In point of fact Obama never said that.
What Obama said was that the Warren Court was painted as "radical" for its approach to the civil rights movement, but that it really wasn't because if it were it would have taken on the basic issue of economic and political justice. He said that the Warren Court was constrained by the U.S. Constitution in that case. Then Obama said that the movement itself became court focused as opposed to community organizing focused by which one brings power together to cause redistributive change. But then Obama said that there are "all sorts of reasons" why the courts are not structured to achieve this, and while we can think of theoretical reasons to try this, such efforts would be fruitless
Senator Obama was bringing an intelligent answer to a radio interview in 2001. And that's the problem. Obama's way more advanced in his thinking that John McCain. Such matters of complexity escape McCain, which explains why he himself said that he does not grasp economic issues.
here is the link to the full uncut 2001 radio show with obama and verbate of all his answers
at top are the three relevant sections then the whole thing
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OBAMA
39:45 and it essentially has never happened i mean if you look at the victories and failures of the civil rights movemtn 39:48 and its litigation strategy and the court i think wehere it succeeded was to vest formal rigths in previously dispossessed peoples so that i would not have the right to vote would now be able to sit at lunch counter and as lpong as i coudl pay for it would be ok 40:10 but the supreme court never ventured into the issues of redistribution of wealth and sort of basic issues of political and economic justice in this society and to that extent as radical as people try to characterize the warren court it wasnt that radical 40;30 it didnt break free from the essential constraints that were placed by the founding fathers in the constituion at least as it has been interpreted and the warren court interpreted it generally in the same way that the constitution is a document of negative liberties 40:43 says what the states cant do to you says what the federal govt cant do to you but it doesnt say what the federal govt or state govt mst do on your behalf and that hasnt shifted and i think one of the tragedies of the civil rights movement was that 41:01 the civil rights movement becaem so court focused i think there was a tendency to lose track of the political and organizing activities 41:12 on the ground that are able to bring about the coalitions of power through which you bring about redistributive change 41:20 and in some ways we still suffer from that
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caller (karen): 46:07 the gentlemen made the point that the warren court wasn't terribly radical with economic changes my question is is it to late for that kind of reparative work and is that the appropriate place for reparative economic work to take place
Q you mean the court
caller: the court or would it be legislation at this point
OBAMA
46:27 you know maybe i am showing my bias here as a legislator as well as a law professor but you know i am not optimistic about bringing about major redistributive change through the courts 46:43 you know the institution just isn't structured that way just look at very rare examples where during he desegregation era the court was willing to for example 46:55 order you know changes that cost money 46:59 to local school district and the court was very uncomfortable with it it was hard to manage 47:04 it was hard to figure out you start getting into all sorts of separation of powers issues 47:09 you know in terms of the court monitoring or engaging in a process that is essentially is administrative and take a lot of time the court is not very good at it and politically it is hard to legitimize opinions from the court in that regard 47:27 so i think that although you can craft theoretical justifications for it legally you know i think any three of us sitting here could come up with a rationale for bringing about economic change through the courts 47:45 i think that as a practical matte that our institutions are just poorly equipped to do it
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http://www.wbez.org/audio_library/od_rajan01.asp
January 18, 2001 Audio hosted by Gretchen Helfrich
The Court and Civil Rights
Susan Bandes - Professor of law at DePaul University and the editor of the book, The Passions of Law
Dennis Hutchinson - The William Rainey Harper professor in the college, senior lecturer in the law school and editor of the Supreme Court Review at the University of Chicago
Barack Obama - Illinois State Senator from 13th district and a senior lecturer in the law school at the University of Chicago
AUDIO LINK:
http://www.wbez.org/audio_library/ram/od/od-010118.ram
3:55 Q do you think susan bandes and barack obama that that issue of how far the court will intervene rather than the content of its decisions what is the balance in terms of the what the civil rights era meant about how the civil rights era court operated in terms of you know the significant change in that period
Obama
4:20 well you know just to step back for a second from what dennis said and i think his characterizations were right on target but maybe for the purposes of your listeners it is important to understand what happened before the 14th amendment i mean essentially 4:33 you have an ideological bias against court intervention particularly with regard to state matters 4:40 i think most of your listeners are probably familiar with concepts of federalism that we have a charter of limited government with repsect to federal government and that encompassed i think not only the national legislative branch but also the judiciary 4:55 and so it was very rare for the supreme court -- or at least the supreme court was always cautious with respect to intruding into what were considered to be state matters and the police power that the state exercised over its citizens 5:10 was for the most part considered off limits. the 14th amendment in the vague ambiguous manner that dennis indicated seeks to initially at least overturn some of that hesitance and 5:26 says to the court no in fact you are one of the people -- you are one of the insitutions that we anticipate are going to protect individuals within these states 5:36 prior to that at least on racial issues if you think about the only real significant ruling by the supreme court the only significant venture into this area was the dred scott opinion 5:48 which was a disaster and was that was one of the rare instances where the supreme court was willing to intervene against congres to ensure that rights of individuals in this case slaveholders were not that their property rights were not diminished 6:09 that turned out to be a disaster it also indicated pprecisely because it was so rare how unusual it was for the court to intrude into these issues and i think dennis is right that although the 14th amendment tried to flip the relationship between 6:27 the supreme court and the states those habits of mind that style of jurisprudence i think continued to linger on 6:36 for quite some time
