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David Sirota 0:00
Hey everyone, welcome to another episode of lever time the show where we're going to dismantle the Supreme Court, one Federalist Society judge at a time. It's otherwise known as the Clarence Thomas can go fuck himself variety tour. I'm your host, David Sirota on today's show. As I said, we're gonna be talking about the Supreme Court, which is on what can only be described as a judicial rampage. After this week's past rulings, we'll discuss how dark money for instance, has transformed the Supreme Court into a radical right wing force in American politics, and how the Democrats weak response has allowed some of this to happen. Then we'll be discussing the courts big case, West Virginia versus EPA and what it means for the future of climate action. And finally, we'll be sharing my interview with Colorado Attorney General Phil Weiser and state senator Julie Gonzales about the impact of the dobs decision, the one that overturned Roe v Wade, and what it means for abortion rights both in a place like Colorado and in states across the country. This week, our paid subscribers will also get a bonus segment, you'll get to hear my interview with UCLA law professor Adam Winkler, one of the nation's foremost leading experts on gun law. Adam and I spoke about the court's decision on the New York gun rights case. And its implications for gun laws all over the country. A reminder for our free listeners head over to lever news.com please become a supporting subscriber there. That gives you access to our premium podcast feed plus, sorry, that gives you access to our premium feed plus a whole lot more. As always, I am joined by producer Frank, what's up, Frank?

Producer Frank 1:55
No, much, David. I'm feeling a little bit better the top of this week than we were at the end of last week. And you know, we've had a lot to do here at the levers. So it's good to have somewhere to put all of this frustration and anger.

David Sirota 2:10
It's pretty dark right now. I mean, it it's a judicial Rampage is really what we're in the middle of. And I think it's been jarring to a lot of folks, understandably. So. I mean, I think the weird thing is not weird. But the thing is that people feel shocked by things that they knew were going to happen. Right, the row overturning I mean, that was literally telegraphed to us. Why why do you think so many people seem not just angry about it, but almost in a in a state of shock, even though we knew it was coming?

Producer Frank 2:41
You know, I think I think in their core, people are optimistic and hopeful. And there was maybe this tiniest shred in people's hopes that maybe this ruling wouldn't be as severe as we as we originally thought it would or would have changed by the time the decision actually came down. Yeah, I feel

David Sirota 2:58
like the leak of the draft was actually almost like calling their shots like Babe Ruth getting up to the plate and pointing into centerfield and then hitting the homerun there. Like, I think some people hoped that the leak would deter the ruling that would come down, but instead it was like they call it they call their home run. Their apocalyptic homerun, obviously I don't not happy that they that the extremists on the court hit the homerun.

Producer Frank 3:24
No, no, we're, we're definitely not happy about it. And I just want to I just want to take a second to acknowledge that, you know, this episode, we're gonna be talking about the Supreme Court, we're gonna be talking about a bunch of rulings. But obviously, the one at the top of everyone's mind is this Dobbs decision and the overturning of Roe. But I just wanted to take a moment to acknowledge that, you know, David and I are two men. And while no one needs to hear our take on what the impact of this decision means, we're going to be offering as much contextual analysis as possible. But also acknowledging that we cannot come from a place of lived experience as far as being personally affected by this decision. I also want to take this opportunity to speak to any men who might be listening to say that, you know, while while no one necessarily needs our opinions about what's happening right now, people do need us to stand up and speak out. And it is our responsibility to show up in a moment like this.

David Sirota 4:25
Yeah, that's absolutely true. So dudes, do some listening, and try to be as supportive as possible, if you can, to push back on this kind of ruling. Now I think we need to ask the question. Why are we here? And I want to start the show with just a little give you some thoughts on why I think we're here and there's some painful truth to this. This did not happen spontaneously. This did not happen randomly. This was not an accident. And by this I mean all of these rulings The Supreme Court being on its Rampage is something that the American right has been plotting and participating in and creating for the last 50 years. We're here, because of the way that both sides have differently conditioned their voters to expect or not expect things from their politicians. For many, many years, conservative media, the Fox News's of the world talk radio and the like, have conditioned Republican voters to demand the specific things from their politicians, and to hold those politicians accountable. And thus, there are these rulings coming down that is the product of that, by contrast, the democratic media machine, from MSNBC to NPR to the New York Times to the Atlantic, that whole kind of left of center, elite legacy media, plus the Democratic party's political apparatus, that blob has conditioned Democratic voters to demand nothing from their politicians, and never hold their politicians accountable. Thus, and so we're here at this moment, where when the overturning of Roe came down, the ruling came down, you had the situation where in the face of the overturning of row, you had Democrats, essentially saying, We can't do much of anything, Joe Biden giving a speech effectively saying vote harder in the next election. And they're not really doing much of anything other than sending out fundraising emails, because the Democrats expect that their voters aren't going to demand that they do anything about this now, because that's what they've conditioned Democratic voters to do. In situations like this, never demand anything. And meanwhile, the Republicans are celebrating the fact that their base demanded an attack on abortion rights. And after many, many years, their political leaders produced the repeal of reproductive rights in America. That's the asymmetry we are living in. Now, I think there's a silver lining here. I think the silver lining is that polls are now showing that the anger and frustration at the Democratic Party by not by the right wing, but by good faith, rank and file democratic Normie voters is, is real, and going mainstream in a way that it hasn't been real or mainstream in my entire lifetime. And the reason I think that's a good thing is because amid all of this darkness and all these terrible rulings, one thing we know is that the best things that have ever come out of the government and out of the Democratic Party have come out of the government and the Democratic Party because people were pissed off. Think about it, Social Security, Medicare, Medicaid, the Civil Rights Act, the Voting Rights Act, these things did not happen, because nice politicians woke up one day and decided, hey, I'm gonna be a nice guy, I'm going to, you know, I'm going to pass the civil rights act like that is not the way it works. Those things happened from Democratic presidents, because those presidents were forced kicking and screaming, to do those things, because they were afraid of the electoral consequences of not doing those things. So when you see a poll that shows for instance, and NBC poll, 66% of Democratic voters want their politicians to push for big transformative change, even if it risks not passing those changes. When you see a poll showing a plurality of Americans don't buy the Democrats argument that the President has no power to do anything. When you see the polls showing only 25% of young people approve of the job that Joe Biden is doing. Taking all that together. What that I think shows is that people are not having it. They're not having it. And there was this clip that played on MSNBC, it somehow slipped through the MSNBC filter was alive clip where they interviewed a protester after the overturning of Roe and this protester put it really, really well.

Zoe Warren 9:50
So I received a text message from Joe Biden's campaign yesterday saying that the Supreme Court had overturned Roe versus Wade, and that it was my responsibility to get rush $15 The democratic National Party. And I thought that was absolutely outrageous, because my right should not be a fundraising fundraising point for them. Or a campaigning point. They have had multiple opportunities to codify roe into law over the past 2030 4050 years, and they haven't done it. And if they're gonna keep campaigning on this point, they should actually do something about it.

David Sirota 10:21
That to me is the right response to say we're sick and tired of the Democrats saying that they can't do anything while this horrible right wing assault is happening. They run the government right now. Or at least the lawmaking apparatus of the government. There's plenty of things that the Congress could do that the Biden administration could do, that state legislatures could do. And we're going to talk about that, on this podcast here in our segment about the roe ruling. There's plenty of things that they can do. And it's good to see that more and more people are recognizing that. I'm feeling actually good about that. Maybe I'm Frank, maybe I'm clinging to that, too, too stringently. As some shred of good news. I'm desperate for a shred of good news. But But I think that's good news, don't you?

Producer Frank 11:09
I think this decision is absolutely going to radicalize some normies. And I think that's yeah, like you're saying that's one of the few silver linings. And it's, it's sucks that it has to happen because of something so terrible transpiring.

David Sirota 11:27
To me, that's the silver lining. To me, if this is rock bottom, if this is the turning point, then that's one shred of good news in an ocean of bad news that more normies getting radicalized is ultimately I think, what will save us that we need more rank and file Independents and Democrats to get in the game, get get into the into getting engaged and not just accept the idea that the Democratic Party can't do anything? It most certainly can. And I think for a relative few of us, who have been warning about this moment, there's a kind of exasperated feeling that we have been warning about this. I mean, we hit the lever, have you read the lever? You know, we've been obsessing over and reporting on the Supreme Court. And it's extremism and the funding behind this extremism for a very long time it it all kind of feels like that moment in the movie I helped create don't look up that that moment, where the comment they can actually see the comment in the sky.

Leonardo DiCaprio 12:40
We've been trying to tell you when trying to tie this all time, it's right there. It's right there, Kate,

David Sirota 12:48
if you've been reading the lever, you know, we've been trying to tell you, we've been trying to tell you what's really driving, what's happening on the Supreme Court, the money behind what's driving, what's happening on the Supreme Court. And to go further on that to really tell that story. We're joined by the livers Andrew Perez. Hey, man, how you doing, Andrew?

Andrew Perez 13:11
Hey, good afternoon.

