Transcript

Jad: Hey, everybody. This is Jad. As you may or may not know, we just started our first ever Radiolab spinoff, called More Perfect. Which, uh, you know, the idea th- is to tell stories about the Supreme Court, or, like, cases that are in front of the Supreme Court, and to hear those dramatic stories and then sort of think about them really hard. Kinda taking the Radiolab vibe and putting it into this new space. It's done really well. We're so excited, and we want the entire Radiolab posse to know about it. So if you haven't subscribed yet, go to iTunes or wherever you get your podcasts, check it out. We hope you'll subscribe.

Jad: Um, and I wanted to play actually one more episode for you guys. This one is an episode we've been working on and researching and reporting for months and months and months. Really hope you enjoy it.

Speaker 2: More Perfect.

Jad: Hey, I'm Jad Abumrad. This is More Perfect. Today, two stories from reporter Katherine Wells. The first has some adult content in it, so be warned: if you're listening with kids, you might wanna skip this one. Here's Katherine.

Katherine: So maybe we can just start with the, the night...

Jad: Yeah.

Katherine: That it started. (laughs)

Jad: Yeah, so when, uh...

Katherine: We can start with the start?

Jad: Yeah, so, the, the, give me the who, what, when, where.

Joseph Quinn: Uh, the best way to describe being a patrol officer on the street is you have a, uh, front row seat to the greatest show on Earth.

Katherine: September 17th, 1998. On the outskirts of Houston, there's a deputy sheriff named Joseph Quinn.

Joseph Quinn: Hadn't been on duty very long at all.

Katherine: He's driving around and...

Speaker 5: [crosstalk 00:01:29].

Katherine: He hears this call go out on the radio.

Joseph Quinn: Priority call, and, uh...

Katherine: Somebody's called in and said there's a man going crazy with a gun in an apartment. He happens to be driving right by the apartment complex.

Joseph Quinn: Pretty familiar with the complex. I knew where the building was.

Katherine: So he's like, "Hey, I've got this. I'm right here. I'm going in."

Joseph Quinn: So I parked and I tried to be as tactical as I could, listen and see if I hear any kind of sounds of disturbance.

Joseph Quinn: Walked into the breezeway on high alert. Senses heightened, adrenaline's pumping. And out in the middle of the courtyard there was a gentleman standing out there, and soon as he saw me he started yelling, "Over here, over here." I could tell, you know, he was upset, he was crying, you know. He said, "He's up there, he's up there." I said, "Up where?"

Katherine: And he points up to this apartment on the second floor.

Joseph Quinn: I said, "The man with the gun is up there. Is that what you're saying? That apartment right there?" He said, "Yeah."

Katherine: So, a couple other officers arrive and they get in formation.

Joseph Quinn: We took our time, control your breathing, get that, you know, the adrenaline rush and the blood pressure down to where you're, you don't get tunnel vision. Went up the stairs, four of us.

Katherine: When they get up to the...

Joseph Quinn: Um...

Katherine: S- top of the stairs...

Joseph Quinn: Got to the apartment door, and their door was ajar. It was open. I listened for a second. I gave them, gave them the hand sign that, uh, there, I couldn't detect anything in the apartment. So we got ready, and I pushed the door open, all the way open. I announced our presence. "Sheriff's department. Anyone in the apartment, come out where we can see you. Keep your hands in plain sight." I did this two or three times, very loudly. Still no response.

Katherine: There's a bedroom in the back of the apartment.

Joseph Quinn: There was a door to a back bedroom that was closed.

Katherine: And these two officers start walking towards it.

Joseph Quinn: The deputy that was in front of me, he opened the door, pushed it open, and as soon as he did, he lurched back like he was startled.

Katherine: So, he goes into the bedroom.

Joseph Quinn: Finger's on the trigger, pressure's pulled, if I see a gun and it's pointed at me, I'm gonna take him out.

Katherine: But then...

Joseph Quinn: I was like, "You've got to be kidding me. Really?"

Jad: What was it? What was it?

Katherine: It was two guys having sex.

Jad: Oh.

Joseph Quinn: Something I'll never forget. I mean, it's like, uh, I just, uh, I w- I was just flabbergasted.

Katherine: Okay, so, here's the story. The two guys that were in the apartment were John Lawrence and Tyron Garner. John was an older white guy, he was in his 50s, and Tyron was a younger black guy in his 30s.

Joseph Quinn: Come to find out basically the gentleman downstairs...

Katherine: This is the guy who called 9-11.

Joseph Quinn: Was former lover or on again, off again lover, uh, of one, and he was upset that the other, that, that they were engaged in some kinda activity with [crosstalk 00:04:32].

Katherine: Okay, so the guy in the parking lot was the boyfriend of Tyron, and we don't really know why he called 9-11, but the thought is that maybe he was jealous of whatever was going on in the apartment and he decided he wanted to get them in trouble.

Joseph Quinn: You know, it was a lovers' triangle kinda thing. [crosstalk 00:04:49].

Katherine: So, you know, the cops come in, and John and Tyron have no idea what's going on. They didn't know that, uh, the boyfriend had gone and called 9-11. So, they're shocked, and Quinn says they start yelling at him.

Joseph Quinn: Just, I mean, combative. Belligerent. Uh, refusing to comply with anything. We hated gays, we were homophobes, we were jackbooted Nazi thugs.

Katherine: So, at a certain point, Quinn just decides...

Joseph Quinn: You know, if we leave them here, and the way they're acting and they're intoxicated, we're gonna have further calls here. You know, it's not the end if we leave them here.

Katherine: So he decides to arrest them.

Jad: Really? What, what's, on what charge? I mean, they're just in their house.

Katherine: Right. So, that's the question.

Joseph Quinn: Well, I, I've been a patrolman for 15 years, and, and, you know, I'm blessed with the ability to have somewhat of what you would call a photographic memory.

Katherine: Meaning he knew the penal code really well. So he starts thinking, he starts going through all the possible laws that could apply to this, and he lands on this one.

Joseph Quinn: I know it pretty well. 2106.

Katherine: Statute 2106.

Joseph Quinn: It says that members of the same sex can't engage in sexual conduct.

Katherine: It's a law banning sodomy.

Joseph Quinn: Deviant sexual intercourse.

John Lawrence: We were not even treated like civilized citizens.

Katherine: This is John Lawrence, from an interview he did with Lambda Legal in 2008. It's one of the few bits of tape that we have of him.

John Lawrence: It's just all of a sudden, "We're taking you downtown." I wasn't allowed to put clothes on. I was handcuffed and dragged down the stairs.

Katherine: Officer Joe Quinn has a different version of that story.

Joseph Quinn: Took them in custody. I afforded them the opportunity to, you know, get dressed. They refused, so we forced them to put some underwear on. You know, we actually held them down and put underwear on them and escorted them out of the apartment like that. 'Cause we, I mean, it was, it was a struggle just to get them to put underwear on.

Jad: Okay, just jump in for a second. Whatever happened in that room, which Katherine will go into more in a second, this moment of two guys supposedly having sex and then being charged with sodomy...

Dale Carpenter: It was like a strike of lightning.

Jad: It would begin a process that would profoundly reshape America, and what's interesting, and this is one of the first things that you bump into if you're an idiot about the law, which I am, and then you try and make a podcast about the law, which I'm trying to do, is that there's often this disconnect. Like, laws are these things that sort of float above us all, these beautiful abstractions, and yet if you want to challenge the law you've gotta find a person down here in the mud whose experience perfectly somehow captures what you feel is wrong with the law. You've gotta find a perfect plaintiff. But how do you find that person? And what happens if they're not so perfect?

Jad: These two stories that you're gonna hear are about a particular tactic that's sometimes called test case litigation, that I wasn't too aware of before Katherine's reporting. The second story actually touches on a very current case that was just decided a few days ago. This is the case on affirmative action. We'll meet the guy who brought that case, who critics say is basically destroying some of the most iconic civil rights law from the '60s. But first, we get back to Katherine Wells with the story of a case called Lawrence v. Texas.

Mitchell Katine: Okay. So, come on in.

