Jon Wiener: From The Nation Magazine, this is Start Making Sense. I’m Jon Wiener. Later in the show: It’s time to take a step back from the daily barrage of bad news to look at the big picture of the strategy Trump has been following: David Cole will explain how he’s exploited the power of the federal government, not just to attack his political opponents – the Democratic Party – but to weaken the institutions of civil society, which form the bedrock of democracy. But first: The Nation’s interview with Zohran Mamdani — Katrina vanden Heuvel and John Nichols will explain – in a minute.
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The victory of Zohran Mamdani in New York City’s Democratic mayoral primary in June is the brightest light in our currently dark political world. Mamdani is pointing the way Democrats can regain momentum, win back voters that have been lost, and win elections. He recently sat down for an interview with The Nation’s editor and publisher, Katrina vanden Heuvel, and Executive Editor John Nichols. That interview is the cover story in the new issue of the magazine, and it’s featured @thenation.com. We have excerpts of that interview coming up here, but first we need to ask Katrina and John to set the scene and explain their approach to this interview.
First of all, let’s talk about The Nation’s relationship with Mamdani. Katrina, did things start with the magazine endorsing him for mayor?
Katrina vanden Heuvel: It started when he came in as one of the five mayoral candidates to meet with the editors, the staff, the interns. And it didn’t hurt that the comms director for Zohran Mamdani was a former Nation intern, who had valued his time enormously. So that led, not to the endorsement, but led to being able to catch an interview, which so many wanted.
JW: John, let’s talk a little bit about Mamdani himself and his campaign. He’s 34, he’s an immigrant, born in Uganda, served in the state legislature. He’s a Muslim, and a democratic socialist – not your typical candidate. And yet he won big in the primary, 56 to 44%. How did he do it?
John Nichols: Well, I think he did it by recognizing the moment that we’re in politically, and that’s a big deal. Politics is, we’ve said many times on this podcast, Jon is evolutionary. It’s never set in one place. New tactics, new strategies develop, new issues develop, and Mamdani, I think perhaps because of his youth, but also because he has a good eye for where the mood of people might be. He was able to capture something. It didn’t happen easily. He started at almost nothing in the polls, and he built up over time to a place where he didn’t just beat Cuomo, Andrew Cuomo, the former governor in the primary, he swept beyond him winning one of the largest victories in the history of New York Democratic primaries for mayor. You are right. He’s not a typical candidate for most magazines. He’s a relatively typical candidate for what The Nation likes to cover. And so as an institution, we were covering him very early on, and I think that whether we had endorsed him or not, we had a good chance to get this interview. For that is that we had treated his candidacy seriously. So when he did come into that winner’s circle, we were able to say, Hey, we’ve been watching you for a long time and we’d like to talk to you about where you’re going to go from here.
JW: Katrina, he invited you to his neighborhood, the Little Flower Cafe in Astoria, Queens. Tell us about that.
KVH: This is an Afghan kebab place. He was drinking pink chai. The guy who ran the cafe opened it for our interview, but clearly, it’s kind of an outpost, a secondary headquarters to the one located on Broadway in Manhattan.
Many candidates have a glib – like a patter, but Zohran is so thoughtful that with each question, which raised issues of sewer socialism or new media, old media, he really took a moment. This interview didn’t demand the most editing by any measure, because he speaks with well-thought-out ideas. equilibrium is what struck me. So at one point toward the end of the interview, I said, ‘do you ever get mad?’ because he’s speaking about difficult issues. And of course he does, and he’s mad at what he sees around him. But he’s a great, great speaker, in a very humane way, connecting to people, which is what I think we see in this campaign as he walks around the city, as he talks to all kinds of people.
JW: John, his big issues were free buses, universal childcare, a freeze on rent, and trying out city owned grocery stores. This is the policy of a democratic socialist who after all won the nomination for the Democratic party in the biggest city in the country. But this was the primary. The general election is in November, and there’s still powerful forces trying to stop him, starting with the former governor who he beat–Andrew Cuomo; and the incumbent mayor, Eric Adams. And even though he won the Democratic primary, he has not been endorsed by some of the most important Democrats. The governor, Kathy Hochul, has not endorsed him. Chuck Schumer, the Senate Democratic leader, has not endorsed him. Hakeem Jeffries, the House Democratic leader, has not endorsed him. This is not good–not good for him, but not good for the Democrats.
