um, and, you know, at the end of the 19th century, they adopted the Sherman Act, that, um, you know, was the anti trust, right?

It was to stop the big trust. and, uh, you know, that infamous era of these massive consolidations of, of businesses that were basically running the country. And there was an effort to ensure that there were these multiple values. It doesn't matter. Sometimes a company that gobbles up other companies is going to give you something cheaper.

All right, well, and that's what the right is trying to sell us, that that is fine. And that's the only value. But that's not what the value of those laws are. Because you know what? I guess if a company gobbles everything else up, it lowers prices for a minute, and then it can raise them right up again. But the other [00:16:00] things that it does along the way is it eliminates jobs, it eliminates downtown, it, it eliminates competition, innovation.

But worst of all, It eliminates, um, the ability of all of us to, um, be in charge of our government because they become the ones who run the government.

David Sirota: yet. Now, what are the big ideas in the in the article you wrote about legal activism over many years is, is about how the Democrats choice to ignore issue avoid. economic issues when it comes to the judiciary, how that's actually eroded the civil rights that the party's leaders have chosen to focus on.

Explain that connection.

Caroline Fredrickson: Well, so, I think, as I said, these things go hand in hand. that, um, the, the more, deregulation that has happened, the richer the plutocrats become. The richer the plutocrats become, the more they can fund right wing legal [00:17:00] organizations and right wing campaigns. The more they can fund those campaigns, the more they win.

Um, and they win in all sorts of areas. As I said, they use, um, the social issues, which some of them actually really care about. I mean, the head of the, the real head of the Federalist Society, Leonard Leo, is passionate about, uh, about abortion. And, uh, it's a fervent. Right wing Catholic, um, he's a member of Opus Dei, he's a knight of Malta, you know, it's just, and he will talk about that, that abortion is really important for him, but he also really wants to tear down what we call the administrative state, which is, uh, you know, all of the regulatory agencies that keep us safe, um, that, um, protect us from, from violence.

Pollution, um, and dangerous drugs and so forth. Um, and so, you know, this is a really a vicious circle because these things are really tightly linked. Uh, and the more they win, the more they win, right? So the more they win, they [00:18:00] use these issues and they drive their victories at the polls, bringing people out, and then they tear down more of our protections and they get richer and richer.

David Sirota: Now, I don't know about you, but I, I, I'm, I'm slightly encouraged by the fact that economic and corporate power issues do seem to be, uh, more, uh, at the forefront. of, confirmation hearings and the like, at least of late. I, I remember, for instance, in Neil Gorsuch's confirmation hearing, these issues popped up once, actually in a very high profile way, when Gorsuch was kind of, uh, called to account for his ruling in a case about a trucker, a truck driver, uh, who, uh, was, Yeah, who was facing the possibility of freezing to death, [00:19:00] and it really focused the attention for like a minute.

On how these judges are actually shaping economic issues, how these judges are shaping, um, the balance between, uh, uh, corporations and labor and, and the like, and then it kind of went away, but I, but then in the Amy Coney Barrett hearing, uh, there was, there was a lot more about, um, some business issues, climate change and the like, I think my question to you is, do you think there's been progress in the, Uh, either some Democratic leaders better understanding and centering economic and corporate power issues in, uh, the critique of the judiciary.

Do you think there's been progress there? Has there been progress? Do you think in the public's understanding of how important, uh, the Supreme Court is in the judicial system is in terms of not just social issues, but also economic and corporate power issues? Do you think there's been some progress? [00:20:00] Uh, since the time that you were leading the American Constitution Society.

Caroline Fredrickson: No, absolutely. And I do want to say about the American Constitution Society that we certainly, you know, we're really concerned about bad decisions involving economic issues and labor. Um, and those issues have come up, in, uh, in individual confirmation hearings. I think our problem is that we didn't see the systematic and systemic connections.

that this wasn't just, you know, sort of, we know they hate labor, and, and we don't like those decisions. But in fact, that this was a, a, the theoretical foundations, um, had been so undermined by, along a process of buy in by the legal academy. Um, so that you, you're not even thinking about so much what already exists.