Mitchell Katine: I brought out my Lawrence v. Texas box of stuff, and, uh, [crosstalk 00:08:02]...

Katherine: So, I went to Houston, and I visited a guy named Mitchell Katine. He's a lawyer there. And he showed me the arrest papers, he had the arrest papers for these two guys.

Mitchell Katine: [crosstalk 00:08:12] Let's see. "J. Lawrence, criminal. Officers observed the defendant engaged in deviant sexual conduct. Charged with homosexual conduct." It's right there in writing.

Katherine: Yeah, I g- I mean, it's, it really is strange to see those words on a piece of paper. It seems like such an anachronism, but it was not actu-

Mitchell Katine: No, it's not, and this is dated, um, September 17th, 1998.

Katherine: Now, in 1998...

Mitchell Katine: I have a few other things here, uh...

Katherine: Texas wasn't the only state that had this kinda law on the books. A- at least 13 other states also had an anti-sodomy law.

Mitchell Katine: And it's important to note that, you know, this law wasn't used very much. People were not arrested for this law...

Dale Carpenter: Because when would police be present in your home to observe you having sex?

Katherine: This is Dale Carpenter.

Dale Carpenter: I teach constitutional law, SMU Law School.

Dale Carpenter: I mean, sodomy laws weren't really about stopping any f- body from having sex. They were really about ensuring that we could label people criminal.

Mitchell Katine: It was a label that people could point to.

Katherine: So the people who disapproved of homosexuality could say, "Look..."

Speaker 9: The defining act of homosexuality, c- a crime! Uh...

Katherine: So, if it's a crime...

Speaker 9: Used to be in all the states...

Katherine: And you commit the crime...

Speaker 9: In many of the states...

Mitchell Katine: Well, you're a criminal. It's a criminal statute.

Speaker 9: [crosstalk 00:09:28].

Katherine: People can say you're a criminal.

Speaker 9: ...enforce them. [crosstalk 00:09:29].

Katherine: Which then gives the state a legal basis to justify all sorts of housing discrimination, employment discrimination...

Dale Carpenter: Uh, the military. In every context it had an effect.

Katherine: And many people argued that these laws, they also sent a strong cultural message.

Speaker 10: Well, it's being called "gay bashing," but the most recent example here in Houston is better described as a vicious killing.

Katherine: And this was at a time when hate crimes in Houston were surprisingly common.

Speaker 10: Paul Broussard, 27 years old, died after being beaten with a nail-studded two by four.

Speaker 11: The second senseless killing in the Montrose area in less than three months.

Speaker 12: There's a lot of blood, and it was real apparent that he'd been shot.

Katherine: So, to make a long story short...

Dale Carpenter: The gay rights movement was very eager to repeal that sodomy law.

Katherine: Okay. So, John and Tyron were arrested on a Thursday night. The next day...

Dale Carpenter: It so happened that, because of the location of John Lawrence's apartment, the case landed in a Justice of the Peace court. [crosstalk 00:10:29].

Katherine: Meaning after Quinn made the arrest, the report was sent to that court for processing. Now, this court is, mostly deals with traffic. It's mostly a traffic court. Um, but there happens to be this clerk in the court...

Dale Carpenter: Who was gay, and he couldn't believe that there, that somebody had actually been arrested for homosexual conduct in their home. [crosstalk 00:10:47].

Katherine: So, that night, this clerk and his partner go to a bar...

Dale Carpenter: And they start talking to the bartender.

Lane Lewis: I believe it was a Friday night. [crosstalk 00:10:54]

Katherine: This is Lane Lewis. He was the bartender.

Lane Lewis: It's what I was doing. I was a bartender in 1998.

Katherine: So, these two guys come in and they tell Lane, "You're not gonna believe what happened."

Lane Lewis: He said, "A couple of guys were arrested and charged with, uh, sodomy."

Katherine: And Lane was like...

Lane Lewis: "Yeah, yeah, yeah, yeah, yeah."

Dale Carpenter: He just can't believe that such a thing happened. It's such an unusual occurrence.

Katherine: But they were like, "No, no, it really happened."

Lane Lewis: And...

Katherine: Lane said, "Send me the report."

Lane Lewis: Monday morning, bright and early, I could hear my fax machine go off. Went in there and I pulled it off.

Speaker 14: "Officers observed the defendant engaged in deviant sexual conduct." [crosstalk 00:11:29].

Lane Lewis: And, uh...

Speaker 14: "Oral sex with another man."

Lane Lewis: And that's when it hit me. It's, "Oh!" I mean, it was so clear, night and day to me. I immediately knew what I had in my hand.

Jad: Why, why does he care so much about this?

Katherine: Well, so, when he wasn't being a bartender, Lane was a community organizer.

Lane Lewis: Particularly around LGBT issues. I was president of the Gay and Lesbian Political Caucus.

Katherine: That's one of the oldest LGBT civil rights groups in the south.

Lane Lewis: [crosstalk 00:11:51]. Uh, mostly [crosstalk 00:11:52].

Katherine: He'd been waiting for this moment.

Katherine: H- how long had you been looking for a case?

Lane Lewis: Seven, eight years? Seven or eight years.

Katherine: 'Cause, just to b- lay it out explicitly, what, why did you need...?

Lane Lewis: 'Cause I needed a test case. You can't change a law like that if you don't have a case.

Katherine: People in the Texas legislature had been trying to remove this law from the books for years, according to Dale Carpenter.

Dale Carpenter: But every time someone would introduce a proposal to repeal the law, it would get snickers and catcalls in the state legislature.

Katherine: It just wasn't really going anywhere, so activists had decided the only way to get this done is to bypass the legislature and go straight to the courts.

Lane Lewis: So, I needed a case. I had to have a, uh, someone guilty.

Katherine: So, Lane starts trying to track them down. At this point, the two guys had been released from jail, and he eventually gets John on the phone.

Lane Lewis: Conversation basically went like this: "Hi, my name is Lane Lewis. I'm a gay activist here in town. You don't know me. Uh, that's not important, but I understand you've been arrested. I'm begging you not to plead out."

Katherine: Meaning, "Don't just say you did it and pay the fine."

Lane Lewis: I knew I couldn't have him plead out.

Katherine: 'Cause then there'd be nothing Lane could do.

Lane Lewis: I said, "I will find you lawyers. I will raise the money. I will pay for everything. Just don't do anything until you and I have an opportunity to meet."

Katherine: A few weeks later, they all meet at Mitchell Katine's office, and it immediately becomes clear that these guys are sort of an odd couple.

Dale Carpenter: John Lawrence at that time was, um, about, I think he was 55 years old.

Katherine: Tall, white, kind of a big guy.

Dale Carpenter: He worked as a lab technician.

Lane Lewis: It's for a hospital.

Katherine: Tyron Garner was a young, skinny black guy, 24 years younger than John.

Dale Carpenter: No steady job.

Katherine: He bounced around between friends' apartments.

Dale Carpenter: Just kind of went from place to place and job to job.

Lane Lewis: No idea what their connection was. They weren't lovers. Both heavy drinkers. Um, very heavy.

Katherine: Both had criminal records.

Lane Lewis: Yes.

Katherine: Tyron had been convicted of assault and drug possession and John had been convicted in the '60s of murder by automobile.

Lane Lewis: Yeah, they were not the perfect plaint- they were not the poster boys. These were not pretty twinks.

Katherine: And they weren't political.

Lane Lewis: Oh, no, not at all. Not at all.

Katherine: In fact, when Lane told John Lawrence...

Lane Lewis: "I'm a gay activist here in town."

Dale Carpenter: John Lawrence didn't even know what that was. "I don't know what a gay activist is."

Katherine: Basically, neither of them had any interest. Like, no interest in being a public figure.

Lane Lewis: So I gave them the whole...

John F. Kennedy: Ask not what your country can do for you, [crosstalk 00:14:17]...

Lane Lewis: Ask not what you can do (laughs) for your country speech. I mean, literally. I reminded them of who Harry Hay was.

Harry Hay: I just simply thought, "Well, now it's time for me to organize my people." [crosstalk 00:14:26].

Lane Lewis: Harry Hay was arguably the founder of the original LGBT movement.

