UVA Law Prof. G. Edward White on Law, Race, & the U.S. Supreme Court in American History

Please excuse typos.

[00:00:00] GR: Hello listeners. This is Gerard Robinson. Welcome back to another wonderful week of The Learning Curve. Sorry that I could not join you last week. Something came up at the last minute. So I had to turn my curve for a different type of learning, but always lad. my colleague, Cara can, handle multiple opportunities at one time.

[00:00:44] So my friend, glad to be with you.

[00:00:47] Cara: Yeah, we’re so glad to have you back. And as you know, stepping in for you. Pinch hitting was our good friend, Charlie , who’s also a senior fellow at pioneer Institute and it was probably a good thing that you couldn’t be there dry because we [00:01:00] probably would have bored the heck out of you with all of our complaints about the Boston public schools.

[00:01:06] I mean, just like, we’re just like. to people who have been at this for too long, but I’m sure we have no complaints today, Gerard, right? Because there is absolutely nothing going on in the world of education that would warrant giving me heart palpitations. Right?

[00:01:21] GR: No, not at all.

[00:01:23] Cara: No, not at all.

[00:01:24] Certainly not Gerard the federal charter school program and what the Biden administration is trying to do to it, that’s not giving me any sort of heart publication.

[00:01:34] Shall I say more? Well, I am going to say more and I’m going to reference here. I mean, there were a lot of good articles written about this this week. and I would love to hear more from our good friend, Nina Reese. Who’s been on this show, but I’ll reference, an article that many listeners might’ve seen from the Washington post editorial board.

[00:01:53] It’s an opinion piece. I love the title and that’s why we’re, using this one by. Sneak attack [00:02:00] or the Biden administrations. I should say the president himself is not snaking attack, apparently Biden. Administration’s sneak attack on charter schools now. Okay. For context, first of all. Sure. Do you remember, when do you remember when charter schools were bipartisan?

[00:02:17] Do you remember? Do you remember that when Republicans like them Democrats, they sort of like drop the world together. Do you remember under, president Bush, that kumbaya moment with no child left behind when like Teddy Kennedy was holding hands with George Bush and they were going to make all this happen in charter schools, we’re a small part of no child left behind, but that’s one administration that supported charter school.

[00:02:38] The other administration that supported charter schools and , was perhaps more responsible for their growth than any other is the Obama administration. So charter schools have not always been something that Democrats hated. In fact, a lot of, well-known Democrats have supported charter schools.

[00:02:53] They’re a little quiet right now, but at the federal level, right? Most education policy, most [00:03:00] meaningful education policy of course takes place at the state level. But at the federal level, there is. 28 year old program. It is called the charter schools program. And this program is really important because it provides grants to help charter schools.

[00:03:16] Start-up. Now why do charter schools need grants to start up Kara? Well, they need grants to start up because in most states charter schools don’t get nearly the per pupil that public schools do. And charter schools also don’t have access to. Local property taxes, which allow them to build buildings, which allow them to, help to enroll kids, hire teachers, all the things that it takes to actually start a school out of thin air.

[00:03:45] So the charter schools program, this federal program has long ban. I mean, it has touched pretty much every single state that has a charter school law and some of the most successful. Charter schools be they boutique charter schools or the big ones, like, , charter [00:04:00] school, operators like KIPP and yes, prep an idea that serve thousands and thousands of kids.

[00:04:06] And by the way, served them very well. And by the way, serve them better than their district counterparts by almost every measure in, yes, I’m talking about. Measures the best, the highest quality research that we have on charter schools shows this. so why on earth, Gerard would the Biden administration want to take away the charter school brand program?

[00:04:25] Well, they’re not exactly taking it away. In fact, a couple of weeks ago, when it was announced that they were going to put money toward it, people were breathing a bit of a sigh of relief according to this article and, They came out with proposed regulations and the devil is in the details. So it seems like the administration is trying to basically kill this program through regulations.

[00:04:45] Now, how do you do that? Well, you do that by making it. So you’re going to put such owners’ requirements on charter schools to apply to the grant program that they’re just not going to bother to apply, which means they won’t be able to grow in many cases, which means fewer options for [00:05:00] kids, which at the end of the day, it’s a really big problem.

[00:05:02] If you ask me, so what’s the sneak attack. I’m just going to point out two regulations that I think are really important for folks to know about the first is that the regulations require that charter schools that are applying go through this with their clinic, a community consultation process. And as a part of that process, they have to assess the extent to which.

[00:05:23] Opening a new charter school would impact district school enrollment note. I don’t say public school because charter schools are public, but the extent to which opening a new charter school would impact enrollment in district schools. Now we know a couple of things. We know that in the places like let’s say New York where they’re really successful charters.

