Ahead of Law of the Land: The Supreme Court Year in Review (Mon, Jul 8) — our annual panel discussion on this year’s biggest Supreme Court cases, co-presented with FOLCS (Forum on Life, Culture & Society) as part of the Newmark Civic Life Series — we talked to cultural critic, law expert, FOLCS director and series moderator Thane Rosenbaum on the current state of the Court, the shifting culture and politics surrounding constitutional law, why Law of the Land remains an audience favorite, and more.
You’ve been moderating Law of the Land at 92NY for several years now, overseeing a decidedly conservative ideological shift in the Supreme Court. As the Court has moved to the right, how have these conversations changed?
Three or four years ago, we got feedback that there were not enough conservative voices in these conversations. William Treanor and Tiffany Graham, two first-rate constitutional law scholars who have joined us many times, are very liberal. Slate’s Mark Joseph Stern and Dahlia Lithwick, and The New York Times’ Adam Liptak have joined us several times — they’re also liberal. We’ve tried to address that more recently. Last year we brought in Rod Rosenstein, the assistant Attorney General in the Trump administration — he resigned, but he is a conservative prosecutor who probably did believe, for example, that Roe v. Wadeshould be overturned. This year we have Jess Brevin, the chief legal affairs correspondent for the Wall Street Journal — I’m very happy that he’ll be joining us. Our conversations are always entertaining and engaging, and having these folks on the stage only adds to that — and it reflects our awareness of a polarized nation. Since you can now view 92NY events virtually, you can watch this in a red state. And we want that!
Your work as a cultural critic — not to mention as a novelist, essayist, and talk show host with FOLCS — gives your thinking on law and society a unique lens. What is the relationship between popular culture and the Supreme Court in 2024? How has it changed in the last couple of decades?
For over 200 years, no one knew what a Supreme Court Justice looked like. People like Louis Brandeis and Oliver Wendell Holmes were private people who led very private lives. The High Court was a cocoon. Now, Supreme Court Justices are celebrities. When we had Justice Sonia Sotomayor at the 92NY, the audience cheered for her so wildly, I turned to her and said, “Mick Jagger wants his career back.” We know where they go on vacation. A documentary was made about Ruth Bader Ginsburg. The #MeToo movement made Kavanaugh’s face recognizable, in some ways even more so than the hearings with Anita Hill and Clarence Thomas — turning their nomination processes into political theater, instead of a conversation about judicial philosophy and constitutional interpretation. We’ve come to expect this. Justice William Brennan, perhaps the most important Supreme Court Justice of his time, used to go outside to the steps of the Supreme Court for a walk. There’s a story that one day he saw a family taking a photo and waving at him. He assumed they wanted him in the photo, so he walked closer into the frame, and they kept waving at him — and, finally, he realized that they were waving him away. They didn’t know who he was, and they didn’t want a stranger in the family photo. To me, that is a great anecdote. You ask what has changed about the relationship between the Court and popular culture? What’s changed is that the Court, esoteric as it may be, has become part of our popular culture. That has coincided with an erosion of the public’s confidence. Some of the majesty and awe that has historically surrounded the Court has been lost with all this scrutiny.
The overturning of Roe v. Wade has transformed abortion rights and many other aspects of American life — in some ways that were predictable, and others that few could have foreseen. Two years later, as we head into another election year, what has most surprised you about the effects of Dobbs?
I hate to say it, but I’m surprised by the odd calm that’s settled in. Not everyone can afford to move to states where the abortion laws are more lenient, but many women are finding ways to get to those states, or they’re availing themselves of the abortion pill. I grew up in an era when Roe v. Wade was sacred, and many people like me assumed that it had a bedrock foundation in constitutional thinking. I don’t want to come across as being casual about it, but I would have assumed that Dobbs would have galvanized social protest movements more than it has. The Democratic Party is planning on making it a foundation of the Biden reelection campaign, but the polling I see shows that abortion isn’t in the top three most important issues, even to registered Democrats. That’s a surprise.
In your opinion — given the questions surrounding their impartiality — should Justices Alito and Thomas recuse themselves from the cases currently before the Court related to January 6?
It’s a tough call. The Supreme Court thinks of itself, perhaps correctly, as a very independent body. They’re not subject to elections, they have lifetime appointments, and they don’t hold themselves to a code of ethics as federal judges do — you just have to trust them. Thomas’ and Alito’s spouses have taken active political positions, and they have both essentially maintained that this has nothing to do with them. Justice Juan Merchan, the New York judge who sat at the head of Donald Trump’s criminal trial, has a daughter who is a very successful political operative for the Democratic Party. Trump maintained that Merchan should recuse himself for that reason, and Merchan refused. If you feel comfortable with that decision, then it seems to me that you have to be comfortable with Clarence Thomas or Samuel Alito saying, “My wife is her own person, and her political positions have nothing to do with me.”
What do you hope audience members take with them after attending Law of the Land?
The cases that come before the Supreme Court shape the lives of all Americans. Applying the complexity of constitutional law to everyday life is very hard, but it is enormously interesting, which is why Law of the Land has become such a fan favorite. You should be able to leave Law of the Land and go to a cocktail party and feel smarter and more confident in your ability to talk about these issues. We aim to make the year’s docket of case accessible, engaging, entertaining, relatable, and fun.
This year’s Law of the Land, part of the Newmark Civic Life Series — with Tiffany C. Graham, William M. Treanor, Mark Joseph Stern and Jess Bravin, moderated by Thane Rosenbaum — is on Mon, Jul 8.