Radiolab - Radiolab Presents: More Perfect - The Imperfect Plaintiffs

Episode Date: June 28, 2016

On this episode, we visit Edward Blum, a 64-year-old “legal entrepreneur” and former stockbroker who has become something of a Supreme Court matchmaker. He’s had remarkable success, with 6 cases heard before the Supreme Court, including that of Abigail Fisher. We also head to Houston, Texas, where in 1998, an unusual 911 call led to one of the most important LGBT rights decisions in the Supreme Court’s history.

Hey, everybody, this is Jad. As you may or may not know, we just started our first ever radio lab spinoff called More Perfect, which, you know, the idea is to tell stories about the Supreme Court or like cases that are in front of the Supreme Court and to hear those dramatic stories and then sort of think about them really hard. Kind of taking the radio lab vibe and putting it into this new space. It's done really well. We're so excited. and we want the entire Radio Lab Posse to know about it. So if you haven't subscribed yet, go to iTunes or wherever you get your podcast, check it out. We hope you'll subscribe.

And I wanted to play actually one more episode for you guys. This one is an episode we've been working on and researching and reporting for months and months and months. Really hope you enjoy it. More Perfect. Hey, I'm Chad Aboum-M-Rod. This is More Perfect. Today, two stories from reporter Catherine Wells.

The first has some adult content in it, So be warned if you're listening with kids, you might want to skip this one. Here's Catherine. So maybe we can just start with the night that it started. Yeah. We can start with a start. Yeah, so give me the who, what, when, where. The best way to describe being a patrol officer on the street is you have a front row seat to the greatest show on Earth.

September 17, 1998. On the outskirts of Houston, there's a deputy sheriff named Joseph Quinn. He had been on duty very long at all. He's driving around. And he hears this call go out on the radio. I already call. Somebody's called in and said, there's a man going crazy with a gun in an apartment.

He happens to be driving right by the apartment complex. Pretty familiar with the complex. I knew where the building was. So he's like, hey, I've got this. I'm right here. I'm going in. So I parked, and I try to be as tactical as I could listen and see if I hear any kind of sounds of disturbance.

Walked into the breezeway on high alert. senses heightened, adrenaline's pumping. And out in the middle of the courtyard, there was a gentleman standing out there. And as soon as he saw me, he started yelling over here, over here. I could tell him he was upset, he was crying. He said, he's up there. He's up there. I said, up where? And he points up to this apartment on the second floor.

I said, the man with a gun is up there. Is that where you're saying? That apartment right there. He said, yeah. So a couple other officers arrive and they get information. We took our time. control your breathing to get that

you know the adrenaline election of blood pressure down to where you don't get tunnel vision went up the stairs four of us

when they get up to the top of the stairs got to the apartment door and the door was a jar it was open I listened for a second I gave them

the hand sign that I couldn't detect anything in the apartment so we got ready and I pushed the door open all the way open I announced our presence, the sheriff's department, anyone in the apartment, come out where we can see you,

keep your hands in plain sight. I did this two or three times very loudly. Still no response. There's a bedroom in the back of the apartment? There was a door to a back bedroom that was closed. And these two officers start walking towards it. The deputy that was in front of me. He opened the door, pushed it open,

and as soon as he did, he lurched back like he was startled. So he goes into the bedroom. Fingers on the trigger, pressure's pulled. If I see a gun and it's pointed at me, I'm going to take him out. But then... It's like, you've got to be kidding me. Really?

What was it? What was it? It was two guys having sex. Oh. Something I'll never forget. I mean, it's like, I just, I was just flabbergasted. Okay, so here's the story. The two guys that were in the apartment were John Lawrence and Tyrone Garner. John was an older white guy. He was in his 50s, and Tyrone was a younger black guy in his 30s.

Come to find out basically the gentleman downstairs. This is the guy who called 911. Was former lover or on again, off again lover, one and he was upset at the other, that they were engaged in some kind of activity. Okay, so the guy in the parking lot was the boyfriend of Tyrone. And we don't really know why he called 911, but the thought is that maybe he was jealous of whatever was going on in the apartment, and he decided he wanted to get them in trouble. You know, it was a lover's triangle kind of thing. So, you know, the cops come in and John and Tyrone have no idea what's going on. They didn't know that the boyfriend had gone and called 911, so they're shocked.

And Quinn says they start yelling at him. Just, I mean, combative, belligerent, refusing to comply with anything. We hated gays, we were homophobes, we were jackbooted Nazi thugs. So at a certain point, Quinn just decides... If we leave them here, and the way they're acting and they're intoxicated, we're going to have further calls here. You know, it's not going to end if we leave them here. So he decides to arrest them.

Really? On what charge? I mean, they're just in their house. Right. So that's the question. Well, I've been a patrolman for 15 years, and, you know, I'm blessed with the ability to have somewhat of what you would call a photographic memory. Meaning he knew the people.

Penal code really well. So he starts thinking, he starts going through all the possible laws that could apply to this, and he lands on this one. I know it pretty well, 2106. Statute 2106. It says that members of the same sex can engage in sexual conduct. It's a law banning sodomy. Deviate sexual intercourse. We're not even treated like civilized citizens. This is John Lawrence from an interview he did with Lambda Legal in 2008. It's one of the few bits of tape that we have of him.

It's just all of a sudden we're taking you downtown. I wasn't allowed to put clothes on. I was handcuffed and dragged down the stairs. Officer Joe Quinn has a different version of that story. Took them in custody. I afforded them the opportunity to get dressed. They refused. So we forced them to put some underwear on.

We actually held them down and put underwear on them and escorted them out of the apartment like that. I mean, it was a struggle just to get them to put underwear on. Okay, just jump for a second. happened in that room, which Catherine will go into more in a second, this moment of two guys supposedly having sex and being charged with sodomy. It was like a strike of lightning. It would begin a process that would profoundly reshape America. And what's interesting, and this is one of the first things that you bump into if you were an idiot about the law,

which I am, and then you try and make a podcast about the law, which I'm trying to do, is that there's often this disconnect. Like laws are these things that sort of float above us all, these beautiful abstractions. And yet, if you want to challenge the law, you've got to find a person down here in the mud whose experience perfectly somehow captures what you feel is wrong with the law. You've got to find a perfect plaintiff.

