99% Invisible - 459- Yankee Pyramids

Episode Date: September 22, 2021

Presidential libraries are tributes to greatness, "[a] self-congratulatory, almost fictional account of someone's achievements, where all the blemishes are hidden," explains one New York architect.  But they're also a "weird mix of a historical repository of records and things that have a lot of meaning." Studying their origins and evolution, one can begin to see how presidential libraries have always involved tensions and contradictions.Yankee PyramidsThe premise of using the extreme example of Trump to heighten the contradictions of executive branch norms is what we do on Roman's other podcast What Trump Can Teach Us About Con Law. It's good! And it's not really about Trump, so don't worry. It's essentially a current events based Constitutional Law class taught by an incredible professor, Elizabeth Joh. We included the latest episode here for you to check out.  

This is 99% invisible. I'm Roman Mars. Hey Roman. Hey Deline Hall, you're the executive producer of this here show. Yes, I am, and I'm going to be telling our story this week. I want to start back in November 2016. Was election night. Who could forget? And somewhere in New York City, there was a group of friends watching the results come in.

A few of them had been low-level volunteers for the Hillary Clinton campaign. Donald Trump has won the state of Florida. One of his Trump will win Ohio. Trump will carry the state of Wisconsin. He will win Wisconsin. And the results were not what they were expecting. And the wall comes to him down. This is the blue wall that Hillary Clinton had talked about. This is a state of Hillary Clinton. As they watched, they were getting more and more upset. The middle is very bad at that point.

It's still we still in blame, it was real. We wondered if there was a counting error or there's all big cosmic joke. So yeah, shocked bordering on depression basically. Okay, so who's that and what's up with his voice? So that is a member of the group that was there that night and we have agreed to keep him anonymous, which is why his voice sounds like that. I'll explain more later.

Okay, it's very mysterious. Thank you, Cohen. So this group is freaking out. Everybody's spiraling. There's a lot of existential dread going on. Like, what is this going to mean? One of my first thoughts, oddly enough, I don't even know why I thought this is this guy's gonna get a library.

Like how do you get Donald Trump a presidential library? In this moment, he's thinking about Donald Trump's future presidential library. I have to say that that was not where my head was. And the election night. Nor mine, nor mine. But this guy is actually an architect. Oh, okay.

And I won't say much more than that, but he does live in New York where Trump made his career as a developer. And so that's where this guy's head went. Yeah, I mean, bookish isn't the first adjective when I think about Donald Trump. When he talks about his favorite book, he usually mentions his own, uh, goes written autobiography. Yeah, he is by many accounts, not a big reader. So it seems a little contradictory at first, the idea of a Trump library, but I will admit that like this architect, I've become a little bit fascinated by the question of this hypothetical library. Where will it be? You know, what will it look like?

Will it be gold? Will there be a gold plated roller coaster? That's what I want to know. But as I started learning about the history of presidential libraries more generally, I've kind of think there's actually something quite Trumpian about them, like all of them, regardless of the president involved. Oh, interesting. Yeah, I can kind of see that. They've always felt more like a museum to one person's greatness than anything else. That seems quite Trumpian in some ways.

Yeah, exactly. There's weird mix of historical repository of records and things that have one meaning, and there also then this edifice, this self-congratuary, almost fictional account of someone's achievements where the blotishes are hidden. So we'll get back to this architect in a little bit, but first I want to tell you about how presidential libraries came to be because they have always been a weird contradiction. Oh, I'm excited. Let's do it. So before the invention of presidential libraries, there was just chaos when it came to presidential records.

A lot of George Washington's papers were eaten by rats. A lot of other people's papers burned in fires. This is Jollipore. She's a historian at Harvard and a writer at the New Yorker and she's the host of a great podcast called The Last Archive. And she says that in the early years of the country, people were just burning presidential papers in trash cans or pulling out all the unflattering documents and destroying them. The papers that remain give you a very distorted portrait of the person, right? So any evidence of

scandal or corruption will have been very carefully ex-sized by your children or your grandchildren or your wife or your widow. And for a long time, that was the state of things. Presidential papers were considered the private property of the president. And what happened to them was very haphazard. It sounds like what God saved was shaped by a mix of chaos and self-interest. So on the one hand, what's left behind is kind of accidental.

And on the other hand, what's left behind is the stuff that makes the person look good. And it really wasn't until the progressive era, like the late 1800s, early 1900s, that that started to change in any kind of systematic way. And that was the era when people were starting to talk about good governments and the ideas of openness and transparency. And increasingly by the 1930s, that's understood in opposition to the secrecy of authoritarian regimes that are toppling democracies the world over, right? Especially thinking of, you know, Mussolini and Hitler.

So this is the era when the national archives were established, you know, to care and preserve for the records of the US government. And those documents, like presidential papers, had just been kept in basements and addicts and various abandoned buildings scattered across Washington, DC. And again, the disarray is just shocking to me. Like, this is what I would do with my import documents, but like the documents of the nation, anyway. Then Franklin Delano Roosevelt came along, and by the end of his second term, he'd come up with a plan for his own papers.

He decided that he was going to put all his papers in one place and that it would be open to the public. Roosevelt was the one that came up with this idea that I could have a museum that would celebrate my life. This is Benjamin Huffbauer. He's an art historian and an expert on presidential libraries. And I'd have this archive, and it would be a building, and he was an amateur architect, so he designed his own... his own little building for that. It was designed in the Dutch colonial style style and it wasn't actually that little. It was about 40,000 square feet.