Harry Hay: ...scapegoats [crosstalk 00:14:31].

Lane Lewis: Your listeners may not remember, but at one time it was illegal for certain number of gay males and the LGBT community to get together in one location. It was illegal. Couldn't do it.

Harry Hay: I dreamt even then of the idea that there would be networks of sanctuaries, of places where we could come and out of which we would be able to move and organize and change things across the country. I didn't think [crosstalk 00:14:52].

Lane Lewis: So, I told him a little bit about that history, and, and, uh, how far we'd come and how far we had to go, and that, um, they had an opportunity to change that.

Lane Lewis: So, I told them, I said, um, "I'll be able to protect you for maybe the first year or two, but there's gonna come a time where it will no longer be about you. Um, it'll be about something much, much bigger.

Lane Lewis: So, um, they agreed. Tyron's attitude was, "Okay," you know, um, "What do you need me to do?" John was, uh, much more indignant.

John Lawrence: I was pissed. They picked the wrong person to pull this on. It was a ridiculous law, but, uh, Texas loves to keep some antiquated things around.

Lane Lewis: He was mad, he was angry, he [crosstalk 00:15:45].

Katherine: And here's where the story gets complicated.

Lane Lewis: Um, and [crosstalk 00:15:48].

Katherine: Because at one point, according to Lane Lewis, they were having this conversation and John was ranting, you know, about how he'd been treated and he said, "You know what the worst part is?"

Lane Lewis: "We weren't even f- having fucking sex yet," you know, "We weren't even, dah dah dah dah." He said that they were not having sex.

Jad: Wait, what?

Lane Lewis: That they were not having sex, that they were sitting in their underwear on the couch watching the late night news.

Katherine: They say they were sitting there doing nothing and the cops just burst in and started pushing them around and that they were never even having sex.

Jad: Wait, but isn't this whole case about them having sex?

Katherine: Yep.

Jad: So, you're saying the thing that this case is supposed to be about might not be true?

Katherine: Right.

Dale Carpenter: Well, so, I interviewed three of the four police officers, um, [crosstalk 00:16:31]...

Katherine: Dale Carpenter says when he talked to the police officers, he did find that their stories were sort of all over the place. One guy said it was anal sex he saw; one guy later said he thought it might've been oral.

Dale Carpenter: The other two officers said they never saw anything.

Katherine: So Dale says he believes John's story.

Dale Carpenter: There probably was actually no sex. [crosstalk 00:16:47].

Katherine: He thinks what might have happened is that the cops walked in and saw some gay art on the wall and some gay magazines lying around...

Dale Carpenter: I have a feeling that really set off the officers, and they said, "Well, we know they're homosexuals. They probably engaged in homosexual conduct at some point, and that's illegal in Texas."

Joseph Quinn: No, no, I n- I d- there, there was no, no, no doubt about it. I mean, I have no, no reason to lie, and [crosstalk 00:17:07].

Lane Lewis: Quinn to this day still insists that he walked in on them copulating.

Katherine: He says he saw what he saw and he just did his job.

Joseph Quinn: If you wanna be homosexual and that's the way you wanna live your lifestyle, that's fine. I don't agree with your lifestyle, but that's my opinion. That's what it is. It's an opinion.

Katherine: So, there's no way to know what actually happened, obviously, but in a way it doesn't matter. Because when John said that to Lane, that they weren't even having sex...

Lane Lewis: I said, "John, don't ever say that again. Don't ever say that to anybody again." Because we couldn't have people know that. We couldn't have people find that out.

Jad: Wait, they're gonna go forward with this?

Katherine: Yep.

Lane Lewis: We were scared that, you know, the case would get screwed up at that point, and potentially the DA dropping the charges...

Katherine: So basically, you had to preserve... If, if Joe Quinn was lying on that police report, you had to preserve the lie.

Mitchell Katine: Correct.

Lane Lewis: Correct.

Jad: D- dumb question: you can just do that? You can just preserve a lie to keep a case going? You do that, that's okay?

Lane Lewis: Well, keep in mind that it wasn't our job to prove or disprove the lie.

Katherine: You know, to Lane, the thing that mattered was not what did or didn't happen that night. The thing that mattered was what the arrest report said.

Jad: But if what the arrest report said potentially didn't happen, shouldn't that matter?

Dale Carpenter: Well, no. No one... Our legal system is not designed to bring out the truth. This is a misconception. It does not bring out the truth.

Katherine: That's Dale Carpenter again.

Dale Carpenter: It is people who play their roles in pursuing whatever they think their best interests are, and that's exactly what happened.

Lane Lewis: So, for the first few years, my job was to keep the boys out of the n- out of the news.

Katherine: And why was that?

Lane Lewis: Well, they had a tendency to drink and get rowdy and fight and, uh, they liked to go to seedy hotels and rent rooms and get really, really high, drunk, whatever, and inevitably they would start fighting with each other. And so, what I did, um (laughs), what I would do is I would... I knew the different places they stayed.

Katherine: He says he would go to these seedy hotels and talk to the clerks.

Lane Lewis: Give them a business card, tell them, "If these boys come and check in, they cause problems, call me first." And on more than one occasion it happened. I'd get a call at 2:00 in the morning, "Your, your guys are here. They're causing trouble. I'm gonna have to call the cops." I would jump out of bed, put on my clothes... 'Cause we couldn't have them, you know, they're already on the front page of the Houston Chronicle. We could not have our defendants doing a perp walk for drugs and alcohol.

Lane Lewis: So, um, I would drive down there and I would figure out which one was causing the most problems, put him in my car, and I would drive him somewhere else. I would separate them out. Uh, that happened more than once. More than once.

Katherine: So, Lane said he had this fear that John and Tyron would s- would start talking to the media and let something slip about their version of the story, so he gave them these little cards.

Lane Lewis: Kept it in their wallet, a small little sentence that basically said, "Thank you for contacting me. Please refer to Lane Lewis," and had my phone number and my email. And I said, "So, anytime the media contacts you, don't think about what you say, right? 'Cause that's where you get screwed up, when you start thinking about what you wanna say to the media. Pull this out of your wallet, read it, and hang up."

Katherine: Even so, there were these close calls as the case wound its way through the court system. Mitchell Katine told me about this one time there was this press conference.

Mitchell Katine: [crosstalk 00:20:32] And we came outside to the normal media group that was out there wanting quotes and to talk to us, and they didn't wanna hear from the lawyers, they wanted to hear from the clients.

Katherine: So he was like, "All right, just this once."

Mitchell Katine: Tyron got up to the mic and s- I think a reporter asked him, you know, "How do you feel about this?" And he said, "We didn't do anything wrong!" He just kinda yelled that out in a angry way, "We didn't do anything wrong."

Katherine: Mitchell pulled him back and was like...

Mitchell Katine: "Uh oh, that's enough. That's enough." So, he...

Katherine: Next day...

Mitchell Katine: "We didn't do anything wrong!" That was the quote on the headlines of the morning's paper the next day, and certainly I knew what he meant.

Katherine: That they weren't having sex.

Mitchell Katine: But, you know, could also be interpreted as, uh, homosexual conduct is nothing wrong.

Katherine: He says, luckily, that's how people took it.

Mitchell Katine: (laughs) It was very nerve wracking.

Katherine: 'Cause this went on for years. This was years.

Mitchell Katine: Yeah, couple of years.

Katherine: Here's kind of how it went down. They started at this Justice of the Peace court. They were sentenced to a fine of $125. They appealed. Then the case gets kicked up one level to the Harris County Criminal Court. They're fined again, they appeal it again.

Dale Carpenter: Then it went to, uh, another level.

Katherine: To the 14th Court of Appeals.

Dale Carpenter: And...

Katherine: One more level.

Dale Carpenter: Ultimately the Texas Criminal Court of Appeals, which is the highest court in Texas for criminal appeals. Refused even to hear the case. So the only next step is the Supreme Court.

Speaker 17: We'll hear argument next in number 02102, John Geddes Lawrence and Tyron Garner versus Texas.

Katherine: March 26, 2003. Almost five years after the arrest, the case lands at the Supreme Court, and by the time it gets up there...