But how do you find that person? And what happens if they're not so perfect? These two stories that you're going to hear are about a particular tactic that's sometimes called test case litigation that I wasn't too aware of before Catherine's reporting. The second story actually touches on a very current case that was just decided a few days ago.

This is the case on affirmative action. We'll meet the guy who brought that case, who critics say is basically destroying some of the most iconic civil rights law from the 60s. But first, we'll get back to Catherine Wells with the story of a case called Lawrence v. Texas. Okay, so come on in. I brought out my Lawrence versus Texas box of stuff.

So I went to Houston, and I visited a guy named Mitchell Cateen. he's a lawyer there. And he showed me the arrest papers. He had the arrest papers for these two guys. Jay Lawrence Criminal. Officers observed the defendant engaged in deviant sexual conduct, charged with homosexual conduct. It's right there in writing.

Yeah, I mean, it really is strange to see those words on a piece of paper. It seems like such an anachronism, but it was not actually. It's not. And this is dated September 17th, 1998. Now, in 1998, Texas wasn't the only state that had this kind of law on the books. At least 13 other states also had an anti-sodomy law. And it's important to note that, you know, this law wasn't used very much.

People were not arrested for this law. Because when would police be present in your home to observe you having sex? This is Dale Carpenter. I teach constitutional law, SMU law school. I mean, sodomy laws weren't really about stopping anybody from having sex. They were really about ensuring that we could label people. criminal. It was a label that people could point to. So that people who disapproved of homosexuality could say, look.

The defining act of homosexuality, a crime. So if it's a crime, and you commit the crime. Well, you're a criminal. It's a criminal statute. People can say you're a criminal, which then gives the state a legal basis to justify all sorts of housing discrimination, employment discrimination. military in every context it had an effect. And many people argued that these laws, they also sent a strong cultural message. Well, it's being called gay bashing,

but the most recent example here in Houston is better described as a vicious killing. And this was at a time when hate crimes in Houston were surprisingly common. Paul Broussard, 27 years old, died after being beaten with a nail-studded two-by-four. The second senseless killing in the Montrose area in less than three months.

There was a lot of blood, and it was real apparent that he'd been shot. So, to make a long story short. The gay rights movement was very eager to repeal that sodomy law. Okay, so John and Tyrone were arrested on a Thursday night. The next day... It so happened that because of the location of John Lawrence's apartment, the case landed in a Justice of the Peace court. Meaning after Quinn made the arrest, the report was sent to that court for processing.

Now, this court is mostly deals with traffic. It's mostly a traffic court. But there happens to be this clerk in the court. Who was gay. And he couldn't believe that somebody had actually been arrested for homosexual conduct in their home. So that night, this clerk and his partner go to a bar. And they start talking to the bartender. I believe it was a Friday night.

This is Lane Lewis. He was the bartender. That's what I was doing. I was a bartender in 1998. So these two guys come in and they tell Lane, you're not going to believe what happened. He said a couple of guys were arrested. and charged with sodomy. And Lane was like...

Yeah, yeah, yeah, yeah, yeah. You just can't believe that such a thing happened. It's such an unusual occurrence. But they were like, no, no, it really happened. And... Lane said, send me the report. Monday morning, bright and early. I could hear my fax machine go off.

Went in there and I pulled it off. Officers observed the defendant engaged in deviant sexual conduct. And, uh... I mean, that's when it hit me. Oh. I mean, it was so clear night and day to me. I immediately knew what I had in my hand. Why does he care so much about this?

Well, so when he wasn't being a bartender, Lane was a community organizer. Particularly around LGBT issues. I was president of the gay and lesbian political caucus. That's one of the oldest LGBT civil rights groups in the South. He'd been waiting for this moment. How long had you been looking for a case? Seven, eight years?

Seven or eight years. Because, just to lay it out explicitly, why did you need? Because I needed a test case. You can't change a law like this. that if you don't have a case. People in the Texas legislature had been trying to remove this law from the books for years, according to Dale Carpenter. But every time someone would introduce a proposal to repeal the law, it would get snickers and cat calls in the state legislature. It just wasn't really going anywhere. So activists had decided the only way to get this done is to bypass

the legislature and go straight to the courts. So I needed a case. I had to have someone guilty. So Lane starts trying to track them down. At this. point the two guys had been released from jail and he eventually gets John on the phone. Conversation basically went like this. Hi, my name is Lane Lewis. I'm a gay activist here in town. You don't know me. That's not important, but I understand you've been arrested. I'm begging you not to plead out. Meaning don't just say you did it and pay the fine. I knew I couldn't have them plead out. Because then there'd be nothing Lane could do. I said, I will find you lawyers. I will raise the money. I will pay for everything. Just don't do anything until you and I have an opportunity to me.

A few weeks later, they all meet at Mitchell Cateen's office, and it immediately becomes clear that these guys are sort of an odd couple. John Lawrence at that time was about, I think he was 55 years old. Tall, white, kind of a big guy. He worked as a lab technician. For a hospital. Tyrone Garner was a young, skinny black guy, 24 years younger than John. No steady job. He bounced around between friends' apartments.

Just kind of went from place to place and job to job. No idea what their connection was. They weren't lovers. Both heavy drinkers. Very heavy. Both had criminal records. Yes. Tyrone had been convicted of assault and drug possession,

and John had been convicted in the 60s of murder by automobile. Yeah, they were not the perfect plaintiff. They were not the poster boys. These were not pretty twinks. And they weren't political. Oh, no, not at all. Not at all. In fact, when Lane told John Lawrence,

I'm a gay activist here in town. John Lawrence didn't even know what that was. I don't know what a gay activist is. Basically, neither of them had any interest, like no interest, in being a public figure. So I gave them the whole... Ask not what your country can do for you. Ask not what you can do for your country's speech. I mean, literally, I reminded them of who Harry Hay was.

