Sarah Stillman on Minors on the Sex-Offender List
2016-05-07 · Guest: Sarah Stillman (Staff writer for The New Yorker) · 52:13
Sex offender registries and Supreme Court reform
Bob Zadek discusses the harsh reality of sex offender registries for minors with New Yorker writer Sarah Stillman, exploring how childhood mistakes can lead to lifelong stigmatization and social exclusion. Following the interview, Zadek reflects on the death of Justice Antonin Scalia, proposing structural changes to the Supreme Court—including increasing the number of justices and implementing term limits—to reduce the concentration of federal power and restore state sovereignty.
Topics: Sex offender registries, juvenile justice, Sarah Stillman, Justice Antonin Scalia, Supreme Court reform, federalism, 17th Amendment, state nullification, judicial term limits
Speakers:
- Bob Zadek: Host
- Sarah Stillman: Staff writer for The New Yorker
- Martha Coile: PBS reporter (audio clip)
The Modern Scarlet Letter [00:00]
Bob Zadek: Hello, everyone. Welcome to The Bob Zadek Show, the only live libertarian talk radio show on the air all weekend, proudly and always the show of ideas, not attitude. Thanks so much for listening. I am your host, Bob Zadek. 800-345-5639 to join my conversation at any time. Thanks so much for listening on this Mother’s Day Sunday morning.
In the 1850s, Nathaniel Hawthorne wrote an American classic entitled The Scarlet Letter. It was a romance novel, and it took place in 1642 in Puritan-era Massachusetts. A cornerstone of the plot was a woman who was found to have committed adultery and was required to wear the famous scarlet letter, a letter A on her clothing to mark her as she traveled around the community, to shame her and to stain her for life. That was 1642, Puritan-era Massachusetts.
Today, we seem to be returning to that terrible era of fear and uninformed hatred. Today, we don’t have a red scarlet letter, but rather we have a list—a list of individuals who have been convicted of various sexually related crimes. We all know about the list. Sexual predators, alleged sexual predators, are required to register. They are marked for life. Is this good public policy? Heck, no. To help us understand the terrible effects upon all of us in society from these sexual predator lists, which seem on its surface to be accomplishing a public good, but in fact they are accomplishing the other, a public bad, I’m delighted to welcome again back to the show our guest this morning, Sarah Stillman. She is a reporter for The New Yorker magazine, a columnist. She has written a major article in The New Yorker magazine called “The List.” Sarah, welcome to the show this morning.
Sarah Stillman: Thanks so much for having me on.
Bob Zadek: Now, Sarah, you have written an article that has been very widely read and positively received entitled “The List.” What is the list to which your article devotes its attention?
Sarah Stillman: Yeah, well, I should mention that the article actually focuses on young people who are placed on public sex offender registries after a wide range of things of which they were convicted. And so it ranged from everything from the usual things you might imagine—and I think oftentimes people imagine these like extremely predatory situations where you’ve got someone jumping from the bushes and sexually assaulting another human being, which certainly happens—but what I learned is that that’s very much an outlier case, particularly when it comes to juveniles, and that many of the people that I learned about and wrote about were actually young people who, in some cases, had—in one case, a girl in Texas had pulled down the pants of another kid on the playground and was actually charged with a sex offense in juvenile court, was convicted, and was placed on a public registry. And that meant that this thing that she had done when she was 10 years old, which was absolutely the wrong thing to do and it was a mistake and something she shouldn’t have done, but nonetheless, this was something that ended up haunting her into her 20s.
The Evolution of the Registry [04:39]
Bob Zadek: So let’s be sure the audience understands the facts, and then I’d like them to understand what exactly these registries are and how they operate in society. So let’s not—the facts are very important. So let’s go over because these facts are representative. It’s not an outlier case. So the facts are really important.