bandes: prior to warren only 14th was thought to apply to states but warren court brought in 1st 4th many issues didnt achieve importance til warren that is what is thought to be courts activism new deal court was reviled for strikin down fdr laws to protect workers lackner court became synomymous with bad kind of activism warren court dealt with that procedures or content of court that we are worried about if lackner court were wrong to strike down child work laws then how can warren court be right enforcing civil rights against states shold court intervence
OBAMA
09:14 just to pin down the connection with lackner deciions and subsequent decisions by the warrne court it goes back to what dennis was sayign about the equal protection clause being written in a vague fashion 9:30 you know one of the ongoing debates with respect to how the judiciary should behave is is it interpreting laws or is it makin laws 9:38 hwo much fidelity is it maintaining to the text and intentions of the legislators 9:44 if it is too untethered to the text what language is actually there in the constitution then you know it is starting to veer towards activism 9:53 and unelected judiciaries makin laws in what is supposed to be a democracy on the other hand any of us that has tried to read an insurance contract knows that 10:04 just what is on papre doesnt tell you what it means so the court always has to deal with that particular balance and i think that uh it is never entirely resolved and during he civil rights movement it was willing to go out much firther than i thnk it had been -- it had doen previously but that also gave them leverege to those who potentially didnt like the substance of these decisions to coe back and attack them and say well we are not objecting necessarily to the outcomes we are not saying we approve of segregation we are not saying we approve of massive resistance but instituttionally we think that this is objectionable so it gave leverage i think to rehnquist and you know the future court continuing on to today to be able to argue that kind of intervention is inappropriate 11:00 for judges to engage in
bandes: manay academics have so much trouble today cause i would acrgue that we have interventionist court today in commerce clause and peope so supportive of warrne asking is it the intervention or the content and do we have right to protest antiprogressive when in warren era we were for intervention
hutchson: conventional agreement maj on equal protection if state passed law that black cant serve on jury thats unconsitutional whereas telling black that he cant sit in theater with whites is social equality and only harlan in plessy says there is no real differecne but to 19th century mind many abolitionists were racists and lincoln was prepared to accept repatriation til 1863 to solve the color problem so thought has changed at one point thought was social intervention was wrong
Q link that to how cases were decided
hutch: that waselement but scotus sprak to greater intervention is not child labor but what happens between the wars with respect to couthern justice case after case in 20s and 30s of most grotesque vioelance against blacks by southern authorities... sheriffs say we did beat him several times but he did confess as if that doesnt violate constitution... judge just says this is inconsistent with con design takes off after wwii .. naacp mounts serious cmpn to attack jim crow in the public schools
OBAMA
15:09 and one of the thigns that should be pointed out a) the naacp mounts systematic thoughtful strategy to lay bare the contradictions that are embodied in the doctrines and ideological structures that the court is working with the second thing is that just to take a realist perspective 15:31is that there is a lot of change going on outside of the court that you know the judges you know have to take judicial notice of 15:40 i mean you have got wwii you have got the doctines of naziism that we are fighting against that start to look uncomfortably similar to what is going on back here at home you have got african americans that are returning home from the war with certain expectations why is it that i am not in uniform and yet am denied more freedom here that i was in france of italy 16:08 and so you have a whole host of social conditions that ar eyou know the court inevtiably is influenced by and i think it is imporant for us to realize that although brown may be one of those rare circumstances where the court is willing to get slightly beyond conventional opinion and sort of stake a place beyond the sort of political mainstrean
Q conventional social opinion
OBAMA
16:44 social opinion but thats very rare and even in the case of brown i think that there were a lot of social changes attitudinal changes of the sort that dennis was talking about 16:56 in terms fo teh difference between social equality and political equality a lot of that baggage has to be eliminated before you see the supreme court before you see the supreme court vneture out the way it did
hutchison: truman desgregates armed forces establishes civil rights commission dixiecrats walked out of 1948 convo strom
OBAMA
17:08 (laughing) who is still serving -- who is still alive
hutshconson: govt it putting weight behind naacp doj signed brief brown heats up doj is in case arguring amicus on behalf of naacp so court thinks that pol forces of admin are on side of naacp then brown comes down and new admin ike is nowhere to be foudn one reason i agree with bho that court got ahead but thoguht it had allies in admin and ike though warren was on fools erran as he told ???