I just simply thought, well, now it's time for me to organize my people. Harry Hay was arguably the founder of the original LGBT movement. You listeners may not remember, but at one time it was illegal for certain number. of gay males and the LGBT community to get together in one location. It was illegal. Couldn't do it. I dreamt even then of the idea that there would be networks of sanctuaries of places where we could come and out of which we would be able to move and organize and change things across the country.

So I told them a little bit about that history and how far we'd come and how far we had to go and that they had an opportunity to change that. So I told them, I said, I'll be able to protect you. for maybe the first year or two. But there's going to come a time where it will no longer be about you. It'll be about something much, much bigger. So, they agreed. Taron's attitude was, okay, you know, what do you need me to do?

John was much more indignant. I was pissed. They picked the wrong person to pull this on. It was a ridiculous law. But Texas loves to keep some antiquated things around. He was mad. He was angry. And here's where the story gets complicated.

Because at one point, according to Lane Lewis, they were having this conversation. And John was ranting, you know, about how he'd been treated. And he said, you know what the worst part is? We won't even, you know, we weren't. He said that they were not having sex. Wait, what? That they were not having sex. that they were sitting in their underwear on the couch watching the late night news.

They say they were sitting there doing nothing, and the cops just burst in and started pushing them around, and that they were never even having sex. Wait, but isn't this whole case about them having sex? Yep. So you're saying the thing that this case is supposed to be about might not be true. Right. Well, so I interviewed three of the four police officers.

Dale Carpenter says when he talked to the police officers, he did find that their stories were sort of all over the place. One guy said it was anal sex he saw. One guy later said he thought it might have been oral. The other two officers said they never saw anything. So Dale says he believes John's story. There probably was actually no sex. He thinks what might have happened is that the cops walked in and saw some gay art on the wall

and some gay magazines lying around. I have a feeling that really set off the officers. And they said, well, we know they're homosexuals. They probably engaged in homosexual conduct at some point and that's illegal in Texas. No, no, there was no doubt about it. I mean, I have no reason to lie. Quinn, to this day, still insists that he walked in on them copulating. He says he saw what he saw, and he just did his job.

If you want to be homosexual and that's the way you want to leave your lifestyle, that's fine. I don't agree with your lifestyle, but that's my opinion. That's what it is. It's an opinion. So there's no way to know what actually happened, obviously, but in a way, it doesn't matter. Because when John said that to Lane, that they weren't even having sex. I said, John, don't ever say that again. Don't ever say that to anybody again.

Because we couldn't have people know that. We couldn't have people find that out. They're going to go forward to this? Yep. We were scared that, you know, the case would get screwed up at that point. And potentially, the DA dropping the charges. So basically you had to preserve, if Joe Quinn was lying on that police report, you had to preserve the lie. Correct.

Correct. Dumb question. You can just do that? You can just preserve a lie. lie to keep a case going? You said that that's okay? Well, keep in mind, and it wasn't our job to prove or disprove the lie.

You know, Delane, the thing that mattered was not what did or didn't happen that night. The thing that mattered was what the arrest report said. But if what the arrest report said potentially didn't happen, shouldn't that matter? Well, no, no one. Our legal system

is not designed to bring out the truth. This is a misconception. It does not bring out the truth. That's Dale Carpenter again. It is people who play their roles in pursuing whatever they think their best interests are. And that's exactly what happened. So for the first few years, my job was to keep the boys out of the news. And why was that? Well, they had a tendency to drink and get rowdy and fight. And they like to go to city hotels and rent rooms and get really, really high, drunk, whatever. And inevitably, they would start fighting with each other. And so what I did, what I would do is I would, I knew the different places

they stayed. He says he would go to these CD hotels and talk to the clerks. Give them a business card, tell them if these boys come and check in, they cause problems, call me first. And on more than one occasion, it happened. I'd get a call at 2 o'clock in the morning. Your guys are here. They're causing trouble. I'm going to have to call the cops. I would jump out of bed, put on my clothes, because we couldn't have them, you know, they're already on the front page of the Houston Chronicle. We could not have our defendants doing a perp walk for drugs and alcohol. So I would drive down there and I would figure out which one was causing the most problems, put them in my car, and I would drive them somewhere else.

I would separate them out. That happened more than once, more than once. So Lane said he had this fear that John and Tyrone would start talking to the media and let something slip about their version of the story. So he gave them these little cards. Kept it in their wallet. Small little sentence. It's basically said, thank you for contacting me. Please refer to Elaine Lewis and had my phone number in my email. And I said, so anytime the media contacts you, don't think about what you say, right? Because that's where you get screwed up. When you start thinking about what you want to say to the media, pull this out of your wallet,

read it, and hang up. Even so, there were these close calls, as the case wound its way through the court system. Mitchell Cateen told me about this one time there was this press conference. And we came outside to the normal media group that was out there wanting quotes and to talk to us. And they didn't want to hear from the lawyers. They wanted to hear from the clients. So he was like, all right, just as once. Tyrone got up to the mic and I think a reporter asked him, you know, how do you feel about this? And he said, we didn't do anything wrong. He just kind of yelled that out in a angry way. We didn't do anything wrong.

Mitchell pulled him back and was like, uh-oh, that's enough, that's enough. Next day? We didn't do anything wrong. That was the quote on the headlines of the morning's paper the next day. And certainly I knew what he meant. That they weren't having sex. But, you know, could also be interpreted as homosexual conduct is nothing wrong.

He says, luckily, that's how people took it. It was very nerve-wracking. Because this went on for years. This was years. Yeah, a couple of years. Here's kind of how it went down. They started at this Justice of the Peace Court. They were sentenced to a fine of $125.25.

They appealed. Then the case gets kicked up one level to the Harris County Criminal Court. They're fined again. They appeal it again. Then it went to another level. To the 14th Court of Appeals. And one more level. Ultimately, the Texas Criminal Court of Appeals,

which is the highest court in Texas for criminal appeals, refused even to hear the case. So the only next step is the Supreme Court. We'll hear argument next in number 020. March 26, Lawrence and Tyrone Garner v. Texas. March 26, 2003, almost five years after the arrest, the case lands at the Supreme Court. And by the time it gets up there... Mr. Smith.