JN: It’s interesting you say that. Remember in the primary, he didn’t have a lot of endorsements from top Democrats, although he had quite a few from local Democrats, grassroots activists, obviously DSA, a group with which he has been involved for a long time. I guess the best answer to this actually comes from a conversation I had the other day with Senator Bernie Sanders, and we were talking about Mamdani’s candidacy, and he suggested that at the end of the day, Mamdani has succeeded in communicating something about issues of affordability, about making a city functional. And people hear that, and he has connected that to his democratic socialism, this idea of sewer socialism, you actually deliver on things that people need, and that’s really working. And what Sanders suggested is that, well, maybe a little bit annoying and even perhaps burdensome for Mamdani in some circumstances. It’s actually more of a problem for the leadership of the Democratic party because if the leadership of the Democratic party does not have that flexibility, that fluidity, that openness to new ideas and new approaches, no matter what label, you want to stick on them, then it becomes a party that may not have the flexibility that’s needed, frankly, in this very difficult moment to take on Donald Trump, and a lot of what the Republicans are doing.
KVH: He’s a realist and an idealist. We talked at some length about governing. He believes in, and this is I think a good thing, it can sound odd, but a permanent campaign — that you continue the movements after the election. We talked about it in the context of Gaza. We didn’t press him. He’d been out there on that issue. At the end, though I think he spoke of his anger about what he saw, the children of Gaza.
JW: What else do we need to know before we go to the clips?
JN: I think the thing to understand about Zohran Mamdani is that he is someone who’s a lot more complex than his caricature. Again, and again, he came back to this concept that he wants to keep lines of communication open. He knows there are people in New York City who disagree with him on issues like Israel and Palestine, but he is willing to talk to them, willing to have those deeper conversations, willing to search for those positions, those places where they can find agreement. This is a different kind of person than we often see in American politics. And I would suggest he’s almost the antithesis of Donald Trump.
KVH: And he doesn’t seem that young. There’s a confidence, and I think there’s a history of young people coming into New York City government bringing the best people and working hard to figure out what needs to be done.
JW: Okay, let’s go to our excerpts. The first question for Mamdani was about Trump’s attacks on democracy and how his campaign is responding to them.
Zohran Mamdani: For democracy to survive, it cannot be treated as simply an ideal or a value. It has to be something that has a resonance to the needs of working people’s lives. And in this moment especially, there’s a temptation to say that democracy is under attack from authoritarianism in Washington DC — which it is, but it is also under attack from the inside, and the withering of the belief in its ability to deliver on any of the needs of working people. And it’s not that we must convince people to believe in this as a notion or as a political aspiration; it’s that we have to convince them of its resonance in their lives.
And it’s a joy to be here with you at Little Flower because that’s the nickname of the greatest mayor in our history, Fiorello LaGuardia, who took on these twin crises of anti-immigrant animus and the denial of dignity to working people and did so with an understanding of what the fruition of democracy looked like and even what the fulfillment of life, liberty, and the pursuit of happiness looked like. Understanding it in the language of the urban sphere — more parks, more beauty, more light. And you cannot defeat this attack on democracy unless you also prove its worth.
JW: Mamdani said he promised to govern our city as a model for the Democratic party nationally. The party right now has been going through an internal debate over how to connect to working class voters it’s lost to Trump or lost to simply not voting. What is the potential of his campaign as a model for a new politics for the Democratic party in America?
ZM: It has often felt as if we and the Democratic party are embarrassed of some of our convictions. That at the first sign of resistance we may back away. And what I have found as a New Yorker is that the thing New Yorkers hate more than a politician they disagree with is one that they can’t trust. And so I have run a campaign that is unabashed about its commitments, its principles, its values, while always ensuring that that lack of apology never translates into a condescension. Rather a sincerity.
And it allows for an honest debate with New Yorkers where even when I go and speak to hundreds of CEOs, we have a conversation all in the knowledge that my fiscal policy, as I stated in that room, is the same as I stated on the street, a desire to match the top corporate tax rate of New York to that of the top corporate tax rate of New Jersey, a desire to increase personal income taxes on the top 1% of New Yorkers by 2%. And it’s an honest desire, and it is also one that doesn’t preclude me from sharing it with those who may be taxed by it.
