In Emily Bazelon’s estimation, the separation between politics and law has always been foggy.
Historically, it’s been judges who are the ones that have professed to sharpen it.
“In July 2013, Aimee Stephens wrote a letter to her co-workers and her employer at a funeral home in the Detroit area, where she had worked for six years,” wrote Bazelon — a journalist, author and activist — in “How Will Trump’s Supreme Court Remake America?,” a cover story for The New York Times Magazine. “After four years of counseling, Stephens explained that she was transitioning from being a man to being a woman, and so, at the end of an upcoming vacation, she would come back to work as her ‘true self,’ wearing women’s business attire. Stephens’ boss told her that her self-presentation would harm his clients and business, and he fired her.”
Stephens’ case eventually ended up before the Supreme Court, where an exchange between Stephens’ lawyer and Justice Neil Gorsuch ended up playing a key role.
“Gorsuch, who was appointed to the Supreme Court by President Trump in 2017, asked (Stephens’ lawyer David Cole), who is the national legal director for the A.C.L.U., how judges should now interpret an ‘old’ law, written in a different era,” Bazelon wrote. “This question is of particular importance to Gorsuch, who says he uses a method called textualism for deciding cases that involve a statute like Title VII. He believes that judges should focus only on the plain meaning of the text.”
At 10:45 a.m. EDT Thursday, Aug. 20, on the CHQ Assembly Video Platform, Bazelon will give a lecture on “Voting and the Constitution” to a virtual audience as part of the Week Eight Chautauqua Lecture Series theme, “Reframing the Constitution.” She’ll discuss how voting rights are — and are not — protected in the U.S. Constitution, and what challenges to mechanics of voting lie ahead for the 2020 election. In addition to being a staff writer for The New York Times Magazine, Bazelon is the Truman Capote Fellow for Creative Writing and Law at Yale Law School, the author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration and a co-host of Slate’s “Political Gabfest” podcast.
“We’re honored to have one of the country’s leading legal journalists join us during this week for a far-ranging conversation in the U.S. Constitution, from issues around voting rights and what is and is not explicitly stated and protected in the Constitution to the potential for amendments in our near future,” said Matt Ewalt, vice president and Emily and Richard Smucker Chair for Education.
Among her numerous stories covering legal issues from the Supreme Court, to mass incarceration, to voting rights, is a May cover story for The New York Tiimes Magazine that posed the question: Will Americans lose their right to vote in the pandemic?
“Before the coronavirus, the 2020 election was already vulnerable to disinformation campaigns, foreign interference and the country’s increasing polarization. The pandemic creates other challenges,” Bazelon wrote. “In a nightmare scenario, officials could use the virus as an excuse to shut the polls selectively, to the benefit of their party. Or state legislatures could invoke the power the Constitution gives them to choose the electors who cast votes in the Electoral College, and thus actually select the president. (The states turned this power over to the voters in the 19th century, but they could try to take it back.) Any move like that would surely land in the Supreme Court, which has its own deepening groove of ideological division — and the dubious history of Bush v. Gore, the case in which the court intervened to effectively decide the outcome of the 2000 election.”
In her February cover story for The New York Times Magazine, Bazelon examined that “deepening groove of ideological division,” and wrote that since the 1960s, conservatives have often derided liberal judges as “activists” who bend the law to make big changes.
“Until his departure in 2018, Justice (Anthony) Kennedy held the Supreme Court’s swing vote and (like Sandra Day O’Connor before him) restrained his fellow conservatives by forging a kind of national compromise on abortion rights, marriage equality, gun laws, the regulatory powers of federal agencies and the scope of the death penalty,” Bazelon wrote.
According to Bazelon, Gorsuch, along with Justices Clarence Thomas and Samuel Alito, have become the next generation of conservatives who aren’t afraid to alter laws.
“The more that conservatives on the court want to overturn precedents and strike down laws, the more useful it is for them to claim a coherent philosophy that seems to merely follow the dictates of the Constitution or a statute,” she wrote.
This program is made possible by the Richard Newman Campen Chautauqua Impressions Fund and the Donald Chace Shaw Fund.