Emily Williams: 01:00

Hey, everyone. We're so glad you joined us. Since our last episode, I've been thinking more about my conversation with critical theorist and scholar, Alberto Toscano. Alberto and I talked about what fascism is and what its growing presence in mainstream politics means for the state of liberal democracies. If you haven't listened yet, I highly recommend that you go check it out.

Emily Williams: 01:23

But I've been reflecting on what Alberto referred to as law fair. Lawfare is essentially when politicians and institutions waste political war against their ideological opponents using legislation, government institutions, and law enforcement. And those ideological opponents can be opposing party members or certain classes of people like you and me. Project 2025 is a perfect example, and we'll talk a bit about how later in the episode. The use of lawfare is nothing new.

Emily Williams: 01:54

But in the past, we've had some reasonable assurances as Americans that if unconstitutional laws were passed, we could depend on the courts, namely the Supreme Court, to eventually strike them down. Of course, despite being assured that they'll uphold the constitution, increasingly, we can't count on those assurances, whether it's recent controversial Supreme Court decisions overturning Roe v Wade and granting presidents nearly blanket immunity from prosecution or the alarming evidence of corruption among its esteemed justices, it's easy to understand why Americans have lost faith in this institution's judgment and its ability to protect them against the threat of insidious lawfare. It's undeniable. We have a Supreme Court legitimacy crisis on our hands. So what, if anything, can we do about it?

Emily Williams: 02:58

I'm Emily Williams, executive director of the Arcus Center For Social Justice Leadership at Kalamazoo College. This is Beyond Voting. We started this show for people like you and me. People who care about making a difference in the world. People who want to share in redesigning the democracy we deserve outside of the typical political binary.

Emily Williams: 03:23

This podcast is rooted in our conviction that democracy requires more participation than just voting. It's up to all of us to take action if we wanna see real change. We'll feature conversations with leaders, activists, and educators discussing the state of our country's institutions, ongoing systems of oppression, and most importantly, how We The People can take critical actions in pursuit of true equity and justice. Talking about the Supreme Court can be tough. Oftentimes, discussions about the court and its cases are confusing and inaccessible.

Emily Williams: 04:03

It's not always clear why we should care about the cases they hear. But the court's influence on our lives is inescapable. They have power over the most intimate aspects of our personal lives, from reproductive rights to the most fundamental democratic ideals enshrined in the constitution, our right to vote. So whether or not we pay attention to the courts or even fully understand their role in government, they play a critical role in protecting our freedoms and upholding our democracy. That is until they don't.

Emily Williams: 04:35

Project 2025 has been all over the news and the campaign trails. If you're unfamiliar with project 2025, it's a 920 page plan written by the ultraconservative think tank, the Heritage Foundation. They use lawfare, meaning they intend to use new policies and laws, sometimes the dismantling of critical institutions to reshape the federal government into one that is explicitly far more conservative and politically partisan. And although they can't officially say it without endangering their nonprofit status, it's all for the benefit of Donald Trump and his allies. The effect would eliminate many of our hard won civil rights and liberties in the US.

Emily Williams: 05:16

And it would strip several government agencies of oversight. That's if they survive at all. It would eliminate entire government agencies like the Department of Education, make deep cuts to Medicare and Medicaid, and give broad powers of enforcement or non enforcement to agencies that regulate our food, environment, and our infrastructure. It's also worryingly aligned with undemocratic Christian nationalist movements that seek to strip long established rights from women, trans people, people of color, and other marginalized groups. It would be hard to look at the political horizon, see those possibilities in our future, and not come away feeling deeply distressed.

Emily Williams: 05:59

So I wanted to speak with someone who could give me a clearer view of our judicial system and the protections it could offer us against those determined to weaponize it against the American people. My guest today is doctor Nicole Wen, associate professor of criminology, law, and justice at the University of Illinois at Chicago. She's also a feminist geographer whose research contributes to and draws on grassroots struggles challenging racialized policing, war, and empire, particularly in collaboration with community organizations. Nicole is the author of terrorism on trial, political violence and abolitionist futures, in which she advocates for a rethinking of popular understandings of political violence and encourages readers to consider anti imperial abolitionist alternatives. I wanted to talk to Nicole in particular because she's someone who is firmly grounded in social justice work and analysis.

Emily Williams: 06:57

She can give us an idea of what's possible when it comes to the Supreme Court in these unprecedented times. When we talked this summer, Nicole wrote down how the Supreme Court is meant to function versus how it actually does, why it's facing a legitimacy crisis, and how some of their recent rulings are already eroding our established rights, and how we as activists can hold the highest court in the land accountable. Doctor Nicole Wen, thank you so much for joining us. Thanks for having me. We're so happy to have you.

Emily Williams: 07:34

Let's just dig right in. Can you tell us what is the Supreme Court, and what impact does it have on our individual lives?

Dr. Nicole Nguyễn: 07:43

So I think there's a difference between the idea of the Supreme Court and then what the Supreme Court actually does in practice. Right? And so as a part of the federal judiciary, the idea is that the Supreme Court provides oversight above all of these different courts. Right? It's sort of the Supreme Court of the land, and it's supposed to provide some form of accountability.

Dr. Nicole Nguyễn: 08:05

And I think that's good sort of in theory. I think the way that we often think about the Supreme Court in the United States is that it's this apolitical interpreter of the law and an enforcer of the law. So if there's a question about if something, is lawful or not, the Supreme Court takes up those questions, right, when there's these debates at the local and state level. And what we've seen historically is that the Supreme Court is an enormously political body. So it's not a neutral arbiter and enforcer of the law.

