The Daily Beast Podcast - We’ll Be Talking About Justice Jackson Dissents for Decades

Episode Date: June 30, 2023

On this week’s episode of The New Abnormal, hosts Andy Levy and Danielle Moodie react to the Supreme Court’s latest ruling on Affirmative Action. Joining the show to discuss is Jessica Levinson, a law professor at Loyola University. Plus! Delaware State Senator Sarah McBride talks about her recently announced candidacy for Congress, as well as being the first openly trans person to work at the White House. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Hi, I'm Andy Levy, former Fox News and CNN-HLN guy, and current cable news conscientious objector. I'm a former libertarian who now sits pretty comfortably on the left. Hi, I'm Danielle Moody, former educator and recovering lobbyist. But today, I'm an unapologetic, woke commentator on America's threats to democracy. And I'm producer Jesse Cannon, and I'm here to make sure things don't go too far off the rails. We're here to have fun, smart conversations with some of the most knowledgeable and entertaining people in politics, media, and beyond. Our goal is to try and make sense of our current crazy world, our new abnormal, and hopefully even make you laugh through the tears. What an excellent show we have today. Delaware State Senator Sarah McRide talks about a recently announced KSA for Congress, as well as being the first openly trans person to work in the White House of what she hopes to achieve if elected.

Then we'll talk to Jessica Levinson, a law professor at Loyola University and CBS legal contributor about the Supreme Court's recent ruling on affirmative action. But first, let's have some fun. So, Andy, it is another day in the hellscape formerly known as America where the Supreme Court, this horrible grifting ass, criminal-ass Supreme Court, has decided that, guess what? The rest of us, you know, the 99% people of color who don't have billionaire benefactors, can eat cake. And that is exactly what Katanji Brown Jackson, our justice said in the dissent to their affirmative action decision that now, in a six to three decision,

guts affirmative action in this country that has been in place for the last 45 years. In her dissent, which was absolutely, I think, brilliant, just as Katanji Brown Jackson said this, with Let Them Eat Cake Obliviousness today, the majority pulls the rip cord and announces colorblindness for all by legal fiat. But deeming race irrelevant in law does not make it so in life.

and having so detached itself from this country's actual past and present experiences, the court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America's real world problems. No one benefits from ignorance. I mean, I would have added some F-bombs, but she is much better than me. Yes, you definitely would have. Yes. It's funny because I had highlighted that same passage and I was also remembering that when I talked to Chris Gidner about the court the other day, I said, I feel like we're in for decades of talking about fantastic Justice Jackson dissents. And unfortunately, I think this was another one of them.

The only thing I would take issue, maybe her use of the war, she said the court has now been lured into. I don't think they were lured into anything. This is exactly where Thomas, Alito, Roberts, et cetera. This is exactly where they want to be. I'm not arguing with Justice Jackson here. I know, you know, she picked that word for political reasons, and I get it. But I think it's important to note the historian Kevin Cruz made this point. He said with this decision, Chief Justice John Roberts has completed a long conservative crusade.

And that is exactly right. They have wanted to get rid of anything that smacks of affirmative action or anything that smacks of diversity for decades. And thanks to Donald Trump, they have the votes to do so. And we can discuss what a weird country it is where that's how it works, but that's how it works. There's so many things here. And it's just, like, to me, there are two big issues that surround this. And one is diversity on its own being a good. And I think that is with no qualifications whatsoever, the answer to that is yes.

Diversity on its own is important and good. A lot of people sort of talk about it as if it's just a diversity issue. and it's not. It's also an issue of taking into account the lived life experience that people of color so often face in this country. And the fact that the system has been set up to make it so much harder for a lot of people to succeed. You know, again, I'm talking mainly about people of color. I mean, we're talking about centuries of slavery into Jim Crow laws and redlining. And literally, you could not have stacked the deck more against the interests of people of color in this country. It's important to write that wrong. And no, you don't get a pass by saying, well, my, you know,

why does something that happened seven generations ago have any bearing now? Because it didn't just happen seven generations ago. It happened in a lot of our lifetimes. Jim Crow, a lot of people are alive now who were alive in the days of Jim Crow. A lot of people are alive now who were alive in the days of redlining. Every way that this system could be stacked against black people, against people of color in general, we have living witnesses to that. This is not ancient history shit. And to act like, well, we had 25 years of affirmative action in colleges, we good now. No, we are not good now. And we will not be good for a very, very, very long time. I have absolutely no problem with saying that diversity on its own is a good and noble goal. Everything that

you're saying, Andy, is 110% right. This country is better because of its acknowledgement in some instances of the wrongs that were done to black people and people of color in this country's and to indigenous populations. Affirmative Action was one of the steps outside of doing, I don't know, reparations and giving back all of the fucking stolen labor and wealth and extraction that you did from black people and indigenous people in this country. But affirmative action was the opportunity to be able to move out of our invisible caste system in this country. We don't call it a caste system in America, but we know good, goddamn well, who is at the top

and who is at the bottom. And what these justices have decided is that it has been a little too comfortable, a little too much progress has been made for black people when you had Barack Obama become president of the United States, and then we all thought that, oh, we were post-racial and could march into the promised land that Martin Luther King told us about and preached about

and died for. But the reality is that's not what these white justices want. And I say white justices, and I know Clarence Thomas is there. I'm saying that for a fucking reason. So the reality here is that, like, this Supreme Court is crooked. They are criminal and they are grifters. But we're not going to do anything about that because we don't want to seem political. It is all to ensure that the 1% have a permanent working class. So goodbye America's global standing. I always wanted to know what it was going to be like to be inside of an empire that was dying. Here you go. Yeah. Look, as Jordan Weissman noted at Slate back in 2019, and a lot of people have been pointing out again today, 43% of white students that Harvard admits are legacies, jocks, or the kids of donors and faculty. And that is from a study

