Ep. 81 – How Change Happens: A Conversation with Cass Sunstein

[00:00:00] Peniel: Welcome to Race and Democracy, a podcast on the intersection between race, democracy, public policy, social justice, and citizenship.

[00:00:22] Peniel: Okay, um, on today’s show, we are excited to welcome Cass Sunstein, who is the Robert Walmsley University professor at Harvard University. Really, one of the most eminent, uh, scholars, um, in the country. Uh, he’s the founder and director of the program on Behavioral Economics and Public Policy at Harvard Law School.

[00:00:44] Peniel: In 2018, he received the Holberg Prize from the government of Norway, sometimes described as the equivalent of the Nobel Prize for law and the humanities. Congratulations. In 2020, the World Health Organization appointed him as chair of its technical advisory group on Behavioral Insights and Sciences for Health.

[00:01:03] Peniel: From 2019 to 2012, he was administrator of the White House Office of Information and Regulatory Affairs, and after that, He served on the President’s Review Board on intelligence and communications technologies, and on the Pentagon’s Defense Innovation Board. Professor Sunstein has testified before congressional committees on many subjects, and he has advised officials at the United Nations, the European Commission, the World Bank, and many nations on issues of law and public policy.

[00:01:32] Peniel: He serves as an advisor to the Behavioral Insights team in the United Kingdom. Professor Sunstein is the author of hundreds of articles and dozens of books, including Nudge, Improving Decisions about health, wealth, and Happiness, Simpler, the Future of Government, the Ethics of Influence Republic Impeachment, a Citizen’s Guide, The Cost Benefit Revolution on Freedom, Conform.

[00:01:59] Peniel: How change happens, which he’s gonna be lecturing about at the LBJ school and too much information. He is now working on a variety of projects involving the regulatory state. Sludge defined to include paperwork and similar burdens, fake news and freedom of speech. Okay, casts Sunstein, welcome to Race and Democracy.

[00:02:21] Cass: Thank you so much. I’m thrilled to be

[00:02:23] Peniel: here. Well, I want to talk to you first and foremost about how did you get interested in what you’re interested in, you know, so you’ve, you’ve, you’ve been in so many different multiple fields. I think you’re a great example of sustained intellectual curiosity. Uh, in a number of different ways, um, but both in terms of law, society, public policy, but also things like intelligence, the defense industry, um, how government works.

[00:02:53] Peniel: And you’ve also been part of two presidential administrations, so I wanna, and you’ve also clerked for third Thurgood Marshall, the. Uh, Thurgood Marshall, uh, who is really the most important lawyer in terms of civil rights of the 20th century and legal mind. Uh, so I want you to share with us how did you get your start?

[00:03:14] Cass: Thanks for that. I was, uh, English major in college. And I liked books and novels and plays. And Where did you go to school? I went to Harvard College and I thought, What am I gonna do with my life? And the idea of an English professor seemed a little, um, Passive, maybe that, you know, interesting, get to read books and think about them, but a little passive.

[00:03:37] Cass: So I thought, what do I do? And I thought maybe we’ll go to law school. That seems like it doesn’t commit me anything. I could do a million different things. And then I got entranced by a subject that almost no one gets entranced by. It’s called Administrative Law. People like it, some people, but entranced is a little much for administrative law.

[00:03:56] Cass: And what is administrative law? It’s basically the study of the apparatus of government and how it is, uh, uh, challenged by people who think it’s doing the wrong thing and how it can be made to do the. Better. So think of the Department of Justice. Department of Justice might be sued because it’s not protecting people, let’s say, from some form of discrimination.

[00:04:22] Cass: Or it might be sued because it’s not fulfilling its legal obligations with respect to the criminal justice system. Or the Department of Transportation might be doing something to reduce deaths on the highways, but maybe not. And maybe someone will sue it to say, Why aren’t you doing this? Which the law requires you to do that would save 500 people next year.

[00:04:47] Cass: Or the Environmental Protection Agency that has a good name, right? Environmental Protection Agency, Is it living up to its name or not? Or is it going crazy and regulating in ways that don’t? Protect the environment, but instead take jobs away. And so when I saw this, the Department of Justice, the Environmental Protection Agency, the Department of Transportation, it’s like my eyes got really big, like a cartoon character thinking, my gosh.