Q way in which court rule in american life and ability to shape law and how we are feeling that today ashcroft heargins all sorts of nastiness flying cause of power of that job cause of way that court operates one two punch of doj and scotus together in combination that is kind of relatively epaking new factor meaing like 50 yrs
OBAMA
20:50 i think you are right on target lets take desegregation you know brown v bd was in 1954 by 1964 if you look at eventually what has happened on the ground nothing has happened or very little has happened 20:12
hutchonson: 2% is numbr that have changed from segreagted to desegregated schools
OBAMA
20:20 right so the emphasis is on deliberate not speed in terms of progress being made in the south well what happens in the mid 60s that suddenly forces the hand of these schools it is not that suddenly the court has a whole new attitude although the court does start getting impatietn and starts putting breannan and the court start issuing opinions that strecht even firther i think previously they would not have been comfortable with in terms of the justice dept starts coming in it 20:58 the federal govt starts tying federal funding of schools to their willingness to abide by some model rules and regulations that have been set up by the federal executive branch so suddenly you have got football 21:15 coaches in texas who are saying to their school board you know what we are not going to get this new stadium if we dont start abiding by these regulations
hutch : hew becomes enfrocment arm
Q ashcroft nomination how oftne have we heard his supportes say he will support laws gets back to interpretation overlooks how much play there is in how we interpret what is it that we enforce gets back to civil rights laws and look at how they haev now been used to convert to color blindness to protect white business from set aisdes ca
hutch that was rhetoric in 50s colorblindness roy wilkins wanted brown endrosed on freedom of choice
OBAMA
23:07 to go back to ag and how much discretion they have the example susan that i think is important is whn you think about the sheer resources invovled in actively litigting and monotoriing activity at the local level as a mazing a collection as were invovled with the naaacp they are operating on some shoestring budgets i mean they are 23:30 running around and having to select and choose here is a test case tehre is a test case that gets them to brown v bd but when you start getting into the remedie phase essentially what you have to do is you have to be covering the territory south of the mason dixie? line and sometimes above going from school district to school district and without an activist ag office and do jt hat can come in and provide sheer resources many of these changes just dont take place
Q let me ask you talked about new deal and court activism striking down lackner etc we now have court with different dispositon from 50s and 60s an seems quite willing to stirke laws in sheeer numbers what i am wonderin on eithe rside of era we have courts strikin how is it different before and after does it have different meaning
OBAMA
25:18 well i do think there is a certain set of different expectations in public that constrian the court now in important ways lets take the exampel of roe vs wade and how the court has dealt with it i mean clear you haev got a majority on that court that deosnt like roe and wouldnt ahev come up with roe vs wde has they been the court when that decision 22:45 fist came up they have been constrained from outright overturning roe vs wade party because of the public expectations that have been establisehd as far as the courts role 26:01 if this came up fresh now i thnk they would be much more willing to simply say for example ths is an unenumerated right we see nothing like this grounded in the constitution 26:14 what soever there is no reason why we are going to extend this frther than so they could haev crafted a certain approach to the due process clause in ways that they cant do now 26:29
hutch roe would be like bowers v hardwick and gays
obama
26:35 exactly where they say there is no tradition of us doing this and we are not going to do it
Q miranda rehnquist says part of our culture which is not law but seems like a rationale
hutrch: stare decisis has legitimzing feature when court reverse itself it uses institutional capaitl dfast
bandes: public consensus and what court is doing huge sea change on federalism have struck 32 major billls ... but much of what they haev been doign has been focused on obscure issues a loot of incusrsions on personal rights have been expansion that hs nothing to do with text of 11th amendment .... no longe able to sue states on age.. commerce on vawa so obscrue that peopel i think at least prior to bush v gore didnt see
OBAMA