Dr. Nicole Nguyễn: 08:39

It actually is inherently political, and it's making political decisions through its interpretation and enforcements of the law. And I think that's really an important distinction because when we're fighting to change the Supreme Court, are we fighting for it to be used as a political tool differently, or do we have some idealized notion that we can somehow return it to its apolitical and neutral status? And I think once we shy away from the idea that the Supreme Court is apolitical and neutral, different possibilities open for us.

Emily Williams: 09:16

Okay. So if I understand you correctly, that in theory, the Supreme Court should actually be apolitical and neutral. But in practice, of course, it's not because individuals, human beings, sit on the Supreme Court, and then they use their interpretation of the law to make rulings.

Dr. Nicole Nguyễn: 09:35

Yes. And the law also itself is not apolitical or neutral. Right? The law is defending certain kinds of ideas and people and property. And so the enforcement of those laws is then doubly political.

Emily Williams: 09:48

Could you just say a little bit more about, like, where the bias from the law comes from? I mean, is that, like, the lawmakers, our our policymakers? Does this go all the way back to, you know, our, quote, unquote, founding fathers and their interpretation of the law and what was important, where does that bias come from with the law?

Dr. Nicole Nguyễn: 10:08

I mean, it's both the creation and then the interpretation and enforcement. So, for example, we get to decide what forms of theft we consider to be really bad. And so if someone steals $20 from someone, we consider that to be really bad. But if employers engage in wage theft and take money from employees, that's like, oh, like, sort of the cost of doing business. So there's sort of different kinds of values and power that are baked into the law, and that's at the law's creation because it's humans obviously are creating the law, and, you know, this is about an exercise of power and enforcement and protection of power.

Dr. Nicole Nguyễn: 10:47

And so I think it's really important to think about the the formation of the law itself as a political exercise of power that's not neutral, that's not apolitical. And then what laws get enforced and how they get enforced is also sort of inherently political.

Emily Williams: 11:03

Yeah. Thank you for that. Okay. So according to a poll taken by the Pew Research Center last month, the supreme court's favorability ratings with the American people are at nearly an all time low. 47% have a favorable view, while 51% of Americans they polled said they had an unfavorable view of the court.

Emily Williams: 11:24

What are some of the factors that you think go into that perception, and why should people, especially activists, even care about the Supreme Court?

Dr. Nicole Nguyễn: 11:35

So I think the favorability has a lot to do with, to what extent do we think the Supreme Court is this neutral arbiter, and does it uphold the values and rights and protections that we think we, as the US public, deserve and want to uphold. It's important that efforts to reform the Supreme Court are not about restoring the court to some better time when it's was apolitical or neutral. I think here of the 1857 Dred Scott case, and the ruling from the Supreme Court was essentially the constitution doesn't grant citizenship to black people, that the constitution doesn't provide a way to ban slavery in the United States. And Abe Lincoln's response to this before he was president was the Supreme Court doesn't represent the people, the people represent the people, and so he expanded it, when he became president, but he also set aside proslavery precedent. And so for him, he wanted to change the supreme court, not because he thought there's a way of making it apolitical, but because he saw it as a political tool.

Dr. Nicole Nguyễn: 12:46

So we can expand the court. We can pack the court. We can use the court as a political tool. And I think that's a really important lesson to learn that we can't see the Supreme Court as somehow restoring it so it's sort of above all of this politics and that we're gonna somehow, again, create a neutral institution. The idea is, like many things, it's a political tool.

Dr. Nicole Nguyễn: 13:09

And so we should, sure, pack the court, expand the court, reform the court because it's a political tool that's available to us to begin to challenge some of these power structures at play. And so I think when we say that there's an unfavorability, like, we're upset about Roe v Wade, we're upset about Dobbs, like, we're upset about all of these decisions, it's not that the Supreme Court of it in itself can sort of restore our sense of justice. It's that it becomes a tool for us as communities, as individuals, to fight the power regimes that are encroaching on our sense of justice and fairness and equity in the United States.

Emily Williams: 13:50

Yeah. You just mentioned Dobbs, and, of course, you mentioned Roe v Wade. But what are some of the ways in which the Supreme Court's recent rulings on reproductive rights, Chevron affirmative action in college admissions, voting protections, etcetera. What are some of the ways in which those rulings have eroded established rights, and what, if anything, we as activists can do to change that?

Dr. Nicole Nguyễn: 14:18

I mean, a lot of this is about the consolidation of power in sort of the wake of a lot of successful social movement work. Right? So the the fact that there were these great advances that were made through political struggle is now being sort of countered through institutions. And I think, again, we can't rely on state institutions, for freedom and liberation because they're sort of inscribed with this power and they can be mobilized to begin to repress some of these advances. So I think how we got here is is sort of the slow chipping away at some of these advances.

Dr. Nicole Nguyễn: 14:52

I think we can see this happening in the lower courts as well with strategic judicial appointments or judicial elections. Now, again, the idea is we shouldn't fight for certain judicial appointments because those judges are gonna grant us our liberation, but because they can make struggles at the local level easier or more possible. And so I think then the response is we can engage in these struggles over the criminal legal system, over the judicial system, but we can't depend on them. And so how do we organize rides for people to go to other states to get access to reproductive care. Right?

Dr. Nicole Nguyễn: 15:29

How can we raise funds for people? How can we create these sort of systems of care that the state isn't going to provide? There are many different entry points in how to engage in this political struggle. And for some people, that's gonna be getting different kinds of judges appointed at the local level. For other people, it's gonna be organizing their communities to ensure access to care.