And Roosevelt decided that it would be built in Hyde Park, New York, the place where he was born. And to raise the funds for it, he turned to his supporters. So supporters of President Roosevelt could mail in a check for $10, $20, $50, $100, and that went into the funding of the library. Then once the building was completed, then it was handed over to the federal government to the National Archives to be run forever, basically, by the U.S. government. And this latest addition to the archives of America is dedicated at a moment when government of the people by themselves is being attacked everywhere.

And so that was it, the first presidential library. It opened in 1941. Wow, that seems so recent in American history. So when this thing opened in 41, how did people react to it? Like how was it received? Oh, a lot of people thought it was ridiculous. People thought he was a megalomaniac. Someone said he wanted to build a Yankee pyramid. There was a comic that portrayed FDR as Santa Claus presenting a giant president

in his own stocking and saying of the presidential librarians, oh, won't you be surprised? Bless his heart. Oh, oh. Well, it seems like the public had a pretty good take on what the library actually was. It got kind of like a monument that FDR built to himself. Yeah, and while he was alive, no less.

Like, that was really not done at the time. The tradition was that monuments to presidents were built long after they had died. The Washington Monument, for example, was finished in the mid-1880s, about 85 years after George Washington died. And the Lincoln Memorial was dedicated in 1922, nearly 60 years after Abraham Lincoln's death. Yeah, normally there's this big gap and only the most exceptional presidents get a monument. And here we've got monuments right away to each president as they're still living, sometimes

as they're still in office. But the FDR library ended up setting the template for presidential libraries going forward. In 1955, Congress passed the Presidential Libraries Act, which formalized this idea of privately built and publicly administered institutions. The next one that went up was the Truman Library in Independence, Missouri, and it was structured like FDRs. So it was a branch of the National Archives. It was full of, you know, actual important documents.

It really did improve access for researchers. But its museum was also basically a shrine to Truman. And it raised for me the question of, you know, how do we as Americans tell our stories? This is Bruce Schulman. He's a historian at Boston University. He has visited most of the existing presidential libraries. How do we teach history? How do we speak about it? So I think I just accidentally became interested in those questions.

And you know, you can probably guess the way the presidential story gets told in the Truman Library, but also others. It's fundamentally this heroic story about how an extraordinary person comes along at a pivotal moment in American history, changing the country's destiny. And that kind of gets at the essential tension between the work that's being done in the archive and what it is those shrines are trying to do, which is to create a largely feel good celebration of the American past and this particular president's role in it. the American past and this particular president's role in it. I think there are monuments to the vanity of ex-presidents, which is immeasurable.

No, Jill the poor always calls it like she sees it. You know, and she is not wrong. There are so many interesting examples of how these huge presidential egos end up manifesting in their buildings. But I think my favorite is the Lyndon Baines Johnson Library in Austin, Texas. It is a stunning building. It's just massive. Beautiful, Travertine marble, imported from Italy covers the entire thing

Which has almost no windows except right before the top floor which is can't delivered out and has glass beneath it So it looks almost like it's kind of floating it looks kind of like a cross between a Space age bureaucracy and an Egyptian pylon temple We really have to see pictures of it to kind of believe it. And this building was starting to go up in 1967, 1968, towards the end of LBJ's time in office. And you know, that was a very consequential time. There was a lot going on.

You've got, of course, more than 500,000 American troops in Vietnam. Martin Luther King Jr. of course is tragically assassinated. Robert Kennedy is tragically assassinated. But literally in the middle of all of that chaos and tragedy on the 10th of October, 1968, LBJ placed a call from the Oval Office to Gordon Bunchaft, who was the architect he'd chosen to design his library. Gordon, yes. London Johnson. Oh, yes.

How are you? I hope I'm not interrupting your dinner. No, no, we've done this in the past. Oh, he was definitely interrupting his dinner. I feel like without a doubt, knowing LBJ, he probably was interrupting his dinner on purpose. Just to show his dominance. Yeah. Yeah, exactly. And what LBJ is calling about is that he had won and he is now wanting one too. But remember the construction of this building is already underway. Now looking at these libraries, is there no way in the world that we could reconstitute

as nearly as possible. The president's office here. Well, we haven't thought of it, but it's possible. And, you know, listening to this call, the architect clearly wasn't a huge fan of this idea, but the call goes on for seven minutes and forty-six seconds. It's a classic LBJ monologue. I don't have that and anything else about the building. I gather that all right and we'll see. I'm in there now. I'm in that office tonight.

I come in at sometimes at 6.30 in the morning and I'm here to late. And I would like for them to see just where we work. And I'd like to have the exact replica as near as possible. But I would accept anything. This is fascinating to me. I mean, this is psychologically, I can't quite parse this. Does he imagine not being president someday

and just sitting in his little play set of the presidency in his library? It's just like, it's so odd. I know, I know. And it's just, there's so much president stuff he should be doing. And I'm sure he is doing. I'm sure he is doing.

But he has the space to also be sort of micromanaging the designs of his presidential library. It's very fascinating. the designs of his presidential library, it's very fascinating. So by the late 1960s, early 1970s, every president since FDR had built himself one of these sweet new libraries, and actually Herbert Hoover had built one too retroactively. The libraries were becoming increasingly monumental and grandiose. But interestingly, at this time, the papers of the president were still considered his personal property. Whoa! Okay, that is really strange. So there was like this new custom where, you know,

presidents would voluntarily put their papers in the library, and then some of that management we passed over to the National Archives. But it was basically like the honor system, like they didn't have to give everything up, they could just pick a choose. Yeah, yeah, it was the honor system. And can you guess which president really tested that honor system?