that looked at 2009 until 2014. And the study concluded that only about a quarter of those students would have been accepted to the school. You know, I've been reading a lot today, and Michelle Obama wrote a beautiful thing about how when she first got to college, she suffered from that, you know, do I really belong here feeling? And I've been reading a lot also about how, you know, people of color have been saying the same thing. I want to switch that around. I think at this point, we got to start looking at white people at elite schools and looking at them like, do you really belong here? Because, you know, it seems pretty obvious that the court today couldn't care less about legacy admissions and stuff like this. Because, you know, and I won't say that there's no connection here, I will say because what we're talking about here is white folk. We're talking about white people. When we're talking about legacies, it's obvious who we're talking about here because of the way this country, again, has been set up. There aren't a hell of a lot of black legacy students. So we're talking about white people here and we're talking about the advantages that they are getting. And the court could not care less about that for all the reasons that you already said because

that doesn't fit their agenda. Those are the people that they want to keep in power. Let this day be a day that mediocre white people can celebrate to the end of time. Bravo to all of you. I just want to bring up one last point. Robert's decision was interesting because there was a footnote in there that expressly said that this doesn't apply to military academies. He wrote this sentence. He said this opinion also does not address the issue, meaning the issue of race-based admissions

at military academies, he said, in light of the potentially distinct interests that military academies may present. I would love to know what he thinks makes the military academy's interests distinct from the interests of any other university. Is it, I don't know, having a more integrated military? Is it having more people of color in command positions in the military? Because they're horribly underrepresented. Because you can take that same thing and look at companies in this country and any other field and talk about how bad the representation is for people of color. So there should be no difference here, but somehow Roberts wants to make this distinction, and it's insulting, and I don't really know what he's going for you. You know what continues to be insulting? The amount of evidence

that is stacked up against Donald Trump, speaking of privilege, speaking of mediocre whiteness, speaking of all of those things, the amount of evidence that is in front of the Department of Justice, that is in front of the world, and yet we know, most likely, nothing is going to happen, that all of this is much to do about nothing. Why? Because white, cis, which by the way, just FYI, Elon Musk is now canceling the or suspending people on Twitter for using the term cisgender. If you tweet this, you know, just know that you could be suspended because again, this is the world that we live in where white men of privilege get to dictate everything till the end of time. We have little moments of progress, but then not so much. And Donald Trump,

his audio tape, now in his defense, what is he saying? I'm talking about newspapers. Oh, it was bravado and ego. Oh, it was this, that, and the other thing. It's what the fuck it sounded like. How about that? It was you with classified documents showing off to some young staffer and making yourself seem bigger than your little hands show the rest of us. That's what this was. It was putting the nation at risk so that you can feel like a big, strong man. That's what this is. But, you know, let us all go on and continue to have conversations about the evidence and what people need to prove because you wouldn't have to prove dick. If he was black, you wouldn't have to prove a thing.

If he was a person of color, he would have been arrested from, oh, I don't know, he got on the helicopter or stepped outside of the White House at the inauguration. Give me a break with the amount of things that we. allowed this man to get over on us and do nothing about, yes, he's been indicted, but do we really think that Donald Trump is seeing the inside of a jail cell? Do we really think a guilty plea is coming with a judge that he has in his pocket? I don't think so. Yeah, if this were a game of clue, it would be really easy. It's Donald Trump in the bathroom with the documents. Amazing. He's caught on tape, holding up classified documents, admitting that he didn't have the power to declassify them, which has been sort of his main defense.

And he's admitting that even he knows that that's bullshit. And then he comes out after the tapes come out. And he says, oh, they know, they were just, I was holding up newspapers. I was, it was just bravado. Basically, he was saying, oh, I was just lying. That might have been the one time he was actually not lying was when he held up the document on this tape and said exactly what they were. It's this weird sort of contradiction because he's so, he is absolutely proud of the fact

that he has these documents. But then I guess someone whispers in his ear that, yeah, this tape isn't good for you. And then he has to say, oh, it was just bravado, which is just a nice way of saying I was lying. I would actually respect him more. I mean, look, I couldn't respect him any less. But I was going to say it. If he at least stuck to his guns and said, these are my documents, which is what he's basically been doing.

Rolling Stone has an article basically saying that when he was just about to be indicted, he kept saying, no, they have to give my documents and my back boxes back. He's a fucking toddler. Did you listen to how that sound? Like, you have to give my, they're not your documents. They're the government's documents. You are not the government. He said that in his town hall, he said it.

I had to look through my boxes, right? Things could have been mixed up with my golf shirt and then, you know, a map of where we're going to bomb Iran. Why are those two things together? Because they're of equal importance to him. Like, you know, the golf shirt's probably more important. And then he's like, oh, yeah, I also have these classified documents about bombing Iran. He's a toddler. He's a five-year-old.

This is what a lot of us have been saying from the start with these documents. People saying, why did he take them? And it's like exactly what he said. Mine, my documents, my boxes. Give me my boxes back. It's literally, you're listening to a child. I don't know how else to put it. And look, you know, I guess moving from a child to sort of an.

ad-old great-grandfather. We got Rudy Giuliani, who I just cannot picture without that ink rolling down his face, like some X-Files creature. And I guess we are now seeing reporting that an interview he did with federal prosecutors regarding the 2020 election and his role in trying to overthrow the results. We're now hearing was carried out under what's called a proffer agreement. And under this type of agreement, someone who is the subject of a criminal investigation can share information.

The deal is sort of that it won't be used against them in court. This involved Rudy's role in the plans to create those fake slates of electors. If everyone remembers that, look, we'll see what happens with this. But it's just, man, I don't even know what you say about Rudy Giuliani at this point. So I'll leave it to you, Daniel. Why isn't he in jail? I don't know. Do you know what I'm saying?