Sarah Stillman: Absolutely. And so what happened is that starting in the ’80s and early ’90s, there were a number of very high-profile, very traumatic and awful incidents where young people were attacked and preyed upon by people who had a previous history of sexual offenses. And so one mother in particular, the mother of a boy named Jacob Wetterling, sought to create a public database that, understandably, she thought would help law enforcement to be able to quickly find information on people who had past sex offenses in the neighborhood.
And what this would mean is that all of this information, if these laws passed, would essentially go into a big online database. Originally, in the Wetterling case, they intended this to be a database just for law enforcement’s private use. But later, as these laws evolved and as more legislators got on board, people pushed for both big national and local and state registries where anyone could get online and find who in their neighborhood or in a given particular geographic area had a previous offense on their record. But one of the things that emerged was that the list was so comprehensive that it included in some states even people who may have publicly urinated, cases like the girl I mentioned who was a 10-year-old who pulled down someone’s pants. So it became, instead of what Patty Wetterling, the mother of this young boy who had been kidnapped, had envisioned—a very specific thing for the private use of law enforcement to locate people with past sex offenses—it became this very, very broad thing that anyone could find on the internet, and that included many, many, many, many people.
Staining Minors for Life [06:50]
Bob Zadek: So the—first of all, it’s important for our listeners to understand that minors, people who generally are cut lots of slack because of their obvious immaturity and they are permitted to, when they grow up, to have their records sealed if they committed offenses or crimes when they were youngsters so they can have a fresh start and go about their lives. That’s how the criminal justice system works in general and how, for better or for worse, it treats minors. Minors are cut some slack for things they might have done when they were, quote, “not old enough to know better.” But here, a minor is far from being cut any slack, is stained, perhaps as Sarah will explain, for life.
Sarah Stillman: Absolutely. So you’re absolutely right that we have created a juvenile justice system that has the premise that young people actually go on to change and be different and that it doesn’t usually make sense to mark a child for life for mistakes that they make while juvenile. And in many respects, many state registries really fly in the face of conventional wisdom on that because what they do is in some cases it’s actually mandatory that certain children stay on the registry for life for crimes that could be committed as early as, you know, the age of nine or 10 or 11 or 12.
And so what you see that meaning is that in some cases, you know, I interviewed a young woman in Michigan who went on the registry after something she’d done when she was 10, and she went on to live a really superb life of trying to be a good public citizen, having two lovely children of her own, going to social work school and getting a graduate degree. And yet she couldn’t really keep a job, had a difficult time finding housing, was kicked out of her school housing several times because I should add that on top of the list, many state legislatures have passed local residency restrictions that mean you cannot live within a given number of feet of a school, a bus stop, a park. And in many places, California in particular, those restrictions can become so onerous that someone almost can’t live in the vicinity of major cities. And you know, in some states in Florida, for instance, you saw a lot of people living under a bridge. So these were mostly adults, but you can imagine the effect on a juvenile once they become an adult when they’re still having this scarlet letter pinned to them many, many years and sometimes decades later.
The Politics of the List [09:15]
Bob Zadek: And of course, the political issue underlying all of this is these people who are unfairly labeled as sexual predators of all things, they do not have a very strong lobby. And therefore, there is nobody very much but for writers such as Sarah, nobody to even bring their case to public attention. So no one is going to get re-elected to the House of Representatives taking a stand defending the rights of sexual predators, hardly. So the problem is we have this gross imbalance, as we had in the ’90s when during the Clinton administration everybody was tough on crime, and now we have the Clintons and others apologizing for overreacting. But at that time, being tough on crime and three strikes you’re out and the like were the way to get re-elected. So now it’s helpful politically to be more aggressive than your opponent in punishing sexual predators. And therein lies the political problem. And once you’re on as a youngster, and as you said, Sarah, 10 years old is not unusual, once you’re on as a youngster, tell us how your life is affected for this transgression, for this act of immaturity when you were 10. What are the ways that your life is affected by being on these lists?
Sarah Stillman: Well, it ranges from everything from issues I mentioned earlier, like housing is a big one and the right to pursue an education, in cases like the one I mentioned in Michigan, the girl being kicked out of her dorm. The inability for some people even to seek treatment, people who need it, because they have to live in these rural areas because they’re restricted from living within the vicinity of many of these institutions I mentioned, like things as simple as a park or a school or a swimming pool.