Any guesses? I think I can get it in one. We're talking about Richard Millhouse Nixon here. Yeah, the Nixon era was kind of the battle royale over who gets to control the papers of the president. You know, Nixon had proceeded as everyone before him had done as if all the records created by his office during his presidency were his private property and he could do with them as he wished, he could call them, he could destroy them. And Nixon did not foresee that his records would be requested and then demanded by Congress during the investigation into his administration. And when that request and demand was made, you know, he resisted it. And so Congress sees President Nixon's records

and subsequently made future presidential records the property of the country rather than the property of the individual president. And they did that with the Presidential Records Act, which passed in 1978. And the PRA says that presidential records are in the public domain, and the public can see them after five years, five years after the president leaves office, with the exception of classified material.

Huh. Well, we're finally getting to where, the way I would expect things to be. So the law affirmed the importance of keeping presidential records safe and available to the public. Yeah, so the law did do that, but the records continued to be stored in presidential libraries. And nothing really changed about the basically self-congratulatory vibe of most of those libraries. The Nixon library is a fascinating example.

For many years, the Nixon Library was actually privately run by the Richard Nixon Foundation. It was not affiliated with the National Archive. And Ipportrade Watergate very much from Nixon's perspective. The event was characterized as a quote unquote coup by Nixon's enemies. Wow.

And the exhibit suggested that the press had behaved unethically in pursuing the story of his crimes. Wow. That's bold. I know. Yeah. And it wasn't until the mid 2000s that the National Archives came in and took over the museum. And when they did, they insisted that a very well-respected historian come in to create a more factually accurate

watergate exhibit. And you can probably imagine members of the Richard Nixon Foundation did not like that. There was one guy who called the New Exhibit a hit piece and the historian involved with it, he was harassed, he eventually resigned. Whoa, okay, that's intense. Yeah, and it's just, you know, it's an example of how structurally it's very hard to tell a nuanced and complex story in these libraries.

The president gets to select the architect that they want. They have a role often in selecting who's going to be the director of that presidential library. And the president takes an active role in designing. They're basically the head curator of their museum to themselves. I should say that I talked to various employees of the presidential library system, and I'd ask them, why don't you insist on more historical objectivity?

And some of these people looked at me and said, what plan are you living on? These people have run the country. Do you think we can tell them what to do? What, how do you think that's going to happen? And one of the most compelling examples of this that was described to me was from the decision points theater at the George W. Bush Library in Dallas. Welcome to the decision points theater.

George W. Bush made many tough decisions as present. Now you'll get a flavor for what that's like. Take a look at the list of scenarios in front of you. First. Okay, so the whole decision points experience is very interactive. You get to choose from a menu of scenarios. You can decide what to do in New Orleans after Hurricane Katrina. You can decide what to do following the 2008 financial crisis. You can decide if you want to invade a rack.

You'll get a briefing, your expert policy advice, and vote on what to do. The experts who are not at the moment are not. That's amazing. I'm very eager to hear how the counterfactuals are written to justify each of the decisions that George W. Bush actually made. Yes. Yeah, it's really interesting because it's genuinely interactive. The audience in this theater gets to vote. And, you know, not surprisingly, in the case of the Iraq War, a fair number of people select no. I do not want to invade Iraq because we're living in the present moment. We know how that went. But if you choose no, President George Bush comes up on the video and says no, that's the incorrect choice.

You must, you know, basically we had no choice. Saddam Hussein represented two big of threat and you must invade Iraq. So the president comes on to scold you about your poor decision making skills that didn't conform to his own. Oh, that's amazing. Yeah, and I guess it shouldn't be that surprising to anyone at this point that we don't get a more nuanced take in a museum designed in close collaboration with Bush himself, but you know it's still problematic. So this is what's troubling about this is that this is a museum run by the federal government. So you think this is the national archives. They're

not going to feed me something that's a lie or wrong and yet you know from former president Bush's point of view, this is the truth, but it's a very particular and propicandistic truth. I mean, that is really interesting. Like, it's almost less problematic, less official, we try to make these things. You know, like, I would almost have no problem if the Bush family kept, you know, like, a shrine to Bush, but it's almost the fact that it's a government facility. That's the issue. Yeah, yeah.

I think it is the mixing of purposes that makes these institutions so troublesome. You know, it's the way there's an archive that gives legitimacy to the museum, which tells the story in a way that an actual historian never would, sort of lacking all the nuance and complexity that's required. So there's another element to this story, which I talked with Jolapor about. And it has to do with some of the unintended consequences of the Presidential Records Act,

which passed right after the Watergate scandal. And of course, it was intended to create a fuller record of each presidency. But she says that in some ways the opposite has happened. Where people say, yeah, well, I would have put it down in a note, but then that would have been subject to the Presidential Records Act. So, you know, I just called the guy. No. So it's like in that sense, it's easy to evade. From historians vantage, these people all used to keep diaries. They're also self-important. Keep endless diaries. And now they don't keep diaries. So you don't even know who they're meeting

with on a given day, because they didn't want to have that written down. Like people have ways of avoiding creating a record. Yeah, because once you have a record, then some independent council can, you know, like impeach you when you're using those records or lawyers could dig through them. I mean, I could totally see a president just deciding, no, I don't want to deal with that. So did these historians that you talked to have a take on what they thought the future

presidential records would be like and how they would affect presidential libraries? We did talk about that. And as the power of the presidency has grown over the course of the 20th century, the size of these institutions has grown as well. So that first library that was designed by Roosevelt cost about $7 million in today's money, the latest figures for the construction of the Obama Presidential Center are about 700 million. Oh my God. It's a huge amount of money.

And then at the same time, presidential power has grown. Public trust in the presidency has been falling. I mean, I think there's some public discontent with the idea of the monumentality of these places. I don't think the presidency has the public trust that it had one FDR proposed presidential libraries. I think the presidency has betrayed the public trust that it had, one FDR proposed presidential libraries. I think the presidency has betrayed the public trust.