Yeah. This is the shit that I'm just, I'm so over. I'm so over it. It's like the amount of evidence, the amount of these people saying this shit in their own words on audio, caught on tape. And we have to say, oh, well, I don't know if we have enough to put them in prison. And I'm like, how much evidence do you need to put a white person in prison? I'm just curious. Asking for a friend.

Because I know that if I roll, if I roll through a fucking stop sign right now, I could end up dead. So I'm just curious as to like, what is the threshold that we're trying to meet here? Because if these people do not meet it, then no one does. Then no one should ever go to prison ever again. And I mean like no one. Because Rudy Giuliani, I mean the fake electors, all of the schemes, him at the in the war room on what would, I don't even know he was on drugs. He was drunk.

Whatever it was that he was doing. like Rudy Giuliani is a criminal and has debased himself for Donald Trump and is still, again, walking around free, just free to drip, die all over everyone. And I don't get it. No, I don't get it either. And I really, I'm so disgusted by what you just said. The dye dripping everywhere. Yeah.

Just flinging it around, Andy. Just free flinging it. Also about the fact that he's not in prison, I'm disgusted by that. But somehow I'm more disgusted by the image of the die. on everything and everyone around him. Mm-hmm. Mm-hmm. He has been a part of so many criminal schemes.

He's like the forest gump of criming. Mm. He's just always there. Like, he's always in the room when the crimes are being planned. And he's always making phone calls to help the crimes be planned. And yet somehow, like you said, there he sits, you know, I'm assuming he's rolling in dough, you know, fat and giggly. Fat and giggly.

You know, maybe not fully. aware of his surroundings, but, you know, live in what's left of his best life. And I just, it's, it's, it's not good. And you're right. I mean, like you said, you know damn well that if you rolled through a stop sign, you could end up dead. Not to bring this back to like the Supreme Court thing, but that's another thing that really gets me about this is it's like, let's make this deal. We won't do race conscious admissions and we also won't shoot black people for traffic offenses. If we could maybe work out that deal, you know, it's something to talk about, but we can't even work out that deal. And it's just, this country is just, we're just not.

I'm going to go on a limb and say, we're not in a great place with regard to racism right now. That's my take. That is the, I love you, and that is the understatement of the year. That's my hot take for this episode. Our next guest is a Delaware state senator who on Monday announced her candidacy for the U.S. House of Representatives to replace fellow Democrat Lisa Blunt, Rochester, who is running for Senate. During the Obama administration, she worked in the White House as an intern, and she spoke at the 2016 Democratic National Convention. Oh, yeah, and she was the first openly transgender person to do all those things.

It's a pleasure to have on the show, Sarah McBride. Sarah, thank you so much for being here. Thanks so much for having me on, Andy. Absolutely. Okay, so first openly trans person to work in the White House to speak at the Democratic National Convention and to be a state senator. You and history seem to have a pretty good relationship, which I think bodes well as you look to become the first openly trans person in the U.S. Congress. Well, I'm certainly not running to make history. I'm running to make a difference. But, you know, it's definitely been a through line in my life that I've been the first in the spaces that I've been in, which just shows how fortunate I am, unfortunately, because it's all too rare.

And I certainly believe that it's time for people of every background in our country to be represented at every life. level of government. These days, the Democratic Party has, I think, mostly, though not totally, been good on LGBTQ plus issues. What are particular areas where you think it could be better? I think we should be incredibly proud of the Democratic Party's record on equality. In far too many instances, quite frankly, we've seen parties in other countries that have historically been supportive of LGBTQ rights begin to falter. I think about places like the United Kingdom, where the Labor Party has been triangulating on LGBTQ rights. I think of examples in another countries where their progressive parties have begun to at least

diminish their support for LGBTQ rights. But here in the United States, the Democratic Party and our President Joe Biden has remained resolute and vocal in its support and their support and his support for LGBTQ people and our rights. And so I'm incredibly proud of the Democratic Party's record. Think back to 30 years ago when the party was triangulating on issues, marriage, you don't see us doing that anymore. I think we have learned that we should be proud of our values. We should be proud of everyone in this country, including our LGBTQ residents, and we're going to stand by them through thick or thin. You know the Biden's fairly well, I think. You worked on

Beau Biden's campaign for Delaware Attorney General, and Joe Biden himself wrote the forward to your book, Tomorrow will be different. That had to be a bit of a trip. That was absolutely a trip. When I got word that he had agreed to write the forward. After, you know, a decade or more of working for Bo and working with Bo to pass protections here in Delaware, of working with the then vice president on issues of LGBT he writes. When he agreed to write the forward to my book, I was absolutely in heaven. Joe Biden is the giant in Delaware politics. And as a young kid, it was very interested in politics, who absolutely was beside myself when I first met him at a pizza shop when I was 11 years old to have, a childhood hero, a personal hero of mine, write that forward was a dream come true.

Yeah, I can't even imagine. So switching parties, on a scale of negative 10 to zero, how would you rate the GOP on LGBT issues? I would say nationally negative 10. You know, I will say Delaware still has some fair-minded Republicans who, at least on some of these issues, have voted the right way. Actually, just yesterday, we voted in the state Senate on the legislation that I was the prime sponsor of to ban the so-called panic defense, the gay and trans panic defense. And not only did every Republican vote for it, but every single one of the Republicans in the state senate added their names as co-sponsors, which has never happened on an LGBTQ rights bill here in Delaware. I think it shows the power of proximity, the power of representation and

sort of personalizing these issues. But yeah, the National Republican Party, National Republican extremists, negative 10, negative 30. I was thinking about this after I saw that you'd announce, My God, if you win, you'd have to sit in the same room as the Marjorie Taylor Greens, the Jim Jordan's Lauren Bober's, the Andy Biggs's of the world. People with zero ratings from the human rights campaign where you used to be the national press secretary. What do you think that it'd be like? They're not even polite about it.