And there is a temptation when you see how successful Republicans have been with their style of politics to believe that we have to mimic it in order to compete with them. And in fact, it is a challenge for us to showcase our alternate vision. And it’s not just a vision with regards to commitments. It’s not just a vision with regards to ideals, but even with regards to the manner in which we share our politics with other. And I think sincerity is at the heart of that.
JW: During the campaign, Mamdani said he would use his power as mayor to “reject Donald Trump’s fascism,” and he was asked how he would “Trump-proof the city.”
ZM: There are a number of ways. You raise revenue such that you not only are able to protect the city against the worst of the federal cuts that are to come, but also that you are able to pursue an affirmative agenda at the same time. It is not enough to fight Trump’s vision in purely a defensive posture. We must also have our own vision that we are fighting and that we deliver on. And also by enforcing and strengthening our city’s existing sanctuary city policies. This is a contest also of values of a fabric of our city and of our country. And when I was saying that too often it feels as if we are embarrassed, just think about these policies which have been spoken of by Eric Adams, as if they are an attack on what makes us New Yorkers, when in fact they’ve been in existence for decades and have been defended prior to him by Republicans and Democrats alike.
And we know that these are the very policies that could prevent so much of the horrors that we are seeing in our own city. And finally, by showing New Yorkers, who are living through despair in this moment, be it a despair over how expensive the city that they call home has become, or despair watching in anguish as their tax dollars are used to kill civilians across in Gaza – it was recently reported by NBC News where the Israeli military killed 10 children waiting in line for a health clinic, and one of which was a one-year-old child who had just spoken his first words. And it is incumbent upon us as Democrats to fight back against that and to also lift those same New Yorkers out of that despair with an affirmative vision.
JW: Katrina and John noted that Trump has recently questioned Mamdani’s citizenship and threatened to arrest him. They asked, “Were you surprised by that? Do you have any capacity to be surprised by Donald Trump?”
ZM: Very little. He has spoken about how I look, how I sound, where I’m from, what I believe in, my naturalization status. And I think much of it is to distract from who I fight for–because for all of the many differences between Donald Trump and I, we both ran campaigns on cost of living campaigns that spoke about the need for cheaper groceries. And while he is betrayed those same commitments, most obviously through this recent legislation that will throw millions of Americans off of their healthcare, steal food from the hungry, continue in his now well-known tradition of wealth transfers of trillions of dollars from the working class to the 1%, we will actually deliver on those commitments. And our delivery on them will throw his betrayal into stark relief. And that is a threat to his politics. And it is one that motivates so much of this language and this focus that he has.
JW: Mamdani calls himself a democratic socialist. Trump calls him a communist. He was asked, “How do you define the term ‘democratic socialist’?”
ZM: I think of it often in the terms that Dr. King shared decades ago, call it democracy or call it democratic socialism, there must be a better distribution of wealth for all of God’s children in this country. And in a moment when income inequality is declining nationwide, it is increasing in New York City. And within the context of city government, I understand it in the responsibility to ensure that every New Yorker lives a dignified life. And I speak of Fiorello LaGuardia often because he delivered that dignity through so much of what he did as the mayor of the city. This was a mayor who created the Parks Department, a mayor who built housing for 20,000 New Yorkers at a scale and pace of which is considered unfeasible today, a mayor who understood what it meant to fight for working class New Yorkers. And I am well aware of the immense responsibility that comes with this position, and also excited by the opportunity that it presents to deliver for those same New Yorkers for whom politics has seemed less and less relevant to the struggles of their lives.
JW: Important leaders and important groups did not back Mamdani in the primary. This included older Black voters, many union members, and of course Democratic party leaders. Since the primary, he’s put a lot of effort into meetings and into direct campaigning that seeks to expand his coalition. He’s won some key endorsements, local 1199 of the SEIU has just endorsed him, that’s the largest healthcare union in the country, and an historic force in New York City politics. They had backed Cuomo in the primary. So Mamdani was asked, “What is to be done about the people in the groups who did not support him in the primary?”
