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Radiolab Presents: More Perfect - The Imperfect Plaintiffs

Tuesday, June 28, 2016 - 06:00 PM

The scale of justice is not always balanced (Mitch Boyer)

Last week, the court decided one of this term’s blockbuster cases — a case that could affect the future of affirmative action in this country. The plaintiff was Abigail Fisher, a white woman, who said she was rejected from the University of Texas because the university unfairly considered race as one of many factors when evaluating applicants. And while Fisher’s claims were the focus of the case, the story behind how she ended up in front of the Supreme Court is a lot more complicated.

On this episode, we visit Edward Blum, a 64-year-old “legal entrepreneur” and former stockbroker who has become something of a Supreme Court matchmaker — He takes an issue, finds the perfect plaintiff, matches them with lawyers, and works his way to the highest court in the land. He’s had remarkable success, with 6 cases heard before the Supreme Court, including that of Abigail Fisher. We also head to Houston, Texas, where in 1998, an unusual 911 call led to one of the most important LGBT rights decisions in the Supreme Court’s history.

The key links:

- The website Edward Blum is using to find plaintiffs for a case he is building against Harvard University
- Susan Carle's book on the history of legal ethics
- Ari Berman's book on voting rights in America
- An obituary for Tyron Garner when he died in 2006
- An obituary for John Lawrence when he died in 2011
- Dale Carpenter's book on the history of Lawrence v. Texas
- A Lambda Legal documentary on the story of Lawrence v. Texas

The key cases:

- 1896: Plessy v. Ferguson
- 1917: Buchanan v. Warley
- 1962: National Association for the Advancement of Colored People v. Button
- 1986: Bowers v. Hardwick
- 1996: Bush v. Vera
- 2003: Lawrence v. Texas
- 2009: Northwest Austin Municipal Utility District Number One v. Holder
- 2013: Shelby County v. Holder
- 2013: Fisher v. University of Texas (1)
- 2016: Evenwel v. Abbott
- 2016: Fisher v. University of Texas (2)

Special thanks to Ari Berman. His book Give Us the Ballot, and his reporting for The Nation, were hugely helpful in reporting this episode.  

More Perfect is funded in part by The William and Flora Hewlett Foundation, The Charles Evans Hughes Memorial Foundation, and the Joyce Foundation.

Supreme Court archival audio comes from Oyez®, a free law project in collaboration with the Legal Information Institute at Cornell.

Guests:

Edward Blum, Susan Carle, Dale Carpenter, Mitchell Katine and Lane Lewis

Produced by:

Katherine Wells

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Comments [29]

Sfjessy from San Francisco

This was very interesting learning about Mr. Blum. It's been heartbreaking to see these rulings by the Supreme Court and now, as the daughter of a civil rights lawyer, I can wrap my head around them and where they are coming from. Thank you.

Dec. 26 2016 02:44 AM
Taylor Stewart from Ypsilanti

Further more,
White supremacist by definition cannot be minorities. It is about power. We still live in a society in which the white race holds far more political and economic power. Even in small numbers, Michael Blum still is a dominator from a dominate group. The show was ended with a statement that inaccurate. I am so shocked by the ignorant journalism I just heard. How can master experience discomfort and proclaim themselves slaves. The abuser be held accountable then claim him self victim. Thats irrational and clearly is a tatic for creating a show that capitalizes on sentimental clap traps.

Aug. 19 2016 10:13 PM
Taylor Stewart from Ypsilanti

I have been a big fan of radio lab for years for remaining a critical platform that is assecible to all. It is clear to me that producers of this new podcast are not critical or aware of their african american viewers and what safe places are. I am all for dialogue, but it is clear that the historical, social and political education to produce shows that dive into race are not apparent. I found this show to perpetuate narrow white views of African American life and it was honestly disgusting to hear white people dissect the african american experience as if an anthropological view on animals. It is not the job of allies to speak for minorities and it is clear the producers of this show do not know how to effective be allies. I actually am very offended and can't continue listening to a show that lacks historians and centralizes a uneducated voices. Truly hurt by this programming.The only black people to speak were "angry" critics at the beginning of the segment. A true perpetuation and glorification of white privilege and supremacy. This podcast should have been titled, "Privileged White man dismantles accountability in an ignorant campaign that irrationally ignores hundreds of years of history glorified."

Aug. 19 2016 09:56 PM
Avid Listener from VA

Great Show! Love it! Keep 'em Coming!

Aug. 02 2016 05:00 PM
The Clock from NJ

While these are interesting, please get back to doing science-based stories. There are plenty of other places to hear politically-charge supreme court worship in the internet and radio world (Nina Totenberg, anyone?). This is taking away from real Radiolab time.