And then, you know, there’s many of the sort of psychological ramifications that happen from that kind of isolation—really high suicide rates even for people who are really trying hard to get back on track and live a better life and not repeat mistakes of the past, and yet who find that, you know, vigilantes in the neighborhood are coming. And I spoke to many people who had had their houses hit by vigilantes who had actually come and, if not given death threats, then in some cases, you know, thrown things at the house, shot up the house, left burning things on their doorstep. So vigilantism was a big one.
And I wanted to circle back to something you raised about politically how hard it can be for people to stick their necks out on this. You said you know no one would really be willing to do that. But part of what I found most remarkable in the reporting process is that there is increasingly this consensus that because people have looked empirically at the results of these laws and found that they have not had really a positive impact on public safety and in fact have often done the opposite. Now that we’ve seen that, there’s actually a number of people who have come forward and often unexpected people to say, actually, we think the registry, the public sex offender registry, is not good public policy and in fact has very different results than what we imagined. And one of those people I just want to add quickly is Patty Wetterling, the mother I mentioned earlier who helped to first create the registry. She has actually since come out and said, first of all, I really never intended for it to be for juveniles. And second of all, as I increasingly look at how it impacts people who are trying to get their lives back on track in terms of employment, in terms of housing, in terms of just overall capacity to live lives that keep people safe in their communities, she actually has made the calculus that all of the evidence points towards reforming the laws that she helped fight to pass. So I think that’s a pretty remarkable turn that someone who is the first advocate for these things is actually now a spokesperson saying, really, if we’re going to put public safety first, if we’re going to figure out how to actually prevent childhood sexual assault—because I want to emphasize that is such an important priority for communities to have—then we really need to reassess these policies and figure out better places to spend our money.
Sexting and Consensual Acts [13:40]
Bob Zadek: Now, there is an activity that young people take part in called sexting, where they communicate, they share with each other pictures of themselves on their cell phones. We all have read more or less about that, which is sort of somewhat reckless behavior, but hardly as between the teenagers, hardly criminal. Isn’t that the kind of activity that when brought to the attention of law enforcement might end up having these teenagers be on the registries?
Sarah Stillman: Yes, you know, it really depends on the state, but there are some states where a young person who has been engaged in sexting may end up being charged with possession of child pornography or distribution of child pornography and end up on a registry. In some states, that even means that their license will be stamped, like in Louisiana, even a juvenile can have the word “sex offender” placed upon their license, I believe, for that type of offense. And so certainly these laws have also not adapted to the modern climate of the internet.
Another thing I saw and wrote about in the piece was certain states where you have consensual relationships between young adults that are criminalized. So I wrote about a young person in Texas where they’ve since reformed the laws to some extent with what’s called “Romeo and Juliet” exceptions. But in some states, a young person like the one I wrote about in Texas could be 18 and have a relationship with a girl a few years younger that both parties conceived of as consensual, but that before the law was not. That’s a young person who was placed on 10 years of probation, and in the nine and a half year of his probation, he had some technical violations that led to him now being locked up for a decade. So he’s now about to spend the next 10 years in prison.
I just want to emphasize, though, that you know, you do see the outlier cases, the girl who pantsed someone on the playground and winds up on the registry, or as you just mentioned, the issue of sexting. But we also need to reckon with the fact that, you know, sexual assault is real and childhood sexual assault is real, and that sometimes the perpetrators are other young people. And so I think it doesn’t make sense to just pretend that we’re only dealing with these kind of quirkier cases where we can all agree that a registry, you know, doesn’t belong as a good public policy. We also need to think about, well, what are the most effective approaches with young people who have sexually offended? And so I think the other thing I learned through speaking to many, many researchers on that is that there are good treatments in place, there are good ways to deal with this, and that the registry, even in the cases of young people who do have serious behavior problems—because that is real and that does exist—even in those cases, we have much better ways to deal with this than the registry, which tends to have these other counterproductive ramifications.