ZM: You have a choice of what you want to do with your hand. Do you want to pat yourself on the back or do you want to extend it to someone else? And your decision has to come from the question of what is your goal? My goal is to be the mayor of this entire city. It is not to settle scores and look to the past. It’s to look to the future. And looking to the future means continuing to welcome people into a coalition, and not asking them why or when they joined, but knowing that they have just as much of a place in this fight for an affordable city as those who helped come up with the idea of the campaign in the first place. And it’s that same ethos that we practice as New Yorkers when we look to defend those that have been here for generations and those who got here the same day. And it’s the way that this city has raised me.
JW: And finally, John Nichols asked, “Do you listen to music?”
ZM: I listen to music because it’s something that I can do as I do something else. I listen to music as I get ready in the morning. I listen to music as I take the train, as I’m walking. And some mornings I listen to a song called ‘O Sanam’ by Lucky Ali. Some mornings I listen soca music, to wake myself up and get ready for the day. And I don’t know that I could do this without that music. It either gives you that which you had hoped, you already woke up with the energy, the hope, the belief, or it takes you out of that which is consuming you.
JW: Well, let’s listen ‘O Sanam’ by Lucky Ali.
[MUSIC]
O Sanam’ by Lucky Ali — Mamdani’s morning listening. It’s a Hindi hit from the nineties. The YouTube video of ‘O Sanam’ by Lucky Ali has 87 million views.
The full text of The Nation’s interview with Zohran Mamdani is the cover story in the new issue of the magazine. You can read it online at thenation.com.
One more thing: a Sienna College poll out last Tuesday showed Mamdani in first place with 44% of the vote. Second is former governor Andrew Cuomo, who’s running as an independent 25%, followed by the Republican candidate, Curtis Sliwa, 12%, and Mayor Eric Adams also running as independent, had only 7%. Thus, Mamdani is almost 20 points ahead of his nearest rival in the latest poll.
Thanks to Katrina vanden Heuvel, The Nation’s editor and publisher, and John Nichols, executive editor, for introducing the segment. And special thanks to Zohran Mamdani, the Democratic party candidate for Mayor of New York City.
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Jon Wiener: It’s time to take a step back from the daily barrage of bad news to look at the big picture of the strategy Trump has been following. He’s exploited the power of the federal government, not just to attack his political opponents, the Democratic party, but to weaken the institutions of civil society, the groups, and organizations outside of government that are essential to a vibrant democracy. For our analysis, we turn to David Cole. He recently stepped down as National Legal Director of the ACLU to return to teaching law at Georgetown. He writes for The New York Times, The Washington Post, and The New York Review, and he’s The Nation’s legal affairs correspondent. David, welcome back.
David Cole: Always nice to be here, Jon.
JW: When we refer to institutions of civil society, what are we talking about, and why are they important?
DC: So we’re basically talking about all those ways in which people come together with like-minded individuals to pursue the things that they care about. And so that can include a university that cares about learning and critical analysis. It can include a religion. It cares about salvation and community. It can include a bowling club, but it also includes things like professional associations, the nonprofit sector, the press. These are all institutions outside of government that engage regularly, ordinary folks, with the issues of the day.
JW: And it’s not just a custom that civil society institutions remain independent of government control. It’s actually in the Constitution, in the Bill of Rights. Actually, it comes first.
DC: Absolutely. I mean, I think the best way to understand the First Amendment, and I really draw this from Professor Burt Neuborne at NYU Law School, is as a protection of all the ways in which people can hold their government accountable. So it protects the right to criticize your government. It protects the right to associate with others in doing the same, it protects the right to march in the street, to peaceably assemble. It protects the right to report on government, its uses and abuses, the freedom of the press. It protects the right of universities, academic freedom, and it protects the right to petition the government for redress of grievances to essentially sue the government because you disagree with the government. And so that is, I think we often think of the First Amendment as protecting the individual’s right to speak a core aspect of autonomy. And it is a core aspect of autonomy, but I think it’s also has to be understood as a core aspect of the protection of the Constitution itself, because it is by ensuring that we all have the ability to do that, to join with others, to engage in the issues of the day that we bring pressure on the institutions of government to do what we want them to do and to not do what we don’t want them to do.
