It's great to welcome to the program today, Tom Hartman, who is host of the Tom Hartman
program and also author of the new book out today, the hidden history
jury of the Supreme court and the betrayal of America. Very timely, a release. Tom. So
great to have you today.
Hey David, it's always a pleasure to be on your program. Thank you.
So just to start with, what's your process when you do a new book because you've done
a number of them. I I would guess more than 20 at this point, although I don't have the
full list in front of me. Does the, do you get an idea and then you start to do some
initial research? What's the sort of process that you go through when you work on a new
book project?
Um, I've always likened it to pregnancy. I get, I get, uh, fertilized essentially with
an idea. And then the case of this book, it was back in the probably 97 98, right around
2000, um, Louise and I bought a house in Vermont and in the attic of over the carriage house,
there was an old water stained essentially ruined collection of the 1909 publication
the first time that Thomas Jefferson's complete works had ever been published. And I spent
the next year and a half reading that and kept finding his just raving ranting references
to John Marshall on the Supreme court and the Marbury decision. So that was the beginning
of it. And then, you know, it kinda just dates over the, over the years I wrote parts of
this into a unequal protection of book I published in 2000. But, um, uh, you know, when, when,
uh, we came up with this idea for a series of relatively small and short books, um, I
really wanted to go back and do a deep dive on this topic. And so that's, and as I started
writing, it just became more and more urgent. And so finally it was like, Oh my God, I gotta
get this thing out. And the book is now out and it's, it's pretty wide ranging and I think
there's some real shockers and odds in those books for people.
Yeah. I mean, just in thinking of, if this was first an idea, um, years ago, the way
in which the Supreme court has changed over the period of time that you've been thinking
about this book. And the way that it's now affecting day to day, uh, the lives of day
to day Americans has changed pretty drastically in a sense. I mean, what w if we go back to
the very beginning, what was the initial purpose of the Supreme court envisioned to be?
Well, it's the constitution lays it out and as you can read and Madison's notes on the
constitutional convention, um, the court basically had two purposes. One was to have primary
jurisdiction and there was to be the first court that you go to for things like disputes
between the States and just speed, speed disputes between the United States, uh, from the federal
government and individuals, States, uh, disputes between the federal government and foreign
countries and certain parts of maritime law. Um, and then secondly, it had appellate jurisdiction.
In other words, it's the court that you things to a as basically where the buck stops, the
final court of appeals. So, you know, if two people get into a legal dispute and one wins
with the other appeals and then they win and the other appeals and goes back and forth
and back and forth. The Buck's got to stop somewhere. And the whole point of that was
the Supreme court in article three, section two, make that pretty clear.
And how has that become very different from the purpose or the position that the Supreme
court has today?
Well, there's this thing called judicial review, which is the ability of the court, in this
case, the Supreme court to determine that a law is or is not in compliance with the
constitution, which is the Supreme law of the land. And, um, if you read, uh, Hamilton's
notes, you know, Hamilton's, uh, the, the Federalist papers, you know, the, the articles
that they've published in 1788 trying to sell like new constitution and American people,
um, in several of his, uh, there's, I believe four of them, but he wrote about the, about
the court system and this for Supreme court specifically. And in several of them, he just
comes right out and says, you know, the Supreme court will not have the power to strike down
laws. You know, not quite those words, but you know, it's fairly clear. But in another
place in one, let me, he says, well, maybe they will.
And, uh, there was no consensus among the founders on those or among the framers of
the constitution. Uh, there was a lot of debate about it and it was never resolved. And so,
uh, from 1797 when the constitution was ratified, or 1787, excuse me, uh, 17 nine when, when,
you know, we officially became what we are now until 1803, uh, there was basically, you
know, the, the court was seen as simply the court of final appeals. And then in 1803 in
the Marbury versus Madison Case, um, John Marshall, the chief justice who John Adams
put on the court that day that he locked office as a, as a slap in the face of Thomas Jefferson.
Marsha was Jefferson's third cousin and they hated each other and he was a high Federalist.
Um, so Adams and Adams at that point hated Jefferson and vice versa. So anyhow, John
Marshall was said, you know, I'm going to strike down parts of the judiciary act of
1797.
And, uh, Jefferson went nuts. You know, he said, you know, if this decision stands, then
the constitution has become a thing of wax to be molded in the hands of the judiciary.
And, uh, under the, uh, construction, the constitution has become a fellow to say, which
is Latin for a suicidal act. And, uh, this, this decision makes the court, the Supreme
court, the most despotic of the three branches, whereas Hamilton in the Federalist papers
and said that the Supreme court was the least likely to offend, they have neither the power
of the purse, which is the legislature nor the power of the sword, which is the executive
branch, the presidency. And so it really flipped American jurisprudence on its head. It created
such a firestorm and Jefferson was so outraged that the court basically didn't do this again
for another 40 years, 50 years in, that'd be three years.