[00:05:41] Of course district compartment is going down. District enrollment is going down for a lot of reasons, but of course, one of the reasons is that parents want high quality seats. They don’t want to send their kid to a school that doesn’t work for them. So they move from a district school to a charter school.

[00:05:54] Now, under these regs, it would make it really hard to justify in many communities [00:06:00] opening a charter school, because you can assume that district enrollment is probably going to go down because kids are going to go for the higher performing option. That’s number one, there’s also another caveat, which.

[00:06:09] This program is now going to prioritize diverse by design schools. So what’s the problem. Certainly we cannot have a problem with diverse by design schools and I for one do not, but you have to have room for both. So diverse by design schools are schools that purposely seek to attract kids from different walks of life, different races, different socioeconomic status, great schools.

[00:06:34] Shout out to my friend Sonia park who runs the diverse charter school coalition. It’s a wonderful organization, but at the same time, we have to realize. That a lot of charter schools, as you well know, Gerard exists specifically to serve certain groups of students operators go into communities and they say things like, I want to serve kids who are the most at risk by whatever.

[00:06:56] That means charter schools on tribal lands. That means [00:07:00] charter schools that are populated mainly by kids. And most charter schools are disproportionately made up of children of color and disproportionally made up of children, , who come from a lower socioeconomic status background and they exist to serve these kids.

[00:07:14] So in the event that a charter school, like say a KIPP or a yes, prep that. Lots of kids who come from a similar background wants to continue to serve those kids. They’re not going to be able to get funding through this program. It’s really atrocious Gerard. It is sneaky. I think the articles, right?

[00:07:32] There’s a lot more I could say about it, but I’d like your take just on those two things. And to the last point, let our listeners understand that. I don’t think anybody on the learning curve, certainly not me. I won’t speak for you. My friend doesn’t believe that integration is a good thing. It is a. But it strikes me that when parents of color, especially are making choices to say, I want my child in this kind of school.

[00:07:56] Maybe I want my child in a school where other kids look like him or her. [00:08:00] Right. that we say, no, no, no, no, no. Our schools must be integrated, but parents of means mainly white parents, a lot of things. Have the ability to go off and choose. And we don’t, say, oh, look at those schools , look at those high-flying suburban schools.

[00:08:13] They’re not integrated. We should fix them. Right. So this is really sticking in my cry. As you can tell Gerard, what’s your take I know you have a rant too, but it just give me your 2 cents real quick on what you think of these new Briggs

[00:08:29] GR: Biden was clear when he was a candidate for office.

[00:08:33] The NEA and the AFT two big supporters of his were really clear as well as the NAACP, if they were going after. Federal charter school program. It was even discussed in the democratic national committee platform. So everyone knew that the shock is why are Democrats doing it well won. They say that charter schools will lead to segregation.

[00:08:57] That It’s going to make the civil rights movement fall to the [00:09:00] wayside. Of course you and I know that someone obviously forgot to tell the urban league. Who’s a founder of charter schools. Someone forgot to tell Rosa parks. And found a charter school. Someone forgot to tell Wyatt tee Walker, who was Martin Luther.

[00:09:11] King’s chief of staff who helped found a charter school in New York. Someone forgot to tell, he Willard who with Jim Bush founded charter school in Liberty. Someone forgot to tell the AKA’s and the deltas and members of the divine nine, who worked for KIPP, who worked for TFA, who left traditional public schools and created their own schools.

[00:09:30] Someone forgot to tell them, but that’s. Part two, they’re going after the federal charter school money, because a lot of charter schools would , have had a tough time opening their doors or keeping them open without federal money. As much as people want to say, charter schools are bleeding.

[00:09:45] Traditional schools have money. , the national lines, public charter schools is identified time after time that approximately 75 cents on the dollar goes to charter school. And as you mentioned, there’s issues from a facilities. Okay. [00:10:00] This is really about power. Now it’s not solely about being Democrat because nearly nine out of 10 charter schools that are approved are approved by school boards.

[00:10:09] And a number of these school boards in fact, are in blue cities. A number of them are Democrats. So it’s not just being a Democrat. This is about, do you want to feed the bureaucracy or do you want to give entrepreneurship a try? And you use terms like. Racism, white supremacy, desegregation integration. You use terms which have legitimate means and understand our history to bypass the fact that some black parents could care less, whether or not they sit next to someone who’s that in the same neighborhood or who may look different than them as someone who’s a founder of true charter schools is someone who actually worked for an organization that worked with black parents across the country.

[00:10:49] In the 30 years, I’ve done this work. I have. Yeah to find one black parents say, oh no, I’m not going to the charter school was too black. And yet we raise HBC use because they’re black [00:11:00] and not as diverse as we would think in terms of race, but our by socioeconomic status and zip code. So I’m not shocked.