JW: But Trump, of course, is trying to attack all that. Just a few reminders: he’s going after the news media. He sued CBS, ABC, and more recently, the Wall Street Journal. He’s going after the big law firms that represented his opponents. And he’s going after the universities, which of course have been a key base for opposition to Trump. And actually, before that, to some Democrats, to Joe Biden for his support for Israel’s crimes in Gaza. But first, Columbia agreed to submit to many of Trump’s demands and pay the federal government $221 million, supposedly as a punishment for its offenses, supposedly antisemitism on campus. Brown agreed to pay 50 million. And now we’re told that Harvard, which initially sued to block Trump’s assault on their funding, is about to make a deal for $500 million to be paid not to the government like Columbia did, but following the example of Brown for vocational education in exchange for which they’ll get back $2 billion in grants if Trump honors the deal, which usually he doesn’t. What exactly is wrong with Harvard giving hundreds of millions of dollars for vocational education? They have an endowment of 53 billion, and vocational education is a good thing.
DC: I think there’s absolutely nothing wrong with Harvard giving that money for vocational education — if it did so of its own accord, based on a judgment by the people who run Harvard, that that was the best way to invest their resources. But that is not, if it happens, and it hasn’t happened yet, but if it happens, it will be because of coercion.
But I think what’s important to bear in mind in all of these cases, and there are investigations of a handful of other universities as well, Princeton, University of Virginia, et cetera, is that in none of these cases has the Trump administration actually identified a legal violation that would authorize any kind of sanction, much less millions of dollars in fines, payments, and the like and restructuring of the institutions, which is part of what happened at Columbia. And what I think what you’re seeing in these instances is he’s not using the law he’s using the power of money. He’s using the fact that these civil society institutions are heavily dependent on federal funds, particularly the research institutions. And so even if they can win in court, and Harvard has thus far won at every stage in court and will continue to win, if it continues to litigate, there’s a concern that in the long term you nonetheless lose because over the long term, the administration can take retaliatory action against you that you’re not able tie up neatly to your advocacy of First Amendment rights or your exercise of First Amendment rights, and you just lose out because these are ultimately discretionary funds.
And that is why Columbia settled. There is no legal basis for Columbia to have to pay $221 million and the same nor for Brown to pay $50 million, they settled because the risk of losing discretionary funds for their research might mean that they would lose lots of jobs and lots of really good work and important lifesaving work would go down the tubes. And so they made a kind of pragmatic decision. And it’s hard to kind of, well, in some ways it’s easy to blame them because we could say everyone should be courageous, but it’s also hard to blame ’em because so much money is at stake for them. And that means so many jobs and so much good work. And so maybe it’s a pragmatic decision, but it’s totally unprincipled. And it just underscores that no matter how many legal protections the First Amendment provides to our civil society institutions, if they are too dependent on federal support, federal funding, federal approval, then a federal administration that wants to weaken them has an incredibly powerful tool to do so.
JW: Yeah, I’ve been saying every day that Harvard does not make a deal is a good day. We’re speaking here on August 18th, and so far, there’s no deal.
DC: Right. And I think it is important to fight back. It’s absolutely critical to fight back in these moments because each one that makes a deal makes it easier for the next one to make a deal. And then you’ve sort of lost the independence of these institutions, which is, as I said, a central aspect of our constitutional order.
JW: And of course, for Trump making a deal is different from everybody else. It’s not an agreement that both sides are satisfied with. For Trump, if you make a deal with him, this shows your weakness, and it shows you can be further pressured, manipulated, exploited.
DC: Yeah. Well, I think it is the model of the mob boss really, except maybe with mob bosses you can actually rely on their word, whereas with Trump, not so clear. But it is basically a power game. It is not about law. It’s not about principle. It’s about power. And so when you accede to that show of power, you show that you are vulnerable to that show of power and he’ll continue to do so. He’s, he’s the bully in the China shop, and he is using his resources in ways that really have never been used before to undermine some of the core institutions of our society.
JW: And now, as you said, Trump is going after UCLA, the crown jewel of public universities. He’s cut $584 million in grants for medical and scientific research, and he’s demanded a billion dollars as a fine for antisemitism on campus. But why a billion? Why not a trillion? If Trump were really serious about stopping antisemitism at UCLA, why let ’em off the hook for a billion?