It was an 1856. Um, the second time that the Supreme court in a, in a big way used judicial
review, uh, to when Roger Tawny was the chief justice, when he decided that he would once
and for all settle the slavery issue in a decision called Dred Scott. And that decision,
of course, led us right into the civil war. So those were the only two times that the
Supreme court in the first 60, 70 years of America, uh, 80 years of America and the history
used this power. Now, the Supreme court uses it in almost every single decision. It's a,
and so they really have, you know, we flipped from being basically a democratic, uh, constitutional
constitutional democracy to essentially a constitutional monarchy, uh, which is what
Jefferson pointed out back in the day, but where the monarchs are the on, uh, on elected,
uh, lifetime appointed members of the Supreme court.
So can we, I mean, so to think about some of the decisions that were made, uh, by judicial
review. So if we think about Brown V board of education, Roe V Wade, the 2015, uh, gay
marriage decision to sort of like a modern, uh, left winger who casually follows politics,
you might see those decisions and say, I like the outcomes. So therefore maybe this judicial
review thing isn't quite so bad. The two questions I have on that are, number one, should we
be evaluating this on the basis of particular decisions that we do or don't like? And then
number two, are those maybe good decisions from the point of view of a modern American
leftist outweighed by other bad decisions?
Right. Well, first of all, uh, there've been far more bad decisions than good decisions
from the point of view of a leftist from, from destroying union rights to destroying
civil rights to destroying voting rights. Uh, the Supreme court has consistently for,
um, you know, are largely since the 1880s, uh, the 1870s, you know, reconstruction was
falling apart almost always with the exception of a short period after Franklin Roosevelt
administration, uh, during and after, um, has, has ruled on the side of corporations
and very, very wealthy individuals. And it's just very straight forward. Um, in terms of
the decisions that you mentioned, um, it just to take Roe V Wade for example, because there's
a chapter about that in my book and people like to point to that. In 1961, the birth
control pill was legalized. It was, you know, uh, the FDA approved it. Um, by 65, the birth
control pill was in widespread use across the United States as where other methods of
birth control.
And in the Griswold V Connecticut decision, the Supreme court struck down the Connecticut
state law against even married couples having any kind of birth control, including condoms
in their house. It was illegal in Connecticut up until 1965. And, um, so, and then, you
know, birth control became very, very widespread. New devices were coming out. And so by the
19, early 1970s, the women's movement was really, really picking up steam, uh, women's
rights in the workplace, women's rights, uh, the women, the right of women to control their
own reproductive, uh, functions, you know, their bodily functions and whatnot. And so
what the Roe decision did. Um, and then the subsequent to planned Parenthood V Casey where
they came up with the whole three trimester idea, which is really something that the legislature
should do. What the Roe decision did is public opinion was rapidly moving in the direction
of abortion being legal and had grown up in decided the way it was.
There's a pretty broad consensus and I've had this conversation with a number of uh,
you know, fairly high profile feminists, people whose names you recognize. I mean they're,
you can find them on our website. Um, there was fairly broad consensus that within a decade
or so abortion would be legalized, at least in most States across the United States. And
the pressure would build eventually that by short circuiting that in 73 with the road
decision, you can make the argument. And I, and I think I do well on the book, that really
what that decision did is it created a reactionary backlash. Um, and that reactionary backlash
has led to the death of a number of abortion doctors. Uh, you know, the general harassment
of women all across the country shutting down abortion facilities. Now shutting down planned
Parenthood facilities don't even offer abortion. As a result, we're seeing rates of cervical
and uterine cancer start to increase in these States where this is happening.
Um, had it been through the legislative process, there wouldn't have been a dispute about it
to legitimacy. Um, you know, I would say there was a similar trend with Brown in 1954 now
you could make the case in both cases in 54 with African Americans and in 73 with women
that had the Supreme court not decided in that way. And if it didn't take another decade
or so for public opinion to catch up to the point where everything got decided that a
lot of people would've gotten hurt. And I would agree with that. But I think that the
consequence of the court intervening in these ways is, is broadly not helpful.
That's interesting. So with to take the Roe V Wade examples specifically, the idea is
if instead of a Supreme court decision in 1973 legalizing abortion, you saw States do
it individually from the period starting in 73 and ending in 83 just to pick a 10 year
period or right. So it actually started earlier in a sense, but so there was a 10 year period
there that you would have ended up with very similar, uh, legalization, but with less political
controversy that might've avoided much of the anti choice activism of the 40 years that
followed.
That's correct. Because the, the, the main claim of the, of the forced pregnancy crowd
is we got screwed by the Supreme court. Um, you know, the Kings and Queens made a decision
and we had no say in it. And that's a legitimate complaint, frankly. And I would say that the
legitimate complaint for people like you and made us say, you know, the Supreme court gutted
the voting rights act that passed the Senate unanimously. Right.
Now, if you zoom out a little bit, you mentioned corporations versus individuals. If you had
to summarize the gist of how the Supreme court has decided over the last 50 years, is that
the most notable way that you would categorize it in favor of a large corporation versus
in favor of the individual? Or is there some other lens that is maybe even more relevant
or precise?