Jul. 31 2016 11:01 AM
Paul from Long Beach, CA

Since I couldn't find anywhere on the WNYC site to post a comment about the subsequent More Perfect episode, "Object Anyway", I decided to do so here:

It seems to me that the whole situation would be fixed if prosecutors weren't always so sleezy and adversarial in cases. It seems to me that if our justice system aims for the notion "Better 20 guilty go free, than 1 innocent be wrongly convicted" then we really should see an uneven see-saw in regards to what we expect from a defense lawyer vs a prosecutor. Defense attorneys SHOULD be the one to argue more fiercely and act more zealous. Prosecutors, on the other hand, should be held to a higher moral standard. The prosecutor should be the white hat, bound to prioritizing fairness over winning.

Of course, that also means that DA offices would need to eliminate conviction rates as a measure of career advancement. Period. I don't understand why so many lawyers find this idea absurdly utopian. It really wouldn't be that hard, you would just need to really change the behavior from the top down.

Because the way things are now, I personally hear "prosecutor" and think "ambulance chaser" as far as stereotyping. There's just no end to the stories in the news lately of prosecutors around the country being caught personifying sleeze in order to secure convictions at any cost. It's really atrocious. This is what we need to change.

Jul. 18 2016 10:33 PM
Bon Joe

Blum is a genius. We should stop pretending that we can label not discriminating as racist. This guy is just what the doctor ordered. Forget partisanship.

Jul. 16 2016 05:58 PM
MajorTom

"Legacy of slavery" i cannot believe this is on Radiolab. I'm not sure if i should continue to listen or Radiolab or just acknowledge, that they may have funding from the Koch brothers, ie; they have to skew and present these right wing stories as "the right thing to do in the interest of fairness". Blum is presenting a bunch of who shot john, cloaked in "the interest of fairness". We are not fooled!

Jul. 15 2016 02:02 PM
Tim Queeney from Portland, Maine

Mr. Blum may like to present his crusade as an interest in fairness, but he's likely fully aware that he is carrying the water for conservative groups and the GOP whose main interest is not fairness but restricting voting for their political opponents. Strict voting requirements to fight the non-existent problem of voter fraud, fewer voting machines in poorer neighborhoods, these are some of the tactics used by conservatives to restrict voting among minority populations. And the very thing the voting rights act was designed to combat. Coupled with gerrymandered districts to give GOP candidates more seats in state legislatures and in the House of Representatives, we have a situation where the country is becoming less of a democracy. Democratic candidates for Congress received more than one million more votes than GOP candidates in 2014, yet the GOP controls both houses of Congress. The self-avowed conservative Blum is well aware of what he's doing. Radiolab bought his line of patter.

Jul. 14 2016 07:30 PM

Good for Blum. After 59 years of Aff. Action, its time to move on

Jul. 14 2016 01:32 PM
IvLiberty

This episode just goes to show how you can make anyone a criminal. This is the reason behind our current political environment and how some groups of people are disproportionately "committing" crimes. The law is all a game for some. A game played against people's lives. This episode makes me lose even more respect for the law. It is so subjective.

Anyway, Jad, I am enjoying your new project. Keep it up! Everything you touches turns to gold.

Jul. 13 2016 07:29 PM
Justin Hubbell from Rochester, NY

About 30 minutes in and Jad just said "This is a dumb, dumb, dumb law." Earlier on he mentioned having a "stupid" question.

It disappoints me to see intelligence used as a cudgel. First in framing some unspoken agreed upon definition of intelligence as GOOD, and in practice defining it's opposite (unintelligence) as BAD.

I feel there's a line being crossed here unnecessarily, one I think the folks at Radiolab are above.
I used to do the same thing until I read the following article:

http://disabledfeminists.com/2009/10/23/ableist-word-profile-intelligence/

Cheers.

Jul. 11 2016 04:40 PM
Ryan Blackwood from New Orleans, La

I live two blocks from the site where Homer Plessy boarded the train in 1892. On the historical marker displayed there a civil rights organization called Comite des Citoyens (aka Citizens' Committee to Test the Constitutionality of the Separate Car Act) is named as the group that organized the act of civil disobedience and specifically to challenge segregation laws throughout the south. I can't find mention there or anywhere that it was, as your show states, organized by the railroad company to save money. So which is correct? Did the two organizations collude to challenge the law? If so then neglecting to mention the part played by the Comite seems rather misleading. Or did your show discover a conspiracy to cover up the role of the railroad company (presumably not a minority owned business) as the lead provocateur in one of the nations first civil rights cases albeit for a selfish cause? If this is the case then burying the lead is a bit of an understatement.