Dr. Nicole Nguyễn: 15:49

And for other people, it's gonna be, how do I mobilize my neighbors, my family members to engage in political study to differently understand the struggle for reproductive rights. Because in part, we only get here because there's been this sort of cultural shift. Right? The the sort of resurgence of we're gonna attack gender based rights in this country. We're gonna attack queer and trans people, or we're gonna attack, DEI initiatives.

Dr. Nicole Nguyễn: 16:14

And part of that is about political study and political struggle together.

Emily Williams: 16:19

Yeah. And I think that's important for activists to understand that often when we are successful, there is gonna be a backlash that comes. So part of it means that we just have to stick in the struggle. This is actually when the struggle begins, and we have to keep going. But I also hear you sort of in this moment of backlash that we have to kind of adjust our strategies.

Emily Williams: 16:37

Right? And I think that's a point that you're making about, well, if abortion is illegal in your state, then you need to organize rides and resources for people who need them. At the same time, I also hear you talking about the lower courts. So can you talk more about, like, the lower courts and their impact on society and their relationship with the Supreme Court?

Dr. Nicole Nguyễn: 16:59

Yeah. So I think even if you look at something like student loan forgiveness, right, it's actually local and state courts that are challenging Biden's different plans. And they're they're essentially creating legal challenges that then suspend any attempt at student loan forgiveness. And so I think part of shifting our struggle is also learning from what the right is doing. And I think one of the examples of this is in Florida.

Dr. Nicole Nguyễn: 17:27

The right elected people to the board of trustees at the New College of Florida. They passed certain policies. They fired faculty, and now they've transformed the landscape of higher education in Florida. So now you don't have gender studies. You don't have queer studies.

Dr. Nicole Nguyễn: 17:42

You don't have ethnic studies. And I think I hate to admit this, but there is enormous strategy in getting that done that we were not thinking about board of trustees. We were not thinking about school boards. And so, again, packing a school board isn't going to guarantee justice within the education system. But again, it becomes a tool to engage that particular terrain of struggle.

Dr. Nicole Nguyễn: 18:03

And so I think we have to also learn from where our losses are to better prepare ourselves for the next round of fighting.

Emily Williams: 18:12

Yeah. Absolutely. You know, I think we also have to learn to be more strategic, and that's certainly one thing that I think has been very apparent by these, if we wanna call them gains in their own agenda on the right, even these things like project 2025, that they have this very detailed plan just like the example that you gave in Florida, and it's taken a lot of long term planning and strategizing to do that. So, Nicole, how does the Supreme Court impact each presidency differently, or how does the presidency impact the Supreme Court?

Dr. Nicole Nguyễn: 18:48

I mean, I think right off the bat, you know, one of the most direct ways is presidents getting to select or attempt to select people for the Supreme Court. I think we all remember President Obama choosing Merrick Garland and just never getting confirmed. And of course, we've had Kavanaugh and other folks who have been confirmed. And I think for folks who might not have believed in electoral politics or saw the shortcomings of electoral politics, we can see actually how a presidential race matters enormously in terms of overturning Roe v Wade, for example. And then, you know, the Supreme Court impacts what presidents are able to do, to what extent they can exercise executive authority, executive power, to what extent legal decisions are appealed through the law and can circumscribe presidential power, can advance presidential power, can overturn certain efforts.

Dr. Nicole Nguyễn: 19:43

So I think there there's a symbiotic relationship in one sense where the president obviously is empowering the Supreme Court and empowering certain people to be on the Supreme Court, and then the Supreme Court itself can challenge presidential power as well.

Emily Williams: 19:57

So what do you think the Supreme Court would look like under a Harris presidency?

Dr. Nicole Nguyễn: 20:03

I assume that she would advance some of the kinds of reforms that Biden is proposing, term limits, ethics reform, adding additional justices, ensuring that, you know, that you're adding justices x number of years. So I think that would be her effort. To what extent that's successful, I think that depends on the congressional makeup over the next 4 or 8 years. But I think it's going to remain a site of political struggle under both either Trump or Harris' presidency. And so I think we have to be careful that, like, even if we get the Supreme Court we want that grants us all of these things that that we've been fighting for, but that's not the end of the struggle, that the supreme court has to remain to sort of site a a struggle, and that's something that we have to continuously push back.

Dr. Nicole Nguyễn: 20:51

This is the entire judicial system. Right? There are immigration judges who just, like, get to decide, oh, today, I'm not letting you in the country. And then tomorrow, oh, I'm compelled by your story. I'm letting you in the country.

Dr. Nicole Nguyễn: 21:02

Right? Like, these judicial decisions have enormous power. And so how to continuously hold the courts in our viewfinder as a part of the struggle, I think, is really important. It's not just these moments of crisis. Right?

Dr. Nicole Nguyễn: 21:14

It's this slow build up to the crisis that was happening through the judicial system that I think is is really important to think about.

Emily Williams: 21:22

Yeah. Yeah. What would the Supreme Court look like under a Trump presidency?

Dr. Nicole Nguyễn: 21:27

I mean, I don't think there would be any effort at reforms. I think the Supreme Court is sort of working the way a Trump administration would want the Supreme Court to be working. You know, he's gonna get conservative decision making from the court. And so I think it's it is sort of working the way that would benefit his presidency.

Emily Williams: 21:46

Okay. And I also just have this question about, like, accountability. You just mentioned that currently, the Supreme Court is functioning the way that Donald Trump would like it to. So are there any ways to hold the administrations accountable with their influence on the Supreme Court?

Dr. Nicole Nguyễn: 22:01

Yeah. I mean, I'm not a huge fan of electoral politics, but I do think this is where senate races, house races become really important in terms of who gets confirmed and who doesn't get confirmed. And so I think there is a lot of local political struggle available to folks to challenge tight races. I even think former president Trump has sort of backed off some of his comments on abortion in the way that he's voting in Florida, for example. And I do think some of the backlash he's received is shifting, at least his his sort of public stance on reproductive rights.