Um, we're only thinking about trying to stop things from getting worse. so I'd say, but, you know, in response to your sort of optimism, I'd say I agree, uh, I agree that we've had Bernie Sanders, AOC, Elizabeth [00:21:00] Warren, um, Sheldon Whitehouse, who's really gotten into the issue of dark money coming into the court, a lot of people concerned about Um, you know, the, the Clarence Thomas live in the high life on the, on the, at the expense of the, uh, uh, billionaires and Alito and, and et cetera, great, reporting that has been done from a variety of outlets, but I'd say ProPublica in particular has done some incredible work.

And I think with the Dobbs decision, um, with the Bruin decision involving guns, um, last term, Um, you know, I think people are really starting to focus. The Supreme Court's reputation has suffered dramatically. Um, and I want to also just mention that President Biden, has actually done something that is the most important thing, although not enough.

but he has recognized what the right recognized. This is something that Judge Posner, who was a Seventh Circuit, um, Chicago school guy, wrote [00:22:00] to the Reagan administration at the beginning of the Uh, during their transition to say, you know, basically personnel is policy. You need to appoint the right people and appoint those people in the Federal Trade Commission in the antitrust division and the decisions they make about how not to enforce the law, which is primarily what they were suggesting.

Don't enforce the law. send out guidance that judges will find compelling about how not to enforce the law. And through this process, and through the judges they got appointed, they changed the law without actually amending it. Um, and Posner's suggestion was, you know, fly under the radar here. If you fly under the radar, by getting the people in place, getting the judges to hear the cases, um, getting the Justice Department to issue the guidance that says, basically you need to understand this.

We know the language says this, but actually you should understand it this other way. and that [00:23:00] impact has been enormous, plus with the Federalist Society, et cetera, um, uh, seating the judiciary, the law schools, the law, they run programs for judges, for, for law professors, for law students, um, including, you know, as I mentioned, Ruth Bader Ginsburg and a bunch of Democratic appointees who go to very luxurious places to hang out for a week or two and, and, and, and hear about Chicago school economics.

Um, but, but President Biden has appointed a couple of people himself who are, um, about the policy and personnel as policy, Lena Khan at the FTC, um, and Jonathan Cantor at the Antitrust Division, who are trying to re, reinvigorate, um, what textualism in the context of antitrust law, that this is what they meant.

This is what they, how the law should be enforced. It actually is meant to stop, um, monopolies, um, from occurring and, and ensure that corporate power doesn't get too great. That's the whole point of the law. Um, and they're meeting, [00:24:00] you know, a buzzsaw. Um, but we don't have enough judges who appreciate that.

Not enough judges who come out of, um, economic, background who grasp the details. And, and that's why they all go to these, uh, Also, you know, they are on Captiva Island and then the, you know, ski resorts. but in part because, you know, they get these big cases dealing with antitrust or, um, uh, you know, big, uh, medical malpractice claims.

And somebody can, you know, spoon feed them economic policy.

David Sirota: I want to get to, to where this all leads to, which is democratic senators and a democratic president should consider judicial nominees in the era of what's commonly called identity politics. Uh, and these are a series of, of uncomfortable questions that are, that are not easy. But I'll just state it.

I mean, we live in an era where I think the Democratic Party has chosen to prioritize [00:25:00] identity first and foremost over everything else. In other words, nominees are judged by, uh, their demographics. in a way, uh, that kind of puts secondary, uh, ideology, it puts secondary, um, sort of viewpoint background, right?

Like, do you come out of the labor movement? Do you come out of, uh, or do you come out of a corporate law firm and the like? Those are, that's kind of secondary to, identity. Uh, first and foremost, I mean, Biden, when, when the first thing that most democratic governors of the democratic president will tout in any nominee is the nominee's identity.