And so, Jill Lapor and I think a lot of other professional historians just kind of wish the presidential libraries would go away. Like it's not that their archives aren't important. They truly are. There's no particular reason those collections couldn't be housed in one central place in Washington, DC. Yeah, that certainly makes more sense to me

than having them sort of spread out around the country and different shrines to different men. Yeah, it makes sense to me too. And interestingly, things might actually be starting to move in that direction. So the Obama Presidential Center, for example, which we were just talking about, it is not going to hold Obama's actual presidential records. Those will be held by the National Archives in various facilities.

The center in Chicago will be the site of the museum and it'll also serve other purposes as a community center as a place for the Obama's philanthropic and diplomatic work. And part of that is because it's just become really expensive for libraries to be affiliated with the National Archives. Over the years, Congress has passed legislation requiring ex-presidents to raise massive endowments that will cover the cost of repairing and maintaining these buildings. So with Trump, there are people who think that if he does manage to build a presidential library,

that it might be along the lines of the Obama Center. So he might build a shrine to himself, but people speculate he won't bother with the actual papers. Those will stay with the National Archives. Huh, interesting. So the two purposes that have mixed in such uncomfortable ways through the history of presidential libraries, maybe they're starting to separate now, which seems like a good idea. But that brings us back to the question of the Trump library. And after hearing all this history, I can't imagine any part of that not being filled with Trumpian nonsense. Yeah, I know. And that's what I meant at the beginning when I said that these libraries are all very Trumpian in a way. They all contain evasions and half truths and bluster. And that's what our

anonymous architect was thinking about too when on election night 2016 he was contemplating the idea of a future Trump library. And what he did is he ended up buying a domain, djTrumpLibrary.com. And he just sat on that domain for a couple years. But then he eventually decided, I am going to design a library that does exactly what none of these real presidential libraries do, which is to really dwell on the bad stuff. Every president has faults. It's a tough job. I don't know why anybody wants a job that jobs and flowers do me. Everybody's yelling at you, no matter how low you do, and 50% country hates you, so you're kind of screwed from death.

But you know what Trump, there was just so much bad and so much scandal. And so this guy designed a parody museum. And if you visit the site, it looks very much like a real presidential library. It's a modern glass box. There's a reflecting pool and various exhibits. But all of the exhibits are sort of fake parody exhibits. There's a Twitter wall, for instance. We had a room about the tax evasion numbers, where he's only paying, I think it was like $750 a year.

And then that was the house of room. We had the Aladarks lounge where he showed him kissing up to all the different desks and generally bad people. He likes the Putin's of the world, the Kim Jongles of the world, all these guys, he's BFFs with. Yeah, I'm starting to understand why this guy wanted to remain anonymous.

Yeah, he just didn't feel entirely safe being public about who designed the site, which actually ended up getting a ton of attention. For a long time, it was the first thing that came up when you Googled Donald Trump Library. I haven't even heard of the official one. Like, this is what I've heard of. It's this fake one.

Yeah, there's a lot of speculation about what a real one might look like, where it might be, if it will even exist. But the bigger point that this architect wanted to make isn't even necessarily about Trump. It's more just about the way we think about presidents. It's a job. Like, the sooner we get the treating politicians as employees and not as heroes or people that we have to venerate from no good reason. I mean, look, it's an important job and they deserve our respect for your jobs well,

but they're Republican employees. They're replaceable. So I guess in the end, this story is pretty much an episode of what Trump can teach us about presidential libraries. Yeah, it's interesting that it took Trump and before him Nixon to challenge the whole idea of presidential libraries. It's like he's helped expose some of the problems and contradictions that exist in all of them, even for the presidents that I tend to venerate. Right, yeah, it's like there was all this talk during the Trump era about how he exposed so many different institutions and conventions and traditions as inadequate or flawed. And presidential libraries just feel like one more thing

we can see in a new light now. Well, what a weird collection of buildings. Thanks so much for bringing us the story. Sure, thanks, Roman. Coming up after the break, we're going to share a recent episode of What Trump Can Teach Is About Con Law. It's the other podcast I host with Law Professor Elizabeth Jo. It covers the Supreme Court's Shadow Dawkin.

Stay tuned. And now an episode of What Trump Can Teach Us About Con Law, released on September 9. Okay, so we're recording this on Monday at 11.45 AM. We're meeting as a sort of special session. So what do you want to talk about today? We're going to talk about legal procedure. I know that sounds really boring, but. But I've learned not from you.

We won't be boring from you. But I promise I'm going to show you why it's actually pretty interesting and maybe sometimes just as important or even more important than the right stuff that we talk about. Okay. Cool. So when we think about the US Supreme Court and when it decides important and particularly controversial issues, what we're talking about is what's called its merits docket. Docket just means it's list of legal proceedings. So every year, literally thousands of people who have lost their legal case ask the Supreme Court to hear their case. You know, what's happened here is that somebody has lost a case, could be civil or criminal, and the case started at State Court or Federal Court, and then went up to an appeals court, and then sometimes even to a State Supreme Court.