Mr. Chief Justice, and may it please the court. The story is not dwelt upon at all. They didn't say these guys weren't in a relationship. They didn't say if these guys were having sex, one of them was cheating on his partner. Seems like they might have not been having sex anyway. They didn't say any of those things. They said, There are gay families, that family relationships are established,

that there are hundreds of thousands of people. That this is about families and relationships, how people in loving relationships have the right to express themselves in whatever they want. It's none of the state's business. The opportunity to engage in sexual expression as they will in the privacy of their own homes performs much the same function that it does in the marital context.

You know, basically people in relationships have the right to have sex with each other, regardless of their gender. You should protect it for everyone, that this is a fundamental matter of American values. Wow. It's like watching something float up from the sort of mucky realm of human,

real life. And then it just gets kind of prettier as it floats upwards. Yeah. It was such a pretty story that people were suspicious of it. Like, people were asking, how did this arrest even happen? This was a setup. You all set this up.

That was their big battle crime. So Mitchell Cotene says he heard this over and over again. It wasn't a setup, but I always wanted to say, so what if it was? Does that make it any less of a case? Who cares? Unless the court has further questions. Thank you very much. Thank you, Mr. Smith.

The case is submitted. The Honorable Court is now adjourned until Monday next at 10 o'clock. Three months later. The opinion of the court number 0212 Lawrence against Texas will be announced by Justice Kennedy. Justice Kennedy begins reading a summary of his opinion. The question before the court is the validity. of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. Everybody's waiting for the outcome.

In Houston, Texas, police officers... So for context, it wasn't totally clear how this case was going to come out, because 17 years earlier, there had been a case called... Bowers against Hardwick. Bowers versus Hardwick. And then they had ruled that sodomy laws were fine. And I would suggest to the court that there is no constitutional warrant to conclude that there should be a fundamental right to engage in homosexual sodomy.

And the Supreme Court almost never overrules things that are that recent. Vowars v. Hardwick had some factual similarities to this case. So Justice Kennedy starts talking about all the similarities between the cases. Police officers were dispatched to a private residence. The tension starts building. The officers observed Lawrence and another man, Tyrone Gardner, engaging in a sexual... And then finally, he got to the moment where he said, Bauer's was not correct when it was decided

and it is not correct today. And at the point, Justice Kennedy said that there were people sobbing in the Supreme Court. Bowers v. Hardwick should be and now is overruled. Rallies across the nation, gay rights advocates celebrated their legal victory. A ruling so broad it surprised even many of them. The court ruled in favor of two Texas men

who challenged the state law that made homosexual sex a crime. The ruling overturned. a Texas law that allowed police to arrest gays for having sex. Twelve other states have similar laws, including... That morning, John Lawrence was at home in his apartment in Houston, watching the news. So I am laying in bed, trying to go back and get my 40 winks, and all of a sudden it says has ruled the law unconstitutional. I came out of bed quite happy.

Obviously, not everybody was happy about it. Let me be clear that I have nothing against homosexuals or any other group. promoting their agenda through normal democratic means. Justice Scalia said, basically, if you want this to happen, that's fine, but you're going about it the wrong way. The court is not the place where this decision should be made. You need to go talk to your fellow citizens and convince them that this law needs to change. Coming to us and asking us to bypass what your fellow citizens seem to want, that is not how democracy should work. Persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else.

He sees this as a small minority imposing their views on everybody else. And then he said he was worried about something else. Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual. that this decision would open the floodgates and that it would only be a matter of time before the court was being asked to decide on gay marriage. And he was right. When Kennedy read the marriage decision in 2015, in Lawrence v. Texas, he talked about Lawrence. The court held that private intimacy of same-sex couples cannot be declared a crime,

yet it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty. So what happened to Garner and Lawrence? Well... John Lawrence and Tyrone Garner didn't live to see this. Tyrone died in 2006 from meningitis. No job. Had no money. He was 39.

And his family was very poor. And they didn't have the money to bury him. They didn't even have the money to reclaim his body from the county morgue. As for John Lawrence, he died in 2011, at 68 from heart problems. We didn't even find out about it until a month after he was dead. This hero of the gay rights movement was unknown and unwarned at his passing. What does that say about sort of the practice of bringing things to the Supreme Court

that the two people whose story this case revolves around could sort of fade into the background afterwards? Well, one is tempted, I think, to be very cynical in some ways because it means that these people were useful as long as they were useful. And after that, they could be forgotten. I have to say, I actually had that reaction a little bit. I mean, this is a story of social progress, but there's something a little funny at the center of it for me. And as we were playing this for our legal editor, Elin Astall. And I think that we talked about this a bit.

In a lot of ways, our legal system devolves into an end. justifies the means kind of justice. We, we care about the process so much. And look, the process is extremely important. But Ellie, isn't this just weird to you? Like this is a dumb law, like a dumb, dumb, dumb, dumb, dumb law. Why not just, shouldn't there be an avenue to say, this is a dumb law, let's take it away. Why do you have to find some people who didn't have sex, they say, pretend that they have sex, then march them up all the way through the court system, and then forget about them. I mean, it just seems weird to me.

It seems like a empty theater. Like, why do we have to do it that way? Because if you wanted to put a ballot initiative up in 2003 in Texas saying, is gay sex okay, it would fail. It would fail in 2003 in Texas. It would probably fail in 2016 in Texas. It will probably fail in 2032 in Texas. That's why.

That's why. The majority isn't always right. So you take, you take. You basically take the Democratic hit. And this is, again, this goes back right to the founding of our country. Like, when are you going to let popular will run wild? And when are you going to constrain it? Not just restrain it, constrain it.