They are just openly hostile and cruel. Look, let their pettiness contrast with our kindness. Let their cruelty contrast with our compassion. Let their hatred contrast with our humanity. One of the great powers of representation is not just the capacity to change the hearts and minds of your colleagues, but also to be able to just be present in a way that demonstrates visually the inhumanity, the meanness of their policies. And so, you know, if Marjorie Taylor Green wants to absolutely lose it because I'm in Congress, letter, because I think it'll just only embarrass her. But beyond that, I will say, you know, when I got elected to the Delaware General Assembly, I think people presume that I would not be willing to or be able to work with my Republican colleagues. And obviously there are Republicans in Congress like Marjorie Taylor Green and Lauren Bover who probably would never want to work with me. But I will tell you, in the Delaware General Assembly, I have made it a point of finding opportunities to find common ground. Because beyond the headlines, beyond what's on cable news, there are a lot of issues that we actually agree on. I work closely with Republicans to expand access. to health care and rural communities. I'm proud that when we passed my paid family and medical leave bill,

we were able to pass it with not just the supermajorities necessary, but with a bipartisan supermajority in 2022. People thought that would never happen. People didn't think we would pass it, let alone pass it with bipartisan majorities. And so every bill that I have been able to pass and introduce up until this point has passed with a bipartisan majority, including major Democratic priority, something that people thought I wouldn't be willing to do or wouldn't be able to do, and we've done it. Yeah, I was going to say, obviously, you're not. I was going to say, obviously you're not just running to represent trans people. Sis people have rights too.

We all agree on that. And I can say, cis, this isn't Twitter. It's not a slur. What would you say are the big issues in it, you know, in addition to LGBTQ ones that you're concerned about and would want to focus on in the House? Sure. Well, when I ran for the Delaware State Senate, I said I wasn't running to be the transgender state senator.

I was running to be the state senator who was focused on paid family and medical leave in health care. And right now, so too am I not running to be the transgender member of Congress. as important as representation is and as proud of that aspect of my identity as I am, I'm running to work on all of the issues that matter to Delawareans of every background. And so just as I have done in the Delaware General Assembly, I'll fight to build on our progress, passing paid family and medical leave by ensuring federal investment to make that a more robust and universal program. I'll fight to make sure that every Delaware family has access to affordable early childhood

education. I believe that health care is a right and we should have universal coverage in this country, and I will support any measure that gets us closer to that goal. And just as I've done here in the Delaware General Assembly fighting for gun safety and reproductive rights, I will in Congress fight to enshrine the protections of Roe under federal law and fight to pass meaningful gun safety measures like the ones we've passed in Delaware like the assault weapons ban. And then finally, just as I've done in the Delaware General Assembly, I'll fight for us to do more to combat the existential threat of climate change to protect our planet because ultimately no program and no rights matter if we don't have a planet to live on. You know, I listen to you talk and it's funny, though not ha ha funny. All these

Republicans go on and on about family values. And here you are an openly trans person, the kind of person they demonize every day. And you're out there, as you said, leading the charge in Delaware for things like paid family and medical leave. And it's like if I didn't know better, I think they didn't really mean all their talk about families and children. No. That's a disingenuous talking. point. I know. Yeah, no, you're absolutely right. The reality is, is the Democratic Party is the party of family values. Don't show me your values with your rhetoric. Show me your values with your policies and your budget and what you actually support. Saying that your family values while attacking families and kids and

bullying families and kids is not a very good way of protecting and promoting families and voting and voting against policies like early childhood education or paid family and medical leave, voting against more funding for public schools, those aren't pro-family votes. Those are anti-family votes. And so I am very, very, very, very glad that the party, Democratic Party has leaned in to these policies because we have made very clear that the decades of Republicans pretending to be the party of family values was just empty rhetoric and that we truly are the party that prioritizes workers and families and kids. I'm so happy to hear you say that because we talk about this on the show, you know,

we've talked about it more than a few times. It feels like we've sort of let the Republicans to a large extent get away with claiming they're the party of family values. And it's, I feel like the media is a little complicit in this. Like the media will often just take their rhetoric as fact or just present it neutrally. When in fact, they are, as you point out, they are so anti-family and anti-children in so many ways. Yeah, it is appalling. And I think right now the notion that a party that is seeking to rip parents away from their kids simply because they are supportive of their LGBTQ children,

that party cannot claim to be in support of parental rights. And I think it's important to have people in places of elected office to point out the hypocrisy and to point out the hollowness of their claims and to point out the fact that you can't be pro-family if you aren't for all families. A hundred percent. I just couldn't agree more. I don't know. This is maybe an odd question, but it's one I'm always sort of curious about, you know, we always hear talk about this sort of, maybe not a major split in the Democratic Party, but there's, you know, there's the progressive wing and then there's the more moderate wing. Where would you see yourself fitting in in the house? I believe we have to reject the false distinction between being bold and building bridges. In fact,

I believe that the only way we achieve lasting progress is to do both. That's how I've governed in the Delaware State Senate. It's how I'll govern in Congress. We have to fight for big, bold change. The stakes and the times demand it. But we also shouldn't give up on the opportunities to find common ground to work together, to break through the gridlock. Because ultimately, in the kind of government we have, in a democracy,

you've got to build a majoritarian coalition that may disagree with you on many other issues. And the reality is, is for democracy to survive, government has to work. And for government to work, we have to work with one another. And so I'm a progressive, but I'm a progressive who likes to get things done. It's funny because you said build bridges. And I was thinking, we also need to literally build bridges in this country, infrastructure, et cetera. And I know Joe Biden has done some work on there, but it feels like there's a lot more to go. There certainly is. On that note, on the Inflation Reduction Act and the bipartisan infrastructure bill and these incredible steps forward in federal investment in jobs and infrastructure, you know, when Joe Biden ran for president in

2020, he said he was going to do big things and that he would be able to bring people together. And I think a lot of people laughed at that prospect at the time. I think a lot of people thought that there was no way that government could meet the challenges of this moment, that there was no way that anyone could work together on any issue. And right now it's in vogue to be cynical in our politics. But over the last three years, Joe Biden has passed the most significant investment in combating climate change in our nation's history. He passed on a bipartisan basis, the most significant investment in infrastructure since the 1950s. He passed the first gun safety package since the 1990s, also on a bipartisan basis.