[00:05:12] Cass: And so I just love the area so much and I kind of thought, I want, I want to do that. That’s a world I wanna work in. And it doesn’t have always the glamor of constitutional law, which I’m also. Keenly interested in, and I spent a lot of time on, but it’s, it’s a little newer and a little more like an open field that you can run in.

[00:05:35] Cass: Mm-hmm. . And to think of it from a lawyer’s perspective, you think, what does the law require? And there’s a great concept called arbitrariness, which I learned about as a law student. Which, what is that? It means that if the agency, the Department of Justice say, is just acting unreason. It has to stop. And what might be unreasonable, I’ll give an environmental example, is the Environmental Protection Agency under one or another President isn’t protecting people against.

[00:06:02] Cass: Uh, a bad pollutant, a really bad pollutant, and that means people are gonna die prematurely and get sick. Mm-hmm. , that’s arbitrary, That’s a term from a law from the 1940s, and that seemed to me kind of electrifying because I thought that’s, that’s a tool we can use. Ordinary citizens can use it, lawyers can use it.

[00:06:23] Cass: And that got me interested in a whole world of thought about government, about people, about, uh, human behavior, about, uh, about rationality. And then I felt a little like, uh, a high school athlete who wasn’t particularly good at a sport, but knew that’s my sport and,

[00:06:44] Peniel: and that, that really leads me to my next.

[00:06:48] Peniel: Uh, what made you want to do both? Because usually, and I’m at a policy school, but I’m also a historian, but I’m also very active citizen because of my mother, and I write about that in my new book about my, my Haitian immigrant mother. Who, um, really taught me and my brother about dignity and citizenship and, uh, uh, in New York City in the 1980s.

[00:07:11] Peniel: My mom was at Mount Sinai Hospital. I was on my first picket line in elementary school. Most people choose one or the other. They’re, they’re either, uh, doers and practitioners or their scholars and intellectuals. You’ve done both in, in really, um, impactful and important ways. And I want you, this is a segue into talking about Thurgood Marshall.

[00:07:32] Peniel: Justice Marshall is such an important figure. Um, what made you wanna do both like that you could clerk for Justice Marshall. You could teach at University of Chicago law. You could teach at Harvard Law, but then you could work in both local government. The federal government, because the administrative work is not all you’ve done, Um, in terms of the federal government you’ve consulted with, with global figures, but also consulted with local figures and local community groups who, for free pro bono can get, you know, professor cast Sunstein to consult and advise for free.

[00:08:07] Peniel: What, what made you wanna do.

[00:08:10] Cass: I think it was when I was clerking for Justice Marshall, I had two jobs. One was to work at a very fancy Washington law firm. I had two job offers, which I, because I was associated with Marshall, people would say he couldn’t be that terrible or Marshall wouldn’t have chosen him.

[00:08:26] Cass: So I, so I, There was a firm that I really liked. It was exciting. The lawyers were amazing. They were doing free speech work. It was ju they were doing criminal justice work. It was kind of a. Uh, it was like for a young lawyer, it was heaven. And then there was the Department of Justice, the Office of Legal Counsel, and I could, I, these were my two places and one would pay really well the law firm and would have, It wasn’t the Department of Justice.

[00:08:53] Cass: The Department of Justice wasn’t gonna pay me fortune, but the Department of Justice, when I talked to them about their work, it was, it’s an office called the Office of Legal Counsel, which resolves conflicts between parts of the government on. So if the, the Department of State disagrees with the Department of Defense on some legal issue involving national security, that office resolves it.

[00:09:16] Cass: Or if the president needs legal advice about whether he can do something involving, you know, freedom of religion or involving. War in Peace. That’s the office that is, is like ground zero. And I thought, you know, this is a chance to, if I could, to try to help, uh, the rule of law and the forces that seem to me to be on the side of, uh, dignity your.

[00:09:46] Cass: And that would be better even than the exciting law firm, which was was like a lawyer’s heaven. And once I worked at that office in the Justice department, I developed a taste for it. I just loved it so much. Every day was amazing that I would get to work on something involving, uh, labor unions or something involving.