Dr. Nicole Nguyễn: 22:35

And so I do think that even if Trump were to win, there is space and possibility for challenging some of those decisions. I think it's much harder to hold the Supreme Court accountable for, you know, past decisions. I think that's what made, you know, Lincoln basically saying, I'm gonna you made all these proslavery rulings, but I'm just gonna, like, pretend that they don't exist. Right? And I think that's, like, a more extreme example of holding the Supreme Court accountable.

Dr. Nicole Nguyễn: 23:03

But to not sort of give up on the idea that the Supreme Court is above accountability and that there are all these sort of ways, whether it's at the local level or with presidential election, to really push back and challenge, like, hey, this doesn't represent us and it doesn't represent any sense of equity or justice, in the United States.

Emily Williams: 23:23

What do people mean when they talk about a supreme court legitimacy crisis? And how is an illegitimate supreme court a threat to our democracy?

Dr. Nicole Nguyễn: 23:33

Yeah. I mean, I think the way people are talking about supreme court legitimacy now is that it's somehow become hyper politicized and that these rulings don't reflect a rational interpretation of the law, but are themselves an exercise of political power. I think some of that crisis can come to bear on our sense of democracy in that the government is clearly not representative of the people, because state institutions, political authority has never represented everybody in the United States. Right? It intentionally has left people out, intentionally has marginalized, excluded and harms different communities.

Dr. Nicole Nguyễn: 24:13

And so I think the idea that somehow these institutions are going to be what confers justice and freedom and liberation on people, I think, is sort of the wrong way to think about those sites of struggle and to not sort of get swept away in this current galvanizing struggle against the current makeup of the Supreme Court and some of their decisions. And the long term goal isn't really just, like, make better government institutions, but it's how do we use those government institutions as tools for sort of some of these social movements' struggles that we're engaged in.

Emily Williams: 24:46

Right. And social justice movements, particularly abolitionist movements, have been saying for a long time that, you know, when we're experiencing these extreme inequities and violations to our human rights, that our institutions are functioning as intended, right, as they are supposed to. Therefore, we cannot see these institutions and reform of them as an end all be all to an ideal society where everyone has the same opportunity to thrive. I'm curious to know what you believe are some of the most outrageous things that the Supreme Court has decided recently. And then, also, I wanna know whether the Supreme Court is functioning in a way that paves the road for a fully fascistic society With the ruling on presidential immunity, in particular, is that paving the way for a fully fascist society?

Dr. Nicole Nguyễn: 25:45

Yeah. I mean, I guess one of the most outrageous decisions from the Supreme Court is the presidential immunity question. I do think the overturning of Roe is important just because it's such a galvanizing moment. And I think it shows some of the limits of using the Supreme Court to advance such a regressive political agenda. I don't know.

Dr. Nicole Nguyễn: 26:06

Maybe the Supreme Court didn't anticipate so much public backlash from it. I think the Supreme Court can facilitate the sort of continued rise of authoritarianism or fascism within the country, but it's not like the Supreme Court has been some great arbiter of justice over the last 100 or 200 years. And so I don't want to grant the Supreme Court that much power in thinking about it. I do think, you know, having sort of a grounded sense that the Supreme Court, just like it can be a tool for the left, can also be a tool for the right. I think the Supreme Court continuing on its way isn't sort of like some inevitable moment for the rise of authoritarianism.

Dr. Nicole Nguyễn: 26:47

Just because the Supreme Court is the way it is doesn't mean it's sort of gonna give way to the ascendancy of of fascism. Like, I think that there's still enough places of struggle and contestation and resistance that, sure, the Supreme Court could go full blown right wing, and I don't think we would see the immediate rise of fascism.

Emily Williams: 27:09

Well, Nicole, let me tell you that that's a relief to me because because when I heard about the ruling on presidential immunity, that made me feel like, okay. We're already here. I mean, if the Supreme Court, you know, and particularly the ruling on presidential immunity, if that doesn't pave the way for a fully fascist society, then where would the accountability come from?

Dr. Nicole Nguyễn: 27:33

I mean, I think it would come from the streets. I think it would come from from the people. I think the presidential immunity question was important, but Trump did a lot of terrible things that would be considered lawful. I mean, this is true of every presidency. I mean, president Obama had a kill list, and he won the Nobel Peace Prize.

Dr. Nicole Nguyễn: 27:53

Right? So, again, like, I don't wanna imbue the Supreme Court with so much power and authority that, like, it's the thing that we depend on for accountability. Like, yes, I think that decision certainly enables Trump to do more dangerous and terrible things, but the things that have always stopped some of or or challenged, some of that behavior and policy has been struggles from the people. Right? And I think that that will always be sort of the ultimate form of accountability is that at the end of the day, you're answerable to a group of people who will take over the streets, right, who will try to upend any institutional process that's put in place.

Dr. Nicole Nguyễn: 28:31

And I think institutions, the judiciary is a site of struggle, and we shouldn't give up on that. And, also, we shouldn't sort of give over to the fact that, like, oh, we lost the Supreme Court. There's no more accountability. Right? Because we still can continue to provide that kind of accountability and also push for not just accountability, but social change.

Emily Williams: 28:54

Yeah. 100%. And I think you have noted some ways in which Donald Trump has been forced to change his position on particular issues because he wants to get elected. And, of course, the question is, would he maintain that behavior if he is elected? And that's the thing that we don't know.