29:03 I think susan makes good point but one that is compatible with the other point i think on hot button issues that the public is paying attneiton to the court is not shipping away as rapidaly as it is in areas that are obscure 29:18 letys take the example of the commerce clause which some listeners may not be familiar with you know essentially one fo the things that happened in the warren court essentially in response to the civil rights movement and trying to figure out how do we empower the federal govt to intrude on state activity was to bascially give congress carte blanche through the commerce clause basically interpreted the commerce clause so 29:43 boradly that for example the public accomodations laws that were passed by congress during the civil rights era werent 29:50passed under the powers that were granted under the 14th amendment but werr erather passed under the commerce clause what happens then is the congress gets prety cocky and comfortable about the fact that you know we can do pretty mch pass any laws that we want 30:02 that directly affect people in states without having to worry about the supreme court well now suddenly what has happened is that the court has systematically alspped that back but it has done so very noticably not in the area of civil righs legislation 30:20 and it has been very careful in a lot of these opinions to say well civil rights are different in some way and the reason we are striking down the commerce clause in this area and not in 30:31 civil rights areas is yada yada yada but you knwo the imp point isis that where the public is apying attetnion i think the court remains mindful 30:39 on these issues
Q take break
Q done a lot on govt power and shows no sins of stopping and changing ways that we govern and is part of that find intriguiing pruning fed power back as process can have same consequences as overtly social intervnetions
OBAMA
33:55 yeah you know one of the things that is interesting and i thnk susan is exaclty right that there is this pruning taking place and that we are aseeing potentially the groundwork being laid for potential future changes being made on substantive issues i mean right now they are sort of obscrure legal issues and at some point this may set the precendent then for trimming 34:15 back on more substantive issues that we care about but there is one other 34:21area where the civil rights area has changed and that is at the state level you now have state supreme cts and state laws that in some ways have adopted the ethos of the warren court 34:39a classic example would be something like public education where after brown v board a major issue ends up being redistribtion how do we get more money into the schools 34:51 and how do we actually create equal schools and equal educational opportunity well the court in a case called san antonio v rodriguez in the early 70s 35:01basically slaps those kinds fo claims down and says you know what we as a court have no power to examine issues of redistribution and wealth inequalities 35:11with respect to schools thats not a race issue thats a wealth issue and something and we cant get into those
hutchinson: and the federal constitution doesnt offer any warrant for intervention
OBAMA
35:18 exactly now what is interesting is though suddenly a whole bunch of folsk start bringing these claims in state court under state constitutions that call for equal educational opportunity and you see state courts with mixed results being more responsive to it 35:34 you knwo the reason i think that is relevant is not to say that i am not worried about the lack of protectiosn coming from the supreme court 35:42 but it is to say though that you have got a cultural transformation that changes hwo states operate and how states think about the protection of individual rights in ways that didnt exist prior to the warren court and that i think is an important legacy 35:56 to keep in mind
Q and didnt we see a clash of those two cultures in bush
OBAMA
36:03 exactly bush v gore is a classic example essentially you could argue that the FL state supreme court was embodying concerns and uh a jurisprudential approach that it had inherited from the warren court that is the role that we would hev expected the federal court to play
bandes: intersting many say that fderalism got bad name during yrs when it ebcame code for opposing desegregation bush v gore interesing obscure procedural way that scotus comes in and tells fl highest court will not accept its interpreation of its own law very rare
obama ironically like dennis said where stae slaws are so egregious
bandes and many of us think that
hutch not going to relook at bush v gore ... free zone .. interesting that brack brungs up thatit is mocing back to states given gop control of congress eeing shift in strategy and location we can be too scotus obsessed somgimes that they can deliver social justice in unbroken vector from brown and one barack and i were talking about was welfare rights that obsesion of die process if you can force admins to hold hearings before cutting off benefits will produce more social justice ther was 1971 decision and what it did was more money went to hearsing than benefits and then scotus reversed said well not face to face paper review the idea that you can use due process for
redistributive ends socially that will be stable wasasrtonishing assumption in minds of litigiators and it didnt last very long
OBAMA
