More Perfect Season 2: Advocacy Masquerading as Explanation
Libertarians should listen to the second season of NPR's legal podcast. But maybe get a pillow to scream into first.
The second season of More Perfect, NPR's hit podcast about the Supreme Court, covered a lot of topics of interest to libertarians: gun control, campaign finance regulation, federal regulatory power, police brutality, and more. But the show's political slant has only intensified in the new season, leaving a bitter taste in the liberty-minded listener's mouth.
More Perfect's appeal has always come from the producers' ability to break the dry contents of a ConLaw casebook into approachable, This American Life–style documentary narratives. Even among those familiar with the cases the show covers, our knowledge of the human stories behind the litigation generally doesn't extend beyond what ended up in the Court's opinion, so the show has value even to legally savvy listeners.
But the second season runs headlong into a trap that the first mostly avoided. Time and again, its analysis is colored by the producers' quiet-but-obvious progressive political agenda. It would be difficult to make a show like this without some guiding perspective, but in passing editorial judgment on the Supreme Court's creation of new legal rules and standards, the show ultimately lacks a legal philosophy beyond whether the decisions it describes advance the policies its hosts prefer. That spoils many an otherwise enjoyable episode.
This underlying flaw was most clearly displayed when the show departed from its regular narrative format. The season's eighth episode, "The Hate Debate," featured a campaign-style debate between Elie Mystal, the show's legal editor, and Ken White, the lawyer behind the popular blog Popehat, over legal prohibitions on so-called "hate speech." Mystal readily admits that he, unlike White, is not an expert in First Amendment law, and in the debate he's obviously outgunned in terms of detailed knowledge of precedent and principle. But there's a greater disconnect at work too, one that reflects the big flaw in More Perfect's second-season approach.
Throughout the debate, White argues for permissive free speech jurisprudence on the grounds that conscientious lawyers tend to favor: that it protects citizens from arbitrary coercion, that it lends itself to neutral application by judges, that it disentangles constitutional rights from politics. Mystal, meanwhile, shows little concern for what kinds of rules make for good law. "Can you just explain to me a standard that allows me to stop Klansmen?" he asks exasperatedly. "Because that's the one that I want."
When More Perfect doesn't outright invite the audience to support the standards that achieve their political desires, the producers use a sort of intellectual asymmetric warfare to push the right opinion. An episode called "The Gun Show" covers the history of gun control and the case of District of Columbia v. Heller, which established a Second Amendment right to individual ownership of firearms. That episode does feature Robert Levy, Alan Gura, and Clark Neily, the three libertarian attorneys who argued the case. But inexplicably, they're never given the opportunity to offer a substantive defense of their victorious legal theory. Instead, that task is left to their oddball client, former security guard Dick Heller. It's a clever bit of deck-stacking that does a pretty good job of making the constitutional debate over the Second Amendment look like one between reasonable adults and a lunatic fringe.
Both Mystal's "just give me the standard which will do what I want" attitude and the producers' proclivity to stack the intellectual deck are on display in the season finale, "One Nation, Under Money." The episode tracks the Supreme Court's dramatic expansion of Congress' power "to regulate commerce with foreign nations and among the several states" to encompass virtually all economic activity, and it comes down squarely in favor of the change. In the first half , host Jad Abumrad discusses 1941's Wickard v. Filburn, in which the Court upheld a federal fine imposed on a farmer who exceeded his Depression-era wheat quota but did not sell the excess. In a decision that opened the door to the modern federal regulatory state, the Supreme Court held that the Commerce Clause extended Congress' power to almost any private activity that affects an interstate market in the aggregate. The power to regulate "interstate commerce" now included the power to fine someone for an activity that involved no commerce at all.
Abumrad admits that the logic here strains even his own credulity about the proper scope of federal power. The decision "still drives conservatives and libertarians bonkers," Abumrad says, "and I am neither one of those things, but I get it." For a moment, it looks like the regulation-skeptical position might get a moment in the limelight.
But then the episode turns to the use of the commerce power to outlaw racial discrimination in private businesses that cater to the public, and any hint of skepticism goes out the window.
There are a number of libertarian lawyers, professors, or historians who could have ably challenged the prevailing interpretation of the clause's scope in a manner totally untainted by racial animosity. Indeed, Neily and Levy, two of the attorneys featured in "The Gun Show," have written books arguing for a more limited interpretation of the Commerce Clause.
But neither Levy nor Neily appears in the episode. Instead, More Perfect turns to Ollie McClung, Jr., a septuagenarian Alabama restaurateur whose father owned the segregated barbeque joint that lost a Supreme Court challenge to Congress' power to outlaw segregation using the Commerce Clause. McClung's comments suggest that his rather unsophisticated views on constitutional law are, to put it mildly, not absolutely untainted by retrograde racial attitudes. The episode ends with Commerce Clause skepticism all but dismissed as a fig leaf for segregationism. Once expansive Commerce Clause jurisprudence has been tied to preventing racial discrimination, there is no mention of its pernicious effects—not even federal marijuana prohibition, which progressives themselves often decry.
Constitutional law is a game of standards, and good constitutional law is about neutral standards. In telling the stories of landmark cases, the show necessarily ends up covering the times when standards change. When constitutional lawyers judge what makes a good decision, they look to theories of interpretation and judicial philosophies. But editorially, More Perfect ends up inviting its listeners to judge new legal standards only by the political outcomes they achieve. When a new rule expands protection for minorities or creates greater authority to regulate business, the producers fawn over it as a stroke of legal genius and they bring on intellectual firepower to endorse it. When a ruling expands gun rights, restricts affirmative action, or deregulates campaign finance, the show portrays it with skepticism or outright hostility, leaving its defense largely to underinformed and underqualified guests while musing about the dangers of using courts to hijack the democratic process.