And so by the time a losing party says, hey, Supreme Court, please hear my case, a lot of courts have already weighed it. They've already said, you know, we've decided against you, or maybe at some level they've said they've decided for you, but at any point, at the time you get to the Supreme Court, you're usually a loser. You want someone to hear your case one last time. Of those thousands of cases, the Supreme Court decides to hear about 60 to 70 a year. So not that many. And when it comes to those kinds of cases, whether we're talking about individual rights or

the power of the federal government to make laws, the Supreme Court has the two sides submit usually two rounds of legal briefs. These are written arguments about why they should win, and then there's an oral argument that's scheduled months in advance. When it comes to really high profile cases, the ones that we all read about in the newspapers, you might also get several amicus or friend of the court briefs. These are legal briefs that are written by the parties who aren't part of the case, but they're telling the Supreme Court, hey, this is such an important issue, please let us weigh in, too. Now, before the pandemic,

if you were lucky, you could actually wait in line and get a seat and watch what the justices were going to be asking of the lawyers for both sides. Now during the pandemic, actually kind of lucky in this regard, they went online or sort of online. They went telephonically online. And so we could hear what the justices were asking the different parties during this last term. Eventually, the Supreme Court decides how the case is supposed to come out. There's usually a lengthy written opinion signed by the justice who actually authored the opinion. And we can tell which justices agreed with the majority opinion. And if there are those who didn't agree, well, then you have these dissents, right? The sentencing justice say, well, this is why I think the majority is wrong and we should have done something different.

So that's the Supreme Court we all know and love. The one that we I've just called the Merit Stocket. That's the one where we hear about the the big blockbuster cases. So this whole process like waiting, we usually waiting until the end of the summer to see what the Supreme Court's going to say in a particularly important case. Well, the reason why we have all of this incredible procedure and people weighing in, and there's all this pomp and circumstance, that's kind of the court's legitimacy. They don't just decide, they don't flip a coin, they don't say, hey, we were, you know, voted in by this president, so that's how we're going to decide. They're supposed to say, here's the lengthy legal reasoning behind why we're going to decide. They're supposed to say, here's the lengthy, legal reasoning behind why we're going to go

ahead and say the case should come out in a particular way. And the idea here is that because we've handed over to the Supreme Court so much power to decide sometimes really life altering decisions in the lives of ordinary people, they owe it to us as the public to explain why they're doing what they're doing But that's not everything the Supreme Court does It also has what's referred to as a non-marit or emotions docket. So Roman have you ever heard of that term? No, no, no Never right and really nobody ever has unless you practice regularly before the Supreme Court

You've never heard of this term and you know in the reason why is it's usually pretty boring. Now, the reason why there is a non-marital emotions docket is that the Supreme Court, like any other court, has to issue a lot of orders. Sometimes the parties in the case want to do something kind of boring, like, hey, can we have more time to file a brief? Or sometimes the Supreme Court says, hey, you folks, you wanted an emergency order, there's no emergency here. Or you want us to hear your case, it's just not that important. So for all these kinds of reasons, this non-motions or orders docket never gets any attention.

I shouldn't say never. Very occasionally, you might hear of a death penalty case where there's been a death row inmate facing execution and the Supreme Court in that case might be asked to issue a stay or that's really like a pause of the execution because that person argues that there's some constitutional problem in their case. But again, most of the time the non-merit stock of the Supreme Court is pretty unexciting and really no one's ever heard of it. But in recent years, that boring part of the Supreme Court's work has gotten a lot more interesting, and in ways that a lot of people find alarming.

So let's talk about the shadow docket, abortion in Texas, and maybe the state of abortion Let's do it. This is what Trump can teach us about common law, an ongoing series of indefinite length where we take the horrible current events and the ripple effects of the Trump presidency and use them to examine our constitution like we never have before. Our music is from DoomTree Records, our professor and neighbor is Elizabeth Joe and I'm your fellow perpetual student and host Roman Mars. So I've heard this term on Twitter a little bit and I'm here to ask what is a shadow docket? Okay, so the actual term is something coined by a law professor named Will Bode in 2015 to describe what we've just talked about, this idea of an order's docket of the Supreme Court.

Even though the terms coined pretty recently, the Supreme Court's always had this thing, where they just have the issue orders that are related to cases before them. Again, historically pretty boring, no one usually cares about it. But if you're a watcher of the Supreme Court, you've probably noticed that in recent years, the Supreme Court seems to be relying more on the so-called shadow docket to make decisions in high profile cases. So you ask, why is it a shadow docket? What is it? So these are not the ordinary way that the Supreme Court decides cases. There's no extensive rounds of legal briefing. There's no oral arguments by the lawyers. There's no oral argument decided in advance months ahead of time

for all of us to try and figure out if we can attend in person or maybe listen to you online. The Supreme Court might just issue an order. I sometimes there's no legal opinion or there's just a very brief opinion might be one paragraph long. And the courts usually on a really rushed timeline. And sometimes we don't really know which justice wrote the opinion.

And sometimes we don't really know which justice is totally agreed with that unsigned opinion. And they can decide these orders at any time they wish, could be in the middle of the night. So you can see that this is really different than the way that the court normally decides its cases. And that's kind of the problem. It's less transparent, it's less predictable.

The parties themselves aren't that much involved in these cases. So the whole idea is that they're just kind of less open overall when it comes to the shadowdocket. And when you have something as important as a Supreme Court, remember, practically speaking, they have the final say on what the Constitution means. That raises issues about their trustworthiness and their legitimacy if they're issuing really big decisions in the middle of the night. And we're not even sure who wrote the thing that makes

such a big impression. So you and I just talked about a shadowdocket case pretty recently, and that was one of the COVID cases. Remember, there was a challenge to the COVID restrictions in New York state. And just as a recap, remember, some religious groups said that the state of New York was treating them more harshly than if you were a non-religious entity when it came to allowing people for indoor gatherings.