Speaker 17: Mr. Smith.

Mr. Smith: Mr. Chief Justice, and may it please the court, the State of Texas in this case claims the right [crosstalk 00:22:14].

Katherine: The story is not dwelled upon at all. They didn't say, "These guys weren't in a relationship." They didn't say, "If these guys were having sex, one of them was cheating on his partner." "Seems like they might've not been having sex anyway."

Jad: (laughs)

Katherine: They didn't say any of those things. They said...

Mr. Smith: There are gay families, that family relationships are established, that there are hundreds of thousands of people registered [crosstalk 00:22:37].

Katherine: That this is about families and relationships, how people in loving relationships have the right to express themselves in whatever they want. It's none of the state's business.

Mr. Smith: The opportunity to engage in sexual expression as they will in the privacy of their own homes m- performs much the same function as it does in the marital context [crosstalk 00:22:53].

Katherine: You know, basically, people in relationships have the right to have sex with each other regardless of their gender.

Mr. Smith: You should protect it for everyone, that this is a, a fundamental matter of American values. So, those are three reasons [crosstalk 00:23:04].

Jad: Wow. It's like watching something float up from the sort of mucky, like, realm of, of human...

Katherine: Real life.

Jad: Of real life, and then it just gets kind of prettier as it floats upwards.

Katherine: Yeah. It was such a pretty story that people were suspicious of it. Like, people were asking, "How did this arrest even happen?"

Mitchell Katine: This was a setup. You all set this up. That was their big battle cry.

Katherine: So, Mitchell Katine says he heard this over and over again.

Mitchell Katine: Wasn't a setup, but I always wanted to say, "So, so what if it was? Does that make it any less of a case? Who cares?"

Mr. Smith: Unless the court has further questions, uh, thank you very much.

Speaker 17: Thank you, Mr. Smith. The case is submitted.

Speaker 19: The honorable court is now adjourned until Monday next at 10:00.

Katherine: Three months later...

Speaker 17: The opinion of the court in number 02102, Lawrence against Texas, will be announced by Justice Kennedy.

Mitchell Katine: Justice Kennedy begins reading a summary of his opinion.

Justice Kennedy: The question before the court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.

Mitchell Katine: Everybody's waiting for the outcome.

Justice Kennedy: In Houston, Texas, police officers [crosstalk 00:24:12].

Katherine: So, for context, it wasn't totally clear how this case was gonna come out, because 17 years earlier there'd been a case called...

Speaker 21: Bowers against, uh, Hardwick...

Katherine: Bowers v. Hardwick, and then they had ruled that sodomy laws were fine.

Speaker 22: And I would suggest to the court that there is no constitutional warrant to conclude that there should be a fundamental right to engage in homosexual sodomy.

Katherine: And the Supreme Court almost never overrules things that are that recent.

Justice Kennedy: Bowers v. Hardwick had some factual similarities to this case. [crosstalk 00:24:41].

Katherine: So, Justice Kennedy starts talking about all the similarities between the cases.

Justice Kennedy: Police officers were dispatched to a private residence.

Mitchell Katine: The tension starts building.

Justice Kennedy: The officers observe Lawrence and another man, Tyron Garner, engaging in a sexual act.

Mitchell Katine: And then finally, he got to the moment where he said...

Justice Kennedy: Bowers was not correct when it was decided, and it is not correct today.

Mitchell Katine: And at the point Justice Kennedy said that, there were people sobbing in the Supreme Court.

Justice Kennedy: Bowers v. Hardwick should be, and now is, overruled.

Speaker 23: At rallies across the nation, gay rights advocates celebrated their legal victory, a ruling so broad it surprised even many of them. The court ruled in favor of two Texas men who challenged a state law that made homosexual conduct a crime.

Speaker 24: ...homosexual sex a crime. The ruling overturns a Texas law that allowed police to arrest gays for having sex. 12 other states have similar laws, including Oklahoma. [crosstalk 00:25:41].

Katherine: That morning, John Lawrence was at home in his apartment in Houston watching the news.

John Lawrence: So, I am laying in bed trying to go back, get my 40 winks, and all of a sudden it says, "has ruled the law unconstitutional." [inaudible 00:26:01]. I came out of bed quite happy. (laughs)

Katherine: Obviously, not everybody was happy about it.

Justice Scalia: Let me be clear that I have nothing against homosexuals or any other group promoting their agenda through mor- through, through normal, democratic means. Social perceptions of sexual and other [crosstalk 00:26:22].

Katherine: Justice Scalia said, basically, "If, if you want this to happen, that's fine, but you're going about it the wrong way. The court is not the place where this decision should be made. You need to go talk to your fellow citizens and convince them that this law needs to change. Coming to us and asking us to bypass what your fellow citizens seem to want, that is not how democracy should work."

Justice Scalia: Persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. [crosstalk 00:26:53].

Katherine: He, he sees this as a small minority imposing their views on everybody else. And then he said he was worried about something else.

Justice Scalia: Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions. If tomorrow [crosstalk 00:27:15]...

Katherine: That this decision would open the floodgates and that it would only be a matter of time before the court was being asked to decide on gay marriage.

Justice Kennedy: The second relevant principle is that marriage affords [crosstalk 00:27:26]

Katherine: And he was right. When Kennedy read the marriage decision in 2015...

Justice Kennedy: In Lawrence v. Texas...

Katherine: He talked about Lawrence.

Justice Kennedy: The court held that private intimacy of same sex couples cannot be declared a crime, yet it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.

Katherine: So, what happened to Garner and Lawrence?

Mitchell Katine: Well, um, [crosstalk 00:27:52].

Katherine: John Lawrence and Tyron Garner didn't live to see this. Tyron died in 2006 from meningitis...

Mitchell Katine: No job, had no money...

Katherine: He was 39.

Mitchell Katine: Um, and his family was very poor and they didn't have the money to bury him. They didn't even have the money to reclaim his body from the county morgue.

Katherine: As for John Lawrence, he died in 2011 at 68 from heart problems.

Mitchell Katine: We didn't even find out about it until a month after he was dead. This hero of the gay rights movement was unknown and unmourned at his passing.

Katherine: W- what was that say about, sort of, the practice of bringing things to the supreme court, uh, that the two people whose story this case revolves around could sort of fade into the background afterwards?

Mitchell Katine: Well, one is tempted, I think, to be very cynical in some ways, because it means that these people were useful as long as they were useful, and after that they w- could be forgotten.

Jad: I have to say, I actually had that reaction a little bit. I mean, this is a story of social progress, but there's something a little funny at the center of it for me, and as we were playing this for our legal editor, Elie Mystal...

Elie: Um, I think that...

Jad: We talked about this a bit.

Elie: In a lot of ways, our l- our legal system devolves into an ends j- uh, justifies the means kind of justice. Um, we s- we care, we, we, we care about the process so much, um, and, and, and, look, the process isn't, is extremely important.

Jad: But Elie, isn't this just weird to you? Like, this is a dumb law. Like, a dumb, dumb, dumb, dumb law. Why not just, uh, shouldn't there be an avenue to say, "This is a dumb law. Let's take it away." Why do you have to find some people who didn't have sex, they say, pretend that they have sex, then march them up all the way through the court system, and then forget about them? I mean, it just seems weird to me. It seems like a empty theater. Why do we have to do it that way?

Elie: Because if you wanted to put a ballot initiative up in 2003 in Texas saying, "Is gay sex okay?" It would fail. It would fail in 2003 in Texas. It would probably fail in 2016 in Texas. It will probably fail in 2032 in Texas. That's why. That's why.

Jad: I see.

Elie: The majority isn't always right.

Jad: Hm.

Elie: So, you, you, you, you take th- you basically take the democratic hit. And this is, this is a, again, this goes back right to the founding of our country. Like, when are you gonna let popular will run wild and when are you going to constrain it? Not just restrain it, constrain it. You know? When are you gonna just stop it? Um, and, and Lawrence v. Texas is a, is an example of a, of a, "We're just gonna stop it." And it was the right call.