You know, when are you going to just stop it? And Lawrence of a Texas is an example of a, we're just going to stop it. And it was the right call. So after this Supreme Court decision, did Texas immediately go and repeal the law? No, actually the law is still on the books in Texas. No, the Texas legislature, like other legislatures around the country, refuses to repeal the law. It stays there, a sort of remnant of a kind of a dark, almost forgotten past. Keep in mind they can't enforce the law now that it's unconstitutional, but they refuse to take it off.

Coming up a very deep dive into the guy behind one of the most controversial cases this term, A case that just got decided late last week. This is more perfect. Hi, my name's Peter Fink, and I'm calling from Rizona refugee camp in Evia, Greece. Radio Lab is supported in part by the Alfred P. Sloan Foundation, enhancing public understanding of science and technology in the modern world. More information about Sloan at www.sloan.org. This is more perfect. I'm Chad Abumrod. If Supreme Court cases can sometimes feel like plays,

where the activists and lawyers are sort of like the directors pulling the strings and the people in the center of the case, the plaintiffs are just like these imperfect actors who have been cast and the scripts already been written for them, well, that dynamic was definitely in effect this term. In fact, just last week. We have had a decision just handed down in what was billed as the landmark affirmative

action case of this term. Josh, this is a decision that will impact college admissions nationwide. The case, Fisher v. University of Texas, centered around the following question. Should universities be able to use racial preferences in college admissions? Now, the University of Texas has this policy where the top 10% of every high school class automatically get in, but for everybody else, they will consider factors like race. And the question was, is that okay? A couple days ago, the court decided, barely, that yet.

Yes, it is okay. The Supreme Court has upheld the Affirmative Action program at the University of Texas. Affirmative action and higher education is constitutional. Now the case was brought by a young white woman named... Abigail Fisher. Abigail Fisher believed her race may have hurt her chances to attend the University of Texas. There were people in my class with lower grades who weren't in all the activities I was in, who were being accepted into UT, and the only other difference between us was the color of our skin.

She was arguing that affirmative action discriminates against her as a white person. Now, what you saw in the wake of that decision, and even before, especially online, was this just torrent of hate directed squarely at her. So I'm trying to hold my tongue, but I'm about to tell Abby to have a seat, okay? I can't get into a good college. Black people have it better. Bitch? If you don't take your little ass on somewhere? Maybe if your grace didn't suck, you dumbass.

Maybe you would have gotten into a good college. Becky with the bad grades. Really happy you and your racist lawyer got shot down. It's all been pointed right at Abby Fisher, which you could argue honestly isn't fair. Because this case may have very little to do with Abby Fisher. I mean, if you look at the press conferences. I don't believe that students should be treated differently based on their race. Abby Fisher is the one at the podium, but behind her, far in the background.

You'll see this guy. He's there in every single press conference sort of back at the edge of the frame. Not too many people know about him. is Edward Bloom, and he's the one who actually brought the case. When it comes to this case and so many others, he is... The architect. He's brought dozens of lawsuits, not just this one. And he seems to be a maestro of getting cases to the Supreme Court that challenge civil rights law.

Critics sort of paint him as this like one-man wrecking crew for civil rights. Like, he's almost single-handedly rolling back decades of civil rights law. And when it comes to affirmative action, he says he says he's. not done, just to make a long story short, we wanted to meet him. Figure out how he does it. Yeah, so I went to Tallahassee. Border Catherine Wells takes it from here. That's where he lives, or he winters in Tallahassee. Oh, man. Golden Retriever, Mom. You walk in what initially struck you.

His golden retriever is what initially struck me, literally physically. Nice meeting here. Of course. And I don't know what I was expecting. But when you hear about these cases, you know, I mean, critics are really, people are mad about these cases. It is deeply disturbing, truly outrageous. It's a betrayal of the American people. So I go to meet him and...

Your flight from Austin to Dallas to Tallahassee, uneventful, and on time, and good. It's easy. Good. He's like a totally nice guy, a regular guy. What does he look like? Like a dad. There is something in me that just loves tradition and tradition. custom. He loves listening to the Great American Songbook.

Life is a beautiful thing. Frank Sinatra. And Ella Fitzgerald. I love art and museums, independent films, golf. What's his story? What's his backstory? Well, he's 64. I was born in a small town in Michigan. My dad owned a shoe store there.

My mom worked with him in the shoe store. What had been your kind of political leanings up to this point? Well, I'm the first Republican my mother ever met. I hate to use the word typical, but it really was a typical liberal Jewish household. My mother and father were Franklin Roosevelt, Harry Truman Democrats. Always voted Democrat. And he said he was that way too, all the way through college. the University of Texas.

Grad school. State University of New York, where I spent a year studying, of all things, African literature. But he says somewhere along the way his political leanings sort of started to shift. I spent a summer in Israel living on a kibbutz. And he says he came out of that experience a little less liberal than he was before. And he got married. And then in the early 80s, he's living in Houston, working as a stockbroker.

And we met our neighbors. This particular couple. They were New Yorkers who had moved to Houston, both grew up as liberals. And the guy. He sort of opened my eyes to the world of the neocons. The guy introduced him to these magazines. Weekly standard, National Review, Commentary Magazine. Like conservative magazines.

And this was around the time that the Neocon movement was really hitting its stride. You had all these New York liberals defecting, is what he says. Thousands of individuals who grew up in the 1960s that started to question the wisdom of these liberal policies. And he says slowly over time. Very gradually. He became one of those people. In any case, fast forward a little bit. He's living in Houston.

Kind of a garden variety existence. And something happens that sends him on this entirely new path. Basically, he and his wife moved to a new neighborhood. They moved from the suburbs into the downtown area, more urban. And in 1990, when we went to vote for the first time in our new neighborhood, I realized that the Republican Party had not. fielded a candidate to oppose the Democrat incumbent running for Congress. This is a district that has almost 600,000 people, and you don't have a choice? You've only got one person running?

Bloom decided to run himself. I lost. That was no great surprise to anyone. He actually lost by 32 points. But... Along the way... Something really unusual happened. During that campaign, he and his wife Lark, you know, they decided they were going to go meet voters in their district. They got a giant printout of all of the addresses in the 18th congressional district. What was then called a walking list. And they just started going door to door. Meeting people handing out literature.