[00:11:08] This is about power. It’s not about people. It’s about power. And at some point, people on both the left and the right who support charter schools will get into a room and have an honest conversation about who are. Who were enemies and who were lovers. And this is something where the Democrats have to push back on their own because someone like Tom Birmingham in Massachusetts, helped to create the charter school law, Senator Young out of Minnesota.

[00:11:34] this was a democratic piece and these are people who were Democrats, but were in unions. You can’t rely on the Republicans to move this issue alone. This has gotta be something for the Democrats.

[00:11:43] Cara: Yeah, I’m holding my breath.

[00:11:45] GR: Well, you got to hold your breath on my rant. And my rant is, about an article in Politico. It’s called, if you can’t name by education, secretary, you probably aren’t alone. And this is a secretary Miguel Cardona. And in the [00:12:00] article. Oh, I can name you can name a few people can, but I’m not shocked at most people can not name him, but they can’t name him for reasons that seem obvious, but also for reasons that are well not well known.

[00:12:12] So for starters, the article really is winning too, that he came into the job scene as a consensus builder. They didn’t come in with a lot of controversy. Yes. Because we have, school closures. That was a controversy. But him as a man alone, going to the position, not as much controversy as his predecessor we’ll get to that, but he did have a really interesting conversation with Charlemagne the God from the breakfast club, about the fact that listen Biden said he was gonna forgive student loans and he hadn’t done it.

[00:12:42] And he’s got that. he can make a decision to do so either through law or can do some things to executive orders, as much as people can think, but he can do something. And in the article says, Cardoza Bob and weaved and Charlemagne went to him and said, look, you know, you guys have to do more, but the article is really going into a key as [00:13:00] secretary should do more.

[00:13:01] And B maybe. And this is some of the logic, maybe if he did more, more people could name him. Well, I really don’t think. He could do more to put his name into the limelight. And that’s because of the structure of what we know of as a department of education in general, let’s start with number one, the department of education as a.

[00:13:19] Wasn’t created until 19 79 80. And so when you look at the number of, agencies we have with the secretary is a relatively young one now education quote, unquote department or office itself this year. In fact, last month turned 155 years old. The department of ed has its roots going back to 1867, with the beginning of the reconstruction movement.

[00:13:42] And it has had a very interesting life, was in the department of interior, either as the office or bureau of education between 1868 and 1939. And then it went to the phage, federal security agency. And then it also became a part of the department of health education welfare. And [00:14:00] these two things took place between 1939 and 1979.

[00:14:04] So we don’t have a department of education until 19 79 80, which makes Cardona only. The 12th us secretary of education, how many secretaries or leaders that we had? Four different departments, much larger. So I think that’s one reason we can’t name him. Number two confirmation process for secretary of education between 1979.

[00:14:27] And 2015 was pretty uneventful. , if you put it in context with what happened with, Betsy Devos or what recently happened with confirmation process for Ketanji Jackson? Well, let’s look at it from a perspective between the time Ronald Reagan was president to president. Secretaries were approved for the job with 80 or more Senate votes or confirmed by Boyce volt or unanimous consent between 1979 and 2015.

[00:14:56] The whole contentious thing about the process really [00:15:00] started in March, 2016 with John King, former secretary or their commissioner in New York. He went up to be secretary in fact, secretary for Obama and his vote was 49 to 40 41. Democrats voted for him. Nine Republicans did and guests.

[00:15:18] Only one Democrat voted against John King. Who was it? A Senator from his home state of New York. And why was the vote mate? Number of reasons, but part of it was when he was commissioner and when he helped run a network of charter schools, he supported things like what accountability for teachers.

[00:15:37] He supported things like what charter schools and really innovative ways. And so, because he did not follow the bureaucratic role of thinking how we reform schools, if reform is, needed, they decided, Nope, I’m going to vote against you. Yes. But someone from his state and the only Democrat to vote well, fast forward to 2016.

[00:15:58] Of course we know. [00:16:00] well, 2016, we know what happened later on. You had Betsy Devos, 50, 50 time. Mike Pence had to come in. And so some reason we don’t know a lot about who the secretaries are. Historically, we’ve only had 12 is because , the process used to approve one just wasn’t as cantankerous as it has been now in Betsy, the boss, a lot of people could name Betsy the whole.

[00:16:23] More people could name Betsy, the boss, the first 100 days of her being an office Cardona. And it wasn’t because we’re in the pandemic. It’s because the. the AFT and others went after her heart. And understandably so they’re saying she was an educator she’s supposed to wear school choice. Got it. But they went after her heart.