Well, the court has, has typically been on the side of, of property and, and power. And
to a certain extent that's a result of the, the, uh, you know, it's basically a conservative
institution. I don't mean in the political sense. I mean in the, you know, slow motion
quashes although some of these decisions, uh, you know, uh, over trying to sit in the
voting rights act for example, are pretty radical. But, um, and you could argue Brown
and Rohwer as well. But, uh, you know, the Supreme court is basically that, not number
one, number two, at the time that the constitution was constructed, the hot new things in the,
in the landscape of the enlightenment thinkers and certainly the founders and framers were
on the tail end of the enlightenment, which arguably started a hundred years earlier.
When John Locke wrote two treatises on government, um, and said people should have the right
to life, Liberty and private property.
Private property was a relatively new thing, at least for commoners. I mean, it still wasn't
a thing for women or people of color. In fact, it wasn't a thing for women until the 1970s
in the United States in 1973, I had to co-sign my wife's application for a credit card cause
women were not allowed to have them in their own names without their husbands or fathers
permission. But, um, you know, in, in any case for white men, property rights was a
big deal in the 16 hundreds. The, you know, the, the King no longer own your underwear
and your wife and your house and everything else. And um, by the 17 hundreds, by the 1770s,
property rights were pretty much accepted. But like it was the new thing that, and, and
human rights, civil rights, which is what the bill of rights was. But there was no consideration
of the rights of the environment because the environment seemed to be vast and limitless.
Some, you know, who cares how much junk goes into the rivers, it doesn't matter. And that's
one of the problems that we have to, uh, to address right now. And it is being addressed
in part by this Giuliana case before the Supreme court, which, which is also mentioned in the
book. And if I could just close the loop on our earlier conversation about a judicial
review, um, after, uh, uh, after Jefferson went nuts about the Marbury decision, uh,
one of his friends, and I'm, I'm, I'd have to look in my own book and see who wrote the
letter to him. I think I might've been John, uh, it might've been, um, Mr. Mason, but in
any one of his friends were going to let her say, if, if you don't think that the Supreme
court should be the arbiter of what is constitutional and what is not constitutional, who shouldn't
be.
And Jefferson wrote back and said the people themselves and, and then, and then he explained,
and by the way, that phrase is the title of a book by Larry Kramer, the former Dean of
the Stanford law school. That is a brilliant critique of judicial review. Um, the point
and people will say to me, well what if Congress passed a law saying that if you, if you, uh,
speak ill of the president, he can put you in prison. Isn't that a clear violation of
first amendment rights and free speech? And shouldn't the Supreme court intervene immediately?
And my answer is the same as Jefferson's answer was in 1804, um, is that in 1798, John Adams
passed just that law, the alien and sedition act. And the day that he signed that law,
he'd put Ben Franklin's grandson Benjamin Franklin Bach, who published a newspaper in
Massachusetts called the Aurora, put him in prison and in prison for writing an op ed
in which Benjamin Franklin box said that John Adams was quote, or there's a paraphrase,
but it's close to an exact quote.
Old toothless, Coriolis and balding a fellow by the name fella, fellow by the name of,
uh, Luther. Luther Baldwin was sitting in a bar in Newark, New Jersey when John Adams
and his wife Abigail, came through town in their carriage. And they had mandated that
whenever they came through a town, the military had to come out and do a 21 gun salute. And
a Baldwin said to the bartender, there are guards, president Adams, they're shooting
academies. I hope they shoot him in the RS. And he didn't know that the bar owner was
a Federalist who turned them into John Adams. John Adams had him thrown in prison. I mean,
you know, 20 newspapers were shut down. Um, uh, Matthew Lyon on the floor of the house
of representatives, uh, got in a fight with Roger Griswell, but Connecticut as a representative
over this issue. And, and John Adams had him shipped off to it unheated jail cell for,
for Vermont for two years.
He ran for reelection on the, the election of 1,801 in seatback. The Supreme court never
intervened. What killed the alien and sedition act, this insanely unconstitutional law. The,
the thing that created the schism between Jefferson and Adams, that was so great. I
mean, Jefferson left town the day it was signed and literally never talked. The Adamson person
again. Um, the thing that fixed that was the election of 1800. It was the people themselves.
So ultimately either, and this is what Jefferson was arguing, either we believe in democracy
or we don't. If we want to try and create a constitutional monarchy, then yeah, make,
make the monarchs, the Supreme court justices. It's better than a hereditary family and give
them final say over everything. But if you want to have an actual constitutional democracy,
then the people have to be the ones who make the decisions.
The book is out today. It's called the hidden history of the Supreme court and the betrayal
of America. I
was lucky enough to get an early [inaudible]
copy. We've been speaking with the book's author, Tom Hartman. Tom, so great to have
you on today. Thank you David. Great talking