So the Supreme Court decided in that case, remember that on the midnight before Thanksgiving of last year that, yep, this was an unconstitutional restriction on their religious freedom. That COVID restriction, even though, of course, there was a public health reason behind it, violated their First Amendment religious freedom rights. This is an example of a shadow-docket decision. This wasn't an ordinary case with the world arguments and the briefing. In fact, it was an emergency request by the religious groups and the Supreme Court intervened and said,

oh, you can't do this, New York. That was a five-four opinion. It was unsigned. We know the vote in this particular case because there were four justices who dissented, including the Chief Justice John Roberts. There are plenty of other examples too. Do you remember the eviction moratorium that

Congress imposed at the really part of the pandemic? Sure. You have this idea where Congress stopped evictions as part of the second COVID relief act. The idea here is, of course, if you have mass unemployment because of COVID, that leads to people being homeless. And maybe that would make the pandemic even worse. When Congress decides to impose this moratorium, it was supposed to last just 120 days.

And Congress decides not to renew it. But the Centers for Disease Control, CDC, was concerned that, well, maybe there still should be an eviction moratorium. So they decide on their own to extend the moratorium a couple of times. So that CDC moratorium was challenged in federal court. A federal judge agreed that, well, maybe the CDC doesn't have the authority to do this,

but we'll put a pause on this decision while the parties appeal. So, eventually, this goes up as another emergency decision to the Supreme Court. So, remember, when you think about the importance of an eviction moratorium, what's the public interest here, do you think? Yeah, or it's like the public interest is really high because it's a matter of life and death if you have a home or not. Exactly. And it's something that potentially affects hundreds of thousands of people, right? People who are just on the brink of eviction. So when you think about just in terms of like ordinary

folks, ordinary Americans being affected by this, this kind of feels like case that normally, shouldn't it be part of the court's normal case load? We have briefs, you have a normal argument, maybe you accept that doesn't in front of the court briefs. Maybe there should be a really lengthy opinion about a really big question, you know, kind of federal agency that's responsible for stopping communicable diseases. Can they have an eviction moratorium as one of those measures during a global unprecedented pandemic.

But instead, this is a shadowdocket case. So on August 26, the court issued an opinion, a short one, eight pages, its own sign. They say, no, the CDC can't do this. And so no more eviction moratorium. Justice Breyer wrote a dissenting opinion, not just about the substance of the decision, but the procedure. He says, these questions call for considered decision-making, informed by full briefing and argument. Their answers impact the health of millions. We should not set aside the CDC's eviction moratorium

in this summary proceeding. So Breyer is really saying, I don't like this and I also don't like the way we're doing this. We need to have this in a regular transparent open way that we do with our other really big cases. So this is a roundabout way of getting to the more recent news, and that is the Texas law, right? SBA. So let's talk about that. In May, the governor of Texas Greg Abbott, he signs SBA into law. The law is actually pretty similar to a number of other state abortion laws that are called heartbeat laws.

So basically, this new law says that women in Texas can obtain a legal abortion when you can detect a fetal heartbeat, which is around six weeks of pregnancy. But six weeks just means that almost all abortions are banned because at six weeks many women have no idea that they're pregnant. So if I say, like other states have done this before, well, it also means that other states, when they've had such laws, they've been challenged in court. And they've generally been struck down

because these laws violate a woman's constitutional rights. You and I've talked a couple of times about Roe versus Wade and how the Supreme Court has interpreted what the states can do. But just as a refresher, remember, states are not allowed to completely ban abortion before what's called fetal viability. That means the stage when a fetus can live outside of the womb. That's why previous six-week bans are easily struck down. Six weeks is way, way, way, before the point of viability. Okay, so SBA, the Texas law though is different in kind of a devious and dastardly way.

We've talked about Roe v Wade before, and the story behind Jane Roe, who was later identified as Norma McCorvey, now let's look at it in a different way. The case is called Roe v Wade, right? We spent a lot of time talking about Jane Roe. Well, who's Wade? Part of thinking about this is thinking about how the law challenged in row, what it was, and how it was challenged. So in row itself, one of the laws that was challenged made it a crime to procure an abortion. So, Roman, if something's

a crime, who enforces the law? That's right. So at the time of the law of the challenge, Jane Roe was living in Dallas County, Texas. And Wade is Henry Wade. He was the district attorney of Dallas County. So in other words, the person who in theory would be responsible for prosecuting violations of a criminal abortion statute. So that's the way. That's the other party in the case who normally doesn't get any attention at all.

But this way, this procedure, the way the law is challenged, is pretty typical of a lot of lawsuits when it comes to constitutional rights. Someone sues, because they argue that a law violates their rights under the Constitution. And in order to do that, they often sue the person who's responsible for enforcing the law. So if a court agrees that the law is unconstitutional, they're also deciding that that government official, so Henry Wade and Roe v Wade, who's standing in for all the other government officials,

can't enforce an unconstitutional law. Okay, so Texas. But Texas's law is different. The Texas law actually forbids the state's government officials from enforcing the law. And instead, the law gives everybody else any private person the ability to sue. But what can they sue for in this case? Okay, so the first part maybe makes sense. They can sue anybody who performs an abortion, but there's more. You can also sue as a private individual, anyone who aids or abets an abortion. Aides and are abets is just a legal term for meaning helping.

So anybody who helps, but there's also more. You can also sue anybody who intends to aid or a bet an abortion or intends to perform an abortion. So that really means that because of SB8, which is structured in this really different way, you can sue an abortion provider, but you can also sue a friend or a family member, maybe who helped pay for your abortion.

Maybe the Uber driver who drove you to the abortion services provider. Maybe your friend or family member who decided to drive you there on their own provided some source of support. So this is how this particular law, SBA, makes it really different in terms of raising a constitutional challenge.

So my question is, who would be the hypothetical person suing here? And why would they have standing to sue in this case? In any case. Right, so standing in terms of what the federal courts do comes from restrictions on the Constitution, but this is a state law. And states can define standing in different and sometimes wider ways. So it's a little bit unclear right now,

but it looks like Texas can allow citizens to have this kind of broad standing in ways that federal courts can't. But to get to your more specific question, who can sue pretty much anybody? You don't have to be a person in Texas. You can be presumably anybody on the planet. You just have to sue in a Texas court. Yeah, but then sue for what? For the existence of abortion services or sue for who? Like I get that it can be anybody you mentioned, anybody in the process. So I could just randomly pick out a person who got an abortion and then sue all the people that were involved in it. Like just me as a person.