[00:16:43] So one reason that we know more about Betsy Devos than we do about our current secretary. Cardona is because when Betsy Devos, for example, went to visit the school, there were people standing in the way to block her automobile from coming into the school. And [00:17:00] when the doors were open, there were people trying to block her from getting into the school.

[00:17:03] Did the same thing happened to him this year? Yes, of course. He had come in the office when schools were closed, but now the school visitors are taking place. So I think part of it. We just don’t know much about the history of our secretaries in general. And let’s get to the third point.

[00:17:18] It mentions that he’s a middle of the road guy. He likes to build consensus. He wants to get things done. That is often cold for two things. One, we like him as the establishment. Therefore we won’t challenge him. Number two, it’s also cold for. We can work with him and therefore we won’t make him immediate darling.

[00:17:40] Think

[00:17:40] of the

[00:17:40] GR: number of Democrats who ran for Congress and at the state level for state level office who use Bessie, the bosses picture, or a clip from her hearing or. To run for office. How many of those are going to be used? Where Cardona? Not as many, I’m sure people on the right will use it, but not the [00:18:00] same.

[00:18:00] And so for those three reasons, I think that’s why we can’t name our secretary. And then I’ll end with this. Will you look at data from Gallup, from pew, the bill of rights Institute? I civics, if you look at researchers, who’ve done deep dive into school, board elections, and who also looked at secretary

[00:18:19] of education positions in general.

[00:18:21] Very few

[00:18:22] GR: people prior to the pandemic could have named their local school superintendent or their local school board member. So if we’re saying that all politics are local and we know that education is really handled at a local state many people couldn’t name a person, most responsible for the education of their child, superintendent and an elected school board.

[00:18:42] So I just think this has a lot more to do about marketing and in marketing, there are four Ps. Place price and promotion. But when it comes to a secretary who wants to do something different Democrat or Republican, this also includes Arnie Duncan, who the [00:19:00] NDA voted no confidence over because of his support for teacher accountability in charter schools.

[00:19:05] So it’s not just that, but if you’re a person

[00:19:07] who the establishment believes,

[00:19:10] GR: wants to change too much, too fast, then you have to add in a. fifth P to marketing and that’s politics.

[00:19:19] Cara: Amen to that Gerard. And I have to say, like, if I were Arne Duncan, I would be super proud of that vote of no confidence

[00:19:28] Considering the source. And, I very much liked secretary Duncan and I think you’re right on the politics and, secretary Devos agree with her or not. The woman has a very strong, constitution because she endured a lot. She endured quite a bit. And I thank you for pointing that out.

[00:19:50] And learning curve listeners. We are going to be back in just a moment with Dr. G Edward White, professor of law and university [00:20:00] professor at the University of Virginia school of law. Gerard, sounds to me like somebody you might know. Learning Curve listeners, we’ll be back.

[00:20:24] Learning Curve listeners, please help me welcome Dr. G Edward White. He is the David and Mary Harrison distinguished professor of law and university professor at the university of Virginia school of law. He is the author of 20 books on subjects ranging from legal and constitutional history. To judicial biography, to baseball. Professor White’s most recent books include Law and American History volume 3, 1930 to 2000; Law in American History

[00:20:52] Volume two, from reconstruction through the 1920s law in American history volume one from the colonial years through the civil war. [00:21:00] And American legal history, a very short introduction all from Oxford university press. He’s also the editor of the John Harvard library edition of Oliver Wendell Holmes the common law White’s books have won numerous awards, including final listing for the Pulitzer Prize in history.

[00:21:16] In 1968, he was law clerk to Chief Justice Earl Warren and the Supreme Court of the United States for the 1971 term. White is a member of the American Law Institute, the American Academy of Arts and Sciences and the Society of American Historians. He is a member of the bars of Virginia, the district of Columbia and the Supreme Court of the United States, where he received his BA from Amherst College, his PhD in American Studies from Yale and his J D from Harvard Law School. Professor White,

[00:21:45] Thank you so much for being with us today.

[00:21:50] Cara: Well, I’ve already talked about much of your body of work just in the bio. So it’s, clear that you’ve had a sweeping, remarkable academic career, volumes chronicling [00:22:00] the major legal themes that are woven throughout American history.

[00:22:03] You also clerked for and wrote a biography of Chief Justice Earl Warren, who was the author of the landmark Brown v Board of Education opinion. Could you tell us a little bit about Chief Justice Warren and who he was and, and talk about how Brown has shaped America’s legal culture specifically with regard to access to education?

[00:22:24] G Edward White: Well, first with respect to Warren’s personality, , he had what I would describe as a deceptive assets. when you first met him, he was charming and gregarious and, in a disarming sort of fashion, because at least when I first met him, he was the chief justice of the United States and had been self for many years.