Katherine: So, after this, uh, Supreme Court decision, did Texas immediately go and repeal the law?

Dale Carpenter: No, actually, the law is still on the books in Texas. No, the Texas legislature, like other legislatures around the country, refuses to repeal the law. It stays there, a sort of remnant of a kind of a dark, almost forgotten past.

Jad: Keep in mind, they can't enforce the law now that it's unconstitutional, but they refuse to take it off.

Jad: Coming up: a very deep dive into the guy behind one of the most controversial cases this term, the case that just got decided late last week. This is More Perfect.

Speaker 27: The honorable the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez, oyez, oyez. All persons having business before the honorable the Supreme Court of the United States are admonished to draw near and give their attention. Oyez, oyez. The court is now in session. Oyez. God save the United States and this honorable court.

Peter Fink: Hi. My name's Peter Fink, and I'm calling from Ritsona Refugee Camp in Evia, Greece. Radiolab is supported in part by the Alfred P. Sloan Foundation, enhancing public understanding of science and, and technology in the modern world. More information about Sloan at www.sloan.org.

Jad: This is More Perfect. I'm Jad Abumrad. If Supreme Court cases can sometimes feel like plays where the activists and lawyers are sort of like the directors pulling the strings, and the people in the center of the case, the plaintiffs, are just like these imperfect actors who have been cast and the script's already been written for them, well, that dynamic was definitely in effect this term. In fact, just last week.

Speaker 29: We have had a decision just handed down in what was billed as the landmark affirmative action case of this term.

Speaker 30: [Josh 00:32:56], this is a decision that will impact college admissions nationwide.

Jad: The case Fisher v. University of Texas centered around the following question:

Speaker 31: Should universities be able to use racial preferences in college admissions? [crosstalk 00:33:08].

Jad: Now, the University of Texas has this policy where the top 10% of every high school class automatically get in, but for everybody else, they will consider factors like race. And the question was, is that okay? Couple days ago, the court decided, barely, that yes, it is okay.

Speaker 32: The Supreme Court has upheld the affirmative action program at the University of Texas. [crosstalk 00:33:31].

Speaker 33: Affirmative action in higher education is constitutional.

Jad: Now, the case was brought by a young white woman named...

Speaker 34: Abigail Fisher.

Jad: Abigail Fisher.

Speaker 35: Abigail Fisher believed her race may have hurt her chances to attend the University of Texas.

Abigail Fisher: There were people in my class with lower grades who weren't in all the activities I was in who were being accepted into UT, and the only other difference between us was the color of our skin.

Jad: She was arguing that affirmative action discriminates against her as a white person. Now, what you saw, in the wake of that decision and even before, especially online, was this just torrent of hate directed squarely at her.

Speaker 37: See, I don't even know what [crosstalk 00:34:07] yet. So, I'm trying to hold my tongue, but I'm about to tell Abby to have a seat. Okay?

Speaker 38: "I can't get into a good college. A lot of people have it better."

Speaker 39: Bitch, if you don't take your little ass on somewhere... [crosstalk 00:34:18].

Speaker 38: Maybe if your grades didn't suck, you dumbass, maybe you would've gotten into a good college. [crosstalk 00:34:24].

Speaker 40: Becky with the bad grades, really happy you and your racist lawyer got shot down.

Jad: It's all been pointed right at Abby Fisher, which you could argue honestly isn't fair, because this case may have very little to do with Abby Fisher. I mean, if you look at the press conferences...

Abigail Fisher: Like most Americans, I don't believe that students should be treated differently based on their race. [crosstalk 00:34:41].

Jad: Abby Fisher is the one at the podium, but behind her, far in the background, you'll see this guy. He's there in every single press conference, sort of back, uh, in the e- at the edge of the frame. Not too many people know about him. His name's Edward Blum, and he's the one who actually brought the case. When it comes to this case and so many others, he is...

Speaker 42: The architect.

Jad: He's brought dozens of lawsuits, not just this one, and, uh, he seems to be a maestro of getting cases to the Supreme Court that challenge civil rights law. Critics sort of paint him as this, like, one-man wrecking crew for civil rights, like, h- he's almost single handedly rolling back decades of civil rights law. And then it comes to affirmative action, he says he's not done. Just to make a long story short, we wanted to meet him, figure out how he does it.

Katherine: Yeah, so, I went to Tallahassee.

Jad: Reporter Katherine Wells takes it from here.

Katherine: That's where he lives, or, he winters in Tallahassee.

Katherine: Oh, man.

Lark Blum: Golden retriever, [Molly 00:35:42].

Katherine: Hi, Molly. Hi!

Jad: You walk in. What initially struck you?

Katherine: His golden retriever...

Lark Blum: [crosstalk 00:35:48].

Katherine: Is what initially struck me. Literally, physically.

Edward Blum: Katherine.

Jad: (laughs)

Katherine: Nice to meet you.

Edward Blum: Nice meeting you.

Katherine: Thank you for having me.

Edward Blum: Sure.

Lark Blum: Of course. [crosstalk 00:35:55].

Katherine: And I don't know what I was expecting, but when you hear about these cases, you know, they're, I mean, critics are really, people are mad about these cases.

Speaker 45: It is deeply disturbing.

Speaker 46: Cruelly outrageous.

Speaker 45: It's a betrayal of the American people.

Katherine: So I go to meet him and...

Edward Blum: Your flight from Austin to Dallas to Tallahassee, uneventful and on time and good? Yeah?

Katherine: Easy, yeah.

Edward Blum: Good.

Katherine: He's like a totally nice guy.

Katherine: [crosstalk 00:36:20] too short [crosstalk 00:36:21]...

Katherine: A regular guy.

Jad: What does he look like?

Katherine: Like a dad.

Edward Blum: There's something in me that just loves tradition and custom.

Katherine: He loves listening to the great American songbook.

Edward Blum: Uh, Frank Sinatra and, um, Ella Fitzgerald. I love art and museums, uh, independent films, golf...

Jad: What's his, uh, what's his story? What's his backstory?

Katherine: Well, he's 64.

Edward Blum: I was born in a small town in Michigan. My dad owned a shoe store there. My mom worked with him in the shoe store.

Katherine: What had been your kinda political leanings up to this point, or f-

Edward Blum: Well, I'm the first republican my mother ever met. Hate to use the word typical, but it, it really was a typical liberal Jewish household. My mother and father were Franklin Roosevelt, Harry Truman democrats. Always for the democrat.

Katherine: And he said he was that way too, all the way through college.

Edward Blum: The University of Texas.

Katherine: Grad school.

Edward Blum: State University of New York, where I spent a year studying, of all things, African literature.

Katherine: But he says somewhere along the way his political leanings sort of started to shift.

Edward Blum: I spent a summer in Israel living on a kibbutz.

Katherine: And he says he came out of that experience a little less liberal than he was before. And he got married, and then in the early '80s, he's living in Houston working as a stockbroker...

Edward Blum: And we met our n- our neighbors.

Katherine: This particular couple.

Edward Blum: They were New Yorkers who had moved to Houston. Both grew up as liberals, and...

Katherine: The guy...

Edward Blum: He sort of opened my eyes to the world of the neocons.

Katherine: The guy introduced him to these magazines.

Edward Blum: Weekly Standard, National Review, Commentary Magazine.

Katherine: Like, conservative magazines, and this was around the time that the neocon movement was really hitting its stride. You had all these New York liberals defecting, uh, is what he says.

Edward Blum: Thousands of individuals who grew up in the 1960s that started to question the wisdom of these liberal policies.

Katherine: And he says, slowly...

Edward Blum: Slowly...

Katherine: Over time...

Edward Blum: Very gradually...

Katherine: He became one of those people. In any case, fast forward a little bit. He's living in Houston.

Edward Blum: Kind of the garden variety existence in Houston [crosstalk 00:39:00].

Katherine: And something happens that sends him on this entirely new path. Basically, he and his wife move to a new neighborhood. They move from the suburbs into the downtown area. More urban.

Edward Blum: And in 1990, when w- we went to vote for the first time in our new neighborhood, I realized that the Republican Party had not fielded a candidate to oppose the Democrat incumbent running for Congress. This is a district that has almost 600,000 people and you don't have a choice? You've only got one person running?