That seems to be the way it works. So basically the state of Texas has shifted enforcement from normally the way a crime works you'd have again, the district attorneys involved in prosecution. This isn't a crime. This is basically handing over enforcement civilly to everybody else except people who normally enforce criminal laws.

It does so by incentivizing these civil suits. If you sue and win, let's say you sue an abortion services provider, you sue someone who helped a woman obtain an abortion, you get to collect a minimum of $10,000 and attorney's fees for each abortion. Wow. And bizarrely under the law, if you bring that lawsuit and lose, nothing happens to you. It's not only a penalty or anything. Oh my god. So presumably, the result of this is every anti-abortion organization in the world could just begin suing. As long as they have like the facts of an abortion that has happened, they could just begin

suing every part of the chain of provider, including the lift driver out of existence. That's what it sounds like. I mean, the law has just gone into effect as of September 1st, so we don't really know how it's going to work out, but the financial incentive does feel like bounty hunting. The whole scheme feels like kind of like legal trolling. You can just harass nearly anybody who is somehow connected with an abortion. If you're an abortion services provider, you either close down or you face a flood of civil lawsuits.

And if you're an ordinary person who might formally in Texas have been happy to help a friend or a family member, I think you're certainly deterred from doing so. I mean, $10,000 is a lot of money, right? $10,000 is a lot to be liable for. So after the law is enacted, a group of abortion services providers in Texas then file the lawsuit, because that's not surprising.

They filed a lawsuit in federal court in July to try and stop the law from taking effect, which was designed to go into effect on September 1st. So Roman, we did talk about how SBA is different than say the law that was challenged in Roe V. Wade. So can you see the problem here with the lawsuit? Well, there's no Wade. Right. There's no Wade. Who, there's no Wade.

Who do you sue? So that's a bit of a problem. So in this particular lawsuit, they sue state judge, a clerk on behalf of a whole class of state judges and clerks and a private individual who is presumably anti-abortion. Now, remember, you just said there's no Wade because they can't sue a Wade because they can't sue a

Wade. They can't sue a district attorney or any other state executive official in Texas because the law actually says you know these government officials aren't responsible for enforcing this law everybody else is. So usually when you have a state law where the state's officials are responsible for enforcing it it's normal to have a lawsuit filed against them even before it takes effect. But this law is really strange and intentionally so. So in any event, because of this weird aspect of SBA, there's a lot of procedural back and forth in this case, which gets pretty complicated. But what's important here is that eventually the abortion services providers end up at the Supreme Court.

They ask for an emergency order to stop the law from taking effect. So in other words, it's not a normal, so-called merit's case. The Supreme Court has not granted full review of this case. Of course, that means there's no oral argument, there aren't any multiple rounds of briefing, there's no dozens of front of the court briefs, there's just no regular procedure for reviewing what happens to be a pretty complicated law raising complicated issues. So what happens next is exactly what people are increasingly worried about with the so-called shadow docket. On September 1st, just before midnight,

the Supreme Court in a five-four ruling refuses to step in in the case of whole women's health versus Jackson. There is basically one unsigned paragraph. They say, we're not saying whether the law's constitutional or not, but there's just too many procedural issues right now for us to want to step in and do anything. But remember how I told you that procedure sometimes can be pretty exciting? Well, this is an example.

So this procedural decision actually has a practical effect. The Supreme Court isn't saying here that we're overturning Roe versus Wade throughout the country or in Texas, if that were a thing. But the effect of their decision means that in Texas, abortion is pretty much de facto illegal. You can't get an abortion because now SBA is the law, at least in Texas. So until and unless there's a challenge that successfully makes its way up to the Supreme Court,

that's what the law is in Texas itself. Chief Justice Roberts, along with the three liberal justices dissent in this case, and I'll just focus on one of the dissents, Justice Sotomayor's, because the opening of her dissent is worth quoting. She says, the court's order is stunning, She says, the court's order is stunning, presented with an application to enjoy a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny. A majority of justices have opted to bury their heads

in the sands. And Justice Sotomayor calls the law out for what it is. She says the Texas legislature has deputized the state's citizens as bounty hunters. She's mad. Yeah. She ends her descent by saying, I descent. I note that because normally the justice is say, I respectfully descent. No such thing from Justice Sotomayor this time. So just like that, with this so-called shadow-docked case, SBA is allowed to stay in effect. And so why is it a shadow-docked case? Like, can the justices require it become a sort of merit case? Well, in this particular case, because of the procedural issues,

it hadn't actually been litigated all the way through. Is that a preliminary stage? The fifth circuit just stepped in to stop the district court from putting a pause on things. This is a short way of saying it actually didn't fully mature into the case that the Supreme Court usually votes on to decide whether or not're not going to take it or not. So you could say, well, this is kind of all they could do anyway. But maybe one way of thinking about this shadow-dock-it issue is, well, what is the Supreme Court's supposed to do in a situation like this?