Uh, and so I think there is a tension there, From that kind of politics to the problem that you've diagnosed, which is that you can have a, uh, a set of judicial nominees that are demographically representative, better [00:26:00] demographically representative of the country than previous, a previous set of nominees are.

But they may be not, uh, uh, different and not representative of what the public wants on economic and corporate power issues, uh, and all sorts of other issues. So I think my question here is, in the era where identity politics is so central to Democratic Party politics, how do you think... a democratic president or democratic senators should, propose nominees.

Uh, what are the litmus tests they should look at in a nominee? Um, what, what are the criteria for? The next set of judicial nominees beyond identity,

Caroline Fredrickson: Alright, well I'm going to disagree with you a bit, um, because I think there has been a much... Um, more expansive focus under, um, President Biden's [00:27:00] administration, um, than under Obama's, um,

David Sirota: want to just let me let me interrupt and say I do agree with that. I do certainly agree with that, that that the backgrounds, the sort of what parts of what career experiences and the like that a lot of nominees have are much different. And much better under President Biden than

President Obama. So I just wanted to say I agree,

Caroline Fredrickson: right, so that they have really advanced people like Dale Ho, um, you know, was an ACLU voting rights lawyer, others who have been, um, in the civil rights world or public defenders. I mean, Ketanji Brown Jackson on the Supreme Court. Was a public defender. Uh, and so I think those are really different.

And I applaud President Biden for for for expanding that now where he has not done enough, um, is around, um, you know, promoting, candidates, nominees who have a diverse background in terms of economics. Um, not enough labor lawyers, not enough people who've worked on kind of [00:28:00] antitrust, destabilization that is, you know, trying to stop monopoly as opposed to trying to help monopoly.

Um, not enough people who come out of those, uh, those areas, you know, trial lawyers who work on consumer, um, uh, consumer rights and, and so forth that I think, um, you know, are, uh, have been neglected and I, you know, have called the administration out on that and I think, uh, I think they're, they're hearing it.

Uh, I'd like to see some results. but I, you know, I, I guess I think that the demographic diversity has been really important, but it can't be the solo, um, condition and the best thing that we have is we want to cast a wide less, wide net for the best possible people who represent America, both in terms of our demographic diversity, but also in terms of our right, to live in a democratic society where, you know, Amazon doesn't, isn't the only place we can buy anything and the only jobs in town are, uh, Are, um, are run by the one big corporation, um, that McDonald's can, can, can, can force you to, uh, [00:29:00] not, you can't be, you have to sign a non compete clause to work for McDonald's when you're a fry chef.

Um, you know, we, we need to have our rights better protected and that means that the, that the, that the demographics are not enough. The diversity has to include people who understand that.

David Sirota: Carolyn Fredrickson is a Senior Fellow at the Brennan Center for Justice. She served as the President of the American Constitution Society from 2009 to 2019. She wrote one of, what I believe is one of the most important pieces that I've read in a very long time. And I shared it with, with many of my friends and colleagues saying exactly that.

The piece was entitled, What I most regret about my decades of legal activism, it talks about effectively the erasure of economics and corporate power issues from how, uh, the Democratic Party, how we as America perceive the judiciary that is shaping those issues every single day. Carolyn, thank you so much for taking time with us today.

Caroline Fredrickson: Hey, [00:30:00] David, it was really great to be with you. I so appreciate, um, having the opportunity.

that's it for today's show. As a reminder, make sure to check out our bonus episode of Levertime Premium Which is not paywalled this week.

Frank Cappello: which is our interview with the music writer Robin James and musician Greg Saunier about the sale of the online music platform Bandcamp. to get regular access to Lever Time Premium, just head over to levernews.

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Until next time, I'm Frank Capello. Rock the boat. The Lever Time Podcast is a production of the Lever and the Lever Podcast Network. It's hosted by David Sirota. Our producer is me, Frank Capello, with help from Lever producer [00:31:00] Jared Jacangmayor.