Katherine: Blum decided to run himself.

Edward Blum: I lost, I don't, that was no great surprise to anyone.

Katherine: He actually lost by 32 points.

Edward Blum: But...

Katherine: Along the way...

Edward Blum: Uh, something really unusual happened. Um, [crosstalk 00:39:51]...

Katherine: During that campaign, he and his wife [Lark 00:39:53], you know, they decided they were gonna go meet voters in their district. They got a giant printout of all of the addresses in the 18th Congressional District.

Edward Blum: W- what was then called a walking list.

Katherine: And they just started going door to door.

Edward Blum: Meeting people, handing out literature.

Katherine: And they'd walk down, say, Oak Street...

Edward Blum: I would take the even side of Oak Street, and my wife would take the odd numbered side of Oak Street, and we would start to walk and...

Katherine: And he says, very quickly, they realized that the district's shape was funny. Some houses on one side of the street would be in the district and then houses on the other side wouldn't, and sometimes the district would snake down a highway, catch an apartment complex, come back.

Lark Blum: It, it just didn't make sense.

Katherine: Uh, this is Lark Blum.

Lark Blum: Wife of Edward Blum. It was peculiar, because we had, uh, maps that we had to follow, and it was very odd, the way some streets were in the districts and some weren't. Took a while for it all to really sink in as to how this could happen.

Edward Blum: After I guess about a week of this, we realized that n- n- neighbors w- had been separated, h- h- almost house by house, because of their race.

Katherine: He comes to believe that the reason this was done was for the explicit purpose, to create a majority African American district.

Katherine: This isn't untrue.

Lyndon Johnson: This act flows from a clear and simple wrong.

Katherine: Part of the reason this was done was the Voting Rights Act of 1965.

Lyndon Johnson: Millions of Americans are denied the right to vote because of their color. [crosstalk 00:41:40].

Katherine: This act was a giant step forward in civil rights. You know, one of the primary things it did is eliminate barriers to voting like poll taxes and literacy tests, all these w- you know, strategies that had been used to keep minorities from voting. And then this other thing it did, um, sort of in a roundabout way through a series of interpretations, is it encouraged the creation of districts where the majority of voters were minorities, and that's because, you know, one of the strategies that had been used previously to, um, sort of dilute the minority vote was to take minority communities and, they called it cracking, they, they sort of split them apart into many different districts so that they were never, uh, in the majority enough to elect a representative.

Jad: Right. Right.

Katherine: So, the Voting Rights Act tried to correct that. The 18th Congressional District was one of these majority minority districts.

Edward Blum: The district was drawn by the Texas legislature, uh, to have a slight African American majority. I think about 51 percent African American. [crosstalk 00:42:43].

Katherine: But this was the problem, according to Blum. The way they got to that African American majority was by creating this district that zigzagged all over the city and cut through neighborhoods.

Edward Blum: I c- I could not understand. People live close together. They sent their kids to the s- neighborhood schools. They shopped in the neighborhood shopping centers. They were worried about neighborhood issues. To break these neighborhoods apart by race seemed so wrong to me.

Katherine: In his mind, this law was actually not limiting discrimination but actually perpetuating it.

Edward Blum: Well, yeah. Uh, [crosstalk 00:43:18].

Katherine: And I don't know what an av- the average person, upon realizing this, would have done...

Edward Blum: But I decided to file a lawsuit.

Katherine: He decided to sue the state of Texas.

Edward Blum: Called a few friends who lived in the 18th District.

Katherine: And a few other districts in Texas.

Edward Blum: An African American, a Hispanic, and an Asian. Kept looking and looking and looking until I found a lawyer that I could afford.

Katherine: $7000 a month.

Edward Blum: We filed a lawsuit challenging the constitutionality of Texas' redistricting plan.

Katherine: The basic charge was, yes, the Voting Rights Act was good in its day, but now it was being used as this excuse to segregate people into racially polarized districts.

Edward Blum: It worked its way through the lower courts and, to my shock and surprise, in 1995...

Speaker 48: We'll hear argument now on number 94805, George W. Bush v. Al Vera... [crosstalk 00:44:15].

Edward Blum: Uh, the Supreme Court took it up.

Katherine: And you went to oral arguments?

Edward Blum: Yeah, we all did.

Speaker 49: Mr. Chief Justice, and may it please the court, [crosstalk 00:44:21]...

Edward Blum: So there we all are. Our opponents step to the lectern and...

Speaker 49: At issue in this direct appeal is the constitutionality of three congressional districts...

Edward Blum: They make their arguments...

Speaker 49: That the court below erroneously ruled were racially gerrymandered. [crosstalk 00:44:36].

Katherine: Texas basically said, "Y'all, we have to put people together by race."

Speaker 49: The Texas legislature has the obligation to satisfy federal requirements, and the Voting Rights Act is a federal requirement. [crosstalk 00:44:48].

Katherine: Like, remember the Voting Rights Act? We're trying to make sure that there are enough minorities in this district so that they have a chance to elect a representative.

Edward Blum: Then our advocate...

Speaker 48: Uh, Mr. [Troy 00:44:57], we'll hear from you.

Edward Blum: Made his arguments.

Mr. Troy: With regard to the point that, that was just being made as [crosstalk 00:45:02]...

Katherine: Blum's lawyer basically said, "But look at the map. The map is bizarre, and the only reason it could've gotten this way is because you're only thinking about race. Only race. Think about it. That seems messed up. Isn't that messed up?"

Mr. Troy: It doesn't matter what your ultimate goal is. You cannot use certain forbidden tools. Race is forbidden by the 14th Amendment to be used as a tool [crosstalk 00:45:24].

Speaker 49: But in his example, the people of St. Mary [crosstalk 00:45:28]

Edward Blum: You know, it's a very tense situation.

Speaker 49: [crosstalk 00:45:31].

Mr. Troy: [crosstalk 00:45:32] do you know any other situation in the law in which we allow race to be used as a surrogate for anything?

Mr. Troy: ...be unconstitutional, but to use it as [crosstalk 00:45:41].

Speaker 49: [crosstalk 00:45:41] racism, how is this done? I thought that's how you said this was done.

Speaker 51: [crosstalk 00:45:42] did you concede that, or did you say it would require strict scrutiny?

Speaker 49: You did say that, didn't you? Let, let me explain.

Speaker 51: [crosstalk 00:45:49].

Speaker 49: But would you say that or not?

Mr. Troy: [crosstalk 00:45:50].

Speaker 49: [crosstalk 00:45:50] let, let me [crosstalk 00:45:51]. Did you say that or not?

Katherine: So, in the end, the Supreme Court gives out this very (laughs) s- uh, hair-splitty decision that I think gets at this deeper question that, in our society and in our discourse, we just haven't figured out how to talk about, in a way. And it basically said this: "You know, look, if you're defining race just as the color of someone's skin, the government cannot use that in any way. That's against the constitution. On the other hand, if you take this wider view and you look at race in the context of history, social context, then how can the government address discrimination without taking race into account? You, they have to." So it's this difficult balance. You can't look at race, but you have to look at race.

Katherine: And the Supreme Court says to Texas, "Look, all you're doing in this case is sorting people based on how they're labeled on a census. You're not looking at that wider context. You're not looking at if these communities live next to each other, if they share common interests. You're just sorting them based on race alone, and that's not good enough. You can't do that."

Edward Blum: When the opinion came down, the Supreme Court ruled in our favor five to four. That was quite a day, the day that we won that lawsuit. I was hooked forever.

Katherine: After that, Edward Blum decided that this would be his thing.

Edward Blum: It became a passion.

Katherine: He would use the courts to try to strike down every race-based policy he could.

Edward Blum: The legal team was taken on the road. I recruited plaintiffs in New York, Virginia, South Carolina, to challenge congressional district plans, and we won in each of those states.

Katherine: He helped sue school districts in Florida and Texas...

Edward Blum: To end the use of racial quotas in K through 12 magnet schools.

Katherine: He went after affirmative action in Houston city contracting.