He passed the most significant expansion of health care since the ACA. Time and time again, Joe Biden's delivered what people thought he wouldn't be able to deliver. And in many cases, he was able to deliver it with strong bipartisan majority. something that people thought was impossible. And so I'm proud of this president's record, proud that he's a Delawareian, and I'm eager to support him in his reelection because I think he'll continue to be able to get things done that people didn't think were possible when he ran. You've also said before that there were, I think it was in the New York Times interview that you did. You said that there were unfortunately a lot of pieces of the Build Back Better Act that were left

on the cutting room floor, as you put it. What are those issues and will you try to, you know, get them through once you're there. Absolutely. I mean, there's some of the issues that I've already touched on, paid family and medical leave, affordable early childhood education, including child care, elder care and home care. That investment and those reforms to what we call our care economy were a central part of the Build Back Better Act. Unfortunately, due to the need to find 50 votes in the U.S. Senate, those elements had to come out of the final bill. But I'm optimistic that when Democrats retain control of the U.S. Senate when Joe Biden's reelected and when Democrats regain control of the U.S. House all in 2024, that come January 2025 will be ready to push forward those elements, those policies

that weren't able to pass in what became the Inflation Reduction Act, and that we'll be able to, I think, fill the hole in our social safety net address what I believe are the economic and moral issues of our time, which is to make sure that government is doing more to support workers and families through the inevitable challenges of life, from raising a child to struggling through a serious illness. Government can't stop all loss or all pain, but we can make life a little bit easier for people when hard times hit. And those policies, I think, achieve that goal and achieve that principle. I want to ask a sort of an exit question. What's your feeling on the future for trans people and LGBTQ plus people in general in America? It just feels like such a dark time

with progress actually being lost in some areas, something I couldn't have even imagined saying. Do you think that changes? Are you ultimately optimistically? I am ultimately hopeful. I know it's easy to be hopeless in this moment. It's easy to be consumed by the darkness. It does feel different than, you know, five or ten years ago when it felt like if we simply worked for it, change was inevitable. And for the first time in a long time, it's hard to see the light at the end of the tunnel. But the reality is, is that hope as a concept, as an emotion only makes sense in the face of hardship. And that it's always been in our most significant challenges that we as a community and as a country have, taken our biggest steps forward. Previous generations of Americans have faced seemingly insurmountable odds as well, odds even greater than the ones we face today. In those moments, they had every reason to fear that change would never come. Inslaved people in the 1850s had no reason to believe that an emancipation proclamation was on the horizon. Unemployed workers standing in breadlines during the early days of the Great Depression had never heard of a new deal. Patrons at the Stonewall Inn,

as they fought back against government oppression and brutality, they had never known of America where we could marry the person we love or even just gather as the people that we are without breaking the law. They had every reason to think that change would never come. And yet they persevered. They summoned their hope and they found that light. And I am confident. I am hopeful that we will do just that in this moment, that we will take the pain that we are feeling and experiencing and transform it first into pride and then into progress. And that we will ensure that the story of this moment will not be the story of bigotry and backlash, but will be the story of us building a world where LGBTQ young people can grow up and know that they belong in this country. They belong in our

schools. They belong in our families. They belong in our houses of worship. They belong in our communities. Yes, they even belong in the halls of Congress. Yeah, that was beautifully said. I was going to say the one thing that does give me hope. And it's something I've mentioned on the show before. I have nieces who are in their late teens and early 20s. And I hear them talk. And they, they talk. talk about, you know, they'll say, oh, my friend, so-and-so, you know, they're non-binary and whatever. It means nothing to them in the sense of it's just, that's the way the world is to them. It's just so not a big deal. And they are so fluent in the language that, you know, a lot of old people didn't grow up with and maybe you aren't comfortable with. And, you know,

you spend enough time on Twitter and you see the same damn pronoun jokes all the time. And you're like, oh, my God. But then you listen to young people. And it's just not a big deal to them. And that does give me some hope. Me too. I feel incredible optimism in large part because of the younger rising generation of Americans for whom they have not just embraced the diversity and spectrum of identity, but they have no tolerance for the kind of politics of hate that we are seeing in far too many corners of our politics. And ultimately, it's one of the reasons why I believe that what MAGA extremists are doing right now won't just not be effective politically, but why I know that it won't wear well in history. Sarah, thank you so much for being on the show. Sarah McBride running for