Emily Williams: 29:12

We think that we have some pretty strong evidence to go on, but we don't know because that hasn't happened yet. Welcome back to Beyond Voting. Today's guest is associate professor of criminology, law, and justice at the University of Illinois at Chicago, doctor Nicole Wen. In the first half of our conversation, Nicole dug into the details of how presidents and the Supreme Court influence each other, how the Supreme Court has always been wielded as a partisan tool, and how giving the court too much power in how we regard it contradicts the real power in our democracy, the power of the people. I wanted to know more about whether our fractured system of checks and balances can be repaired, which of our other rights are potentially in danger on the Supreme Court's upcoming docket, and if she thinks it's time to abolish the Supreme Court and start all over again.

Emily Williams: 30:40

Okay, Nicole. So we often talk a lot about having had social studies class in elementary school and where I, in particular, learned about the 3 branches of government and that the 3 branches are about accountability. They're about checks and balances so that no one branch, you know, the executive branch, like the president, gets out of control. Are those 3 branches currently holding up as they should?

Dr. Nicole Nguyễn: 31:07

Wow. It's a question I never actually really thought about. And I'm I'm sort of my hesitation is because I'm not quite sure that they've ever provided the kind of accountability that we we might have thought. Again, this is something where, you know, I think the framers were kind of brilliant in in thinking about this, that we don't want one branch of the government to have enormous unchecked power. And, also, we've seen unchecked power across history.

Dr. Nicole Nguyễn: 31:33

So, again, I think I think it's how do we use the different levers in these different branches to sort of push different forms of social change. But I don't think having a a strong independent functioning judiciary guarantees, any kind of accountability. If we think of ourselves as sort of the ultimate orbiters of accountability in this country, then how do we engage the different branches to work differently? Not as the end all be all, but as as sort of tools towards some kind of accountability and some kind of justice.

Emily Williams: 32:09

I mean, I hear you saying that, yeah, this is, like, great in design, great on paper, great philosophy, you know, the checks and balances built into our government, but they've never really functioned to create the kind of accountability to fully check the power of 1 branch. So if they've never worked completely as intended, what could be the worst case scenario? I mean, if those three branches continue to break down, what could be the worst case scenario?

Dr. Nicole Nguyễn: 32:38

We have a civil war, which, I mean, the acceleration is on the right or pushing for like, they have this sense that some kind of civil war is inevitable and that sort of the fractures that are coming to light through these supreme court rulings are demonstrative of the need to sort of break up the United States between these conservative and nonconservative states. So so I think, yes, you'd have sort of the ascendancy of maybe a more authoritarian president, whether that's Trump or somebody else in a future election, and that the country becomes more fragmented to the point it leads to continued escalated violence in the country. And and there is some part of me that thinks, like, that's how it will end no matter what, that we're pushing to the brink even if we have the most loving and kind president. That's the the sort of place we're in as a country, not just as a sort of political party, is sort of leading to that. So I think that might lead to some kind of disintegration of the US as we understand it to be.

Emily Williams: 33:42

Yeah. Yeah. And do you think that it's just the right? Because I so often hear, you know, people on the left talking about the need for revolution and letting the empire crumble, and we can't even participate in the system as it's designed. Do you also see the left as participating in this fracture that you know is happening in our country right now?

Dr. Nicole Nguyễn: 34:03

Yeah. I think the polarization takes at least two sides. You're not polarized unless there's this sort of widening gap. And I do think that there's a reason that people of color are arming themselves at higher and higher rates because of this sort of sense of some kind of inevitability, unless we somehow manage to sort of turn the ship in a in a different direction. So, yeah, the fragmentation is certainly happening across the political spectrum, across the country, and it takes all folks to sort of agree, like, we don't have the same values.

Dr. Nicole Nguyễn: 34:34

We don't have the same philosophies. We don't have the same ways of thinking about how to live together. Right? And what do you do when you get to that to that moment? Who gets to decide, like, here's the rules and and here's who who follows them and who's included and who's excluded.

Dr. Nicole Nguyễn: 34:49

And I think that's the the big question of, like, who gets to decide these things? And we have different ideas of who gets to decide and decide what and how and why.

Emily Williams: 34:58

Yeah. Nicole, so many people thought that Roe would never be reversed. If the Supreme Court continues to function as it is, what does that mean for human rights in the US? What else could happen? What might be next that they might rule on?

Dr. Nicole Nguyễn: 35:15

Yeah. I think anything is possible. I think interracial marriage is sort of like, what rights do you hold dear, and you're always at risk of losing them. I think, like, cuts to health care are probably up next on the table, cuts to education. I mean, I think, like, the affirmative action stuff is is really demonstrative of how these struggles are gonna essentially go after every sort of form of of social safety net that we know of.

Dr. Nicole Nguyễn: 35:42

I don't know. It just seems like those are sort of the next sites of struggle and unless there's some kind of community resistance that that it could continue. But I also think that people are realizing this. Right? And so, sure, you have the overturning of Roe, but then you have states doing different kinds of things.

Dr. Nicole Nguyễn: 36:01

Right? And so I think people are sort of shrinking away from the idea that the federal government can be the the guaranteer of certain kinds of rights and that, maybe we have to look to the local and state level to to sort of enshrine different kinds of rights, which in some ways, you know, I think makes community based struggle a little bit easier because your target isn't this abstract federal body, but it is, like, your local judge, right, or it's your governor, right, where these struggles can be made and made visible. That might seem more doable and possible than trying to change the Supreme Court makeup and undo some of these decisions that have been made.

Emily Williams: 36:44

Mhmm. I have just a few questions in response to that. One is there and and forgive me for my ignorance. I'm not a legal scholar, even though I do know the three branches of government. I remember that from social studies class.