[00:22:48] And he’d been, governor of California had been a presidential vice presidential candidate. And for that matter, a presidential candidate, and he was. famous. and yet, [00:23:00] he was, I would almost say folksy, and pleasant, and not at all imperious or standoffish. So the first impression of him was that, gosh, what a regular sort of fellow, this is.

[00:23:14] informal and, easy to get to know that was not fully accurate. He was a, very bright, tenacious, ambitious focused person who was for me. And I think for others who clerked, some others would click with him of a pretty demanding boss. who was not very charitable about, about work that was less that he regarded as less than satisfactory.

[00:23:43] I’ll tell just one story about that. we had a practice at the Supreme court when I was clerking at the justices would have, , informal lunches with the law clerks and the people who were charged with organizing the lunches. Clerks of the justices. So I happened to be organizing a [00:24:00] lunch, one week with Lauren and he met with the clerks and we had quite a good lunch.

[00:24:06] And then, after the lunch was over, we turned to go back to his chambers. the court of course, is large building with a lot of different rooms and Carters and passageways. It also has a cafeteria. and I turned the wrong way, headed back to chambers. , and we ended up in the Supreme court cafeteria.

[00:24:25] Warren did not make a practice of circulating on the court. when he was adjusted, he, he, saw some other justices, but he didn’t go out and meet with the public. And no justice has really did, some justice. Breakfast, , or meals with their locks or in the cafeteria. Warren did not.

[00:24:44] So anyway, I walked into the cafeteria and there’s chief justice, Warren, many people. Who were the staffs and other people who are, gathered in the cafeteria, saw him and said hello to them. And he went around and, glad handed and set a load of people and [00:25:00] smiled, carried on. And then out of the side of his mouth said to me, get me out of here.

[00:25:06] that was, uh, that was in some ways a representative episode. he was a difficult, I’ve had a few employers in my life and I would say on the continuum of difficulty, he was, he was pretty far on one side, but at the same time, a very active. Person, a very scrupulously, honest and fair-minded and, I have marked him as an individual and, I, was privileged to be able to work for him now with respect to brown vs board.

[00:25:33] Of course, that was many years before, clerk. is a very important figure in that opinion, because he pushes very hard, , among the other justices to get unanimity, and also pushes very hard to have a opinion written that as he put it would be, excess. non-judgemental short one that could be reprinted in, in the newspapers.

[00:25:56] he wrote the opinion himself and produce that. now of course, [00:26:00] brown vs board transforms , the public educational system, the United States, at least for at the time, because. Before brown vs. Board of education, uh, public schools can be and we’re, and in some states segregated with a result that African-Americans and whites did not have the same experience of going to school together.

[00:26:21] They may have met after school, then they have participated in other activities together, but they were not educated together in some states. And that a lot follows from that and press most important thing that followed from that was. That segregation was imposed on, , African-American minorities by white legislative majorities, the African-Americans world, for the most part, not even represented in the legislatures that segregated, , African-American set of whites in the public school system.

[00:26:50] is imposed because of a perception, an inaccurate, but, widely held perception that African-Americans were inferior to whites. And so [00:27:00] then somehow the presence of African-Americans being educated along whites, alongside whites, with decontaminating or debilitating to the white students.

[00:27:09] it’s a little hard for us. Take all that in, in the 21st century, I mean, it’s pretty shocking set of assumptions, but after brown and after the followup cases, segregation and public education is over. and now we, have vestiges of segregation and we have.

[00:27:28] the of segregation, we have a fair amount of racial separation in the public schools. but, can’t do it legally. So, it’s a tremendously important decision and it’s one for which Warren deserves.

[00:27:40] Cara: We have just a little bit of a follow-up question. at the outset of the show, Gerard and I were speaking to one another about, , the difference between, you know, saying schools should be integrated because it’s, for the best in parents being able to freely make choices about the schools.

[00:27:56] That are good fit, , for their children. And sometimes those schools [00:28:00] end up being segregated because certain types of parents are making the same choice, right. Or because a school might have a mission or a vision to, for example, serve kids who have had the least access , to a particular kind of education, particular high quality education.

[00:28:17] can you help us understand the extent to which brown. Does or does not impact that argument that somehow if parents are making it, that is, I guess my question is, if parents are making the choice to say, this is the best kind of school for my child public school, I’m talking public charter school. does the brown decision have any bearing on that?

[00:28:39] G Edward White: The brown decision does not require communities to structure. The location of schools or the, distribution of income, or housing within the communities, so that all schools and up being, an equal percentage of African-Americans [00:29:00] and whites, there are lots of opportunities for parents to choose school.

[00:29:06] Along lines that might have the effect of their students, , of their, children, if they’re white children, being educated with comparatively few African-Americans because of patterns of housing, or, income distribution with, within a community brown vs board. Doesn’t say anything about that.