Jul. 07 2016 04:27 PM
Adam

The first half of this episode (Lawrence vs. Texas) was just depressing. You have 2 guys (who happen to be gay) who are in their lawyer's words a couple degenerates who do nothing but cause trouble. They're a drag on society (regardless of their sexuality). In their own words, they are falsely accused of sodomy, which is a pet cause of their self-described "gay activist" lawyer. In the lawyer's own words, he admits this law is rarely, if ever, used. Aka: it's a non-issue. So instead of going after the injustice of these guys being falsely accused, he instead instructs them to perpetuate the lie (alleged) on the police report, for the sole purpose of using this as a test-case to repeal a law that (in his own words) is not a problem.

In the process, the lawyer knows that the state legislature (the duly elected representation of the people of Texas) won't repeal the law, so instead he finds a way to circumvent the will of the people of Texas by taking the case to an un-elected body, the Supreme Court.

Forget the actual nature of the case. The abuse of the legal system is just pathetic. This self-described gay political activist lawyer used an "injustice" that never occurred to repeal a law that rarely gets used.

And we're somehow supposed to be in awe of his courage and perseverance.

This is the blueprint of how an extremely unpopular view can be forced onto the majority of people by those willing to exploit the law/system.

This is how we got Roe vs. Wade: the whole story was that the plaintiff (McCorvey) was raped, and that it was unthinkable that we wouldn't allow her to have an abortion, and instead would condemn her to deliver the child of her rapist. In actuality, she later confessed that she lied about the whole thing: she was never raped, and she never had (or ever would have) an abortion. Since that ruling, over 54,000,000 babies have been legally aborted. All because of a lie that her activist lawyers perpetuated in order to force an extremely unpopular view on the majority.

It's a depressing display of "legal" exploitation by activists.

Jul. 07 2016 03:39 PM
Joe P from Vista, CA

I believe that you gave us a peek of a much larger story than the Garner/Lawrence, didn't notice it.

The larger story is that once a policeman feels adrenaline, it must somehow be discharged, which is why Officer Quinn felt he had to arrest Mr. Garner and Mr. Lawrence.

If you listen again, you will hear his description of how his adrenaline got activated, and once it did, it needed to find a target and an outlet.

What if officers are responding with the animal part of themselves due more to poor training and a natural predilection to an adrenaline response than any malicious intent on their part.

The adrenaline could temporarily cloud their judgment.

Perhaps this is the same effect in our runups to war. Once the war drums start to beat, we seem incapable of backing down.

What if through more awareness and training, we could all learn how to dissipate adrenaline in a more intentional and conscious way. How would our society be then?

Jul. 07 2016 12:28 AM
Holly from New York, NY, USA

Having trouble listening to the earlier episodes of More Perfect Podcast. Earlier episodes do not play on iTunes, More Perfect website, or any other online streaming site. Please fix, thank you.

Jul. 06 2016 02:27 PM
Tim from Minneapolis

Radiolab might have mentioned that oral sex is sodomy too, and that straight people regularly engage in sodomy.

Jul. 06 2016 10:14 AM
Jane from Kentucky

I was surprised that the legal editor did not point out that Article III of the Constitution requires that there be an actual case or controversy in order for the federal courts to have jurisdiction. They are prohibited from issuing advisory opinions. This is why test cases are necessary.

Jul. 05 2016 05:02 PM
Chris P from New York.

I generally enjoyed the episode but I was left very curious as to why Mr. Blum chose this issue to devote his money and time to. What is the great injustice that he is attempting to right? I thought he seemed like an interesting subject because he didn't seem as awful as I imagined him to be but I was left wondering what was his motivation.

Jul. 05 2016 04:57 PM
Carl from NC

Buck vs. Bell, the case that upheld eugenic sterilization is an example of a test case with rather reprehensible results. I recommend the book "Three Generations, No Imbeciles" by Paul Lombardo. I hope that More Perfect would consider discussion of Buck vs. Bell and the contemporary issue of compensation for survivors of forced sterilization.

Curious from Indiana is asking the right question, the question I wish More Perfect had asked. Why did Edward Bloom choose to make the cases that he did? I think it comes down to ideology, worldview and funding. It's easy for a middle-aged-male-stock-broker-turned-testcase-enthusiast to believe that "fast forward fifty years" and race/class/sex based oppression does not exist.