David Sirota 13:12
So you've been reporting for a long time on a guy named Leonard Leo. And I want to get into who Leonard Leo is because you seem to be one of the only reporters in the entire country who has bird dog this story. You and I are obsessed with the money driving not only American politics, but the politics of the Supreme Court. And I think everybody needs to understand that what's happening on the Supreme Court is not random. It's not accidental. It's not spontaneous. This, all of these rulings that we've seen whether it's rescinding Miranda rights to striking down gun laws in New York, to the climate cases coming down the pike to of course, the overturning of Roe v Wade, this is all the culmination of a 50 year campaign that has been supercharged by dark money. So Andrew, tell us the story of the man at the center of this a guy named Leonard Leo, who is he? What is he doing?

Andrew Perez 14:23
So Leonard Leo is a longtime executive at the Federalist Society, which is the conservative lawyers group in Washington. And then under Trump, he became Trump's top judicial adviser so he was helping make Trump's court picks you know, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and he also since 2005, has been leading a dark money network called the Judicial Crisis Network that helps lead the kind of confirmation campaigns for you know, first with Roberts with John Roberts and St. Pulido, followed by the Trump trial. have judges and they also then work to, you know, basically help give Republicans cover to withhold, or to not hold the vote on Merrick Garland in 2016. And, you know, throughout its lifespan, his network really has been funded only by very, very, you know, wealthy donors, we have no idea who but it's, you know, they deal in, you know, 510 $25 million increments. And, you know, the, the main goal here has been to chip away at the regulatory states really, really kind of destroy it, in defending it, and also to overturn Roe v. Wade, which, you know, quite obviously, they just succeeded in doing

David Sirota 15:40
so completely dark money, we have no idea who's who's actually donating it, we just know it's a shit ton of money. And we also from documents that you've dug up and and reported on, we know that it's from a handful, a small handful of donors, but we don't know exactly who they are. That's what that's the network. Leonard Leo is running now, in your story for the lever. I thought it was really a fascinating insight that Leo's strategy has been to surround the cord from both sides. And by that, I mean, buying Supreme Court seats, running these very well funded campaigns to get specific judges on the court when when court seats come open. But also then the right wing dark money network has funded the Republican Attorneys General, who often are bringing the cases then to the court. Explain how that part of the process works.

Andrew Perez 16:43
Yeah. So Leo's network is basically the biggest funder longterm of the Republican attorneys general Association, which you know, works to elect Republican AGS. And it also sort of functions as a policy hub where they all kind of get together and say, like, Okay, we're going to sign on to this case, we're going to submit this brief to the Supreme Court, or to other courts as well. And so, you know, they're the chief funder of the Republican AG is in, you know, you look at who actually led the abortion case at, at the Supreme Court. You know, it's got the name of Thomas Dobbs on it. He is not involved. It was it was the Mississippi Attorney General Lynn Fitch, backed by 18 other Republican agencies. And so, you know, they have been financing the Republican AGS. But they're also then Leo's network has also been funding a bunch of nonprofits that are also filing their own briefs in these cases. You know, like in the abortion case, you have Mike Pence, his group, former vice president, Mike Pence, advancing American freedom of the Becket Fund for Religious liberty, really, you could go on and on with this, but it's a pattern that we saw just just, you know, we did a very quick deep dive, and it stood out immediately.

Producer Frank 17:56
Um, Andrew, can I ask you something, and I'm sort of doing my producer job here, because a lot of things might have changed by the time that this episode comes out. So what other major decisions are we expecting from the Supreme Court soon? Sure.

Andrew Perez 18:11
Well, by Wednesday, you know, we could see the Supreme Court, they're widely expected to rule in the case of West Virginia versus EPA. And, you know, it's the the point of that case is to is to really undermine the EPA, its ability to regulate carbon emissions at all say that it's that, you know, they can't do that right now that Congress can't delegate their authority to regulatory agencies to really actually write laws, anytime they, you know, they're saying that anytime the government wants to regulate a new pollutant, that that they need to basically get get legislation from Congress, the Congress needs to specifically authorize it. And that's, so that's the case that was brought by the West Virginia Attorney General, and 17 other Republican attorneys, generals, attorneys general, you know, who again, are, you know, funded, first and foremost by the Leo network. And, you know, we looked at another group filing a case in that or filing a brief in that case, the new civil liberties alliance is also funded by the Leo network. You know, another case that's going to come down is the remain in Mexico case where Republican attorneys general from Texas and Missouri are trying to force the Biden administration to maintain this policy from the Trump administration requiring asylum seekers to stay in Mexico while they're waiting for their asylum hearings. And so obviously, that's that's, you know, more Republican attorneys general and they're being backed by another 19, Republican AGS as well as Mike Pence is nonprofit, advancing American freedom, which again, is funded by the Leo network.

David Sirota 19:58
What if any, thing can be done about this. And how much awareness Do you think people have about this? I mean, and I'll even go further. If there isn't enough awareness about this, why do you think that is?

Andrew Perez 20:15
Yeah, it's it's really hasn't been covered that widely. You know, there have been some profiles of Leonard Leo, like there was an NPR one recently. And, you know, there's been like a New Yorker, one and in a Washington Post one several years ago, but it hasn't really been covered in any kind of sustained way. You know, I think I think that is a real issue here, other than outside of like, smaller news outlets, like open secrets, or, you know, the watchdog, group, crew Citizens for Responsibility and Ethics in Washington, you know, it's basically been them and us covering covering the actual daisy chain of money that's getting thrown around here. As far as things that can be done, you know, Democrats, you know, their their big kind of sweeping voting rights bill, that they've, you know, kind of chipped away at and then didn't pass. You know, it did it did contain, at least initially a measure that would compel disclosure of donors to dark money groups, to nonprofits that are trying to influence judicial, judicial confirmation campaigns. And, you know, it's it's something that it's it is an obvious first step, right, because they've been able to do all this with secret money in obviously, coming from just a very small handful of donors. It could be potentially corporate interests, we really have no, no idea who's funding it. It's one of the biggest stories of any of our lifetimes.

David Sirota 21:47
One last question on this into your point about the Republican attorneys general. I mean, not only are they bringing the cases, but they are also filing these so called amicus briefs, which influence are designed to influence the courts ultimate rulings, these amicus briefs, essentially offer. Under the under the guise of expertise, they offer the court analysis and opinions on the technical aspects of cases. Is there anybody in light of this entire network? Are there any particular champions in the Congress who have shown shined a spotlight on this? Who seemed particularly motivated about this? Or is this something you mentioned this provision that was put into the voting rights bill that never went anywhere? Is this just something that the Democrats talk about? Or do you think there's folks in Congress and more of more of a motivation now to actually get something done to at least bring this into the sunlight?

Andrew Perez 22:45
Yeah, yeah. So the one senator who's really been kind of leading the push is Sheldon Whitehouse, out of Rhode Island. You know, he's been pushing to both compelled disclosure of this money. And also like, kind of laying out what what we are here, you know, the way he's described it, is that is that like, conservatives are filing this like flotilla of amicus briefs? And that's, you know, he's talked about it a bit on the Senate floor, but it's, you know, outside of him. No, I don't I don't think there's been a particularly sustained strategy here.

Producer Frank 23:18
And you I have one thought slash question, would it? Would it make sense to you that if people who are directing their anger at the justices who were part of this decision like Gorsuch Cavanaugh, Barrett, would it make more sense to be directing their anger towards someone like Leonard Leo, who it seems has a more influential role in getting us to this place?

Andrew Perez 23:44
Yeah, yeah. I do think he should be a household name at this point. Right. Like he did pull off effectively a judicial coup right, like Republicans have flipped this court from you know, what, what could very easily right now be a Democratic majority, right with if things go just very slightly differently? And by that, I mean, you know, if, you know, Ruth Bader Ginsburg had retired, you'd be in a very different situation if Democrats had had, you know, pack the court if they had if they had if they had put Merrick Garland on the court in 2016 instead of instead of you know, just allowing Mitch McConnell to to withhold the vote on him um, things would be very different. So you know, basically the Leo's network has has really kind of used this cord to set policy and drive and drive our country far far to the right in a way that that is really under appreciated and yeah, I do I do think that people should should know who he is. And

David Sirota 24:43
your point about Leonard Leo needing to be a household name is really resonates. Roger Stone has been a household name. The cokes had been a household name. I mean, there's no shortage of villains, who Democrats, Democratic voters, liberals know and Get Leonard Leo, the guy who arguably has had the most amount of impact on our world is barely known by anyone, anyone other than I should say anyone other than the lever readers. Thanks to your reporting. Yeah,

Producer Frank 25:14
If anyone deserves If anyone deserves protestors outside of their homes, it's these.

David Sirota 25:18
This this guy is really, really the puppet master. Andrew, thank you for all of your great reporting on this and all of your reporting that you will continue to do on this for the lever. Thanks a lot, man.

Andrew Perez 25:29
Thank you.