Congress in Delaware and the best of luck to you in your campaign. And hopefully we can talk to you again when you are a sitting member of Congress. Thank you. From your lips to God's ears. Thanks for having me. Absolutely. Thank you, Sarah. Folks, I am very happy to welcome to the new abnormal. Jessica Levinson, who is the professor at Loyola Law School, a legal contributor at CBS News, a columnist at MSNBC, and host of the passing judgment podcast. Jessica, I wish that I could say, oh my goodness, I'm so excited to have you here because we have such good things to talk about. That's not the case and hasn't been the case under this Supreme Court. So in a six to three decision, the Supreme Court has done away with affirmative action and the ability to

of colleges and universities to use race in their admissions. Give us the rundown. What are the devastating effects as if we don't know of what this will mean for diversity, for inclusion, for acceptance rates of black and indigenous people of color in this country and globally to universities, please? Well, I am often the reign on people's parade,

so thank you for allowing me to do that. And yes, let's talk about what the Supreme Court said today. So the conservative majority said race can't be used as a standalone factor in admissions when it comes to private colleges or public universities. But what they did say, and I think this is just kind of coming out more as we're all digesting the opinion, is that race can still be considered as it informs somebody's life experience. And so it can no longer be the case that you can check a box, for instance, and say, I am of this racial background and that that will be a plus factor in your admissions. But it can be that in an essay, you can speak about what your

racial background is, how that has affected who you are, and how that makes you a good applicant for a school. So I know it feels a little bit in the weeds, but I think that is actually an important piece for people to look at, which is that admissions officers can still consider who people are, where people came from, what makes them good applicants. Now, to your question, this will absolutely change admissions policies. Let's be clear about that. And it will change again, the way we have operated, except in states that have banned affirmative action, since about 1978, when the court said race can be one of the factors that admissions officers look at. Last thing I'll say at this point is that I'm talking to you from California. California has banned affirmative action.

And we know essentially what happens, which is that the number of students who are black, the number of students who are Latino, that drops. And that is a practical consequence that we expect to see as a result of this decision. It's just amazing to me, I guess, you know, as somebody who is not a lawyer, but has always admired the law, right? And I think that as a black person, as a queer person in this country, it's because it's where I've gotten all of my rights and had been indoctrinated into believing

that the legal system was in fact blind in the way that we're going to follow the law and precedent matters and, you know, you build upon that precedent. And what this Supreme Court, I mean, you tell me, Jessica, if I'm wrong, has done is basically to put us all on notice. It doesn't matter if there's been a law that's been on the books for 50 years or if it's been on the books for 100 years, that they're willing to overturn whatever is going to suit. And this is my

words, not yours. They're billionaire benefactors. And the reshaping of the judicial map that we have seen, the reshaping that Mitch McConnell was able to do during the Trump administration and having three Supreme Court justices be appointed under that administration because he held Barack Obama's appointment hostage and Democrats let him do that. And so here we are understanding that the Supreme Court is ruling for 330 plus million Americans. And we know that there are members that are sitting on there that are grifters that have broken the law. And I just, I wonder for you as somebody who is a study person in law that is a lawyer, how do you, How do you feel about this Supreme Court right now?

I think the first thing we should say is this is the most conservative court that I think we've had in about a century. And you brought up a number of really important points, which I don't think I'll be able to articulately respond to all of them. But one of them that you brought up is this idea of precedent and the idea that the court is kind of blowing past its past decisions because now it has a six to three conservative majority. and they, in fact, don't even need the Chief Justice of the United States. They don't need John Roberts in order to make decisions that are very conservative and that reshape our society. And what I would say is today's decision, as I see it, is not as an egregious example as overturning precedent as I would point to in other decisions in the sense that

the most recent kind of big statement when it came to affirmative action. actually was in a case in 2003, and moderate justice, Sandra Day O'Connor wrote that opinion, and she said, I don't think we're going to use race-based affirmative action in 25 years. So she kind of put this time bomb in the ruling. Now, some people think that's great. Some people think it's terrible. But I don't see. The court, first of all, today didn't explicitly, although they implicitly did.

They didn't explicitly overrule that particular case. But I think what people would say is, well, it's five years earlier, but the court said there, we're not going to use this forever. And that's part of what we heard during the oral arguments of this case, which is you heard the conservative justice is saying, where is the off ramp? Like, when do these programs end? I don't know when the country stops being inherently racist. For me, the point that Sandra Day O'Connor was making and maybe this is just my interpretation would be that my hope would be that in 25 years, we're not using affirmative action because it has been so ingrained because of the legal authority to say that racist absolutely plays a part in private life, in day-to-day

life. So why shouldn't it be of benefit in a way to right past wrongs? My interpretation of her statement would be like, I hope that we're not using this. I hope that we would have an off-ramp. But the reality is very different than their perceived colorblindness as Justice Katanji Brown Jackson wrote in her dissent. Well, I don't know that you'll be particularly thrilled with this response, which is fine. But what I would say is that to your point of writing past wrongs, I have two responses. One is which is that you see in the decisions between the majority and the dissent and this kind of fracture line that they're both arguing the law, but that they're both arguing the law, they're also arguing practical consequences and they're coming to opposite conclusions. And that's the

first thing I would say. The second thing is affirmative action programs, and I know this sounds strange, but legally speaking, we've never blessed the idea that affirmative action is designed to write past wrong. So stay with me for a second. I'm here. And the idea that the court has adhered to is that racial diversity helps everybody. So it's not about acknowledging systemic racism per se. It's about saying the white kids, the black kids, the Asian American kids, the Latino kids, they all benefit from a diverse student body. And in that way, the affirmative action decisions almost remind me of the original decisions upholding abortion in the sense that Roe v. Wade was as much, if not more, about protecting doctors' ability to perform medical procedures as it was in protecting women. Affirmative

action, as I read the cases, it's as much about protecting the Caucasian students, the Asian-American students, the Latino students, the Black students, as it is about protecting racial minorities. It's saying it's good for everyone. And so today, when the court says, again, essentially, we can't use race as a standalone factor. Legally speaking, they're not saying because there is no discrimination or because we've righted all the wrongs because that's actually in a way to the side of the legal analysis. I know that feels so strange, but that's just a different question. We do this earlier.

I want to read a part of what Justice Katanji Brown Jackson said in her dissent because I think that it was searing and just very straight to the point and what this decision has done. She writes, with let them eat cake obliviousness, today the majority pulls the rip cord and announces colorblindness for all by legal fiat, but deeming race irrelevant in law does not make it so in life. And having so detached itself from this country's actual past

and present experiences, the court now has been lured into, interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America's real world problems? You know, I think you're exactly right to point to that quote. And I think there's a reason that a number of us have zeroed in on that. And to me, in my mind, it brings up the schism between the majority and the dissent here, where what she's saying is that both legally and practically, you can consider race.