And they'd walk down, say, Oak Street. I would take the even side of Oak Street. And my wife would take the odd-numbered side of Oak Street. and we would start to walk. And he says very quickly they realized that the district's shape was funny. Some houses on one side of the street would be in the district, and then houses on the other side wouldn't. And sometimes the district would snake down a highway,

catch an apartment complex, come back. It just didn't make sense. This is Lark Bloom. Wife of Edward Bloom. It was peculiar because we had maps that we had to follow, and it was very odd the way some streets were in the districts and some weren't. It took a while for it all to really sink in as to how this could happen. After I guess about a week of this, we realized that neighbors had been separated,

almost house by house, because of their race. He comes to believe that the reason this was done was for the explicit purpose to create a majority African-American district. This isn't untrue. This act flows from a clear and simple wrong. Part of the reason this was done was the Voting Rights Act of 1965. Millions of Americans are denied the right to vote because of their color. This act was a giant step forward in civil rights.

You know, one of the primary things it did is eliminate barriers to voting, like poll taxes and literacy tests, all these, you know, strategies that had been used. used to keep minorities from voting. And then this other thing it did, sort of in a roundabout way, through a series of interpretations, is it encouraged the creation of districts where the majority of voters were minorities. And that's because, you know,

one of the strategies that had been used previously to sort of dilute the minority vote was to take minority communities and they called it cracking. They sort of split them apart into many different districts so that they were never, in the majority enough to elect a representative. So the Voting Rights Act tried to correct that.

The 18th Congressional District was one of these majority-minority districts. The district was drawn by the Texas legislature to have a slight African-American majority. I think about 51% African-American. But this was the problem, according to Bloom. The way they got to that African-American majority was by creating this district that zigzagged all over the city and cut through neighborhoods. I could not understand. People live close together.

They sent their kids to the neighborhood schools. They shopped in the neighborhood shopping centers. They were worried about neighborhood issues. To break these neighborhoods apart by race seemed so wrong to me. In his mind, this law was actually not limiting discrimination, but actually perpetuating it. Well, yeah. And I don't know what a... The average person upon realizing this would have done.

But I decided to file a lawsuit. He decided to sue the state of Texas. Called a few friends who lived in the 18th district. And a few other districts in Texas. An African American, Hispanic, and an Asian. Kept looking and looking and looking until I found a lawyer that I could afford. $7,000 a month. We filed a lawsuit challenging the constitutionality of Texas's redistricting.

plan. The basic charge was yes, the Voting Rights Act was good in its day, but now it was being used as this excuse to segregate people into racially polarized districts. It worked its way through the lower courts, and to my shock and surprise in 1995, we'll hear argument now number 94-805, George W. Bush versus Alvira. The Supreme Court took it up. And you went to oral arguments? Yeah, we all did. Mr. Chief Justice, and may it please the court. So there we all are. Our opponents step to the lectern.

At issue in this direct appeal is the constitutionality of three congressional districts. They make their arguments. That the court below erroneously rule were racially gerrymandered. Texas basically said, y'all, we have to put people together by race. The Texas legislature has the obligation to satisfy federal requirements, and the voting rights act is a federal requirement. Like, remember the voting rights act? Act. We're trying to make sure that there are enough minorities in this district so that they have a chance to elect a representative. Then our advocate? Mr. Troy, we'll hear from you.

Made his arguments. With regard to the point that was just being made, I... Bloom's lawyer basically said, but look at the map. The map is bizarre, and the only reason it could have gotten this way is because you're only thinking about race. Only race. Think about it. That seems messed up. Isn't that messed up. It doesn't matter what your ultimate goal is. You cannot use certain forbidden tools. Race is forbidden by the 14th Amendment to be used as a tool. But in his example, the people St. Mary is... You know, it's a very tense situation? I'm not asking about this situation. Do you know any other situation in the law in which we allow race to be used as a surrogate? It would be unconstitutional. But to use it as a more thoughtful racism, how is this done?

I thought that's how you said this is. Did you concede that? I don't really think I... I don't really think I... say it would require strict scrutiny. You did say that, didn't you? Let me explain. Did you say that or not? Let me find out. Did you say that or not?

So in the end, the Supreme Court gives out this very hair-splitty decision that I think gets at this deeper question that in our society and in our discourse, we just haven't figured out how to talk about in a way. And it basically said this. You know, look, if you're defining race just, as the color of someone's skin. The government cannot use that in any way. That's against the Constitution.

On the other hand, if you take this wider view and you look at race in the context of history, social context, then how can the government address discrimination without taking race into account? They have to. So it's this difficult balance. You can't look at race, but you have to look at race. And the Supreme Court says to Texas,

look, all you're doing in this case is sorting people based on how they're labeled on a census. You're not looking at that wider context. You're not looking at if these communities live next to each other, if they share common interests. You're just sorting them based on race alone, and that's not good enough. You can't do that.

When the opinion came down, the Supreme Court ruled in our favor five to four. That was quite a day. The day that we won that lawsuit, I was... I've got the world on a... hooked forever. After that, Edward Bloom decided that this would be his thing. It became a passion.

He would use the courts to try to strike down every race-based policy he could. The legal team was taken on the road. I recruited plaintiffs in New York, Virginia, South Carolina to challenge congressional district plans. And we won in each of those states. He helped sue school districts in Florida and Texas. to end the use of racial quotas in K through 12 magnet schools. He went after affirmative action in Houston City contracting. Today, Houston could become the first city to kill affirmative action.

That one was actually a ballot initiative and it failed. But I've been the architect of over two dozen lawsuits. Six of which... Six. Made it to the Supreme Court. Including... In 2013. In a five to four vote...

Five to four, very divided court. The Supreme Court today struck down. a key part of the Voting Rights Act of 1965. Supreme Court today struck down a very important part of the Voting Rights Act. That key 1965, landmark law. It's considered one of the most important pieces of civil rights legislation ever passed.