The Recidivism Myth [16:31]
Bob Zadek: Of course, there’s a policy or medical issue implicit in all of this, which is the fear of recidivism. That is, if you commit one sexual offense as a youngster, you are likely to become a predator and be a danger to society. That’s implicit in all of this. But yet, I believe the evidence on—there’s not a lot of evidence on the degree to which an offender, a teenage or pre-teen offender who ends up on the registry, is in fact likely to become a predator and therefore a threat to society, as opposed to somebody who made a kind of mistake that young people tend to make—error in judgment, not well-trained, not being able to control behavior. But lifetime living on the registry seems a bit extreme to me unless you can really show there’s a high level of recidivism.
Sarah Stillman: Yeah, I think there’s a lot of mistaken impressions that people carry around the nature of and the places that sexual assault of children tends to occur. One of those is certainly recidivism rates among juveniles, which happen to, as I learned through my reporting, be lower than we tend to imagine and actually be lower than a number of other crimes. So actually, it’s a lower recidivism rate than a lot of things you typically think of as other problems juveniles would have in the criminal context. So that’s just one example of sort of a misconception.
But there are quite a few others, and I think another important one is the nature of where these kinds of offenses tend to take place. I think the notion of a registry implies that often it’s this “stranger danger” and that it’s someone that you don’t know who’s going to be coming out of left field and doing something disturbing to a child. And what’s even more haunting as a society that I don’t believe we’ve sufficiently reckoned with is that so much of the sexual harm that takes place takes place in the household and takes place from someone that is already known to the victim. I think that’s really important to understand if we’re going to think about how to short-circuit sexual violence and its reality. We need to reckon with the fact that the site of most sexual violence is in the home and it’s from people that we already know, not as—it’s not a standard for it to be kind of a stranger who we needed—we could have prevented it by looking them up on a registry. Certainly those cases happen and those are important to acknowledge, but that’s not the bulk of what we’re seeing as a society.
Advocacy for Reform [19:13]
Bob Zadek: As in your reporting, have you come to the conclusion, as a broad-brush conclusion, that we ought not include any minors—for lack of a better way to divide the universe—that minors for offenses committed while they were minors should simply not be included on the registry because they ought to be given a chance to function in society as adults? Or would you rather fine-tune that and say, well, it’s going to be subjective and somebody will decide, ultimately a court, who ought to be on the registry as a minor and who ought not to be?
Sarah Stillman: Well, you know, one of the things I love about being an investigative journalist is that it’s actually not my job to fully find all of the complex policy prescriptions. It’s my job to kind of examine and speak to as many people as I can to get as comprehensive as an understanding as I can of various social problems. And I was drawn to this issue because there are some, I think, really remarkable researchers, you know, academics and advocates who have been studying this problem far longer than I have. And I tend to kind of zero in on people like Nicole Pittman, who’s actually out in California and she’s created a group called Impact Justice, really studying the long-term effects of the registry on public safety, on communities, and on juveniles. And she’s become a very, very strong advocate of reforming both the federal sex offender public registry laws for juveniles—actually getting juveniles removed from those laws altogether—and also looking at those reforms on a state-by-state level because it really is something that needs to be tackled on a smaller scale as well. And I think she’s created a lot of very robust evidence that that would be a better approach. And I think if people are interested in that, they can look up Impact Justice, and she wrote a Human Rights Watch report raised on the registry that really chronicles the kind of full societal impacts of labeling juveniles in this way. I think it’s really compelling stuff. So I have to say I was won over by the fact that it’s pretty hard to contest at this point that the empirical evidence has shown something very different from what I think people first imagined when they conceived of the registry.
Bob Zadek: Do you see a trend in states moving in a more enlightened manner towards making these list statutes, the predator listing, public information, more humane with respect to the alleged predator as well as the public? Or do you see it somewhat static? Is there reason for hope?