David Sirota 25:32
Now we're going to be focusing in on that dobs decision, which overturned 50 years of legal precedent originally decided by Roe v Wade, I'm going to be speaking with Colorado Attorney General Phil Weiser and state senator Julie Gonzalez. Phil was a clerk for Ruth Bader Ginsburg, and is now the primary legal defender of abortion rights in the state, which by the way, was one of the first states in America to originally legalize abortion, Julie helped pass the Reproductive Health Equity Act here in Colorado this past year, one of the most comprehensive abortion rights laws in America. And she's now drafting a new bill to expand protections to both providers and women seeking abortions. I talked with Phil and Julie about what the dog's decision really means in practice for millions of women in the country. We talked about the authority of city and states to continue protecting abortion access. And we talked about where we go from here and what states and local communities can do. Hey, Phil, Hey, Julie, go abs. Glad to be with you. Yeah, we have one piece of good news the the ads won the Stanley Cup. So I'm trying I'm grasping for good news of late. So like, I just feel like I need to like virtually high five you as Denver, folks. For the abs. It has nothing to do with our conversation. You got nominated for an Oscar this year. That's good news. That was good news. Thank you. Thank you. So grasping at any straws of good news in these dark times. So Phil, I'm gonna start with you. The reason we're talking to both of you today well, for many reasons about the roe decision, the overturning of Roe. Colorado has kind of a special place in the in the reproductive rights saga in America. Phil, if you can just to start off, tell us a little bit of that story why Colorado has been so important. This is

Phil Weiser 27:23
an important story. It starts with Dick Lamb who was a state legislator, and he looked at abortion laws and asked the basic question. Abortion looks like health care. Why do we criminalize it? And he passed? What was the first law liberalizing access to abortions? Now, the truth was, for years, this had been happening sabrosa in different ways, shapes or form. The Colorado passed this abortion legalization law. He was a Democrat. He was actually in the minority. The governor at the time John loves a Republican talk to his daughter, who became a later college speaker justice Becky love Corliss and asked her as a teenager, what do you think about this idea of liberalizing access to abortion? And she related to me that those conversations that Governor love had the Congress's declaims had were transformative because people hadn't thought about this. Colorado liberalized access to abortions in the mid 1960s. Early what became a wave before we got to Roe vs. Wave.

David Sirota 28:24
So Colorado, if I'm not mistaken, the first state to officially legalize abortion legalized reproductive rights in America in the late 1960s. Is that basically what happened?

Phil Weiser 28:37
Yes, I think was actually the mid 1960s. Famously California later liberalize abortion access under Governor. Yes, wait for it, Ronald Reagan. That was one of the other early eras and this is an important point, we were seeing more and more states act in advance of Roe versus Wade. It was I believe in the mid teens by the time we get to Roe vs. Wade and stay tuned liberalized access to abortion.

David Sirota 29:01
So I want to turn to Julie Julie in the state legislature this year in Colorado, our state legislature put in statute some protections for abortion rights. So I want to ask you, what did the legislature do? And what kinds of protections does it put in place against the ruling that came down last week?

Julie Gonzales 29:23
You know, the day that Texas enact its six week abortion ban Senate Bill eight, we there was a rally that emerged spontaneously on the west steps of the Capitol. And, you know, I showed up and there are a lot of people there and even a couple of my constituents and they said look, rallying, I get it like that's important. We're going to do we're going to rally but they asked me, Jules, what are you going to do? And so we got to work right then then they're drafting what ultimate They became the Reproductive Health Equity Act to ensure that our reproductive health care decisions, including abortion can't be interfered with by the government. And so it was really proud to introduce that law and work alongside Majority Leader, Denise Asghar and Representative Froelich. And out of the 61, Democrats within the Colorado General Assembly, all 61 voted for it. All, every single Republican voted against that. That was signed into law by Governor polis back in April of this year. And what it ensures is that if you want to choose to carry a pregnancy to term, that is your decision. Government cannot get involved in that if you want to access abortion care. That governor, that decision can't be interfered with by the by the government either. And so is a really important protection for everyone, because we saw when Texas moved forward with its policy, in light of the pending Supreme Court case, in dogs, we saw that the potential of Roe versus Wade falling was was was a real threat. And so we acted, and here we are today, I'm so glad to be able to, to have those affirmative protections in statute. And yet we also know that there's still more work to do in light of the policies that we're seeing. that seeks to criminalize women and other states for coming to places like Colorado or other 20. The other 20 some odd states who still will allow access to abortion care, even in light of the rock, the Roe v Wade decision being overturned, the way that those states are acting is dangerous, and will lead to criminalization of patients and providers. And we have more work to do.

David Sirota 31:57
Phil, I want to turn to what Attorney General what that role can do, how positive or destructive a role that can play. You're running for reelection here in Colorado blue state. The Republicans are going to try to take you out. The Republican attorneys general association is probably going to spend a lot of money here, in terms of of what this ruling does. What does an attorney general mean to all of this, both here in Colorado and elsewhere in the rest of the country, when people are thinking about their votes for an office like Attorney General,

Unknown Speaker 32:31
the Attorney General is the chief legal officer of the state. When people have questions, what does this Reproductive Health Equity Act that Senator Julie Gonzalez worked on so masterfully mean, in practice, it's our office that's charged with interpreting with enforcing and with defending this law, if you had a Colorado Attorney General, who did not believe in Roe versus Wade, who did not believe in the Reproductive Health Equity Act, you literally could disable this law from being implemented, people could disregard this law, people could attack this law and find the Attorney General joining the attackers not being a defender. Too often people overlook why attorneys general matter now that Roe vs. Wade has been overturned. And obviously we had another decision the day before around the Second Amendment. And we've been talking a lot in Colorado gun safety, too. Those are two examples of what an attorney general does. The Attorney General protects the people of the state, defends the laws of the state protects people's rights. Obviously, as attorney general, I'm all in to defend reproductive rights. I'm here to protect Colorado's law and the people of Colorado. But you can have an attorney general who says I'm out. I'm not defending reproductive rights, I'm going to seek to limit reproductive rights to make it harder for clinics to operate, to tell other states come after anyone having an abortion in Colorado, and I'll let you not me, anyone who wants to criminalize anyone in Colorado getting health care. They've got to come through us first because we're going to defend the right to reproductive rights here in Colorado.

David Sirota 34:11
So I want to follow up with you very quickly on that, before we go to the state of affairs back in the legislature. The ruling as you read it, what does it mean up for states? What does it mean for a potential national outlawing of abortion? I guess what I'm trying to ask is, for people who who just heard that Roe v Wade was overturned, what does it functionally mean in practice for someone living in a red state, someone living in a blue state, like how does this specific ruling actually work?

Unknown Speaker 34:42
In many states right now, the only protection for reproductive rights for abortion rights was the Supreme Court. In all those states that protection is gone. Instead, in states like Texas, doctors are going to be told If you perform an abortion, you're committing a crime. And there's this other crazy law that is basically vigilante justice, where allows individuals to sue doctors for money damages for providing health care. So that's that's a reign of terror. And the women in Texas facing horrible choices, particularly people of color who don't have a lot of money. Do I get an illegal unsafe abortion? Am I going to bear a child against my will that I can't handle a great mental anguish to myself? Or am I going to try to find a way to get to Colorado, which again, if you don't have a lot of means that's not easy to do? We just created incredible trauma for people we just made doctors have to ask questions about their being subjected to criminal processes for trying to save lives in some cases. So today, we are now living in this scary world. It is no longer hypothetical. It is real. It's happening today. Not in Colorado, but in some other states like Texas.

David Sirota 36:03
So Julie, I want to go back to the state legislature for a second, we already have effectively codified a basic reproductive rights protections in our state law, if there are other state legislators listening, if there are people work, who want to know what they can ask their state legislators to do. What are the kinds of things they can do beyond that? What you I know are proposing a bill, an additional piece of legislation in Colorado. Tell us what that's about and what you would say to other state legislators, people wanting to pressure their state legislators about what to do?

Julie Gonzales 36:36
Absolutely. You know, I think exactly what Attorney General wiser is speaking about in terms of this new era that we're going to be entering into in terms of vigilante justice, we're seeing other states that are controlled by Republicans really tripping over themselves in order to try and say who's going to be the worst, who's going to be the state that criminalizes and proposes the most heinous policy that will lead to more pregnant people dying in our states. As a result, there is going to be a lot of fear mongering through policy. And there's also going to be a lot of vigilantism. And so that's upon us. And part of what we want to do in Colorado, in other blue states across the country. We're trying to think creatively on how best do we protect the patients, whether you're in Colorado, or whether you're visiting Colorado to seek abortion care, we want to make sure that you are protected and that you are safe from harm, right. The same goes for providers, and the doctors, the nurses, all of the staff, that they are also free to do their work. And it's why I think both us as legislators, we should be putting forward those affirmative protections. And we also should be working hand in hand with our attorneys general, like Attorney General wiser to ensure that those laws are protecting the people in the best manner possible. That's the work ahead. In blue states, and in other states as well. In the in the red states. I think that this is the opportunity for us to really lift up our voices and share our stories as to what's happening on the ground. Because we've seen that the very first woman to be criminalized in the state of Texas post. The passage of Senate Bill eight in Texas, was a woman of color a Latina woman in the borderlands of South Texas, who was charged with murder following a miscarriage, right. That's what's at stake. And they're banking on us not telling our stories. They're banking on us. being enveloped in fear and shame. This is a time for us to lift up, lift up our voices and say exactly what the impact of those laws are going to be on people.