Shelby County versus Holder, this decision gutted the Voting Rights Act. Specifically, there was this part of it that said, states and counties with a history of discrimination have to check with the federal government first before they go about changing their voting laws. Basically, the federal government was saying, look, you've been up to all this stuff. Now we're watching you.

The Supreme Court said, you know, times have changed. That list was made a long time ago, and it's outdated. This decision restores an important constitutional order to our system of government. This was Bloom's biggest victory. When Shelby County came down, I burst into tears. I think a lot of people burst into tears when that came down. You know, yeah. No, and I understand it.

It is deeply disturbing. I am deeply disappointed, deeply disappointed with the court's decision in this matter. This decision is a betrayal of the American people. It does a game changer. During the civil rights movement, people died for the precious right to vote. This is Congresswoman Sheila Jackson Lee of Houston, Texas. I would like to have the Supreme Court justices go back in time. Go back in time and march with those who marched.

to Bloody Sunday, from Selma to Montgomery. Ed Bloom has a right to his opinion. It doesn't mean that it has to be the opinion of the United States. I understand that people were, you know, gravely upset. I also know that there were people who were gravely relieved and gravely gratified. Yeah, but I think what gets a lot of people is that you look at these civil rights videos and you see tens of thousands, 40,000 people in the streets marching. And you hold that.

And if you make a split screen in your mind, you hold that thousands, tens of thousands of thousands of people on one side. On the other side, you, one guy, it does make you ask basic questions about democracy. That's a false paradigm. That may be your split screen, but that's really not the reality of all of this. Look, in 1964, 1965, America was held hostage by. the legacies of slavery and the chokehold of Jim Crow. Fast forward to 2006, the reauthorization of the Voting Rights Act.

The chokehold had gone away. African Americans in the Deep South registered to vote in numbers that often exceeded whites participated in elections in numbers that exceeded whites. In terms of electoral opportunities, we have come 180 degrees from 1965. We turn those degrees because of the law which you've helped to overturn. And we don't know to what degree that is the psychology of America changing or the fact that we had a law that kept people in line. And now that law is gone. And now we see voter ID laws coming back into play, which I think any, like, sane person would admit is an attempt, a blatant attempt to disenfranchise people. So it feels a little bit strange to, I mean, I completely agree with you. Things have gotten better.

At the same time, I think, well, that was because of the law that's now gone. Look, laws change. Laws evolve. And at some point, they need to come to an end. Okay. So just to jump back in, something we haven't actually talked about yet is our original question. How does this actually happen? How does it work? How is one person able to be so effective? To do this work, you need a computer, a printer, a cell phone. That's really about it. Wait, who pays for all the lawyer fees? And who do you go to? Well, there are individuals that know of my words. work and there are foundations. Okay, so he's a 501c3, like the NWACP and Lambda Legal that funded Lawrence versus Texas case.

And if you're a 501C3 public charity, as he is, you don't have to reveal your donors to the public. We do know a couple of his donors, though, and they're wealthy, very conservative foundations. So in the end, what he does is just sort of a more, maybe a more strategic or sophisticated version of what Lane Lewis did in the first story. Like, in this case that he just lost last week, he knew he wanted to challenge affirmative action. So the first thing he did was sort of do a casting call. He set out to find the perfect white student. He set up a website called UTnotfair.org. He made a recruiting video. It's time for UT to stop using race as a factor in the admissions policy.

Pretty budget. It's just him looking at the camera in front of a poster that says UT not fair. I encourage all high school students who have been rejected from UT to visit at UTnotfair.org. Tell us your story. And then he started talking to the people who responded. I think I ended up with about 175 responses. Of those, about 100 were viable. With the 75 you threw out just like. Oh, kooky.

Flat out racist. Yeah, well, just didn't think they would be sympathetic. So he whittled the hundred down to seven that he thought would be sympathetic. Of those seven, there were one or two that, you know, did not really want to go forward. Like, I don't want the attention? They were fearful. Of, you know, the backlash. Anyway, to make a long story short, he ended up finding Abby Fisher because a friend of his called and said,

hey, my daughter just got rejected from UT. I heard you were looking. I think I'm a very, like, a very, like introverted person, so I feel, like sometimes it's a lot of pressure but I think in the end it's totally worth it and to be able to have a voice

in this and to know that my voice is making a difference is really rewarding. She seemed like the perfect plaintiff. Strawberry blonde hair, she's petite, she's kind of shy in front of the camera in a good way. But last week, they lost. So we talked to him

before all this happened so we weren't able to get a reaction from him but he did tell an Austin newspaper, that the night after the decision came down, he had three glasses of wine, he took an ambient, and he thought about these particular lyrics in a Billy Joel song.

The song's called Keeping the Faith. I'm a long-distance runner. If there's something just emblematic about my personality, I run long distances. He says he's definitely not done. He's actually already has two more cases against affirmative action in the works.

I have retained counsel to litigate Harvard's admissions policies and University of North Carolina's admissions policies. I'm sorry, it just doesn't strike anyone. I mean, forget the politics, whether you're on Bloom's side or not. Just the tactic doesn't strike anyone as like, fishy? I resist giving Ed Bloom that much credit. That's Ellie Mistolligan or a legal editor. I would say that fundamentally he's just implementing a strategy that was perfected by the people he now ironically seeks to disenfranchise, right? This is civil rights movement 101. He's got laws that he doesn't like that he knows he can't overturn through an election. Remember, this, Bloom's a failed congressional candidate.

He had that lust for political power. He couldn't get it through the electoral system, but he found this other way to do it. This is exactly what the civil rights movement did. Okay, so to me, this is one of the most fascinating things about this story. If we go back, do you remember this case? There's a famous case called Plessy v. Ferguson. Sort of no, not really. Plessy v. Ferguson, I think, is a good example. This is Susan Carl.

Law professor at American University Washington College of Law. Okay, Plessy v. Ferguson, 1892. So that was a case where the state of Louisiana had adopted a new separate cars law. which said that people of color and white people could not ride in the same train cars. And if you've heard the story, this is how it goes. Somebody named Homer Plessy. A black man sits down in a white car. He is arrested and...