What she's saying is, of course, you can consider race. And all of this is hinging on the 14th Amendment equal protection clause. And that, of course, says that we can't deny people equal protection under the law. I'm paraphrasing, of course, on the basis of race. And what she says is I'm looking at landmark cases like Brown versus Board of Education. And that was a race conscious decision. That says we understand that integration is positive, that segregate. that segregation is an unmitigated negative.

And what John Roberts is saying is a completely different view of the 14th Amendment. He's saying that the way to, and this is very consistent with what I've said in the past, the way to reach a colorblind society is to be colorblind, to not consider race. And he's saying, Equal Protection Clause says you can't take race into account. It's two extremely diametrically different views of what it means to restore. adhere to act consistently with the 14th Amendment. I think that. I'm sorry.

No, no, no. No, it's just, I just think about how far this country has come since the beginning of affirmative action in my lifetime. And what this means for young people who have been told that their only path to a better life, is through education, one that will put them in debt, which we'll get to in a moment, and then now being in a position where those black and indigenous people of color will be denied that access. And to assume that admissions people are going to have some type of nuance as they are looking at these applications, I think is wishful thinking. I think it's the same way that you can say, well, you know, these teachers and the librarians in Florida, you know, they have some

ability to decide what books it is that they read. Or we know that when the Supreme Court gutted the Voting Rights Act, like, oh, it was because Justice Roberts thought that America has moved past this. And then lo and behold, right as the gavel comes down, those states that required preclearance, then institute new voting restrictions. So I just think that while I respect the nuance that you lay out, for us in terms of the reading of this decision, I can't help but believe that this Supreme Court in so many ways has set this country back decades, decades that I don't think that any of us will see the return of in our lifetime.

I don't know how we look at young people and tell them that they could be anything and do anything in this country given what it is that we have just dished out. I think the point you're making about the pipeline and the importance of access to education is something that we heard so clearly from Justice Elena Kagan, particularly in oral arguments, where she says, this is how you get to a society where people in leadership positions, people in rooms where decisions are made, looks more like the rest of our society. And that's important for so many reasons.

And it's just fascinating to see the difference in the judge's perspective in terms of how you achieve that city on a hill. And the liberals just could not be clearer in the sense that, of course, you can make race conscious decisions given all of the context that we have about our nation, given all the systemic problems and given the importance of access to education. And then you see just a very, very different view from the conservative justices. And particularly Justice Clarence Thomas, who has said for decades now that affirmative action programs he thinks not only affect or offend the law, but he has said that he feels that it watered down his degree, that he felt people always looked at him suspiciously and that they thought, oh, you're only here because of affirmative action. What was really interesting is that he wrote a concurrence, but I view it really as more of a dissent to the dissent, where Justice Jackson at a certain point says he seems obsessed with colorblindness. And basically, he's taking me on so directly what the reporting indicates that in the room, in the courtroom, that it was incredibly tense and that Justice Jackson and Justice Sonia Sotomayor were essentially staring down their colleagues and that there was no kind of veneer of anything.

other than contempt for the decision? I mean, they are the rest of us. You know, they're the majority of Americans that I'm looking at, you know, through social media that are devastated, that feel like this is an absolute devastation in any type of semblance that we have had of trying to equal a very unequal playing ground in this country. Education has been that tool. and this Supreme Court just took it away. And for folks who think that this is just going to be about colleges and universities,

and you think, oh, well, I'm out of college and university, so it doesn't matter. And I'm saying that the ripple effects that this will have in industries, in hiring, will be incredible, will be extraordinarily disastrous. Jessica, there is another decision that is supposed to be. come down two that are supposed to come down and I want to get your thoughts on them before our time is up, which is that of student loans, which I have my opinions about, but would like to hear yours first. And then another one. And please remind me what that is. It has to do with a seller being able to discriminate against LGBTQ folks. So tell me what you think based on what we've seen

this session, how you think that this conservative court is going to rule. I actually think it's not based on necessarily what we've seen this session so much as what we've seen over the past number of years. So let's start with the other case out of Colorado where there's a woman who is a would-be website designer. She hasn't designed the website yet. She's a would-be website designer. And she says that it violates her religious beliefs to have to be forced to provide wedding websites to gay couples. It's actually a First Amendment case. What she's saying is, that it violates her speech rights, that she'll be forced to speak by providing those couples with wedding invitations and websites. It's not a religion case. And so I expect that the court will

side with her, if they rule on the merits, which I think they will, that they will side with her. And what's on the other side of siding with her, it's Colorado's anti-discrimination law. It's their public accommodations law, which you and I know are such important laws. And what they say is if you are open for business, then you are open for business, period. Then you serve people. And you don't discriminate on the basis of LGBTQ status. You don't discriminate on the basis of race. And if the court, in fact, does side with this would be website designer, they are, in my view,

really punching a hole in those anti-discrimination. laws. And there's a lot of kind of in the legal weeds about whether the case is really even about her speech rights at all in the sense that there's a view that maybe we're not forcing her to speak. We're just forcing her to sell that this is actually a transaction, a commercial transaction. We're not forcing her in her private life to say, I really support this couple. We're forcing her to say, if you provide the service, then you provide you. provide this service period. So that's a big case to watch. The court has been very protective of, in my view, very protective of religious objectors. Again, this is a speech case, but what she's saying

is that she doesn't want to, quote, speak because it violates her religious views. The other case deals with President Biden's student loan forgiveness program. So the other case deals with whether or not President Biden had the power to create this student loan forgiveness program. And here again, I'm going to say we actually need to separate what we think of that program as policy, whether or not we think it's good or bad, with the pretty detailed legal arguments there. The first legal argument is, does anybody actually have standing, meaning the ability to walk into federal court to sue to challenge this. And if the Supreme Court wants an escape hatch, I think they absolutely have one where they don't have to rule on this and they can say that the right plaintiffs