Sarah Stillman: I think you are right to call out how incredibly hard this issue is. It brings up so many emotions, and politicians are really kind of afraid to look at it in a more rigorous fashion, worried about the consequences for themselves, and that’s understandable. But I do think collectively, nationally, we’re at a moment where we realize our overarching criminal justice policies have kind of failed us in terms of public safety, but also in terms of just humane policy. Mass incarceration has, you know, we’ve locked up more than 2.1 million people, and that’s taken a real toll financially on us and in all these other ways. And I think while you’re seeing so much motion on many of the things that drove mass incarceration, you know, like sentencing policy and three-strikes laws, I would argue that sex offender policy is one of the few realms where we haven’t yet opened up a sufficient space for dialogue and for thinking more creatively about public policies that would prioritize prevention as opposed to long-term retribution. So I can’t say necessarily that I think I’m seeing really concrete changes on the ground quite yet. But what I am seeing emerge is a growing community of people on across the political spectrum who really want to re-examine this issue. I think the laws came about in a moment of tremendous fear, understandable fear, and were crafted very quickly before we had any research on what the results would be. And now that research has come in, and it’s a great moment, I think, for people to re-evaluate and figure out what will be most effective moving forward. So I think you’re seeing groups like Nicole Pittman’s, you’re seeing individuals like Patty Wetterling, who went into government later and went into sort of work on sexual assault prevention, start to speak out about this more and more and more.
Bob Zadek: You said, “I would—we could talk at Starbucks someday about you say ‘understandable fear.’” I’m not so sure the fear is understandable as opposed to irrational or just an emotional reaction rather than a cognitive, well-thought-out decision. But we rely upon lists a lot. We have no-fly lists. We like lists a lot because they are simple and you make the list and society is a better place. So I’m a little bit more skeptical about whether it’s understandable, but that’s for a cup of coffee at Starbucks sometime.
Sarah Stillman: Oh, see, I think it’s a really important—no, I think it’s an important debate, right? Because I think it’s really—part of the other place these registries came out of is that for so long we silenced the damage of sexual assault. I think that’s part of why the movie Spotlight got so much attention about the priests and sexual abuse.
Bob Zadek: Sarah, I have to interrupt and give the audience bad news that you need to celebrate Mother’s Day and you’ll be signing off in about 10 seconds. So I wanted to thank you for your reporting, commend everybody to the article. The article is called “The List.” It’s published in The New Yorker, March 14, 2016. I’ll be back in one short minute to discuss the death of Justice Scalia and what it means to the world at large. Please stay tuned.
The Power of One Justice [24:58]
Bob Zadek: Welcome back to The Bob Zadek Show, the only live libertarian talk radio show on the air all weekend, the show of ideas, not attitude. Thank you so much for spending a Sunday morning with me. 800-345-5639 to join my conversation at any time.
As of course we all know, Justice Scalia died a few short weeks ago. The Supreme Court now has eight justices. The Supreme Court acts by majority rule. Therefore, with eight justices, it opens the door, which actually has been happening, to 4-4 votes, which means the Supreme Court leaves in place lower court decisions. The Supreme Court cannot act except by a majority. In the reporting following Justice Scalia’s death, there were lots of commentators who were discussing all of the important cases that were in the Supreme Court docket for the current term and how many of them are likely to reach a different result because Scalia is not there to cast a vote. And in listening to the list, what occurred to me was that, my goodness, how could one man, unelected, have such a profound effect upon so many Americans in all parts of their life? And there have been lots of summaries of the cases before the Supreme docket and the effect that Scalia will have, Scalia’s passing will have on these cases. Raymond, if we can play the first soundbite for segment two, please.
Martha Coile (Audio Clip): Very high-profile, high-stakes controversial issues before the court this term, like abortion, immigration, cases involving redistricting, unions. With his death, there are eight justices remaining, and whether he has actually voted on those cases already—some of those cases have not even been argued yet—it sets up a situation where you have eight justices and the possibility of a 4-4 split, which means that a lower court’s decision stands if the court divides 4-4. So there are things that are going to have to be worked out as the justices go forward now without Justice Scalia on the bench.