[00:29:26] I think. Principal impact of brown vs. Board is rather , at a level of perception. Think after brown vs board, it is no longer possible for a legislature or a municipality to say, we think African-American children and white children should be separated. In the public school systems, because we think it would be disadvantageous to both for them not to be separated.

[00:29:57] you can’t do that. And when [00:30:00] you, try to unlock that assumption, , the message is. That segregation in public education is based on a flawed perception to flawed perception of both white and African-American children. The perception being that somehow they’re being integrated in a school would be just advantageous to both, , indeed the, alternative messages communicated that it would be advantageous to both.

[00:30:28] Now having said. That does not mean that brown is a mandate compelling all parents to have their children educated. if they’re African-American along with white children, or if they’re white with African-American children brown, doesn’t talk about that. Brown just basically says that the.

[00:30:50] Thank

[00:30:50] GR: you so much professor. And I think this is a good segue into my first question for you. When we discuss Brown v Board of Education and what took place with brown one and [00:31:00] two in the fifties, this is really a discussion that takes us back to. , civil war and his origins and the end end of slavery and other 20 turning points in American history and law with that said, could you discuss what our teachers, the students today should know about Dred Scott decision in 1857, Lincoln’s constitutional powers, as well as the making of a quote unquote new birth of freedom, came about as resorted 13th amendment.

[00:31:27] G Edward White: first thing. About the Dred Scott decision has to do with the original framing of the constitution. there is no mandate in the constitution to abolish slavery and there are several passages suggesting that, slavery is permissible and the general, understanding of.

[00:31:51] Slavery up to the Dred Scott decision was that slavery was a matter for states. So states could decide for themselves [00:32:00] whether they wanted to impose slavery or not. The federal government doesn’t have any power to regulate it. Now, what, happened in, Dred Scott was, an exception to that understanding was potentially created by the sec.

[00:32:16] There’s some federal legislation, outlawed slavery in particular territories. And one of the territories was the Northwest territory. And so a series of decisions emerged that suggested that if a slave owner repaired with a slave into a free territory, and then by extension into a free state. that the slave would become free by virtue of that, soldiers that were just describing a visit.

[00:32:45] That’s not a change in permanent residency, but rather a trip somewhere. now states responded to this by having, legislation that said, if you called reattachment legislation, which said that if the slave then returned. with its owner [00:33:00] to a, slave state, the slave state, the slave status reattached, other states did not have that Dred Scott comes about because, a slave goes into.

[00:33:11] Free territory, right? Uh, and a free state in the company of his owner and then returned. And then challenges is his slave status. There’s a lot of complicated legal questions in Dred Scott, but the thing that makes it a particularly notorious opinion is the. That chief justice Tony makes in his opinion, there, a bunch of separate opinions in Dred Scott.

[00:33:36] The court was badly split and Dred Scott, and that resulted in individual justices filing separate opinions, which was not the typical practice, but in Tony’s opinion, there is a suggestion that there are a couple of really quite notorious suggestions. But one of the suggestions is that the due process clause.

[00:33:56] of the system amendment, that prohibits [00:34:00] slaves, from being free when they enter into a free state or territory with their owners, because that’s a violation of the, property rights. of the owners, it’s a taking, if there were, if you will, of property, notice, slaves are treated as, as property.

[00:34:17] so that now this argument has not shown up in any prior Supreme court decisions at all, let alone slave cases there just wasn’t it’s the first use of the due process clause in that fashion. that argument prevails, that suggests that, slavery may not be outlawed in any future state or territory.

[00:34:38] that is the whole west, the whole trans Mississippi west is open. To slave owners to bring their slaves in and the states are once they, once the territory has become states or while their territory is, they may not pass legislation, freeing the slaves. so that’s an attempt to kind of codify under the constitution that [00:35:00] perpetual enslavement of a group of Americans, The reason was that decision on the books, the only remedy really, is to have a constitutional amendment that in effect, overrules, Dred Scott, or to have a war, , in the course of which, there’s an emancipation proclamation and the federal government takes it upon itself to, outlaw slavery. So, that decision, the Dred Scott decision in the, in the immediate aftermath, Is one of the absolutely pivotal episodes in American history

[00:35:29] GR: in volume, two of your work, American history, or really the law in American history.

[00:35:36] You talk about reconstruction, you talk about huge influx of immigrants and what that meant to, , the 1920s and what role it led to. moving ahead. Are there some key things. From that era and particularly what you focused on value to that should make us think maybe more clearly or more critically about the modern times we live in today.

[00:35:58] G Edward White: I have [00:36:00] a trope that runs through all three of the volumes, which has to do with the relationship with what I call free modern understandings of. status and identity and law nature and, history. , and the transition from those understandings into understandings we have today, moderate understandings, in my trilogy that the second volume is a transition period.