Emily Williams: 36:57

But is there no way that the Supreme Court could confine what happens at the local level? I mean, is there no way for them to impact that? Oh, they I

Dr. Nicole Nguyễn: 37:08

mean, Greg, because those things can get appealed all the way up to the Supreme Court. Right? So they certainly could. I think right now, we're seeing the inverse. Right?

Dr. Nicole Nguyễn: 37:17

We're seeing conservative judges who are trying to to throw into chaos part of the the Biden administration's policy plans, and so they could do that within with the next presidency. So it's not a perfect solution, but I think the idea that we're somehow gonna undo Roe at the Supreme Court I mean, we could we could undo Roe at the Supreme Court level. I think it's just more likely that there's gonna be these local struggles at the state level. And if local political leaders wanna stay in office, they might have to be more responsive to those decisions, and local judges might be less willing to overturn those decisions if they also fear that they're gonna lose their seat as well. So so I think, you know, like, local leaders have less power and more to lose in some ways.

Dr. Nicole Nguyễn: 38:02

And so I think there's more possibility and more space for resistance there.

Emily Williams: 38:08

You also said earlier when I asked, like, what could come next before the Supreme Court, you had said something to the effect of any right that you hold dear could be next. You know, so often we think that authoritarianism is something that happens elsewhere, or we think about governments that violate the human rights of their citizens as something that happens elsewhere in the world, not something that happens here in the citizens as something that happens elsewhere in the world, not something that happens here in the US. But clearly, we're in a position where our human rights actually are being infringed upon. To make it plain for our listeners, are there any parallels to other countries that you could make to illustrate exactly what's happening and what's at stake?

Dr. Nicole Nguyễn: 38:49

So this isn't a unique story to the United States. Right? The rise of the far right and the rise of the far right within government institutions. That's certainly not a unique story and it's certainly happening across the globe. I mean, I think a lot of the EU, like I think the UK, France, Belgium, and some other countries maybe not have been using the judicial system in this particular way, but we are seeing sort of the rise of not just authoritarianism, but just a rise in the rollback of different kinds of rights.

Dr. Nicole Nguyễn: 39:20

Right? The, the sort of criminalization of like, being Muslim in the UK and in France, right, through different kinds of policies and laws. I think sometimes when we think it's, like, happening over there, we're thinking about the global south. But this is happening in Europe predominantly. And I think there's something to be learned from studying those different contexts of not only how the rise of authoritarianism has happened in different places, but also what were successful strategies in challenging that rise.

Dr. Nicole Nguyễn: 39:51

And, like, how did people in different countries try to undo some of that damage and undo some of that sort of authoritarian regression in different places? And so I think we also have to take stock of what does it mean that there's more of a transnational movements towards sort of right wing fascism or just sort of right wing regression that's happening, and how might we engage in a transnational struggle against that resurgence of authoritarianism?

Emily Williams: 40:19

Yeah. And you're right. So often when we think about authoritarians or, you know, governments who violate the human rights of their own citizens, we do think about the global south. We don't think about UK and France, but there certainly are clear examples of that. Okay.

Emily Williams: 40:35

So if I were to say what are some of the more egregious examples of behavior from the Supreme Court, I would think about Clarence Thomas and the 1,000,000 of dollars he received from conservative donors who then also had cases go before the Supreme Court, the involvement of his wife in the actions around January 6th. My mind goes there. My mind also goes to justice Toledo and an American flag being hung upside down outside one of his vacation homes after January 6th. You know, these things certainly are not neutral. Right?

Emily Williams: 41:12

So what can be done? There's a perception that the Supreme Court is untouchable. It's the highest court in the land, and there are some nascent efforts to address the problems that we've talked about. We know that AOC introduced articles of impeachment for Clarice Thomas and for justice Alito. You mentioned that the Biden administration has talked about expanding the Supreme Court.

Emily Williams: 41:36

What's the viability of all of those efforts or any of those efforts?

Dr. Nicole Nguyễn: 41:40

Yeah. I think Biden introduced some kind of, like, code of ethics or ethics reform to address some of these issues with Clarence Thomas and Alito. And it it doesn't seem like the constitution provides the space for that kind of ethics reform, which which, again, I think is interesting. And it's interesting that, like, the constitution dictates this much of much of our lives at this point. So I I think more important is the question that's being asked is instead of seeing the Supreme Court justices as again, on both of the laws, it's actually call into serious question the ethics of their decision making and then what are some of the pressure points to begin pushing.

Dr. Nicole Nguyễn: 42:18

And I do think introducing things like articles of impeachment, introducing ethics reform, I think they're important even if they're unwinnable because they're trying to change the discourse and change the narrative of how we think about the Supreme Court and and turn it into a site of political struggle. So even if it doesn't even if the push for ethics reform doesn't result in some kind of change in how the Supreme Court functions, those Supreme Court justices likely will begin to feel some pressure in sort of the way that they do business. And I also think it would impact then how presidents make decisions about who to try to appoint as a supreme court justice. So, again, not looking for, like, an end all be all sort of mechanism through some kind of reform, but to see it as a way of shifting the narrative, a way of creating more space for struggle, and also to, like, bring more people on board. So, like, maybe you're fine with Roe, but, like, you have a problem with that flag going up.

Dr. Nicole Nguyễn: 43:16

Right? Or the blaming of your wife for the flag going up. Right? So it's bringing more people into the conversation to ask, like, is this what we want of the highest court in the land? And who gets to decide what what counts as ethical or proper behavior within the court?

Emily Williams: 43:32

Yeah. Absolutely. And I think that's a really important lesson for activists or people who young people who wanna become activists is that even if you can't win at all, still raising the issue makes a difference. Right? It influences the conversation.