Well, maybe they should stop things from going south when there are rights involved and there are potential infringement of rights or they don't get involved ever Because they just should keep the status quo in all kinds of cases when they appear on the shadow docket But the problem is the courts completely inconsistent Right, so you could say that well in this case they didn't do anything, right? And maybe that's a good thing. They're not supposed to do anything in these shadow docket cases But it kind of turns out that it depends on the subject matter because when it comes to religious freedom rights and COVID restrictions, they were all too happy to step in and When it came to the scope of federal power and whether or not you can have an eviction moratorium in a pandemic

They were all too happy to step in. So this starts to strike people as being more motivated by the topic and what five justices feel about it. Then any consistency and well, we don't step in when we have these kinds of emergency procedures. Oh, it's grim. It is grim. And in fact, you know, one of the things that people are worried about now is that the Supreme Court has already agreed to hear a case in the fall on its normal mirrored stocket that actually is a challenge to a Mississippi law that bans most abortions after 15 weeks of pregnancy. Of course, that's later than the

Texas law. The case is called DOBS, and it's a law that's pretty clearly intended to be a challenge to Roe v. Wade. Now, you might say that, well, in the Texas case, the Supreme Court refused to step in, but they did technically say, we're not ruling on the constitutionality of the Texas law. That's technically true,

but it's hard not to interpret what they did as bad news for further cutting back on the rights of women when it comes to abortion and the constitution. Oh. I mean, this tactic of creating a law in which there is no way and passing it through with some knuckleheads and state legislature

who are not thoughtful about the law at all, is this now a thing? Like did they just pioneer something horrible that's going to happen in all kinds of states? It seems to be right. I mean, it does seem to be a novel way of trying to attack a constitutionally established right in a way that's really hard to challenge, right? As you can see from this particular case, right, the one that we just talked about, these abortion services providers hadn't argument about the constitutionality of SB8, but wasn't really clear who they could sue, because no one had actually sued them yet, right? And it does create an incentive for other states to craft the same kind of version of SBA for their own states, you know, leave it to ordinary private citizens to try and enforce really restrictive right on abortions. And it also creates incentives, I think, for states to pass

basically vigilante bounty laws for any kind of subject. So it doesn't have to be just abortion, right? You could imagine a state thinking, sort of offering a, you know, $10,000 cash prize to allow people to sue others when there's some perceived violation of religious rights, free speech rights, you name it. So if we let this go on, there's potentially a snowball effect of really encouraging this sort of structure to pop up elsewhere throughout the United States. Yeah.

And this seems like it's perfectly the purview of the Supreme Court to recognize these as being unconstitutional or constitutional, whatever their decision should be. So what is the process for it to sort of take this case to sort of like make its way up to the Supreme Court for them to be able to make that type of decision or to voice that type of opinion? Yeah, I mean, it's a good question. I think that's less clear. I mean, I think if there is a case that sort of presents squarely the whether or not

Texas is abortion law, violates the constitution, and it pretty clearly does just on the substance of it. You know, the court's ready to address that. I think whether or not the mechanism poses a separate constitutional problem would be something else that a court would have to review as an argument distinct from Roe versus Wade. And whether or not that's a good one is something we've yet to see. I mean, we didn't see this in the original case

that the court reviewed in a shadow docu. But it's a good question, and it's a troubling one, because if we let it go unchecked, if we encourage other state legislatures to do the same thing, we are incentivizing state legislatures to kind of encourage people to harass others with respect to their constitutional rights. So in the shadowed-dogget opinion, they mention that it isn't a ruling on the constitutionality

of the law itself. When will they rule on the constitutionality of the law itself? They're going to have to wait for that right case, that right opportunity to come up. So right now, because of what the court did on September 1st at midnight, the case just goes back to its process, you know, at the federal district court. That particular case may go up to the Supreme Court. It may take a different case in Texas

that comes up to the Supreme Court. And then there's the issue of, in the meantime, the Supreme Court's already decided that they're going to consider an abortion case for its term, that's the Mississippi law. So a lot of people are just worried anyway that maybe there are already five votes on the court to either radically restrict abortion rights

or maybe even do something go as far as overturned Roe versus Wade. Yeah. And in the meantime, it's only go to get an abortion in Texas. That's right. And you know, don't forget that just as with Norma McCorpio herself, it's really uneven, right, that when it comes to abortion rights, if you're a person, a wealthy person in Texas, you're going to have access to abortion services providers. But just like Norma McCorvey herself, who was unemployed at the time, her case went up to the court. She was a low-income person who wanted abortion,

but really had no easy way to get one. Abortion rights, frankly, are always about the rights of poor women, right? We really do not have the means to travel to another state to access abortion services provider. And presumably the person that gave them a ride outside of the state could be sued? Exactly. That's exactly right. That's exactly right. I told you procedure was interesting. Procedure is definitely interesting. Well, thank you so much for this sort of emergency session, and I appreciate it. Thanks, Robin.

99% of Isabel was produced this week by Delaney Hall and edited by Chris Barube. Mixed in Tech Production by Dara Hirsch. Music by Director of Sound to Sean Rihau. Special thanks this week to Jill LePore. If you haven't heard her podcast, the last archive, make sure you check it out. It is fantastic. It's produced in the style of a classic 1930s radio drama, and it's about how we know what we know, and why it seems like lately, is if we don't know anything at all. Find it wherever you listen to podcasts.

The episode of What Trump Can Teach Is About Con La, was produced by Elizabeth Jo and Chris Baroube, music courtesy of Doom Tree Records. Kurt Coleset is the digital director of 99% Invisible, the rest of the team includes Vivian Le, Joe Rosenberg, Lashemadon, Christopher Johnson, Emmett Fitzgerald, Sophia Klatsker, and me Roman Mars. We are part of this Stitcher & Serious XM Podcast family. Now headquartered six blocks north in the Pandora building. And beautiful.

Uptown. Oakland, California. You can find the show and join discussions about the show on Facebook. You can tweet at me at Roman Mars on the show at 99PI org. Well, on Instagram and Reddit too. You can find links to other Stitcher shows I love, as well as every past episode of 99PI at 99PI.org. Do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do