David Sirota 39:04
Okay, so I want to talk a little bit about the politics here because I know people who are listening. I feel like there's a lot of anger out there a lot of anger. Obviously at the Republicans. There's a lot of feeling of frustration with the Democrats with various decisions that were made in the past. So Phil, I want to ask you a question. Do you clerked for Ruth Bader Ginsburg, there's been this whole discussion about whether she should have retired early, whether earlier than then then she stayed on the court. I'm curious. Was that on her mind? Did you when you discussed with her talked to her about various things about the fear of this very reality? What do you say to folks who say, you know, we're all here because our RBG didn't retire at a at a time where she could be replaced by a Democratic president.

Unknown Speaker 39:54
We're here for a lot of reasons. And it's not really fair to pick one of them. I Obviously, if Hillary Clinton won the 2016 election, we wouldn't be having this conversation. And there's lots of things we can talk about what happened there. We're here because we lost Senate races, by the way, in Colorado and 2014, among them that had the Democrats control the Senate, this wouldn't have happened. Just remember, in a normal world, and we didn't have normal leaders, Merrick Garland could have been on the Supreme Court, we wouldn't be having this conversation. So what I'd say to people is, there are so many lessons, there are so many causes. We have to be honest about all of them. And the painful reality. For one to two generations, we've been outworked. We've been out planned, we've been outgunned, we've been complacent. We assumed. And I understand this assumption, because the American story has been one of freedoms being expanded equality being expanded this decision, and what it portends which we should talk about for a couple minutes, is the opposite. This is freedom is being rolled back. This is equality being undermined. So people in some way, refuse to believe this could happen.

David Sirota 41:17
And so Julie, I want to turn to you, and I want to play two clips for you. And I want to get your reaction to them. Because I feel like these clips embody why peep why a lot of people feel particularly misled and angry. This is one clip from 2007 when Barack Obama was running for president play this clip, Frank,

Barack Obama 41:37
well, the first thing I do as president is sign the freedom of choice. And that's

David Sirota 41:43
okay, so he says that in 2007, in 2009, President Obama in very early 2009, here's what he says at a press conference. Now, the Freedom of Choice Act is not my highest legislative priority. So my question for you on this is, I'm sure you're talking to a lot of people in your community who feel like they've heard that if we just vote for Democrats in the next election, they will finally codify Roe v. Wade into federal statute. That's what the Freedom of Choice Act that Obama was talking about there. What do you say to folks who remember being told that before? who feel kind of like, fool me once, shame on you fool me twice? Shame on me? In other words, what do you say to folks who say, Listen, I've heard you tell me that. And last time around, it didn't happen.

Julie Gonzales 42:32
David, I hear the clips. And it makes me think a lot about the promises that were made by politicians from both parties in regards to immigration as well. Right. There have been a lot of frustrating points. In our in our most recent history, politically, where quite frankly, the Democrats haven't always been as strong as we should be on issues that impact people's lives. It's why I moved from protesting outside the capitol to legislating within it because I realized that the community does the work of visioning of saying, Hey, this is what we want. And then the legislative work inside the dome is translating that vision into statute into policy that can then be defended, to protect people's lives. That's that's the work ahead. And I gotta be honest, the Democratic Party hasn't always been a strawman enough in terms of being clear about how we will use power once we wield it. We have a democratic Trifecta in Colorado right now, that is very much at risk. The Republicans are just hoping that we keep our heads down, that we that they keep their heads down, that they don't sound off too many alarms about the fact that they're running insurrectionists election deniers, and Q anon people as as the front runners and standard bearers of their party, that doesn't then just mean that we get as Democrats to fold our arms and say, Cool, we got this, we also have to demonstrate and lay out what the plan is. I say this, knowing that my chamber in the Senate, the Colorado State Senate is very much at risk of being flipped. Attorney General advisors race isn't very much at risk of being flipped. There are a number of key races up and down the ballot, that will very much determine whether or not we're able to actually move forward that policy that I mentioned earlier, to protect patients to protect doctors to protect any type of abortion care provider. There is so much more work at stake. And I guess what I just want to say is that we are here now in the midst have multiple crises in the midst of the pandemic, the racial reckoning the climate crisis. And, and $5 a gallon gasoline, right, like massive economic inequality. This could be a point where we like fold our arms and sit back and say, well, that sucks. But you should vote for us again. Or we can actually propose policies and do the work on the ground with the folks who have been frustrated to say, Hey, what is it? What is the world that you want to see, so that we can then work together to make it happen? That's our work ahead.

David Sirota 45:36
And Colorado, it should I should mention, Colorado is if it geographically exists in an ocean of red states. So in other words, Colorado is kind of geographically positioned when it comes to the overturning of Roe to be a place a safe haven for people. And Phil, you mentioned that, you know, it is expensive, it's hard to travel here from far away, but we are geographically in the middle of an ocean of, of, of land of states, where people's reproductive rights are, are going to be or already are curtailed. It's a really, really, we're going to play potentially a really, really important role in this. I want to turn one last question over to you a legal question. You were a lawyer in the Obama Justice Department. It's a question about perjury, Colorado also, of course, playing a role in this ruling in the sense that Neil Gorsuch, unfortunately came to the Supreme Court from Colorado. We're going to play a clip or two here of a couple of these Supreme Court justices who said that they believed that Roe was settled precedent they told the Senate this in their confirmation hearings,

Neil Gorsuch 46:49
Senator, again, I would tell you that Roe versus Wade decided in 1973. It is a precedent of the United States Supreme Court was reaffirmed in Casey in 1992. And in several other cases, and one of the important things to keep in mind about Roe v. Wade, is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood versus Casey in 1992. Senator,

Amy Coney Barrett 47:23
I completely understand why you are asking the question. But again, I can't pre commit or say yes, I'm going in with some agenda because I'm not I don't have any agenda. I have no agenda to try to overrule Casey, I have an agenda to stick to the rule of law and decide cases as they come. Phil, my

David Sirota 47:45
question to you is, do you think there's any legal possibility that this rises to the level of perjury? In other words, do you think that the House Democrats should actually look at whether the justices the Justice nominees who came up violated the law in getting on the court by not telling the truth under oath in their confirmations?

Unknown Speaker 48:10
The bottom line is to show perjury, you have to show that someone lied and knew they were lying when they said what they said. And the easy defense is yes, they said Roe was settled law, it was settled law, they unsettled it, full stop. And so this doesn't really lend itself to a legal remedy. I just want to underscore what the remedy is. It's a political remedy. And it's a remedy at the local and state level. what Julie said is a call to action and engagement. And there's nobody who integrates that better than Senator Julie Gonzalez who builds support and trust at the grassroots legislature with people to build the world people want. I recognize how broken Washington DC isn't. I recognize how disillusioned people are with what they see. But what I want people to look at is the work that Julie and her colleagues are doing to protect consumers pick the most vulnerable among us for being preyed on by towing companies or their own mobile home parks. For a criminal justice system that we know can be fairer and more just for working together to make sure we address a mental health crisis. There's so much that matters, the state level, Julie also made a second point, the people running against me and others are not necessarily going to be honest about reproductive rights. We have to demand honest answers from everybody on these issues so people can make informed decisions. Right now there's a big question, what type of policy politics are we going to have? And if people show up the way, Senator Julie Gonzalez shows up, we're gonna have a great political future here in Colorado, but if people don't show up, that's when bad things happen.