We need a strong voter rights act. After the recent overturning of the voter rights act, NC has seen voter id law passed and extensive redistricting some of which has been ruled unconstitutional.

How hard would it be to have automatic voter registration, nonpartisan voting districts, and a work holiday for election day?

My view is that the courts should uphold (civil/individual/minority rights) and prevent the tyranny of the majority or the tyranny of the moneyed as the case may be. I'm all for reinterpreting and updating the constitution given that some of those beloved founding fathers who wrote it were slave-owning misogynists. Likewise, some jerk replaced "pursuit of happiness" with "protection of property".

I think that the executive branch has too much power. Legislation should be on congress, not the executive or the court. The court could help out by getting money out of politics, then congress would work a lot better.

I'm down with affirmative action and reparations, but I think the better policy is extensive social programs, egalitarian social structure, and a one person one vote democracy.

Jul. 04 2016 03:13 AM
Concerned listener from Boston from Boston

I am a big fan of Radiolab and so far I've loved More Perfect as well. I don't usually write public comments, but this episode left a sour taste in my mouth that's too strong to ignore. The fact that Edward Blum is jewish has nothing to do with his politics, his agenda or this story. If Mr. Blum happened to be Christian, would you have mentioned that? Probably not. Faith and religion have nothing to do with this story. Bringing Judaism into this story is not simply distracting or confusing, it's also damaging.

Edward Blum may be powerful and important in these anti-affirmitive action campaigns, but he is certainly not a one man show. You mention very briefly that there are in fact unknown foundations and individuals who fund his efforts. I was glad you mentioned this, but I wish you had given it lot more attention. These hidden funders and powerful entities are really important and they should not be allowed to be hidden while this one Jewish man takes all the blame. There is a very old and very dangerous misconception that sees Jews as maniacal figures who secretly run the whole show and control things from behind the scenes. It should go without saying that this wrongful perception of Jewish people has had disastrous consequences throughout history.

I know Radiolab does not intend to perpetuate these dangerous and damaging stereotypes of Jewish people. This is why I was so disappointed by this careless and harmful reporting. I look forward to more thoughtful story telling in the future.

Jul. 03 2016 05:54 PM
Mike from Dallas

Ditto Shawn from Portland! I have also been a fan and avid listener of Radiolab. However, your "legal editor" struck a nerve. He blatantly outed his bias when using the phraseology; "failed political candidate", "lust for political power".

It has been shown there is no significant difference in intelligence between blacks and whites, while conversely, it has been shown there is there a difference between black and white runners. (See Michael Johnson's excellent documentary!) Therefore, I suggest forgetting affirmative action in education and instill it in sports. Instead of sending the 1st 3 places in the Olympic trails 100 meters to Brazil, send two blacks and the next fastest "minority". I can only hope this will never happen because it would outrage any thinking person, regardless of skin color. And what about the injustice to the supplanted athlete who devoted untold time and effort to "earn" their spot on the Olympic team. For heaven sake. I can only hope your so-called legal analyst has sufficient intelligence to recognize his own bias, and yes, prejudice. For the success of your program, best to provide him with a muzzle. Mike, Dallas

Jul. 02 2016 09:00 PM
j from us

Edward Blum sounds reprehensibly smarmy to me. I hope he struggles to garner further traction.

Jul. 01 2016 02:36 PM
john from us

STOP MUTTERING. STOP USING 'LIKE' SO MUCH.

Jul. 01 2016 09:25 AM
Shawn from Portland, OR

I've been an avid listener to the Radio Lab Show for years. I don't think that there is a single episode that I have not listened to. But your episode "The Imperfect Plaintiffs" was incredibly one sided.

I was highly offended that your shows legal staff was so admittedly for affirmative action, and that anyone else's view is basically immoral. I found that this episode goes completely against the Radio Labs balanced approach. You should also have your so called legal editor. Learn why people are against affirmative action, and not just bash our view point.

Also by the way, the most qualified individual on the court to hold an opinion on affirmative action Justice Clarence Thomas (an African American who worked on civil rights issues during the civil rights movement). Is highly against affirmative action, and believes that it should be removed. Maybe your smug young legal editor needs to go back to school and fully understand the issue. Before he opens his mouth on an international radio show!!!!!

I'll continue to listen to Radiolab, but your new series seems to be a little out of your depth.