[00:36:28] It’s a period where pre-modern understandings of. Law and, judging and, history, are still in place, but gradually being eroded. And I think the principal shift from free is to modernist thinking is the idea that, , human agency is an important causative agent in the universe. That is to say, humans have the capacity and the power to control their destinies, make their futures different from their past.

[00:36:58] pre modernist[00:37:00] epistemology three modernist understandings of consciousness. There are a number of causal agents that are external to human will and human power that are treated as causally important, humans can’t really change the course of history any more than they can change the course of their lives.

[00:37:19] They are born. They, they mature, they die. That’s sort of th they’re faded to do so. nations are likewise stated. , there’s not a sense of history being progressive it’s, rather cyclical. , but maybe most importantly, the capacity of humans to control their own experiences and alter their future is, extremely limited.

[00:37:42] Over time, that view breaks down and it science, the emergence of science has to do with it, the secular recitation of American education. but it happens over a very gradual period. so it isn’t really until the 1920s [00:38:00] that you might say modernity, the understandings about modernity and modernist consciousness has really.

[00:38:08] Emerged. And it, really is only after 1930 that this becomes a majority area position. So, I tried to take a series of themes. Immigration is one, industrialization is another, and just try to show how their impact on the experience that Americans were having played a role in altering this understanding of causal agent.

[00:38:32] GR: Thank you. Speaking of 1930, moving ahead, let’s talk about the Supreme court of the United States. Now it’s power. it’s influenced not only American law and culture began to expand over time. Focusing on areas of educational equality, brown, just being one of several examples, but also regulating commerce, getting itself involved , in elections and other items.

[00:38:57] Recently, we saw at least many of us did [00:39:00] the confirmation hearing, for judge brown and for a lot of people, it’s the first time they had watched a, confirmation hearing, partly because of the historic nature of its same could be said for the previous nominee. But how should we be thinking about the Supreme coordinates power today?

[00:39:17] There’s talk of trying to expand the number of people on the court discussions about packing the court. And some people who really believe that the Supreme court should be a policymaking body rather than one to interpret the law because there’s so. Much chorus, relationships on, , , Capitol hill.

[00:39:37] G Edward White: What are your thoughts? Well, I think the first thing to say and something I emphasize in the volumes is that the course business, what the court does has just radically changed over time. Since 1925, the court’s docket has largely discretionary, which means it can choose the case. Does that it entertains largely through the use of this tertiary ERI process.[00:40:00]

[00:40:00] That wasn’t true for much of the court’s history. It had a lot of cases that were brought to it on appeal from the lower federal courts the high courts of states that it. decline here. it’s docket got very, very busy in the late 19th and early 20th centuries and surgery RI was an attempt limit that.

[00:40:20] , the court didn’t have its own building, , until the late 1930s, , that the justices held court in, uh, in a courtroom, in the basement of the, Capitol, the justices worked for the most part at home. they came in to the Capitol only basically to hear arguments and, put on their robes, their internal deliberative process was really traumatically different.

[00:40:43] in the modern court, fewer cases are brought, there are much more visible cases. They’re much more what we call public law cases. cases involving constitutionality of, legislation or, statutory issues, [00:41:00] comparatively few, what we call common law cases, contract cases towards cases.

[00:41:04] so it’s a much more visible court and, arguably it’s much more political court in the sense that its decisions have a greater political impact. not to say that there were not very important decisions. The court decided over over time, but, now it’s more the case that a fair number of their cases that the court hears on a particular term will have, immediate, visible impact and be perceived as having political consequences.

[00:41:34] there’s no doubt that partisanship has increasingly dominated. The process for nominating justices. And so also dominating people’s perceptions of justices that the press regularly describes justices as liberals or conservatives and in. Judge Jackson’s nomination. Repeated theme is, well, if [00:42:00] she’s confirmed, it’s not going to change the configuration of the court because she’s going to be replacing justice Pryor.

[00:42:06] Who’s a liberal and, as ended, they’ll still be a six to three. Conservative majority. think those labels are short-sighted and sometimes misleading. The court decides a lot of cases while you don’t see that kind of obvious breakdown. The court has a fair number of unanimous opinions where liberals and conservatives are joined in reaching the same outcome.

[00:42:29] I don’t care for this, but I, recognize, when you have a situation where a person like, judge Jackson, who is eminently qualified, gets 11 people on the judiciary committee not to recommend her nomination being brought out, simply because they happen to be members of a party that are different from the nominating president.

[00:42:51] And moreover using her nominating process to just make it a number of political points. seemingly speaking to [00:43:00] some perceived constituents rather than actually asking her a serious question. So I think this is a disturbing trend, but I don’t think it’s going away.