David Sirota 49:48
I mean, that's a really great point to end on, which is that the Joe's justice nominees coming up and pretending like they they believed that Roe v Wade was settled Wouldn't they weren't going to touch it and then very quickly turning around and unsettling it, as you put it is a reminder that you are probably going to see a number of Republican candidates in this election, try to avoid the issue try to kind of soft pedal it try to try to kind of evade making clear where they really come down on an issue like reproductive rights, it's a really good reminder that essentially the republican party may try to do in the election, what their judicial nominees did to the US Senate and and I mean, I'm, again one of these like, Fool me once shame on me, fool me twice, shame on or whatever it is fool me to fool me once, shame on you fool me twice, shame on on me. I really hope voters get that message. Julie Gonzalez, Phil Weiser. Thanks for being with us. Thank you so much. Always a pleasure. We're going to take a quick break. But we'll be right back to discuss the court's decision on West Virginia versus EPA, and what that means for the future of climate action. Now we're going to take a look at another Supreme Court case with more far reaching implications. And that's West Virginia versus EPA sounds like a real technical esoteric case. And it is, but it's also an apocalyptic case. Now, to be clear, we don't know when this ruling will come down. You may be listening to this as it is being released. But this case is so important. We really wanted to get ahead of it, especially because we've been reporting on it at the lever. In this case, a group of Republican attorneys general are suing the Environmental Protection Agency over that agency's power to regulate greenhouse gas emissions. And you might be thinking the EPA, the Environmental Protection Agency, what are you talking about Serota? What do you mean, the PAs authority to regulate greenhouse gas emissions is in question. Well, this case, could essentially kneecap the government's ability to enforce climate regulations, it could disempower the EPA amid a climate emergency. And it could do so even though a new survey from data for progress found that 62% of all likely voters do not want the Supreme Court to restrict the EPA from regulating greenhouse gas emissions during the climate crisis. But as we've seen with this court, and as they've explicitly said, they literally do not care about public opinion. And the question is, do they even care about preserving the ecosystem that supports all human life on the planet? To help break everything down about this case, we're now going to go to my interview with the great Amy Westervelt. Amy is an award winning journalist and author who's done extensive reporting on the climate crisis. She's the host of the terrific podcast series called drilled. First, I spoke with Amy about the West Virginia case. And then, to make matters even more horrifying, we spoke about how fossil fuel companies are using shadowy international courts, to sue governments, foreign governments, domestic governments, state governments, local governments, for monetary damages. You heard that right. fossil fuel companies want their money back from not getting to pollute the planet and destroy the environment. Just a heads up, as I said, we recorded this interview with Amy before the West Virginia case came down. Hey, Amy, how you doing?

Amy Westervelt 53:26
Hanging in there?

David Sirota 53:30
dark times. And I just want to start out at the top by thanking you for all of your terrific reporting on the climate crisis, you've been ahead of the story, the apocalypse, far ahead of almost everybody in journalism, and I'm sure that has taken an emotional toll, a psychological toll in covering something as as difficult and as scary as the climate crisis. So I want to start off by thanking you for that. And just asking, right now, as the crisis gets worse, how are you feeling?

Amy Westervelt 54:01
Um, yeah, I mean, I'm feeling pretty. What's the word I guess? Anxious, panicked? I don't know. I don't want to, I don't want to like, you know, play into the whole kind of Doomer route to have, like, all is lost, because I do believe and I think the science backs this up that you know, every percentage of a degree matters and, you know, any, anything we do helps, so I don't know, I don't I don't feel like I will ever get to a point where I think it's just time to throw in the towel. But we're not going in the right direction. And that is pretty depressing to see.

David Sirota 54:53
Yes, it's disconcerting. Absolutely. And what we're going to talk about is about how there are forces is at work trying to make us continue going in the wrong direction. And so I want to start with a discussion of what's at the Supreme Court right now. And this discussion is about, we're gonna have a whole discussion about the legal attack on the fight against climate change. And I think the biggest thing on that right now is this case, West Virginia versus EPA. It is at the court now, in my to my mind, and there's a lot of horrible cases coming down down the pike from the Supreme Court. To my mind, this might be I mean, there's I'm not saying this is more scary than the repeal of Roe or more. I'm like, I'm not comparing horrible things. But this is like way up there as one of the scariest things out there, and it's gotten relatively little attention. So I guess, for those who don't know about this case, what I just lay out for us what this case is, and why it's so important.

Amy Westervelt 55:53
Yeah, it is. Hugely important. I feel like a lot of and again, not to say that the row case is not important. But I think that a lot of really big structural things are being overlooked as people focus on row. You know, like there was this case recently, too, that said that now, the Border Patrol can enter your home if you live 100 miles or less from the border, right? Like that's a pretty huge deal. And I haven't really seen much about it. West Virginia versus EPA is is another one of these where I think it sounds kind of wonky and procedural, but it has potentially huge implications. So basically, the complaint is that the EPA does not have explicit authorization in the Clean Air Act to regulate greenhouse gas emissions, and therefore, the Clean Power Plan should not be implemented. Now, step one, that's ridiculous, because the Clean Power Plan was not implemented, nor will it ever be implemented. So really, the case should have just thrown this, the court should have just thrown this case out. But it's

David Sirota 57:05
almost as if it's almost as if the justices want to rule on this case, it's almost as if they want to do damage. So what would the damage be?

Amy Westervelt 57:14
Exactly? Exactly? So in the world arguments, Justice Coney Barrett, in particular, kept coming back to this thing called the major questions doctrine, which is this sort of catch all that allows the court to engage with, you know, anything that they think is ambiguous enough that they should rule on it? And in this case, I mean, it really, it could still, they could still come out and say, Actually, we're not going to rule on this, that is still a possibility. And I have seen people say that, they might be thinking about doing that. And, you know, especially if they're going to release that at the same time as the roe decision, you know, to sort of tamp down on reactions. I think that's a very idealistic and naive view of this court personally, the other end of the spectrum, which I anticipate them doing more is, they could they could have a pretty broad ruling that says, you cannot regulate greenhouse gas emissions under the Clean Air Act, which would be a pretty huge ruling, it would strip whatever authority the EPA currently has to regulate greenhouse gas emissions, especially beyond the quote unquote, fence line of power plants. So that that's kind of the gist of the argument here is like, you can't you can only regulate emissions that are coming out of the smokestack, first of all, and once they leave the vicinity of the power plant, you no longer have authority. So that's a big potential outcome here. The other thing I want to point out is that this is this is a raga case. So this is the Republicans Attorney General Association, which was formed as a reaction to the tobacco litigation in the 1990s. You know, because they looked at it and they said, Wow, those Democrats actually, that was a smart strategy, we should be doing that. So they pulled together they worked really hard to get more Republican AG is elected, they now have slightly more, I think it's 52 to 48, Republican attorneys general. And they have been over the last decade in particular, working together to bring these big, constitutional challenges to try to affect structural change. So anytime you see like 10 or more Republican AG is on a case that's raga and they have an enormous dark money fund. We know that the cokes are investing in that we know that, you know all of the usual suspects are putting their money there. So, you know, this is very much like a very intentional case, funded largely by the fossil fuel industry with the intent of blocking the EPA from regulating greenhouse gases.

David Sirota 59:58
So so the nightmare scenario is the Environmental Protection Agency, the National Agency, whose job it is, is to protect the environment that West Virginia, by the way, what a caricature that this is West Virginia versus the EPA, right like the, you know, the center of coal versus the EPA, that the court could basically say, the lead federal environmental agency does not have the power anymore, to regulate greenhouse gas emissions, at the very same time that scientists are screaming at us that we need to tamp down greenhouse gas emissions. That's really where we are.

Amy Westervelt 1:00:41
Yeah, it is. I should say to that, like, I mean, there are others that there's there was a petition filed last week, to get the EPA to look at regulating greenhouse gases under the Toxic Substances Control Act, which would still be possible, even in the worst case scenario here. So they're, they're only limiting, you know, they're basically saying you can't use the Clean Air Act to do this. However, part of the ruling could be, you know, if they if they say something like, because you're not explicitly authorized to do this, in the language of this act, basically, what they're trying to do is force Congress's hand and say, Look, you either have to pass legislation that puts this in law, or that, never.

David Sirota 1:01:25
Let's go into that, because that's really important, because regardless of what happens in this case, there could be another case like it next year, the year after, I mean, they're gonna keep doing. Yeah, so So another case like this is going to come down the pike. I keep coming back to something very simple, which is, am I wrong in saying that the Democratic Congress tomorrow could have a one page bill, even a arguably a one sentence bill that says the EPA has the statutory authority to regulate greenhouse gas emissions, the end, and the entire case that no longer matters? Because the case is about whether the EPA has the power, is that right?

Amy Westervelt 1:02:08
That's right. That's right. It's really at at its core about whether the federal government has the right to assign some of its authority to a regulatory agency. And that really gets at the broader Republican mission of getting rid of agencies, right, like they, they want to say that only Congress has the power to pass any kind of regulation, and that shouldn't be sort of handing that job over to regulatory agencies. The other thing that I want to point out, and I think we're gonna see conservatives fighting this, too, is that the EPA already has statutory approval to regulate particulate matter, which is created by the same thing that generates greenhouse gas emissions, right. It's the combustion of fossil fuels. So you will absolutely start to see the anti air pollution regulate regulation argument emerging from the right, especially if they're successful with West Virginia versus

David Sirota 1:03:07
cool. So we're gonna we can either die in a fire or get fixated by smog, thanks to the Republican push here. I mean, I mean, it just keeps getting darker. So that's a good segue to the other topic in the same legal realm that I want to talk about which, which is arguably just as dark, if not darker. The effort to use international courts to overthrow undermine defending climate laws all over the world. I'm sure some people just heard that and they don't even know what I'm talking about. So explained to everybody listening in in a way that that we can all understand. What are we talking about international courts? What kind of how can somebody go to an international court and overturn you know, my city or my state or my country's law that says we should fight climate change? How is that possible?