Emily Williams: 43:47

It raises awareness for people who had no idea that there were conflicts of interest happening on the Supreme Court. So those efforts still matter. We still have some power to hold them accountable.

Dr. Nicole Nguyễn: 43:57

And how do you, like, inspire movement lawyers, for example, to become judges, to run for for some kind of judgeship? Right? Like, I I do think that those are also important points as well. And, again, like, a judge isn't the end all be all, but having a progressive judge the way, like, a progressive prosecutor isn't gonna, know, fundamentally change the criminal legal system, but it can make things more possible for communities. And so, like, again, I think to not shy away from trying to sort of play with these different institutions.

Emily Williams: 44:27

I think that's another really important point because so many of our folks in social justice movements, particularly abolitionists, think that we can't have anything to do with the system because it's so corrupt or it's so stacked against us. But, actually, if we stick to our values, we can be in these systems and make big difference for the people in our communities. Right? And I think that that was something that's really evident in the level of Chicago when Kim Fox resolved to no longer lock people up for low level marijuana charges. That makes a huge difference for people in our communities.

Emily Williams: 45:01

So we can make a difference even if it's not tearing down the entire system all at once. Okay. So going back to this notion of tearing it down, what protections might we lose if we were to tear it down and, like, abolish the Supreme Court? Could those protections or vulnerabilities be addressed elsewhere, like in another institution or in our communities?

Dr. Nicole Nguyễn: 45:24

Yeah. I guess I think it depends on what tearing it down looks like because I think, you know, I think most abolitionists have this I mean, this is a Du Bois concept. Right? It's both a negative and positive project. And if you're tearing something down, you also have to simultaneously be building something up.

Dr. Nicole Nguyễn: 45:39

And so I think that that should be in our sights. Like, what are what do we intend to replace it with, and how how can we be sure that it won't reproduce some of the same problems, power imbalances, political agendas, and so on. And again, like, I don't think if we tear it down and we're trying to build something else, we can't imbue it with all of this power that this is somehow gonna be the thing that frees us all, but that it is, again, a tool or a strategy to engage in sort of the longer struggle.

Emily Williams: 46:08

Yeah. Absolutely. And I think when I hear you saying that, that's exactly the kind of strategy and long term planning that those on the left need to be doing. What are we building to replace it at the very same time that we're employing these efforts to abolish it or tear it down? Okay.

Emily Williams: 46:27

So when we talk about expanding the supreme court, what does that mean, and how could doing that restore faith in the judiciary?

Dr. Nicole Nguyễn: 46:35

I think when we talk about expanding the court, we're talking about packing the court. I think the proposals that I've seen is that we would continuously be expanding the court and that each presidential administration would be able to add people to the court as a way to sort of provide this balance. I think that's fine. I I just don't think the idea that we're gonna get a balanced court is real. And so for me, it's like, if we add 3 justices, just pack the court.

Dr. Nicole Nguyễn: 47:01

That should just be the strategy. It shouldn't be like we're gonna find this, like, long term balance to the Supreme Court because we're not like, that's never happened. And it's always flip flopped between a conservative agenda and a liberal agenda. And that's, like, baked into the design of the Supreme Court. That's sort of the way that Lincoln, I think, saw the Supreme Court is, like, I have this opportunity.

Dr. Nicole Nguyễn: 47:21

Like, there's no rules right now around the Supreme Court, so I'm gonna add somebody. I'm gonna pack it and undo some of this proslavery stuff. Not thinking, like, in a 100 years, it's still gonna live up to this sort of justice framework that I have in mind. But I do think that there will be a push with the Harris campaign. And if there's a Harris presidency, I do think that there will be this push to reform.

Dr. Nicole Nguyễn: 47:44

It might be successful if there's the right kind of Congress in place. And I do think you could get popular support for it at the local levels because there's so much outrage, right now about these decisions. So if that were to happen, I think it opens possibility.

Emily Williams: 47:59

Yeah. And I also I think there's a message in that to our listeners and people who would wanna see these kinds of reforms is that even if we do get some of the reforms, our work is not done. Nicole, this has been so wonderful, and informative. And my last question for you is, what's your vision for how the courts uphold justice in the United States, and what's your hope for the highest court in the land?

Dr. Nicole Nguyễn: 48:26

Wow. That's a really tough tough question. I mean, I am hoping to end on something hopeful or optimistic. You know, I think right now, the debate about the Supreme Court, I think, is actually a really ripe organizing opportunity that I think people are outraged. They're wanting to do something.

Dr. Nicole Nguyễn: 48:45

And so I don't know if I have I've never really considered, like, a long term vision for the supreme court. I guess I would like to see that outrage sort of coalesce around some, like, really exciting political activity and that people get engaged. And that could be getting engaged in electoral politics as a tool. It could just be getting engaged as a community organizer. I think we talked about organizing rides for reproductive rights at the beginning.

Dr. Nicole Nguyễn: 49:15

It's a way for people to identify with a really clear political issue and have so many different avenues to contest what's been happening. And so I think for me, that's what's sort of exciting about this this struggle. It's not like the endpoint of where we wanna get with the Supreme Court. It's what are we gaining through the process of challenging the Supreme Court that I think is actually really exciting and has a lot of potential and energy built into it that I think, you know, we can garner and push really far.

Emily Williams: 49:46

Mhmm. But if you could, like, design, like, the judicial system in the US, like, what would that look like? Like, I think that this is, like, so important that we have some ideas about what could be, like, what's possible because we know how the current judicial system functions. We know, And we know that there's, like, constraints and all of it. But what could be possible?