DC: These numbers don’t really – all they mean is they are a symbol of you’re giving in to the Trump machine. That’s what the numbers are about. They’re not tied to any actual legal violation. The legal violations that are asserted are virtually always insufficient responses to antisemitism. But in none of these instances, has the administration actually demonstrated that the incidents that they’re concerned about were antisemitic as opposed to anti-Israel or critical of what Israel is doing in Gaza. And in none of these instances, has the Trump administration demonstrated that the schools were deliberately indifferent to those incidents. I mean, there’s an encampment on your campus that’s protesting what’s going on in Israel. The school is not deliberately indifferent to that encampment because it allows it to go on when it could break it up in the first instance. It’s always been thought to be the more responsible thing to try to negotiate, to sort of try to resolve the dispute amicably to not use force, et cetera. And that’s hardly deliberate indifference. But to the Trump administration, basically any toleration, of any pro-Palestinian protest, it equates with antisemitism and then equates the university’s failure to immediately clamp down on that demonstration as a deliberate indifference to that problem. And that’s the only thing that Title VI prohibits, deliberate indifference by the institution to a pervasive or severe pattern of harassment based on national origin. They haven’t shown either the severe pattern or the deliberate indifference, and yet they’ve collected now $271 billion or $271 million, and they’re looking for another 1.5 billion.
JW: And the UCLA case is a little different because this is really an attack on the taxpayers of California.
DC: Well, absolutely. I mean, UCLA is a state institution. It’s funded by the people of California. It’s funded by the students to pay tuition, but that doesn’t cover the cost. And so much of the cost is paid by the people of California, and that’s who Trump is seeking to take the money from. And it’s no accident that it’s in California. It’s no accident that it’s in one of the most liberal states in the country that he has demanded the highest sort of payment. I will say that thus far, you got to give kudos to Governor Newsom for insisting that he’s going to fight, that he’s not going to sort of just give this money over, but we’ll see what happens. The federal government has tremendous leverage over universities to make their lives miserable. They’ve used every trick in the book with respect to Harvard, and even though Harvard is a very powerful institution, they have come closer, at least by public reports to getting in to pay up.
JW: The courts have defended civil society, at least the lower courts and the appeals courts. As you said, the Harvard lawsuits have received support from the courts thus far. Of course, as you said, if they settle, there won’t be a trial on the merits, but other courts are proceeding. Nationally, the ACLU just won a sweeping court order requiring the National Institutes for Health to restore billions of dollars of federal research grants to universities that were canceled by Trump’s people. A court ruled this was an ideological purge that discriminated against the gay people, it banned the COVID research, it banned research and vaccine hesitancy. That’s billions of dollars of NIH funding. The University of California, just last week won a court order, restoring 300 grants from the National Science Foundation, totaling $81 million. This is for sort of basic research. This was a private lawsuit brought by some of the investigators, not by the governor or the university. So of the $584 million in suspensions of grants to UCLA, now $81 million has been ordered, restored, does not cover the NIH or Department of Energy grants. And the basic argument in all of these lawsuits is the same. It’s a winning argument. The president does not have the authority to end funding directed by Congress.
DC: Yeah, that’s right. I think there’s really two arguments. That is the principal argument that the appropriation of funds is a congressional authority. The president does not have the power to disagree with Congress. I mean, he can disagree and veto a law, but once a law is passed by Congress and signed by the president that directs money to go somewhere, the money has to go there. And when the president refuses to do that, he has violated that statute and he’s exceeded his constitutional authority, violated the separation of powers by trying to take on himself the power that the Constitution gives to Congress. That’s one argument that has prevailed in a number of these cases. Another argument is what’s called unconstitutional conditions. That even when you’re giving out money, you can give out money for all sorts of reasons. And you can say, ‘this money should be used for X, and this money should be used for Y.’