[00:10:06] Cass: Um, what universities actually could disclose in classes where people from car and countries might be. So there’s both a free speech issue and national security issue. And I remember a meeting of really important people and I was in my twenties and I expressed a view about the law and I saw them looking at each other and they’re saying, He’s a kid.

[00:10:26] Cass: Me, he, he. Doesn’t belong here. He’s too young and kind of pathetic. But then they thought he’s, he’s the Department of Justice, so we can’t exactly ignore him, . And I thought that was, you know, that was amazing to be able to speak for freedom of speech in that setting. And that gave me a taste for it. And then, uh, the universities came around and were, were looking for potential job candidates and I had no idea that anyone would actually hire me.

[00:10:53] Cass: It’s not that easy and uh, you know, there are a lot of people and somehow I clicked with the University of Chicago, I think because they were, um, high energy and, and me too. And even though I maybe didn’t have any ideas, I did have, uh, itchy fingers. So I’d probably write something. What was

[00:11:13] Peniel: the most important thing that you learned from Justice Marshall?

[00:11:17] Peniel: In terms of clerking for Justice Marshall? Both in a legal sense, but also in a personal sense, like listening to him, being around him. Cause that’s such, such a extraordinary privilege and opportunity to, to, to have clerked for Thurgood

[00:11:30] Cass: Marshall to focus on the human consequences of. So that there are a bunch of justices and they were all, you know, very impressive in their way, but he was the one who would focus on the human consequences every time.

[00:11:44] Cass: I

[00:11:44] Peniel: love that phrase, the human consequences of the law.

[00:11:47] Cass: I love that. That that’s, that’s him. And there would be cases, you know that to the other justices and to the law clerks. They were paper and they were really interesting paper. We would read a lot of paper. You know, some conflict between someone and someone else.

[00:12:06] Cass: And for him, they, they just weren’t paper, they were human beings. So it’s, it’s was a long time ago. So I’ll actually disclose a little story for you. There was a case where, um, someone in Texas actually wanted, uh, a lawyer to be present when he was being interviewed by a psychiatrist. This is someone who was on, uh, gonna be executed and he said he had a right to have a lawyer present when he was being.

[00:12:31] Cass: um, uh, interviewed to see if it was psycho psychopathic, some term like that. And all of the justices thought, This is kind of ridiculous. It’s a doctor thing, We don’t need a lawyer there. And Marshall said, Let me look at the transcript. I wanna see what the doctor said. Mm-hmm. . And, uh, for everyone else it was paper.

[00:12:52] Cass: For him, it was a human interaction and a person whose life was literally on the line and a person, a doctor who was involved, he wanted to know what, what’s going on here? And he read the transcript. That’s unusual for a justice to go. N into that level of detail. And then he said to us, I, I think I understand that doctor.

[00:13:12] Cass: I bet he said that’s exact same thing a lot of times. And what he’s saying about this person is about to be executed is not individualized to that person. Mm-hmm. , I bet he says it about everybody. Mm-hmm. . He said, Go do some research. And we clerks did the research and he nailed it. He had it exactly right that there was a doctor called Dr.

[00:13:32] Cass: Death in Texas. Mm-hmm. , because he always said they were, had a psychopathic personality, something like that. Psychotic, some term like that. And once the other justices saw the human reality behind the paper, they agreed with Marshall and thought he needs a lawyer present. This is not a medical thing really.

[00:13:51] Cass: It’s a, it’s a person who’s trying to. Help the prosecutor execute someone. And in death penalty cases, Marsha was particularly attuned to what was humanly behind everything. Mm-hmm. . But that was true in every case, and I’ve tried never to lose sight of that. Oh, that’s

[00:14:11] Peniel: extraordinary. Um, I want to talk to you about Barack Obama and then Obama administration.

[00:14:18] Peniel: I’ve written extensively about the president, including in my new book, The Third Reconstruction. You’ve worked for the president, um, uh, you’ve had interactions with him even before he was president. I mean, so I want to, I want to talk to you about your history with him personally. Um, where do you, how do you think about those years now, especially in 2022?

[00:14:43] Peniel: Um, That’s the start. And then I’m gonna dive deep into, you know, sort of nudge and really the work you did because I, I love the office title , the, the administrator of the White House, Office of Information and Regulatory Affairs. Um, and I’ve read Nudge, so I want to talk to you about Nudge as well. So, um, first, you know, You know, how did you meet or ever hear about Obama?