Bob Zadek: Well, that list of cases affects everybody in America in a very profound way. It affects our life from day to day. And in thinking back over the history of our country and the first principles set forth by the founders, it’s obvious to all of us that the founders lived in fear of having too powerful of a federal government, and most specifically, they lived in fear of having any concentration of power, thus the system of checks and balances. And most particularly, they were in their minds, the founders’ minds, was the living under the King George III and kings of England in general, and they were determined to not allow the chief executive, the president, to have anything like the powers that the king had in England.
And then I listen—that was Martha Coile at PBS—then I listen to the list of cases that will be decided differently without Justice Scalia, and I said to myself, “Wow, Scalia had so much power. More power than the president. More power than the king of England ever had over life of his subjects.” And I wondered, how did we get here? How did we get in 2016 to a country where one unelected individual has so much power? Power is a word the founders feared, and the founders were determined to dissipate among competing branches of government so that no one individual, indeed no one branch of government, had that power. Did the founders mess up? Well, I think they did. And since we are in a situation today where there is so much power vested in one justice, now perhaps Justice Kennedy, or in that branch of government, the Supreme Court, what can be done about it or what should be done about it?
Diluting the Court [31:34]
Bob Zadek: So I wondered to myself, what does the lesson of Scalia’s passing teach us about what’s wrong with the structure of our government and is there a way to fix it so that power is once again dissipated amongst various branches of government and not concentrated in one branch or in one individual? Here are some thoughts for your consideration.
We have nine justices on the Supreme Court. Did any of you ever wonder why there are nine? What made nine the magic number? How did we get there? Well, the answer is it’s pretty random. The original Supreme Court had five justices when the court was created. And by the way, that was a decision of Congress; it’s not in the Constitution. It jumped up to 10 for a while. Then in the late 1860s, it was reduced back to nine without much thought. Why nine? Because there were nine federal judicial districts around the country, so let’s have nine Supreme Court justices.
You may remember that during the famous Roosevelt court-packing era in the late 1930s, then-President Franklin Delano Roosevelt threatened, when he couldn’t get his way with the conservative Supreme Court who was not backing his New Deal proposals, he threatened to obtain legislation to increase the number of justices from nine to 15. That caused the Supreme Court to all of a sudden become less conservative, more sympathetic to the New Deal era legislation, which was under existing jurisprudence unconstitutional. But in order to not have the Supreme Court go from nine to 15, the justices on the Supreme Court switched. That was the famous “switch in time that saved nine” that we all read about in New Deal history.
So nine is not anything special. It’s random. Question: Wouldn’t the country be better off if we had, instead of nine justices, if we had 15 or 21 or 27? In that way, the likelihood of the death or the impact of one justice would be profoundly diminished. And that would diminish the power, perhaps, of the Supreme Court as a unit. And what’s interesting about this fix, what’s most interesting is it doesn’t require any constitutional amendment. It can be done by simple legislation. Now, if those of you who think about this issue worry if one president were given the power to appoint an additional six justices, that president would have power—his point of view would be spread over the next 30 years. Well, the way to do it is simply each new president gets to increase the Supreme Court by two. If you assume a divided government with one party in power in the legislature and the other in the presidency, there would then be a negotiation where the then-president would say to Congress, “You give me one of mine, I’ll give you one of yours,” and therefore the balance of power would remain the same. At the end of the day, we end up with a larger Supreme Court, more diverse opinions, and the absence of concentration.
As you can see, the goal of all this from my point of view is I live in fear of the concentration of power. Now, just to put this in perspective, in our decision to have nine Supreme Court justices, we are quite an outlier among the Western world. Germany has 16, Japan has 15 Supreme Court justices, the UK has 12, and Israel has 15 as well. So we have the smallest number, although perhaps the busiest Supreme Court docket of any of the other Western countries. It frankly makes no sense. It’s a matter of historical accident that we have nine Supreme Court justices, and I would strongly advocate that the nine quickly becomes 15 or 21 or some such number such as that to diminish the power of any single Supreme Court justice.