Speaker 52: Today, Houston could become the first city to kill affirmative action. [crosstalk 00:47:55].

Katherine: That one was actually a ballot initiative, and it failed.

Edward Blum: But I've been the architect of, uh, over two dozen lawsuits.

Katherine: Six of which...

Edward Blum: Six.

Katherine: Made it to the Supreme Court, including, in 2013...

Speaker 53: In a five to four vote...

Speaker 54: Five to four, very divided court [crosstalk 00:48:12].

Speaker 53: The Supreme Court today struck down a key part of the Voting Rights Act of 1965.

Speaker 55: The Supreme Court today struck down a very important part of the Voting Rights Act.

Speaker 54: That key 1965 landmark law, no one [crosstalk 00:48:24].

Speaker 56: It's considered one of the most important pieces of civil rights legislation ever passed.

Katherine: Shelby County v. Holder. This decision gutted the Voting Rights Act. Specifically, there was this part of it that said states and counties with a history of discrimination have to check with the federal government first before they go about changing their voting laws. Basically, the federal government was saying, "Look, you've been up to all this stuff. We're, now we're watching you." The Supreme Court said, "You know, times have changed. That list was made a long time ago, and it's outdated."

Edward Blum: This decision restores an important constitutional order to our system of government. [crosstalk 00:49:03].

Katherine: This was Blum's biggest victory.

Edward Blum: When Shelby County came down, I burst into tears.

Jad: I think a lot of people burst into tears when that came down.

Edward Blum: Y- you know, it, it, yeah, I, uh, and I understand it.

Speaker 45: It is deeply disturbing.

Speaker 59: I am deeply disappointed, deeply disappointed with the court's decision in this matter.

Speaker 45: This decision is a betrayal of the American people.

Speaker 60: It is a game changer.

Sheila J. Lee: During the civil rights movement, people died for the precious right to vote.

Katherine: This is Congresswoman Sheila Jackson Lee of Houston, Texas.

Sheila J. Lee: I would like to have the Supreme Court Justices go back in time, go back in time and march with those who marched after Bloody Sunday, uh, from Selma to Montgomery. Ed Blum has a right to his opinion. It doesn't mean that it has to be the opinion of the United States.

Edward Blum: I, I understand that people were, you know, gravely upset. I also know that there were people who were gravely relieved, and gravely gratified.

Jad: Yeah, but I think what gets a lot of people is that you look at these civil rights videos and you see tens th- of thousands, 40,000 people in the streets marching, and you hold that and, if you make a split screen in your mind, you hold that. Thousands, tens of thousands of people on one side. On the other side, you. One guy. It does make you ask basic questions about democracy.

Edward Blum: Th- that's a false paradigm. Uh, it, it, it, it's th- that may be your split screen, but that's r- r- really not the reality of all of this. Look, in 1964 and 1965, uh, America was held hostage by the legacies of slavery and the choke hold of Jim Crow. Fast forward to 2006. The reauthorization of the Voting Rights Act. The choke hold had gone away. African Americans in the deep south registered to vote in numbers that often exceeded whites, participated in elections in numbers that exceeded whites. In terms of electoral opportunities, we have come 180 degrees from 1965 [crosstalk 00:51:27].

Jad: Wait, but we turned (laughs) those degrees because of the law which you helped to overturn. And, and, and s- and we don't know to what degree that is the psychology of America changing or the fact that we had a law that kept people in line. And now that law's gone, and now we see voter ID laws coming back into play, which I think any, like, sane person would admit is a, is a, is an attempt, a blatant attempt to disenfranchise people. So, it feels a little bit strange to, to... I mean, I completely agree with you. Things have gotten better. At the same time, I think, well, that was because of the law that's now gone.

Edward Blum: Um, look. Laws change. Laws evolve, and, and, at some point, uh, they need to come to an end.

Katherine: Okay. So, just to jump back in...

Jad: Yes, please.

Katherine: Something we haven't actually talked about yet is our original question. How, how does this actually happen? How does it work? How is one person able to be so effective?

Edward Blum: To do this work, you need a computer, a printer, a cell phone, um... That's really about it.

Jad: Wait, who pays for the lawyer fees?

Katherine: And wh- w- who do you go to?

Edward Blum: Well, um, there are individuals, uh, that know of my work. There are foundations [crosstalk 00:52:46].

Katherine: Okay, so he's a 501(c)3, like the NAACP, and Lambda Legal that funded the Lawrence v. Texas case.

Jad: Okay.

Katherine: And if you're a 501(c)3 public charity, as he is, you don't have to reveal your donors to the public. We do know a couple of his donors, though, and they are wealthy, very conservative foundations. So, in the end, what he does is just sort of a more, maybe a more strategic or sophisticated version of what Lane Lewis did in the first story. Like in this case that he just lost last week. He knew he wanted to challenge affirmative action, so the first thing he did was sort of do a casting call.

Speaker 63: He set out to find the perfect white student.

Katherine: He set up a website.

Speaker 63: Called utnotfair.org.

Katherine: He made a recruiting video.

Edward Blum: It's time for UT to stop using race as a factor in the admissions policy. [crosstalk 00:53:35].

Katherine: Pretty budget. It's just him looking at the camera in front of a poster that says "UT Not Fair."

Edward Blum: I encourage all high school students who have been rejected from UT to visit at utnotfair.org. Tell us your story. Contact [crosstalk 00:53:50].

Katherine: And then he started talking to the people who responded.

Edward Blum: I think I ended up with about 175 responses. Of those, about 100 were viable.

Jad: Were the 75 you threw out just, like...

Edward Blum: Oh, kooky...

Jad: Flat...

Edward Blum: Just...

Jad: Flat out racist?

Edward Blum: Yeah, well, just didn't think they would be sympathetic.

Katherine: So he whittled the hundred down to seven that he thought would be sympathetic.

Edward Blum: Of those seven, there were one or two that, you know, did not really wanna go forward.

Jad: Like, "I don't want the attention," or...?

Edward Blum: They were fearful.

Katherine: Of, you know, the backlash. Anyway, to make a long story short, he ended up finding Abby Fisher because a friend of his called and said, "Hey, my daughter just got rejected from UT. I heard you were looking."

Abigail Fisher: I think I'm a very, like, uh, a very, like, introverted person, and so I feel, uh, like, sometimes this is a lot of pressure. But I think it, in the end it's totally worth it, and, and to be able to, to have a voice in this and to know that w- my voice is making a difference is really rewarding.

Katherine: She seemed like the perfect plaintiff. Strawberry blond hair. She's petite, she's kinda shy in front of the camera, in a good way. But last week, they lost. So we talked to him before all this happened, so we weren't able to get a reaction from him, but he did tell an Austin newspaper that the night after the decision came down, he had three glasses of wine, he took an ambien, and he thought about these particular lyrics in a Billy Joel song.

Katherine: The song's called Keeping the Faith.

Edward Blum: I'm a long distance runner. Uh, if there's something just emblematic about my personality, I run long distances.

Katherine: He says he's definitely not done. He's, actually already has two more cases against affirmative action in the works.

Edward Blum: Uh, I have retained counsel to litigate Harvard's admissions policies, and University of North Carolina's admissions policies. [crosstalk 00:55:51].

Jad: I'm, I'm sorry, c- just, doesn't strike anyone... I mean, forget the politics, whether you're on, on Blum's side or not. This, just, the tactic doesn't strike anyone as, like, fishy?

Elie: I resist giving Ed Blum that much credit.

Jad: That's Elie Mystal again, our legal editor.

Elie: Um, I would say l- that fundamentally, he's just implementing, uh, a strategy that was perfected by the people he now ironically seeks to disenfranchise, right? Um, this is civil rights movement 101. He's got laws that he doesn't like that he knows he can't overturn through an election. Remember, this, Blum's a failed congressional candidate. He had that lust for, for political power. He couldn't get it through the electoral system. But he found this other way, um, to do it. This is exactly what the civil rights movement did.

Katherine: Okay, so, to me this is one of the most fascinating things about this story. Um, if we go back, do you remember this case, there's a famous case called Plessy v. Ferguson?

Jad: Sorta know it, not really.

