The Supreme Court Went Off the Rails Long Before Dobbs

<p>On Friday, a Supreme Court majority voted to overturn Roe v. Wade. On Sunday, we released<a href="https://www.nytimes.com/2022/06/26/opinion/ezra-klein-podcast-dahlia-lithwick.html"> an episode with Dahlia Lithwick</a> that goes through the court’s decision in detail, and we will continue to come out with new episodes on the ruling — and its vast implications — in the days and weeks to come. </p><p>Today, we’re re-airing an episode that we originally released in February of this year with Columbia Law professor Jamal Greene — a conversation that is even more relevant now than it was when we originally released it. The Dobbs ruling may be the most poignant example of how extreme the U.S. Supreme Court has become in recent years, but it’s certainly not the only one. </p><p>“Getting race wrong early has led courts to get everything else wrong since,” writes Greene in his book “How Rights Went Wrong.” But he probably doesn’t mean what you think he means.</p><p>“<a href="https://www.harpercollins.com/products/how-rights-went-wrong-jamal-greene?variant=39935072469026">How Rights Went Wrong</a>” is filled with examples of just how bizarre American Supreme Court outcomes have become. An information processing company claims the right to sell its patients’ data to drug companies — it wins. A group of San Antonio parents whose children attend a school with no air-conditioning, uncertified teachers and a falling apart school building sue for the right to an equal education — they lose. A man from Long Island claims the right to use his homemade nunchucks to teach the “Shafan Ha Lavan” karate style, which he made up, to his children — he wins.</p><p>Greene’s argument is that in America, for specific reasons rooted in our ugly past, the way we think about rights has gone terribly awry. We don’t do constitutional law the way other countries do it. Rather, we recognize too few rights, and we protect them too strongly. That’s created a race to get everything ruled as a right, because once it’s a right, it’s unassailable. And