Amy Westervelt 1:04:02
It's totally insane. And every time I talk to people about this, I'm like, Okay, so there's these secret tribunals, right? And they're like, whoa, whoa, wait. It's true. There are these arbitral tribunals. So there's a process called international arbitration. And it is somewhat embedded in almost every free trade agreement, or investment treaty. So when a company goes to invest in a country, they are given these assurances that and like the example that's always used, as well, what if like the country gets taken over by a dictator, and my company is seized, what protection do I have, right, that has very rarely happened in the history of this stuff? These agreements have been around since the 60s. The very first of these cases happened in 1987. Basically, these free trade agreements say if something happens, where you've made this big investment and laws that are passed in the country, you know, impact the profitable validity of that investment or the viability of that investment, you are allowed to file a claim against that government to get them to basically make up the profit that you've lost from them, you know, passing this law or changing regulations in some way,

David Sirota 1:05:16
either rescind or pay the law, have the government pay the lost profits? Right,

Amy Westervelt 1:05:23
right. Well, in the case of international arbitration, they can't force them to resend the law, all they can do is get the money, right. But what what that does is it it, it puts a lot of countries in the position of feeling like, well, we can't really afford a bunch of billion dollar plus arbitration claims. So we're just not going to pass that law. You know, or even I mean, honestly, even if you win one of these, so I covered a case in El Salvador maybe 10 years ago, where they they actually want it was a Canadian mining company, El Salvador had had all these water contamination problems from mining, they passed a law that said, we're gonna pause mining permits, until we figure out how to do it safely to protect our water resources. And this Canadian mining company was like, but we already have a permit to mine. So they took them to arbitration. And El Salvador ended up winning. But you know, by the time they won, they were already out millions of dollars worth of legal fees. So even just the fees involved will have a chilling effect on the regulatory framework. And you know, these are very, very, like shadowy sort of quasi legal systems, where you have three judges who are one of which is appointed by the company that's filing the complaint, that seems totally fun. Seems seems great. And then they're completely not transparent. There's been some movement in the last few years to like, make them more open to the public. But in the, in the vast majority of cases, it all happens behind closed doors. You don't the people who are on this panel, do not have to have any particular knowledge of the industry, environmental concerns the country that this is taking place, all they have known about is the arbitration process. So I mean, it's it is, yeah, it's ridiculous. And of course, you know, we've been seeing this when with environmental laws for a long time. And the expectation is, we will increasingly start to see it as a way to try to block climate policy.

David Sirota 1:07:33
There's obviously a chilling effect, if you if a country, a small country knows there's a threat of this, it creates a deterrent effect to passing environmental laws, laws to reduce greenhouse gas emissions. And and the the acceleration of these cases is is real news. I mean, we at the level reported on a report that found that fossil fuel companies have emerged victorious 72% of the time, in these cases already, and that there's this new treaty, the Energy Charter treaty, it's not new, it's 30 years old, but has been ratified by 50 countries, mostly in Europe, that could give fossil fuel companies even more of a weapon to go into these international tribunals, and essentially, get damages. Quote, I'm putting that in quotes, damages for not being able to burn fossil fuels. I think, I guess the question for you is, having reported on this, how big a problem do you think this will be in terms of really serious global climate policies? In other words, is this something some small little, you know, corner of the legal world? Or is this going to become a kind of driving force in in the campaign to stop rational climate policy?

Amy Westervelt 1:08:55
I think it's one of the largest threats to global climate policy that we have. It's it is it was like,

David Sirota 1:09:03
hoping to answer I was like, so hoping for like, not like, No, this is no big deal. But

Amy Westervelt 1:09:08
even when, even when countries like so for example, with the AECT, the Energy Charter treaty, Italy pulled out of that treaty years ago, and they still there's like a little like, you know, sunset clause in there, where they're still being hauled into arbitration by fossil fuel companies for violating this treaty that they're no longer even a signatory to. Same thing happened with Ecuador, Ecuador pulled out of the like various treaties that made them beholden to this process a long time ago, but Chevron still was able to take them to arbitration over the chevron Ecuador case. So this is, you know, of course, the case that wound up you know, putting Steven Donziger on house arrest. These indigenous people and farmers won their case against Chevron and Chevron immediately put all These wheels in motion to stop the collection at that settlement. So you can you can see it there, you know.

David Sirota 1:10:06
So it's almost like the trip. It's almost like the treaties say that there is a you as a company have a right to destroy the environment or be compensated for not destroying the environment.

Amy Westervelt 1:10:19
They say that I mean, they basically give companies to me, I'm just like, wow, this is this crazy, like extra governmental power that companies have that is just flying below the radar. It is a continuation of Colin of colonialism. And they are absolutely subverting the sovereignty of every nation that is part of these treaties when they file these these arbitration claims. It's wildly undemocratic. It gives more power to companies than any government has.

David Sirota 1:10:51
And you know, who can't go into these courts? You know, who can't go into these courts? Like regular people. These courts? Yeah, like, if my community is the one that the my that the mine just destroyed my water supply. My community cannot walk into the ISDS court and be like, Yo, the coal company that the from the, you know, foreign coal company that just came in here and built that mine and ruined my my communities water company, water supply, I need a billion dollars to fix everything. I my my town cannot walk into the same court. That's right.

Amy Westervelt 1:11:23
That's exactly right. Yeah, it is. It's it's enraging. And it's so and then like I said, it's to me, I'm like, God, what is the solution? Here? I almost I actually have been trying to talk to different lawyers to see like, is there some way to litigate the legality of these of these agreements? Because I don't, you know, I don't understand how they're not like these arbitral panels are not imbued with like, I don't know, they're not they're not a court. Really, they're not. They're not any country's court. They're this sort of weird thing that exists above every country's court.

David Sirota 1:12:06
It's the enforcement mechanism, the enforcement mechanisms, I understand it sanctions, basically every signatory to these treaties that create these arbitration courts. Essentially, if the court says, okay, you know, this small country heroes a billion dollars to the coal company, if the country doesn't pay, then that small country then faces kind of collective sanctions from the international community under from trade. Exactly. So it's, you know, a small country is in a position where, essentially, to try to protect their environment, their local environment, to try to help protect the sort of global ecosystem when it comes to climate, they are under threat of basically having to pay huge damages facing international trade sanctions. I mean, it is exactly the opposite kind of policy that you want in the climate crisis. So Amy, I was slightly hoping to feel more optimistic about the comet headed towards Earth right now I'm feeling a little bit despondent. I'm so I'm going to end with a question that I always try to end with, when we talk climate, what are you optimistic about? If anything, when it comes to the climate fight,

Amy Westervelt 1:13:22
the one thing that has been giving me a little bit of optimism is the sudden kind of growth and success of the rights of nature stuff. So I don't know if you've been following this. But there was a huge case in Ecuador towards the end of last year where, you know, that country included rights of nature into its constitution, like 1213 years ago, but hasn't ever had a case at the Supreme Court level, or in their case, the Constitutional Court level that really says like, Okay, this is what we mean, when we say, rights of nature. And the thing that makes me sort of optimistic about it is that, you know, when people first hear it, they think, Oh, this sounds like a woowoo like trees have rights. Like, you know, hippie, dippie bullshit.

David Sirota 1:14:12
I'm all for accepting rights, by the way.

Amy Westervelt 1:14:15
Yeah, yeah. I mean, what it really does is, like, in my mind, I'm like, Okay, well, you know, laws are really just like, the codification of values and philosophies, right. And sort of like how we run our society and what rights of nature does is provide a totally different decision making framework for like, where we're going to what things we're going to pursue as a society and where we're going to place value. So what you see in this, this low Cedros case in Ecuador, is that like, wow, they have this system in place that makes it so even if you're destroying water and land for the sake of electrification, which is what happened in that case, it was a mind where everything was going to, you know, batteries and whatnot. That's still a part we're seeing that we don't we want to change the whole way that we make decisions and the whole way that the system works, not just this one energy source. So, to me, that's sort of like a real indication that there are some places on this planet where they're really thinking big on on systemic change. And you're starting to see that in the US too. There's a few different communities in the US that have invoked home rule. So this is a thing that exists in like, I don't know, it's 14 or 15 states, but almost all the oil and gas states have it. And it says that any community can basically kick the state out of their business. Obviously, we can see ways that this could go quite badly, right. But there are also ways that it can and has been in the last few years used to block oil and gas drilling. So in Pennsylvania, there's a small town called grant township that did this. And they wrote rights of nature into their town charter and then use that to get rid of a fracking waste site. The state is now suing them partnered up with the oil and gas company, just in case anyone has any questions about how embed with the industry, the state is there. But you know, they're really fighting and to me, I'm like, this is interesting, because the there's something about it, that's that's very appealing to libertarians to in this way of like, you know, taking things down to like real local grassroots level. And Mike,

David Sirota 1:16:32
that is extremely encouraging. The question ultimately can't be answered right now. But the question is, Will that continue? And will it be fast enough? Amy Westervelt thank you so much for being you for being Amy Westervelt and doing the work that you've done and for helping us understand what is happening right now. Thanks so much.

Amy Westervelt 1:16:53
Thank you.