Jun. 30 2016 05:47 PM
Curious from Indiana

Radiolab is best when it pursues some interesting, puzzling phenomenon all the way down to its molecular core, its origin. I'm not sure we were that curious here. Sure, we're talking about possible racism, not something like rabies, but the discovery can be done. What's missing here is an answer to the question, "Why this cause?" Edward Blum casts himself as some sort of justice warrior. The problem with that is that there is a panoply of issues of injustice far more corrupt and injurious than the effects of redistricting on gentrification and admissions criteria on Abigail Fisher. There are so many issues to choose to devote one's life to righteously assailing. That choice does not occur at random. So, why this cause? You can' task that question directly, because they undoubtedly have a rationalization for it, but there are ways to bring it out. Larger-than-life figures such as Edward Blum tend to have origin stories no different than those of comic book characters. For Batman, it was the tragic death of his parents, shot dead in an alleyway, etc. More tangible example: Hillary Cliniton tells an origin story. As a young girl, she played football in the street with the neighborhood boys. They picked on her and repeatedly pushed her to the ground. When she came in crying to her father For sympathy, he offered none. He told her to stop crying, get back out there, and punch one of the bullies in the nose. It worked for her and she's been trying to do that ever since. She stands up. She's a fighter. She's a hawk. It explains so much about her approach to politics and governance. Her current campaign song is, "Fight Song." Now she's the woman up against the quintessential bully of all time. Couldn't write a better origin story and story arc. Will she defeat the uber-bully? But that's beside the point. Blum has an origin story for his quest to unravel the hard fought gains of the civil rights movement. Perhaps it was impediment to gentrification. It could have been the failed campaign. Could have been the kibbutz. I suspect, rather, it was something from his youth in Michigan. One thing about people with origin stories is that, whether they understand or even acknowledge them themselves, they love to share them. I've heard Hillary Clinton tell her's with great pride. Getting down to the molecular level of the origin story is fairly simple--draw out the narrative. Start at the beginning. Who were the most influential figures in your life? What did they teach you? When did you first discover the concept of race? Where did this value for justice come from? With a little more probing and a little more listing, he would have spilled it all. The really interesting thing about unearthing an origin story happens when you objectively summarize it and present it back to the individual themselves. You're essentially asking them, "Has your response been proportional to the motivation?" The experience can be illuminating for all parties involved.

Jun. 30 2016 08:58 AM
Radio Lab Listener from Honolulu

The second half of this episode struck me as very odd and out of character for radio lab. This show usually does a much better job of exploring contentious and complicated moral issues with a refreshing calmness, thoroughness and evenhandedness. But in this episode it seems the reporters let their personal disdain for Mr. Blum and what he is trying to accomplish become evident and get in the way of proper storytelling. Particularly troubling was the commentary by Elie Mystal. When someone is introduced as something like a "legal editor" one would expect an objective, authoritative voice, not someone who sounds as if he is reading angry Facebook posts. Just because a guy runs for congress once he is Gollum? Really? Anyway, I hope this isn't a sign of things to come, there are already plenty of sources for biased reporting and self unaware fuming.

Jun. 30 2016 03:55 AM
Jimmer from STL

Mr Blum is the worst type of activist in that even he doesn't believe the drivel he spews even in the interview. When asked "yes, it worked for 50 years because there was this law in place forcing it to do so" and his reply was to keep the sacrosanct ways of the 50s because it was a 'better time' is so easy to see through that you can tell he doesn't believe it. His "that's a false paradigm" answer to "people died for the right to vote" and "what gets a lot of people is you see tens of thousands of people...marching; ... on the other side you, one guy" as a justification to his reasoning. "We turned those degrees because of that law you overturned...and now that law's overturned" and his reply "look, laws change, laws evolve; at some point they need to come to an end." Really, let's look for laws that protect you; I'm guessing he wouldn't feel the way about the 2nd amendment either... It's just like the deeply religious Texas legislators that condemn women for abortion, while at the same time try to "protect them from harm" Ginsburg saw right through it stating "Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law “would simply make it more difficult for them to obtain abortions." Here's to hoping they see through his racism-- oops I mean activism-through-legislation to undo equality and civil justice measures.

Jun. 29 2016 02:58 PM
Robert Post from Cape May, NJ

I, too, like Mr. Blum would like to see my country free of racially based programs. But I would like the reason that racially based programs are, truly not needed because we have a colorblind society. When the elites of our nation reflect, more or less, the makeup of our society. I would have more confidence that Mr. Blum truly seeks that goal when he take aim at programs and practices that tend to disproportionately favor whites. For example, if he were to take aim at legacy admissions at our colleges and universities, which are, when you strip away the veneer of tradition, in reality nothing more than an affirmation action program for whites so they can jump to the head of the queue. I would find it easier to accept that his work is sincere.

Jun. 28 2016 06:48 PM

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