aren't here, that the states who sued, that the private individuals who sued, that they don't have enough of an injury to walk into court and challenge this program. But if the Supreme Court says, yes, there is standing, then there's really two fairly detailed questions. One is under the statute that the Biden administration is saying they have the power to act under, is cancellation of student loans? Does that amount to a waiver or modification? I'm using the language of the statute. Does that amount to a waiver or modification of the student loan program? And then the second question, and this is something brought up by the chief justice during oral arguments is, is this cancellation such a, quote, major shift that it implicates something called

the major questions doctrine such that Congress needs to act? Congress needs to be the one to specifically give the Biden administration the authority, which in closing brings back, brings us back to the fact that Congress wasn't willing to act here. If Congress had acted, we wouldn't have this case. And we see that a lot. We see that in the area of immigration. We see that in environmental regulation, where because Congress doesn't act, then the president does. And then it's a question of what is the president's authority. Yeah. And we will have to leave it there today. Jessica Levinson, thank you so much for walking us through what is a really difficult time to really understand the implications of what it is that this Supreme Court is doing to America and to Americans.

Really appreciate your insight. Thank you so much. Thank you for letting me be here with you and have this conversation. Andy Levy. Danielle Moody. Who is your fuck-that-guy to round out this fucking week? Oh, God. My fuck-that guy is Mr. Limp-Gavel himself.

House Speaker Kevin McCarthy. We all probably recall that in the immediate aftermath of January 6th, Kevin McCarthy actually did a weird thing for him and spoke the truth, in private at least, telling, you know, people that he thought that he might actually ask Trump to resign. Not long after that, he paid a visit to Mar-a-Lago, and Trump gave him a look at his balls, which are in a safe in Mar-a-Lago. I think I've pointed that out before. and McCarthy realized who he was and then immediately posed for a nice smiling picture with Donnie and became his BFF again. So there was that. And now we have him doing basically the same thing. McCarthy was on CNBC. He said, in response to a question, he said, can Trump win the election, meaning the presidential election? He said, yeah, he can. The question is, is he the strongest to win the election? I don't know that answer. And this apparently set Trump off. And he was. very mad and his aides were pissed off and they did what they do in those situations, which is they called Kevin. And Kevin and his limp gavel got in touch with Breitbart News, which is where I go to

get all my news, and gave them an exclusive interview and said that Trump was stronger today than he was in 2016 and that it was the media's fault for trying to drive a wedge between Trump and House Republicans. To quote one-time Republican Idol, though they all hate him now, Ronald Reagan, Here we go again. The shamelessness, it will never not be unbelievable, even though it's also never unexpected. But it is just amazing that a grown-ass man could grovel like this and be able to sleep at night, look in the mirror, and do all those things that people sort of like to do. But he just, he can't help himself.

All he can do is grovel. He's got a limp gavel and a strong grovel. So for that and for, I mean, there's so many other. reasons, but we'll stick with that one for now. Fuck that guy. Fuck that guy to eternity. Like, that was the best I've ever heard. A limp gavel, but a strong grovel. Bravo, Andy, Bravo. Thank you. Okay, who is your fuck that guy to close out this lovely week in American history? They say that cruelty is the point when it comes to the Republican, fascist, white supremac party. And Kansas Attorney General Chris Kobach is doing justice.

that, you know, just another thing that is par for the course where he has announced that transgender cansans who have legally changed their gender on their driver's licenses or birth certificates will have them changed backed by the state. So one, I guess we don't give a fuck about how much money that costs, because everything is always about spending and fiscal responsibility, of course, until it comes with how much cruelty you can dole out and then, you know, the sky's the limit. Chris Kobach, just like Ron DeSantis, just like the rest of them, you know, they project their insecurities onto everybody else because they don't have security within themselves to live their lives full and free. So they must make sure that everyone around them is miserable.

I just, you know, for me, I just want to know what the fucking end game is. Like, their vision of America, just what's the end game? Just pure subjugation, just, you know, everyone, we're walking down boys on blue streets and girls on pink streets and, you know, women not in the workplace and at home. And, you know, you can beat the hell out of kids the way that you want to you can put them to work because there are no child labor laws. Like, it is a wild fucking country that we are living in right now. And I can just imagine how people are looking around the world at America and thinking, yeah, we're going to have to kind of plan around these people because they don't have their shit together. Chris Kobach, the Republican Party, the attacks on transgender people, the attacks on transgender youth, fuck you, fuck that guy. I'm just, I'm exhausted by them.

I'm exhausted by it. Yeah. And look, this really is nothing but a cruelty is the point situation. Well, the endgame with regard to trans people is to make them all, you know, disappear. I think that they've actually scarily, they have made that abundantly clear. They don't believe that being trans is a real thing and they want it all to go away. And I think they sort of admit that being gay is a real thing, but they want that back in the closet. And yeah, you're right.

What they want is they want 1950s America. They want their sort of stupid. not even real version of the idealized 1950s to come back. That pretty much lets anyone who's not a straight white guy. It puts them in a not great place, but they don't, I should say straight white Christian guy. But that's who they are and that's all they care about. Yeah. Fuck them.

Yeah. Fuck them all. Hope you enjoy checking out this episode of the new abnormal. We're back every Tuesday, Friday, and Sunday. If you enjoyed it, please share it with a friend and keep the conversation going. This podcast is a Daily Beast production with production by Jesse Cannon and Seamus Calder. Want more great listens? Check out our comedy podcast, The Last Laugh, and our star-studied The Daily Beast podcast at the Daily Beast.com slash podcasts.

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