David Sirota 1:16:54
Okay, now for our bonus segment. For this week. We're going to my interview with UCLA law professor Adam Winkler, author of the book gunfight the battle over the right to bear arms in America. Adam is one of the foremost experts on gun laws in the United States. I spoke with him about the Supreme Court's recent decision in a case called New York Rifle and Pistol Association vers Bruin, in which the court basically struck down a centrally in which the court basically struck down a century old law in New York State, restricting concealed firearm permits. Just a heads up, we recorded this interview with Adam before the court's decision came down. Thanks again for being a supporting subscriber and funding the work we do here at the lever. Now, here's that bonus segment. Adam, thanks for joining us, really appreciate it.

Amy Westervelt 1:17:44
Thanks for having me. It's a pleasure, David.

David Sirota 1:17:46
So we're talking about something that's not very pleasant, which is gun violence and gun laws in America. You are an expert on this. You've been studying the laws around this for a very long time, you wrote a terrific book called gunfight about the history of guns in America. I don't want to go through the entire history. I want to start in the recent history. Before we get to the current Supreme Court case, just lay out for us where we are right at this moment when it comes to how the current Supreme Court looks at gun laws in America. Starting with I guess, for instance, the Heller case, the current Roberts Court, where is it when it comes generally to gun laws in America?

Adam Winkler 1:18:34
Well, it's significant that the second amendment that was added to the Constitution with the original set of amendments and the founding era, had never been authoritatively interpreted by the Supreme Court to protect an individual's right to have a firearm until 2008. In fact, for most of that time, when the court did rule on Second Amendment cases, there was one in the 1930s, for instance, where the Court said it was only about protecting a well regulated militia from federal interference. But in 2008, in a case called DC versus Heller, the Supreme Court said that the Second Amendment does protect an individual right to bear arms and struck down a law banning handguns in Washington, DC. But the court didn't provide much other guidance as to the scope of the right to bear arms, whether it allowed people to have military style assault rifles or whether states could restrict concealed carry. And so there's been in the 14 years since Heller, there's been just a tidal wave of litigation in the federal courts challenging any number of federal gun laws and the courts seem to stay out of it until Trump had his three appointees to the Supreme Court and that changed everything and the court is now preparing has a big case out of New York on concealed carry. And we're expecting a ruling any day now. In that case, and most people predict that the court is going to broadly interpret the second amendment say you have a right to carry guns you In public, and I think maybe make it harder to defend almost any kind of gun law.

David Sirota 1:20:06
I want to play a clip from former Chief Justice Warren Burger that I think exemplifies how far we've come when it comes to gun laws in America and how far the cord has has moved when it comes to gun laws.

Justice Berger 1:20:21
If I were writing the Bill of Rights now, there wouldn't be any such thing. There's the Second Amendment, which says that a well regulated militia being necessary for the defense of the state, the people's rights to bear arms, this has been the subject of one of the greatest pieces of fraud. I repeat the word fraud on the American public, by special interest groups that I have ever seen in my lifetime. Just looked at those words, and only three lines to that amendment, a well regulated militia. If the militia which was going to be the state army, was going to be well regulated. Why shouldn't 1617 and 18 or any other age persons be regulated in the use of arms, the way an automobile was regulated?

David Sirota 1:21:08
My question for you on this before we get to this new case out of New York is what do you think accounts for how much the court has shifted? I mean, Warren Burger was appointed by Richard Nixon. What's the explanation for how much the court itself has shifted? Is it just individual appointees is was there a movement specifically to put judges on the court that had a different view specifically of guns? What is what's the what's the explanation? Well, I

Adam Winkler 1:21:39
think it's we've had a social movement for gun rights in America that began really in earnest in the 1970s, and has been incredibly successful and one of the most successful successful social movements we've had in the mid to late 20th century. I mean, in Warren burgers era, if you had asked him if the Constitution protects same sex marriage, he would say absolutely not. That's a fraud, to say that the same that same sex marriage is protected by the 14th Amendment. The reason why we disagree with that now is because there's been a very productive and successful social movement to recognize rights of LGBT people and equal access to marriage and those benefits. But social movements are not just for the left, David Right. There has been very strong rightward shifting social movements in America for gun rights, for religious freedom, for a variety of different sort of constitutional issues. And the second amendment, although it's couched in terms of the original intent of the framers among its most ardent defenders, the truth is, it's like every other constitutional provision we have, which is a reflection of an evolving and living society, and the impact of social movements on constitutional change. And there's been a real movement to change how the Second Amendment was interpreted in the courts and elsewhere. And like I say, I mean, Donald Trump got elected in part by promising to elect judges that were going to broadly read the Second Amendment. Well, that worked for him, he got elected, and then he appointed those justices. And now they're going to do that work. So constitutional law does not exist in a vacuum. It exists in a political environment. And we the people in America have decided we want gun rights. And the Supreme Court's reflecting that I think,

David Sirota 1:23:22
very quickly, the shift of gun control politics, I mean, gun control was something that Ronald Reagan touted gun control wasn't didn't used to be a Democratic issue and, and gun rights are a second amendment. Extremism, I would say in certain cases, second, violent extremism wasn't a purely Republican phenomenon. You talk about social movements, changing the situation. Just tell it for folks who don't know that history of how gun politics shifted, how Ronald Reagan promoted, for instance, of the assault weapons ban, just tell us a little bit about what we what you think people don't know. And and if you can, a little bit of context for why and how it changed into a partisan issue.

Adam Winkler 1:24:12
Well, I think gun politics really in America were transformed overnight. And I don't say that to be hyperbolic, but descriptive. There. There was a rising movement for of gun owners who wanted to have guns for personal protection and the late 1960s and early 1970s. It was like our own era, a little bit of the last couple of years a time of social disruption and feeling that people people were insecure and there was high very high crime rates at the time as well. And the leadership of the NRA at the time was pretty moderate, right. They were opposed to a lot of gun control laws, but the leadership had hatched a plan to move to Colorado Springs. Move the headquarters to Colorado refocus the organization away from political activity and tour It's shooting recreational sports hunting conservation. And this really angered a group of hardliners in the membership and at the annual membership meeting in 1977. In Cincinnati, these hardliners organized a coup and staged a coup of the NRA where they use the rules of order to elect a whole new board of directors. And literally when the sun rose, the next day, the NRA had been transformed. And the new directors were all committed to political advocacy, fighting gun control, and being much more politically assertive. And that group became an active part of the coalition that led to Ronald Reagan being elected president in 1980, and has since become an even stronger part of the Republican conservative coalition in America. And that movements become stronger and stronger over the years, in part because of a real effort by the NRA, that's been very successful as a campaign of political mobilization. And today, there's a lot of single issue pro gun voters out there, a lot of them white, a lot of them rural, not exclusively, in either category, but that's probably the safe to describe their general demographic or most common demographic, and that these people are very, very effective. And in an era of of a tightly divided electorate, I would say that the partisan or polarization around guns is not unique to guns, though we have had a political realignment in America and abortion in the 1970s was an issue where there were conservative were Republicans and Democrats were on both sides of that issue. Our political parties have been resorted over the last 2030 years. And now there's very little common ground on almost any issue.

David Sirota 1:26:45
Okay, I want to move to the case that the Supreme Court is dealing with right now this case out of New York, and it's it's about New York's concealed carry law. And they're they're deciding this case, in the amid the headlines, for instance, about the shooting in Buffalo mass shootings all across the country. I want to hone in on on one question for me that comes out of this New York case specifically, first, tell us what the New York case really is about. And then this question always comes up in these cases that I wonder about, if it's about regulating handguns, and the Second Amendment includes language about a well regulated militia. Explain how the court gets to deregulating gun laws under the banner of a second amendment that says that arms effectively are supposed to be well regulated?

Adam Winkler 1:27:44
Well, it's a great point, David. So first of all, with regards to the case, that's before the Supreme Court is Most states allow you to carry a concealed firearm if you have a permit, and growing number of states don't even require a permit. New York is one of eight states like California, Massachusetts, and a few others that say you can only carry a gun with a permit. And to get a permit. You have to show that you have some unusual reasons, particularly strong reason to carry a gun, you've been stalked you've been threatened, you carry a tremendous amount of cash with you or jewelry, but relatively hard to get a permit. There are estimations that in Los Angeles County, for instance, that there's only about 400 ordinary civilians who have concealed carry permits in a county of 10 million. And what this law does is question whether that's a violation of the Second Amendment so heavily restrict access to concealed carry permits. The Supreme Court seems almost certain based on the oral argument to say that, yes, the Second Amendment is violated by New York's rule, because you basically you can probably the courts probably going to say you can have some training and objective requirements before you let people carry a gun on the street. But you have to provide some mechanism for people to be able to defend themselves. And this will be a great expansion of the Second Amendment, of course, in over 200 years of history, the spring quarter as never said that. The second amendment requires you to be able to carry guns in public and we've had restrictions on concealed carry, like New York's for well over 100 years. And in fact, up until the 1980s, most states had exactly the law that New York has today. But again, part of that political movement to change America's gun laws has been affected by the NRA, they led a nationwide effort going state by state to loosen the gun laws, and now they're going to go after the few remaining holdouts with the Supreme Court case. The so that's the case is before the court. It likely signals that the court is going to now really read new teeth into the Second Amendment. And I think that spells trouble for the gun safety movements agenda on a lot of issues. I think bands on military style rifles will likely be called into question and coming years bans on high capacity magazines will likely be called into question in the coming years.