39:45 and it essentially has never happened i mean if you look at the victories and failures of the civil rights movemtn 39:48 and its litigation strategy and the court i think wehere it succeeded was to vest formal rigths in previously dispossessed peoples so that i would not have the right to vote would now be able to sit at lunch counter and as lpong as i coudl pay for it would be ok 40:10 but the supreme court never ventured into the issues of redistribution of wealth and sort of basic issues of political and economic justice in this society and to that extent as radical as people try to characterize the warren court it wasnt that radical 40;30 it didnt break free from the essential constraints that were placed by the founding fathers in the constituion at least as it has been interpreted and the warren court interpreted it generally in the same way that the constitution is a document of negative liberties 40:43 says what the states cant do to you says what the federal govt cant do to you but it doesnt say what the federal govt or state govt mst do on your behalf and that hasnt shifted and i think one of the tragedies of the civil rights movement was that 41:01 the civil rights movement becaem so court focused i think there was a tendency to lose track of the political and organizing activities 41:12 on the ground that are able to bring about the coalitions of power through which you bring about redistributive change 41:20 and in some ways we still suffer from that
Q lets take some phone calls good morning joe
caller: consdiering that civil rights movement was fought on moral and religious ground what impact does that haev now on scotus and ashcroft being nominatined
OBAMA
42:06 interesting question you are maybe pointing out what has been a longstanding contradiction not just in warren court and liberal lawyers but generally on liberal community which is basing claims for justice on asyou said moral and ethical grounds and that same time being suspicious abotu church encroachment into the politial sphere it has eben less of a contradiction traditioally in the african american community and for whatever reason psychologically the country has always been more comfortable with the african american communitys marriage of spiritual and political institutions but i think that is a genuine contradiciton that exists in the ideological makeup of the left in this country that has not been entirely resovled
Q do you think that maybe this is in wake of civil rights era things look different but in terms of goals fo civil rights even though there was this religious part they wernet asking for prayer in school less overtly religious content to what they were seekgin whereas nwo they seem to haev more explicityly overtly religious content some peope get heebie kjeebies over goasl that promote religious acticity
bandes not that easy to separate religiona dn desires from law ... it pervades bowers v hardwick in whch court witheld recognitioon of gays as protected class and berger cited bible prohibtion on sodmoy ... religion part of views
caller (same guy: joe): scotus avoiding issues
hutch: justices are worst pols in world they have no predictive record on public reaction they arent calculating like that
caller (karen): 46:07 the gentlemen made the point that the warren court wasn't terribly radical with economic changes my question is is it to late for that kind of reparative work and is that the appropriate place for reparative economic work to take place
Q you mean the court
caller: the court or would it be legislation at this point
OBAMA
46:27 you know maybe i am showing my bias here as a legislator as well as a law professor but you know i am not optimistic about brining about major redistributive change through the courts 46:43 you know the institution just isn't structured that way just look at very rare examples where during he desegregation era the court was willing to for example 46:55 order you know changes that cost money 46:59 to local school district and the court was very uncomfortable with it it was hard to manage 47:04 it was hard to figure out you start getting into all sorts of separation of powers issues 47:09 you know in terms of the court monitoring or engaging in a process that is essentially is administrative and take a lot of time the court is not very good at it and politically it is hard to legitimize opinions from the court in that regard 47:27 so i think that although you can craft theoretical justifications for it legally you know i think any three of us sitting here could come up with a rationale for bringing about economic change through the courts 47:45 i think that as a practical matte that our institutions are just poorly equipped to do it
bande i dont necesarily disagre but court often os about status quo but court redistributes all teh time but court on recompense on insruance on every thing but aboretion that is
OBAMA
48:37 typically the court can be more or less generous in interpreting actions and initiatives taken but in terms of funding of abortions and medicare and medicaid the court it not initiating those funding strems essentiall what the court is saying is at some point this is a legitimate prohibition or this is not and i think those are very important batttles that need to be fought and i thnk they have a redistributive aspect to them
caller: tragedy was focus on court and not community work why does that hapen
OBAMA
49:42 well as a former community organizer.... litigation is hard but community organizing is harder part of it diffcult to mobilize change at local level
Q perception the legislative measures are unstable since court has last word
hutch: judicial is unstable too
Q do you see if court position at time of bush v gore court used institutional position to wade in ... how stable is that how much of that reputaiton comes from controvesial reputation but decisions
bande
we might hav consensus court can bring us a little headd moral signpost but cant go too far ahead we need dialogue adn coalitions
end
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