Term Limits for Judges [36:31]
Bob Zadek: Whether or not you like that idea, it also occurred to me that the founders made a very, very bad mistake. The mistake is in structuring the federal judiciary. The founders were creating something that really didn’t exist on the planet when they created our country, in that they created an independent judiciary, a judiciary that they tried to make independent of presidential influence and congressional influence. Oh sure, the president nominates and Congress confirms with their advice and consent, but once appointed, once confirmed, the federal judge, whether it’s a federal trial court judge or a Supreme Court justice, once confirmed, the judge serves—and here’s where they made a mistake in my opinion—the judge serves for life.
The problem with a judge serving for life, although the benefit is the judge now doesn’t have to cater to any constituency and can do what that judge intellectually determines to be proper, the disadvantage is that it gives the executive and the legislature power to reach far, far, far into the future, since a judge might sit for 30 or 40 years. And therefore, since judges seem to have profound amounts of power, it allows the legislature and the presidency who were involved in the appointment to have their power stretch far into the future.
Jefferson famously believed that it was immoral and improper for any generation of voters to bind a future generation. And Jefferson felt that every law should automatically sunset in 20 years, which is generally one generation, so that the next generation could decide for itself whether or not to reaffirm or adopt that law. Now, that’s a little extreme and that’s not workable, but the principle makes sense. Generations should not bind future generations. And here you have the president and Congress bind three or four generations in the future with their appointment of a Supreme Court justice.
The solution I propose for your consideration: Why not have federal judges serve for a 10-year term? Now, if they serve for a 10-year term, it’s unlikely that the judge, being concerned about being reappointed, renominated, reconfirmed, would cater to and would pander to the presidency or pander to the executive or to the legislature because he’s not going to be up for re-election or she for 10 years, and therefore the pandering, if at all, will happen in the ninth or the 10th year of their serving as a judge. On the other hand, if 10 years from now that judge can be renominated and reconfirmed, we now by that simple act—that would require a constitutional amendment, but by that simple act, although it requires a constitutional amendment—in doing that, we reduce the influence and the importance of a Supreme Court appointment because now the president and Congress can reach only 10 years into the future and not 30 years. And once again, the goal of our government should be to diminish the power of any individual or groups of individuals, and this would diminish the power of the court and the power of the presidency and the executive.
Restoring Federalism [41:00]
Bob Zadek: Another thought that occurred to me in light of the power that the Supreme Court has as explained or as experienced with Scalia’s passing is, as I pointed out many years ago, in my opinion, the two worst amendments to the Constitution occurred in the same year, and they were the 16th and the 17th Amendments. The 16th Amendment, as most of you know, gave us the income tax. The income tax was unconstitutional and required an amendment to the Constitution to permit it. That was a game-changer for our country. As if that wasn’t bad enough, in 1913 we were also given the 17th Amendment. The 17th Amendment changed how senators are elected. The founders, when they designed the country, the Constitution provided that senators were elected by the state legislatures, not by the people. Now, that will seem strange to all of my friends out there because we’re accustomed to having senators democratically elected by the people.
Well, the founders, who feared democracy—feared democracy, feared the impulsive voting of the mob (mob doesn’t mean anybody violent, it means people who react extremely to the events of the moment rather than thoughtfully taking a long view)—the founders were afraid of the impulsive voting of the mob as evidenced by a democracy, and therefore, since the Senate was to be the more deliberative body, the wise men who serve for six-year terms, and since the states, it was felt, needed to have direct representation in Washington, the Senate was the legislative body representing the states, not the people of those states. And that system worked pretty gosh-darn well for 130 or 140 years until the populism of the Teddy Roosevelt administration and a few unfortunate scandals involving the buying of Senate seats caused the public in a wave of populism—populism as in think today Donald Trump populism—in a wave of populism, there was an amendment adopted that provided for the direct election of senators by the people of a state rather than the indirect election through state legislatures.