But you can’t use that money to try to leverage it to control the public debate. You can’t say, as they have, that National Endowment for the Arts funding will not be allowed if the art expresses a view about transgender identity that the administration disagrees with, you can’t say, ‘we’re not going to fund an otherwise worthy NIH study because we disagree. The government disagrees with the political viewpoint that is expressed.’ The government has to be viewpoint neutral in how it allocates funds. It can’t seek to suppress dangerous ideas through the power of the purse. The reason for that is what we’ve been talking about. The government has tremendous power of the purse. Lots of speech is supported by government funding. It’s not just universities. When you go out and march on the mall, you’re supported by government money. It’s the government money that owns that property that maintains that property. It’s the government money that pays for the police, pays for the sanitation, pays for all of that.
When ABC and CBS and NBC are on the broadcast stations, those frequencies are owned by the federal government. They are given to those entities. When The Nation mails its magazine to you, it has second class mailing privileges, which means it gets to mail it, all the press gets to mail at a cheaper rate. And if the government could say, ‘with respect to all that funding, well, we’re not going to fund those research enterprises, those magazines, those news stations that express views critical of the Trump administration.’ We would have nothing like free speech in this country. And so the court has said that you can’t use the leverage of government money to seek to suppress views simply because the administration disagrees with them. And that has also been a basis for some of these decisions.
JW: So we’ve talked about how the courts have defended the autonomy and the rights of civil society groups. But of course, there’s one thing we haven’t talked about, the Supreme Court. What we’ve had so far has been pretty much rulings by appeals courts, Supreme Court first term, where they faced the first challenges to Trump’s executive orders has ended. Of course, conservatives have the majority six to three. The majority didn’t really overturn any major precedents. They didn’t rule, for example, on Trump’s challenge to birthright citizenship. But there’s a big but here about the Supreme Court’s recently ended term.
DC: Well, the, but I think the but is the shadow docket, the emergency docket, where the court has pretty consistently ruled in favor of the Trump administration. It is not entirely ruled in favor of the Trump administration. Most significantly, I think the Trump administration’s effort to deport people under the Enemy Alien Act to El Salvador on the grounds that they were Venezuelan gang members. The court has basically put a stop to that for the time being until the issue gets up to the Supreme Court for final resolution. The court has said, no more people should be deported under this rubric.
So that’s at least one instance where the court stood up for the rights of individuals. But by and large, it has given a kind of rubber stamp, at least in these temporary rulings. They’re not final rulings on the merits. They’re just saying what should the status quo be while the case is challenged in the courts. And the lower courts have found in many instances because of irreparable harm to citizens and noncitizens alike, and because the government’s theory is so weak, the government should not be permitted to pursue what it’s doing until the case is finally resolved.
But the Supreme Court has come in on a number of those cases and ruled the opposite, has basically said, ‘no, let’s let the government do what it does until we, the Supreme Court, resolve the case,’ which could in many instances be well over a year, could be even be longer than that before you get a final resolution. So they’re letting him get away with some very questionable actions in the interim.
Now, I will say one thing that I think is often lost in the commentary on the Supreme Court’s shadow docket, it has ruled very consistently for the Trump administration, but the Trump administration has also been selective about which cases it takes up to the Supreme Court, and they have that power, right, the Solicitor General can choose which cases to bring up.
So by one count, a professor at Harvard, Jack Goldsmith has said there are about 50 cases where there are injunctions against the Trump administration that it has chosen not to ask the Supreme Court to reverse, presumably because they think they’re weak cases they would lose. And where they have gone to the Court are the cases that they think they’re more likely to prevail on. So how the court will actually rule on the merits of all these cases when they actually hear argument, et cetera, that really remains to be seen. I think we have to continue to hold their feet to the fire to expect them to do their job. The signs are not great right now, but I would not write them off. And partly I wouldn’t write them off for the reasons I just said. It’s a skewed sample. And the other reason I wouldn’t write them off is there’s no alternative. Congress is not going to stop the president. The states can’t really stop the president except by suing him in court and getting courts to stop the president. Civil society can’t stop the president except by going to court and challenging him. And so we are ultimately in, at least in the short term, reliant on the courts long-term, it’s politics that will save us. But in the short term, we do need the courts to stave off some of the damage.
JW: There are about 50 cases with injunctions against Trump that Trump’s Department of Justice has not asked the Supreme Court to reverse – because they don’t think they will win. David Cole – he’s The Nation’s legal affairs correspondent. David, thanks for talking with us today.
DC: Always good to talk with you, Jon.