He decides to sue and his case goes all the way to the Supreme Court. Now, the thing about that case is that it was a total setup. What do you mean? So if we go back, when Louisiana passed that law requiring separate cars, Early civil rights groups were obviously horrified by this, but the railroad companies were actually mad about this too. Because they thought it would be much more expensive to run the trains if they had to have add additional trains so they'd have white cars and cars of color. And so civil rights activists. And the railroad companies, they recruited somebody named Homer Plessy, who was seven-eighths white.

One-eighth African-American. And they sent him to go sit in a white car on a train. into a first-class white people's car, and they sent somebody to go arrest him. Like they got an off-duty police officer or something? Well, they actually hired a detective. You could do that at the time that you could hire a private detective to make an arrest. And so they hired that person, too.

So Plessy gets onto the train. The conductor comes by, and Plessy's like, just thought I should let you know, I'm actually an eighth black. And the conductor says, Well, in that case, you're going to need to be on the other car in this train. Homer Plessy says, I'm good, actually. I'm going to be staying right here. And the conductor says, no, really, you have to move.

And Homer Plessy says, no, really, not going to. And things get heated. And eventually this detective that they've hired comes in and arrests him. And they brought a lawsuit. That's amazing. The whole thing is cooked. Starting with the arrest to challenge the separate cars law. And they were able to get it up to the Supreme Court. and they were hoping that they would be able to establish that the idea of separating the races was unconstitutional.

But unfortunately, they miscalculated. And the court ruled that the law was constitutional. And what they got instead was separate but equal. Totally backfired. But it was this early example of this other way. You know, if you can find a plaintiff or create a plaintiff, you might be able to bypass the legislative. legislature and go to the Supreme Court instead. The NAACP later picked up on this.

They were the true geniuses. They perfected it, and they perfected it under circumstances where victories were highly unlikely. For example, in the early 1900s, they do things like send a black guy and a white guy all over New York City to segregated theaters. And see if one of them was prevented from being seated. And if they were? They would sue those theaters. and win victories that way.

Then there was this other law in Louisville, Kentucky, that said... Nobody could buy a house or live on a block in which white people lived if they were African American. So they recruited a white guy to sell a house to a black guy, and then they had the black guy refused to take the house so the white guy could say... You said you would buy the house, but now you're renegging on it. And the African American said, I'm not buying the house because I can't live there. White guy sues the black guy. Again, it was a manufactured case.

It was one of the NAACP's first victories. And that's the case where Justice Holmes said in a dissent that he ended up not publishing, hey, wait a minute, this isn't even a real case. At the time, anything that involved manufacturing a case or fomenting litigation, all of those things were illegal. So not just unethical, but actually illegal? Yes, criminally illegal. It was seen as something like how we see ambulance chasing to.

The lawyers for the NAACP were very aware of these statutes. And this came to a head in the 1950s. The NACP wanted to get the court to end segregated schools. Basically, they wanted to overturn Plessy v. Ferguson. And the way they were doing this, they, you know, they needed plaintiffs. So the way they were looking for plaintiffs is going to meetings with parents and sort of quietly, you know, subtly trying to ask parents if they wanted to be the face of. of these cases. Now, Virginia knew that they were doing this, and they tightened up these

regulations that said, you know, you can't drum up litigation to try to stop them from doing this. So the NAACP sued, and they took this issue all the way to the Supreme Court. Test litigation is essential because no matter how illegal it is, public officials are free. And in that case, the Supreme Court said, actually manufacturing litigation, Litigation is a form of political expression. Really? And it is totally okay. Like free speech, basically?

Yeah, like it's a way of expressing your political viewpoint. And test case litigation exploded after this. In the 60s and 70s, a lot of other movements, the women's movement, poor people's movement, saw the success the civil rights movement was having with these strategies and they adopted them as well. And now I guess that includes Ed Bloom. Yeah.

The founding principles of the civil rights movement have been embraced by the vast majority of Americans in this country. And those founding principles, those founding principles guide these lawsuits. That basic fundamental guiding principle of the civil rights movement and how it needs to be applied today. I can't say what I think of that on family radio. that is not accurate. Ed Bloom is not carrying the standard forward for civil rights in America. That is not what he's doing. But Ellie says he is actually doing something that's deeply important to our political system.

You look at the current election cycle and I see a lot of people who agree with Ed Bloom. They agreed with him in a way that couldn't be expressed in the polls. They're out there. This is one way for that. And that happens, I think, again, that's another callback to the other callback to the polls. the civil rights movement. When you have a minority population who believes in something, they just get trampled in popular elections, okay, but do they still have a voice? Should they still have a voice? Should they still have a way to enact change on their behalf over the will of the

majority? Again, that seems to me textbook, what courts are supposed to be able to do to look out for the rights of the minorities, political minorities, more than the kind of ethnic or racial or religious and see that they are not being trampled by a majoritarian tyranny. Bloom is helping a minority of people who believe what he believes. I am so not prepared for you saying any of this. This is really surprising to me. Thank you to Catherine Wells. Our sincere thanks to her for reporting these two segments and Ellie Mistal are a legal editor.

More Perfect is produced by me, Jad Ibrun, Rod, with Tobin Lowe, Kelsey Paget and Susie Lechtenberg, who will take it from here. With Soren Wheeler, Ellie Mistal, David Herman, Alex Ovington, Karen Duffin, Sean Ramosorum, Catherine Wells, Barry Finkel, Andy Mills, Dylan Keefe, and Michelle Harris. Special thanks to Dale Carpenter. His book, Flagrant Conduct is all about Lawrence v. Texas. Thanks also to Lambda Legal Lisa Hardaway, J.D. Doyle, Ari Berman, Amy Howe, and Guy Charles. Supreme Court Audio is from Oye, a free law project in collaboration with the Legal Information Institute at Cornell. More Perfect is funded in part by the William. and Flora Hewlett Foundation, the Charles Evans Hughes Memorial Foundation, and the Joyce Foundation.