David Sirota 1:29:58
Well, that's Mike and I want to I want to segue. That's my next question, which is, you hear oftentimes in these debates, oh, you know, we ban bazookas or we ban fully automatic machine guns we ban, you know, you can't have a nuclear weapon in your house. Right? I mean, these are the ways we the debate ends up going going forward to try to dramatize where there's a line or even if there's a line, I guess my question for you is based on what you know about how the court has been ruling, are we going to get to a place where the court is is basically going to say that there that there is no line that you can't regulate weapons guns, based on how powerful they are? I mean, is that a legitimate thing that may actually happen?

Adam Winkler 1:30:46
I think it's highly unlikely, David, I think what the courts going to say is what the Heller court said, which was that only those arms that are in common use for lawful purposes by the citizenry already are constitutionally protected. Now, this is a circular argument. If you claim to be an originalist to say, well, let's see what people have chosen to have in their possession. But I think the court would easily say that things like shoulder launch missiles, or nuclear weapons or hand grenades, or even machine guns are not in common use, they're not commonly owned by law abiding people. The difficulty about this test is it means that if there's a political stalemate, and you can't get regulation for some number of decades, or some amount of years, gun owners can just go out and buy all those weapons, and then all of a sudden they become in common use. That's basically what's happening with military style assault rifles. The gun owners have just gone out and bought 10s of millions of these firearms, and now they're in common use. And we might see this with 3d printed guns, right? It may be that 3d printed guns are something that if Congress were to regulate today and prohibit, then they wouldn't be in common use. But if we wait 20 years, then maybe they are in common use, and then they're constitutionally protected.

David Sirota 1:32:00
I mean, so what's incredible about this, what's incredible about what I hear you saying is that I mean, let's reverse it here. So the expiration of the assault weapons ban then creates, you know, what is it 1718 years of no assault weapons ban, which allows people to buy lots and lots of assault weapons, which then puts them into so called common use, which then legally makes them arguably, under the court's legal view, makes potentially, it harder, if not unconstitutional, or against Court precedent to reinstate the same ban, because the weapons themselves in the intervening 1718 years have now become in common use is that basically how it could work. It's exactly

Adam Winkler 1:32:47
how it will work and is working. And it's all done in the name of originalism like oh, we have to adhere to the original understanding of the Constitution. But if that Federal Assault Weapons Ban had not sunsetted, back in 2004, and remained in effect to this day, there wouldn't be 10s of millions of these weapons. And when the courts say, Well, are they in common use? The answer would be no, they're not in common use. And thus, they're subject to regulation. There's a great circularity to how the courts approaching these issues. And I think it basically it comes down to, you know, these are conservative judges who want to protect gun rights, and are going to expansively read the Second Amendment and a variety of ways to do so. Even if it doesn't necessarily make complete sense.

David Sirota 1:33:31
I mean, how do you cover this report on this write about this without getting just like despondence? Because to hear that process, right, the exploration of a law, the country gets flooded with assault weapons, then the law is set up to say that you essentially can't regulate those weapons, because now they're in common use. I mean, this is some dystopians shit. I mean, it's it's some really, really dark stuff. I guess my question off that is, is do you think the uptick in mass shootings will influence the justices or even lower court judges at all? I mean, I guess what I'm asking is, is there an intervening set of arguments about, you know, a public nuisance or a public health hazards that could change any of this?

Adam Winkler 1:34:22
Well, I don't think that the recent spate of mass shootings is likely to profoundly affect the Supreme Court's decision in this coming concealed carry case or the courts sort of general approach to this constitutional issue. I think these justices are genuinely convinced that they know what the Second Amendment really means. And it's their duty to adhere to that no matter what come hell or high water that that it's not that it's not up to them to rewrite the amendment as they rewrite the amendment. So, you know, in in terms of dystopian shit, as you said, it's like, David, that's the Supreme Court these days. I mean, this isn't radical. league transformed by the right and the court is going to overturn Roe vs. Wade and drop that bomb into American politics going to overturn long standing laws on concealed carry make it much harder for the government to regulate Conte for climate change and a big case out of West Virginia, this term, and he has a whole long list of things that they're going to go after next, including affirmative action. And, of course, expanding religious liberty rights, probably requiring public schools to now require funding for religious schools. So we're seeing a real expansion of a conservative philosophy, a conservative political and judicial philosophy at the Supreme Court and the Second Amendment is, is almost the least of it in some ways. I don't think that at the end of the day, the Supreme Court is going to strike down any and all gun laws. I think, like, for instance, most of the provisions in the Senate compromise that was announced over this past week, seemed likely to be constitutionally secure. Although one of the things is is you just don't know where these justices are going to go and where they're going to take it. Exactly. And once you start expanding rights, it's hard to put a put a limitation on what that really means.

David Sirota 1:36:14
So I want to ask one last question that if the rulings, the current ruling goes the way you expect, there's a couple of other cases coming through the courts. For instance, the justices have been asked to hear cases challenging limits on as you mentioned, on ammunition, ammunition magazines, a challenge to Maryland's assault weapons ban, in May a federal appeals court struck down California's ban on the sale of semiotic web automatic weapons, if all of that happens. I guess my final question is, what are some things that Congress or state legislatures could still do? That would be productive, helpful, good, and also within the confines of what the court have the legal architecture that the court is creating?

Adam Winkler 1:37:07
Well, I think one sign of that is the Senate gun bill in this compromise in that, you know, reducing gun violence is not going to be done by some one big symbolic gesture, like banning assault weapons, which truth be told David are involved only in some of these high capacity of these some of these mass shootings and makes them awful. But overall responsibility or association with gun deaths from these weapons is remarkably small, considering the overall number of gun deaths. So that's not going to have a big change. If we were to say ban assault weapons. In the long run, the way you're going to reduce gun violence is by taking a database approach and based on the on empirics. And, and try to close as many of the small loopholes that exist and it's, it's going to take, you know, 1000 Points of Light, if you will, 1000 points of reform in small little areas. And I think that's what the Senate Bill kind of reflects. There's no one big grand gesture, but improving background checks, providing more money for mental health crisis prevention programs. You know, clarifying who's a licensed dealer who asked to do a background check, getting more records into them closing the boyfriend loophole? Those are the kinds of things that I think the gun violence reform movement needs, and it needs a lot more of them than just the ones in the Senate bill. And I think most of those kinds of things can survive judicial scrutiny. I think also lawmakers need to look at things outside of just regulating guns. And so for instance, we know that gun violence is brought down by these community intervention programs like Operation ceasefire, which identify high risk users, especially in cities, and really targets them for community outreach. And we've seen it really reduces gun violence in those areas. Those are the kinds of things that we need to start doing more of, you know, with 400 million guns in America and over 20 million background checks happening every year. The stock of guns is not going anywhere gun violence is with us to stay. The answer is to find as many small little ways that we can make a difference and just reduce the overall number of gun deaths every year. That's probably the best we can hope for going forward.

David Sirota 1:39:12
I mean, I know I said my last question was my last question, but I just have to ask one more question. Do you as somebody who's studied this so much, do you really legitimately think that there is a future in America have as heavily armed a country as we have, that also has significantly and I mean, significantly less gun deaths or gun deaths, gun death rates that are within the norm of every other country in the world? Can we be this heavily armed and also have a kind of a quote unquote, normal rate of gun death in our country as it relates to other countries?

Adam Winkler 1:39:51
No, I don't think that's possible. We have just too many guns. And I think that doesn't mean we should be disabled from trying to reduce the number of gun deaths that we Have, right every person we save as someone who goes home to their family and community and makes a contribution. So I don't think we can get down to the levels of gun violence that they have in England or Japan or other countries that don't have readily at ready access to guns. That's just not realistic. But we can reduce our numbers. And that should be our goal in the meantime, and the guns are here to stay David, right. There's just too many of them, the political movement in favor of them is too strong. The NRA is always talking about people coming in confiscating your guns, we could never get all the guns if we wanted to. Right, that would be totally impossible and a foolhardy effort in the end. So I think we've got to focus on reducing gun violence and doing what we can in a bad situation.

David Sirota 1:40:46
Adam, thanks so much for taking the time today. Thanks for having me, David. That's it for today's show. As always, thanks a ton for being a paid subscriber to the lever. We could not do this work without you. If you particularly liked this episode, please pitch into our tip jar. The tip jar link is in this episode's description, or at lever news.com/tip. Jar. Every little bit helps us do this journalism. Oh, one more thing. Be sure to like subscribe and write a review for lever time on your favorite podcast app. Until next time, I'm David Sirota rock the boat

Transcribed by https://otter.ai