[00:43:10] But I don’t think it has anywhere near as much to do with the court’s decisions as many people might think. I do not think that the court and I do not think the court should be, a policy-making institution in, the sense that if law is, different from Paula. where they’re rendering decisions in terms of what they perceive to be the, immediate, short run political consequences of reaching one or another result.

[00:43:39] I don’t think that’s what justice is may plea. Do. I think what justice is mainly do is look at, authoritative legal sources that they think are bearing on a particular case and try to. That case within an existing doctrinal framework. And sometimes they feel they need to modify the framework.

[00:43:59] but, they [00:44:00] are more limited. They’re more constrained in their decision-making than, some commentary might suggest. I, think that’s a good thing. I think the Supreme court’s authority, , stems in large part from being outside of, or at least a part from.

[00:44:16] Politics, at least somewhat that is operating in a, in a world that is not identical to the world of legislatures or the executive or popular mandates. operating independent in part of those. and I feel that a Supreme court justices audited. , a certain amount of, freedom. that gets me back to a comment that Earl Warren was made publicly.

[00:44:42] as well as today saying that when he was in politics, when he was governor of California, or attorney general, lots of times you had to have a half a loaf, you had to compromise because that’s the way politics work. Once you got to be a justice, he said there was no. [00:45:00] Oh, there’s no need to be half the load.

[00:45:01] If you think that, the whole loaf ought to be, handed out because of a constitutional or other legal principle. You’re, free to do it. And I think , that’s exactly right. I think that’s what, the mandate for Supreme court justices.

[00:45:13] GR: Thank you. Well, professor white, want to open it up to you to read it a passage from a book of your.

[00:45:21] G Edward White: Well, this is one from volume three in my one American history series. And it touches on pretty much what we’ve just been talking about. it’s an excerpt from the last two pages of volume three. it’s a series of volumes can be said to have a theme extending throughout their entire company.

[00:45:41] That same might be described as the ongoing complex and ever changing relationship between law and American culture of which politics is perhaps its most visible manifestation. American history as portrayed in these volumes has been the success of unfolding of singular [00:46:00] manifestations of American culture.

[00:46:02] Politics being prominent among them law as portrayed has been another singular manifestation consistently interacting with its cultural context in a reciprocal causal fashion. when one considers the relationship between law and politics in American history, characterizing that relationship as inseparable seems inactive.

[00:46:25] This is because although law has continually interacted with politics over the course of that history from at least the declaration of independence on law has been conceived as a body of timeless, foundational principles that transcend and constrain human partisanship. it’s been thought as a part from an above politics.

[00:46:47] And law and America history can be seen as a collection of episodes in which the close connection between law politics and culture and the recurrent attempts to shore [00:47:00] up a conception of law as a body of principles, transcending politics, and resisting being overwhelmed by the perceived cultural impairments of a movement in time.

[00:47:11] And then I end by saying the first step in discerning what has been an abiding and essential tension. And American legal history is coming to grips with this understanding of the place of law in America, in each generation, law has been seen as undergirding, the imperatives of politics and culture, but as also reflected those imperatives and an important sense remained apart from

[00:47:35] GR Thank you so much for joining us today, Cara and I always enjoy someone who can weave together historical context. Talk about law, talk about politics, but also make us think a little deeper about the documents that have shaped our society and in our form of government, look forward to having you again in the future and keep up the good work with, using your scholarship to [00:48:00] make us think differently.

[00:48:00] G Edward White:Thank you very much for having me.

[00:48:21] GR: Here’s my Twitter of the week. And it’s from our friends at the 74. As the nation’s report card resumed for the first time since pandemic, federal testing, chief admits she’s quote unquote, a little nervous about the results. And the article goes into what we should be thinking about and concerned about as educators, parents, and people who are just interested in schools.

[00:48:43] So it’s a great tweet and, our listeners should definitely read that story.

[00:48:48] Cara: It’s a great tweet. It’s a great article. And boy, do I appreciate a commissioner who it says exactly what she’s thinking because , we should all be, nervous. She’s got a big, job to do.

[00:48:57] Gerard. We’ve got a friend on with us next week. [00:49:00] Somebody that you and I both know and really admire. We’re going to be speaking with Deneisha Merriweather. She is the director of public relations and content marketing at the American Federation for children and founder of Black Minds Matter, young, very accomplished woman,

[00:49:15] who’s got a great story to tell. So, Gerard until next week, take good care and we’ll try and be cheerier right. Not as much ranting, a little more like singing.

[00:49:26] GR: In fact, ranting for me was being cheerful. I was just glad to let the spirit move me.

[00:49:32] Cara: Here we go. Take care of yourself, my friend.[00:50:00]