Dr. Nicole Nguyễn: 50:10

You know, as an abolitionist, I I like to think about, like, what kinds of systems of accountability and checks and balances do we wanna have in our own communities, and how do we begin building towards them? Like, we all have to, like, figure out how are we gonna live together. There have to be I don't wanna say rules, but, like, some agreements about how we live together. And there's some way of holding people accountable. And so I think, for me, it's like starting at that most basic level rather than saying, like, we're gonna reform the Supreme Court so it looks like this.

Dr. Nicole Nguyễn: 50:38

Really think about, like, okay, how do we do this, like, within my family? How do I do this within my neighborhood or within my community, my synagogue, my church? Like, whatever whatever sort of site you're at, how do you think about those questions? And then how do you think about building that up at a municipality or a city level? Right.

Dr. Nicole Nguyễn: 50:57

And then how do we begin to imagine what that might look like across the country? And maybe it's not having a federal judicial system. Maybe that's not how we address harm and violence as it happens, or it's not how we arbitrate who gets rights and what are those rights. Some of it is just like rethinking the entire system as we know it. And I think that that can be really hard because we all took social studies, and we learned that there's these three branches.

Dr. Nicole Nguyễn: 51:21

And sometimes we can't remember what they are. But we know that there's these three branches. And that's how our government should be organized. Right? And that's what accountability is.

Dr. Nicole Nguyễn: 51:28

And I think it's like actually questioning that premise. And, like, trying to think about this from a different perspective. And maybe the starting point is, like, where I live and who I'm in community with, and what would accountability look like from there.

Emily Williams: 51:42

Yeah. 100%. And I love that because how does it fundamentally transform things if we see ourselves as needing to create the accountability in community with others as opposed to looking to this institution or the system outside of ourselves? So thank you so much, Nicole. This was wonderful.

Dr. Nicole Nguyễn: 52:00

Yeah. Thanks for having me. This was a cool conversation.

Emily Williams: 52:03

Yes. It was. And a much needed one. Thank you so much. Talking with Nicole was great.

Emily Williams: 52:10

And, honestly, I cannot understate the deep sense of relief I feel. Knowing that someone who studies and teaches the law and who has applied an abolitionist lens to the judicial system still believes that We The People truly can hold the president accountable gives me hope despite the Supreme Court's ruling on presidential immunity. We have a role to play. Even if every battle isn't totally winnable, we still must raise our voices and demand answers to the most important questions. We have to remember that part of the reason why we're here is because our social justice movements have been successful.

Emily Williams: 52:47

The increase in diversity, equity, and inclusion initiatives and the money that's allocated to those efforts is a success. The visibility of trans people and the availability of gender affirming care is such an important win. The solidarity that women showed when they came together for the women's march was a triumph in the face of unprecedented political circumstances. And this is a direct result of radical organizing and movement work. We'll talk more about how we can come together and organize to meet the political moment on our next episode.

Emily Williams: 53:21

But so much of the lawfare that we see today is not only a backlash against those successes. It's also a testament to how incredibly powerful We The People can be, especially when we coalesce around a movement and keep pushing until something shifts. As Nicole said, the Supreme Court has always been used as a political tool. And when we talk about a tool, that suggests that it's merely one part of a broader organizing effort. Reforming the Supreme Court is not going to restore all of justice in the United States.

Emily Williams: 53:56

It's not going to fix our criminal justice system, for example. But when we have these broader organizing efforts, we can also think about the Supreme Court as a tool that should help us in those efforts. I wanna highlight an extremely important point that Nicole made, the call to be more engaged and involved in politics at the local level. That means having to educate ourselves and our communities on the judicial candidates before we get into the voting booth. If you live in a city like Chicago or Detroit, that's a lot of judges.

Emily Williams: 54:27

But part of holding them accountable means that we have to know who they are, what they stand for, and what impact they could have. How you vote in those local judgeships and district attorney races makes a difference in the lives of the people in your community. Finally, one point really stuck with me after our discussion. We can't imbue more power into the Supreme Court and other institutions than they actually possess. When we believe that our institutions are all powerful or have an enormous amount of power over us, that ultimately encourages us to disengage.

Emily Williams: 55:03

But if we own the right to speak up, take action, and hold our institutions and elected officials accountable, then I believe our movements will be far more effective. We spend so long underestimating our power, but now is the time for change, and we're the ones to lead it. So tell us, how are you staying engaged and using this opportunity to organize? Does the state of the courts influence how you vote during elections? Tell us on IG at Arcus Center or drop it in your 5 star review of the show.

Emily Williams: 55:36

It helps more people decide to listen to the show. Shout out to doctor Nicole Wen for taking time to talk with us and helping us understand the role of the courts and the role we play in shaping and holding them accountable. You can find Nicole and her work on Twitter at geognicole, that's geognicole, and on her faculty webpage at uic.edu. If you like today's show, hit us up on IG. And while you're at it, make sure to share this episode with everyone you know, friend, family, and foe.

Emily Williams: 56:15

Also, please take a minute to visit us at https://arcuscenter.kzoo.edu and check out the important work we're doing to develop and sustain the next generation of social justice and human rights leaders. That's a wrap on this episode of Beyond Voting. Thanks again for joining us. We'll see you next time. Beyond Voting is hosted by me, Emily Williams.

Emily Williams: 56:45

Keisha TK Dutas is our executive producer. Kristen Bennett is our producer. And this episode was written by Kristen Bennett and me. Our sound designer and engineer is Manny Faces. Marketing is courtesy of Fabian Mickens, and our music is provided by Motion Array.

Emily Williams: 57:04

Special thanks to my team at the Arcus Center For Social Justice Leadership, Quentin, Crimson, Tamara, Winter, and Kierra. Beyond voting is a production of Philo's Future Media.