MSNBC’s Andrea Mitchell wondered on her Thursday show that if the Supreme Court cares so little about precedent in Roe v. Wade, will it also overturn Brown v Board of Education. Because her guest was former Attorney General Eric Holder, nobody pointed out that Brown is the case conservatives cite to justify overturning longstanding precedents.
Mitchell began by asking Holder about the leak of the draft opinion, “How unprecedented, first of all, is the leak? And the way they came down in terms of breaking president, precedent, ignoring stare decisis and deciding to completely overrule Roe v. Wade after 49 years.”
Holder declared that the leak is a serious matter, but not as serious as the opinion itself. He decried that it “Looks like they’re going to overturn Roe v. Wade, inconsistent with the notion that you would adhere to precedent that people have relied on over the last 50 years. It's an attack on the right to privacy. And so, the question has to be asked, is it only abortion that is going to be at risk or is same-sex marriage going to be at risk? The regulation of contraception, is that going to be at risk? Even interracial marriage. All of these are based on the right to privacy, which this opinion in its form as we saw it, really goes at the, that—that-- right to privacy.”
As a former attorney general, Holder should know that except for the contraception example, all the cases he cited are equal protection cases, not privacy ones.
Yet, Mitchell didn’t fact check Holder’s fearmongering. Instead, she escalated it, “And if they care so little about precedent and overruling precedent, what about Brown v. Board of Education?”
Mitchell wasn’t smart enough to realize that as she decried the potential overturning of a 49-year precedent, she cited a case that overturned 58-year precedent. Still, Holder leant credibility to the idea, “that's a question that you might have said, ‘Well, you’re going too far Andrea’ and yet you think about those Trump judges who when they were questioned about is Brown v. The Board of Education a super-precedent or something you would not re-examine, they waffled on that.”
Holder then took things into the absurd, “Now, I'm not saying they’re going to reinstitute Plessy v. Ferguson and we’re going to have a whole system of racial apartheid again. But I think that shows a mindset that they are not going to adhere to the extent that they should to precedent.”
All this talk about Brown misses an important point: exactly zero states are proposing bringing back racial segregation.
After Holder claimed the judicial branch is stacked with ideological hacks, Mitchell blamed Sen. Mitch McConnell for it all, “Well, the way Mitch McConnell engineered keeping the seat from President Obama and Merrick Garland, his nominee, has this Court become so political that it's now as political as other parts of government?”
Holder naturally agreed by accusing McConnell of stealing two Supreme Court seats.
This segment was sponsored by Dell.
Here is a transcript of the May 12 show:
MSNBC Andrea Mitchell Reports
5/11/2022
12:07 PM ET
ANDREA MITCHELL: And joining me now is former U.S. Attorney General Eric Holder, he’s the chair of the National Democratic Redistricting Committee and his new book is Our Unfinished March: The Violent Past and Imperiled Future of the Vote, a History, a Crisis, a Plan. Welcome, General Holder.
ERIC HOLDER: Good to see you, Andrea.
MITCHELL: Good to see you again. So, let's talk about this Supreme Court leaked draft. How unprecedented, first of all, is the leak? And the way they came down in terms of breaking president, precedent, ignoring stare decisis and deciding to completely overrule Roe v. Wade after 49 years.
HOLDER: Yeah. I think the leak is unprecedented both in its breadth, its scope, and its completeness. You know, we’ve heard rumors before about where the Court is going to go, how the justices, perhaps, were aligned but never seen a draft opinion and that's serious and that's something that needs to be addressed, but what we really need to focus on is what's contained in that leaked opinion and where the Court appears to be lining up.
Looks like they’re going to overturn Roe v. Wade, inconsistent with the notion that you would adhere to precedent that people have relied on over the last 50 years. It's an attack on the right to privacy. And so, the question has to be asked, is it only abortion that is going to be at risk or is same-sex marriage going to be at risk? The regulation of contraception, is that going to be at risk? Even interracial marriage. All of these are based on the right to privacy, which this opinion in its form as we saw it, really goes at the, that—that-- right to privacy.
MITCHELL: And if they care so little about precedent and overruling precedent, what about Brown v. Board of Education? What about other major civil rights rulings of the 60s?
HOLDER: Well essentially, that's a question that you might have said, “Well, you’re going too far Andrea” and yet you think about those Trump judges who when they were questioned about is Brown v. The Board of Education a super-precedent or something you would not re-examine, they waffled on that. And that always, kind of, struck me. How could you waffle on Brown v. The Board of Education? And yet, they did.
Now, I'm not saying they’re going to reinstitute Plessy v. Ferguson and we’re going to have a whole system of racial apartheid again. But I think that shows a mindset that they are not going to adhere to the extent that they should to precedent. There's an ideological agenda here. It's almost as if they have been waiting for this moment to arrive. They’ve got a Court now that is ideologically driven. Lower courts ideologically filled and I really-- the American people are going to have to watch over the course of the next 18 months or so, we’re going to see courts and especially the Supreme Court deal with affirmative action, abortion, an important gun case.
There's a remaining component of the 1965 Voting Rights Act. All these things are at risk.
MITCHELL: Well, the way Mitch McConnell engineered keeping the seat from President Obama and Merrick Garland, his nominee, has this Court become so political that it's now as political as other parts of government?
HOLDER: Well, that's one of the things we talk about in, you know, Our Unfinished March, in the book. The, as I call it in the book, the theft of those two seats. I mean, you say Merrick Garland is not entitled to a hearing because he’s, not even interviews because it's too close to an election and then you put Amy Coney Barrett on the Court while in the process of voting. So, those two seats, I think, were stolen.
You see the ideological nature of the Court in the way in which they are ruling on a variety of things. And yeah, the Court does not seem like the unconnected, distant, precedent-driven institution that has always garnered great amounts of respect. Of the three branches, it has always been the Supreme Court that has gotten the greatest amount of respect and now you see polls, I’ll guess, about 40% of the American people now support the Court and 60% think it's just like the other branches and that is a—that’s a-- serious negative for our society.