And that was a game-changer. Once that happened, states were doomed to lose their co-equal status with Washington in matters of governance and were relegated to being what they are today, which is mere agencies of the federal government. And states exist today not as independent co-equal branches of government, but rather they exist to carry out federal policy, not to carry out state policy. Oh sure, they are given some minor administrative latitude, much like the EPA is given some latitude and they sort of do what they want under the guidance of a statute. But bottom line, the EPA does pretty much operates in the wish of the head of the EPA or all the other federal agencies. Well, thus with the states. Sure, governors have some power, but basically they get so much money from Washington, they must carry out Washington’s bidding. And that was a game-changer, that the 17th Amendment was. It was a game-changer, and as a result, states became infinitely less important than they were in the founding and then they were for the first 140 years of the republic.
In order to diminish the power of Washington and of the Supreme Court, I propose, I suggest to you the following: How would you feel if a majority of the states were permitted to nullify any federal law? Just imagine, 27 states or 26 states could vote to nullify a federal law, and if they did, that federal law was repealed. Would that make our country better, worse, or no change? Now, whether it’s a majority of states by population or by counting the number of states, that’s a detail I’ll defer to others. But just imagine how much power the states would then have once again, and therefore how much power we, the residents of a state, would have over our lives. Because if there was a federal statute that offended enough people, they could act directly through their states to nullify any federal law.
Now, nullification is a grand old concept. Thomas Jefferson and James Madison in 1798 supported a proposition where federal law could be nullified by the states. Now, their concept was a state was free not to follow federal law, but the concept is the same. They both supported nullification because both recognized the importance of the states in our daily lives. And that first principle in Washington has left us, and once again as exposed by the death of Justice Scalia and by us being reminded of how much power the Supreme Court in general and the federal government specifically has over our lives, all of these thoughts are coming to mind.
Raymond, can we please play soundbite two from segment two, please?
Martha Coile (Audio Clip): I have to ask you, though, we have voting rights, affirmative action, labor unions, contraception, abortion, immigration, all issues coming up for the next Supreme Court to decide. Is this a major setback for the conservative legal movement? Well, it depends on the politics of the situation. Even if President Obama nominates and even if the Senate were to go along with someone and confirm, the soonest would not be in time to decide these cases from this term. And so at best they would be pushed for re-argument in the fall, which again is even closer to the presidential election. Some of these cases would have to be released as a 4-4, meaning affirming the lower court without a presidential opinion. It all really turns on the presidential election, and so the answer to that question, the conservative legal movement, is really what happens in the political sphere much less than anything legal that’s going on.
Bob Zadek: That list that you heard in the last soundbite, what’s interesting about that list of cases before the Supreme Court is that traditionally, based upon founding principles in our Constitution, all of those major issues that affect our daily lives were, as the founders saw it, the province of the states. Voting rights, abortion, affirmative action, all of those issues were state issues, not federal issues. And what Scalia’s passing has shown us, it has reminded us painfully how much power has been ceded or taken from the states and given back to Washington. And to me, this Scalia’s passing is a perfect reminder or a clarion call to have us bring back, localize the power over our lives, give it back to us by taking power by diminishing the power of a single Supreme Court justice, diminishing the power of the president in the appointment process, diminishing the power of the federal government over the states. We could use Scalia’s passing in a positive way to remind us that we have gone too far and it is now the perfect opportunity during this period of political turmoil in the political parties and between federal and state governments and with the Supreme Court. Use this as, as they like to say, a teaching moment to have us readjust our government back to the way it was when the founders gave it to us. We can undo the 17th Amendment, we can diminish the power of the Supreme Court over our lives, that unelected body, and return more power to us the people.
This is Bob Zadek saying thank you so much for listening. I enjoyed spending the Sunday morning with you. I’ll be back again next Sunday. Hope you have an enjoyable Mother’s Day. So long for now.