Susan Carle: Plessy v. Ferguson, I think, I think, is a good example.

Katherine: This is Susan Carle.

Susan Carle: Law professor at American University Washington College of Law.

Katherine: Okay. Plessy v. Ferguson, 1892.

Susan Carle: So, that was a case where the state of Louisiana had adopted a new separate cars law, which said that people of color and white people could not ride in the same train cars.

Katherine: And if you've heard the story, this is how it goes.

Susan Carle: Somebody named Homer Plessy...

Katherine: A black man sits down in a white car.

Susan Carle: He is arrested and, um...

Katherine: He decides to sue, and his case goes all the way to the Supreme Court. Now, the thing about that case is that it was a total setup.

Jad: What do you mean?

Katherine: So, if we go back, when Louisiana passed that law requiring separate cars, early civil rights groups were obviously horrified by this, but the railroad companies were actually mad about this, too.

Susan Carle: Because they thought it would be much more expensive to run the trains if they had to have, add additional trains so they'd have white cars and cars of color, and so...

Katherine: Civil rights activists...

Susan Carle: And the railroad companies, they recruited somebody named Homer Plessy, who was seven eighths white...

Katherine: One eighth African American. And they sent him to go sit in a white car on a train.

Susan Carle: He got into a w- a first class, white people's car, and they sent somebody to go ar- arrest him.

Katherine: Like, they got a off-duty police officer...

Susan Carle: Yes.

Katherine: Or something?

Susan Carle: They, well, they actually hired a detective. You could do that at the time, that you could hire a private detective to make a, an arrest. And so they hi- (laughs) they, they hired that person, too.

Katherine: So, Plessy gets onto the train. The conductor comes by and Plessy's like, "Just thought I should let you know, I'm actually an eighth black." And the conductor says, "Well, in that case, you're gonna need to be on the other car in this train." But Homer Plessy says, "I'm good, actually. I, I'm gonna be staying right here." And the conductor says, "No, really, you have to move," and Homer Plessy says, "No, really, not gonna..."

Jad: (laughs)

Katherine: And things get heated and eventually this detective that they've hired comes in and arrests him.

Susan Carle: And they brought a lawsuit.

Jad: That's amazing. The whole thing is cooked.

Susan Carle: Starting with the arrest, to challenge the separate cars law, and they were able to get it up to the US Supreme Court, and they were hoping that they would be able to establish that the idea of separating the races was unconstitutional, but unfortunately they miscalculated...

Katherine: And the court ruled that the law was constitutional.

Susan Carle: And what they got instead was separate but equal.

Katherine: Totally backfired. But it was this early example of this other way. You know, if you can find a plaintiff or create a plaintiff, you might be able to bypass the legislature and go to the Supreme Court instead. The NAACP later picked up on this.

Susan Carle: They were the true geniuses. They perfected it, and they perfected it under circumstances where victories were highly unlikely.

Katherine: For example: in the early 1900s, they'd do things like send a black guy and a white guy all over New York City to segregated theaters...

Susan Carle: And see if one of them was prevented from being seated.

Katherine: And if they were...

Susan Carle: They would sue those theaters and win victories that way.

Katherine: Then there was this other law, in Louisville, Kentucky, that said...

Susan Carle: Nobody could buy a house or live on a block in which white people lived if they were African American.

Katherine: So they recruited a white guy to sell a house to a black guy and then they had the black guy refuse to take the house so the white guy could say...

Susan Carle: "You said you would buy the house, but now you're reneging on it." And the African American said, "I'm not buying the house because I can't live there."

Katherine: White guy sues the black guy...

Susan Carle: Y- again, it was a manufactured case, and it was one of the NAACP's first victories, and that's the case where Justice Holmes said, in a dissent that he ended up not publishing, "Hey, wait a minute, this isn't even a real case." At the time, anything that involved manufacturing a case or fomenting litigation, all of those things were, um, illegal.

Katherine: So, not just unethical, but actually illegal.

Susan Carle: Yes. Criminally illegal.

Katherine: It was seen as something like how we see ambulance chasing today.

Susan Carle: The lawyers for the NAACP were very aware of the statutes, and in fact [crosstalk 01:01:08].

Katherine: And this came to a head in the 1950s. The NAACP wanted to get the court to end segregated schools. Basically, they wanted to overturn Plessy v. Ferguson. And the way they were doing this, they, y- you know, they needed a plaintiff, so the way they were looking for plaintiffs is going to meetings with parents and sort of quietly, you know, subtly trying to ask parents if they wanted to be the face of these cases. Now, Virginia knew that they were doing this, and they tightened up these regulations that said, you know, "You can't drum up litigation," to try to stop them from doing this. So the NAACP sued and they took this issue all the way to the Supreme Court.

Speaker 65: [crosstalk 01:01:48] test litigation is essential, because no matter how illegal it is, public officials are free from interference [crosstalk 01:01:57]...

Katherine: And in that case the Supreme Court said, "Actually, manufacturing litigation is, is a form of political expression."

Jad: Really?

Katherine: "And it is totally okay."

Jad: Like free speech, basically?

Katherine: Yeah, like, it's a way of expressing your political viewpoint. And test case litigation exploded after this.

Susan Carle: And in the '60s and '70s, a lot of other movements, the women's movement, poor people's movement, s- saw the success the civil rights movement was having with these strategies and they adopted them as well.

Jad: And now I guess that includes Ed Blum.

Katherine: Yeah.

Edward Blum: The founding principles of the civil rights movement have been embraced by the vast majority of Americans in this country, and those founding principles, those founding principles guide these lawsuits. That basic, fundamental p- guiding principle of the civil rights movement, and how it needs to be applied today, [crosstalk 01:02:55].

Elie: I am, that's... Uh, I can't say what I think of that on family, on family radio. (laughs)

Jad: (laughs)

Elie: That, that is, that is not, that is not accurate. Ed Blum (laughs) is not, um, carrying the standard forward for civil rights in America. That is not what he's doing.

Jad: But Elie says he is actually doing something that's deeply important to our political system.

Elie: You look at the current election cy- cycle and I see a lot of people who, who agree with Ed Blum. They're, they agree with him in a way...

Jad: Yeah, that's true.

Elie: That couldn't be expressed in the polls. Um, they're out there. Um, this is one way for that... I mean, and m- and, and that happens, I think, again, that's, uh, y- another call back to the civil rights movement. When you have minority population who believes in something, um, th- they just get trampled in popular elections. Okay. But do they still have a voice? Should they still have a voice? Should they still have a way, um, to enact change on their behalf, over the will of the majority? Um, again, that seems to me text book what courts are supposed to be able to do, to look out for the rights of the minorities, political minorities, uh, more than kind of ethic or racial or religious, and see that they are not being trampled by, uh, majoritarian, uh, tyranny. Ed Blum is helping...

Jad: I...

Elie: A minority of people who believe what he believes.

Jad: Y- I am so not prepared for you saying any of this.

Elie: (laughs)

Jad: This (laughs) is really surprising to me.

Jad: Thank you to Katherine Wells, such sincere thanks to her for reporting these two segments, and Elie Mystal, our legal editor. More Perfect is produced by me, Jad Abumrad, with [inaudible 01:04:31], Kelsey Padgett, and Suzie Lechtenberg, who will take it from here.

Speaker 27: Oyez, oyez.

Suzie L.: With Soren Wheeler, Elie Mystal, David Herman, Alex Overington, Karen Duffin, Sean Rameswaram, Katherine Wells, Bari Finkel, Andy Mills, Dylan Keefe, and Michelle Harris. Special thanks to Dale Carpenter. His book, Flagrant Conduct, is all about Lawrence v. Texas. Thanks also to Lambda Legal, [Lisa Hardaway 01:04:53], [J. D. Doyle 01:04:53], [Ari Berman 01:04:53], [Amy Howe 01:04:53], and [Guy Charles 01:04:56]. Supreme Court audio is Oyez, a free law project in collaboration with the Legal Information Institute at Cornell. More Perfect is funded in part by the William and Flora Hewlett Foundation, the Charles Evans Hughes Memorial Foundation, and the Joyce Foundation.