[00:15:08] Peniel: You, you both have Chicago roots, but you also have Cambridge roots together too. Both of you are Harvard law grads, but him from class of 19, um, 91, his wife Michelle Obama, class of 1988. Um, so let’s talk about that. Yeah.

[00:15:23] Cass: So I remember as if it was like five minutes ago, go. I was standing with a University of Chicago law professor on the second floor of the law library.

[00:15:35] Cass: His name was and is Michael McConnell. He’s very conservative. He was head of the hiring committee at Chicago. He said, There’s a Harvard student we should hire. He’s. Incredible. He’s editing my article. He’s brilliant, and we should hire him. And I said, That’s interesting. And usually you don’t hire someone right out of law school.

[00:15:54] Cass: So I said, Uh, amazing. And he said, Yeah, he’s, he’s phenomenal. And I said, What’s his name? And he said, It’s, it’s an unusual name. Barack Obama. And that was the first time I heard the name. And then he was hired at the University of Chicago. He didn’t want to be a full-time professor. He, that was a root available to him.

[00:16:16] Cass: He had a broader sense of his future than just being a law professor. But I remember thinking, When I first met him and he became a friend that he really was the sort of person who should become president. And I thought that even though he wasn’t political person at the time, he had a, a kind of combination of judgment and speed of mind, which I associated with a, a good leader.

[00:16:44] Cass: So he was wise and he was. So a lot of professors, at least the ones I know, they’re, they’re, they’re quick, but they’re not that wise. And, and some of the older ones maybe are wise, but not that quick. And uh, Obama was both, He was also, um, he had a kind of calm still center. I’d never seen before since something in, it’s like in his, in the middle of his body, there isn’t a lot of, there isn’t any anything frantic.

[00:17:18] Cass: Mm-hmm. . And I thought that that’s a leader. And he, he seemed, you know, like he’d be a great law professor, but he kind didn’t, didn’t want to. Do that. And the prospect of any one of us becoming president seems very, uh, unlikely. And I remember before his great speech at the Democratic Convention talking to him and he was nervous.

[00:17:40] Cass: I was really nervous cuz I thought my friend who LA was gonna speak to the whole country and who can do that. Yeah. And I remember I was watching all by myself in my apartment and. A little, um, sweaty as he was starting because I thought, you know, law professor, Democratic convention, that’s not a good mix.

[00:18:01] Cass: And then he completely knocked it out of the park, of course, and that fit with the sort of person he was, that he could basically, you know, uh, both solve a really hard problem. And speak to people in a way that would meet them where they were, and also show a kind of empathetic recognition of, uh, people who are in very different situations.

[00:18:27] Peniel: And how did you come to work in the administration then?

[00:18:32] Cass: Okay, so I worked on the campaign and I had known him and he basically, after he was elected, wanted to know what people who he thought were potentially not disgraceful would , what would they wanna do? And uh, and. He asked me what I wanted to do and, uh, he had some ideas for me that were not what I wanted to do.

[00:18:56] Cass: What were some of those ideas? Um, one possibility was I would be, uh, a, a lawyer in the White House focusing on some of the really hard questions of the day. Like, what are we gonna do about Guantanamo, Uh, what’s the right conception of civil rights and civil liberties? Mm-hmm. in the period after.

[00:19:16] Cass: President Bush where there was a lot of new thinking mm-hmm. going on and, uh, kind of a lawyer with a special repertoire of, uh, assorted difficult problems. I think the title might have been Deputy White House Counsel. Mm-hmm. , And that that was a possible job and, um, Why didn’t you want to do that? Uh, well, there were a couple things that happened.

[00:19:39] Cass: One was I asked some wise people who’d worked on the government before about what government job, if I was lucky enough to get one, I should seek. And the, the advice I got from some people was, take a job where you have line authority, meaning a job where you’re. Uh, like an advisor or a, a, a person who’s around the president mm-hmm.

[00:20:03] Cass: but where you actually have authority to make things happen. Mm. So the risk of being an advisor is that, um, every day could be a disappointment. Or could involve a kind of, uh, staring at the window and saying, Let me in. Please, sir. Whereas if you have line authority, and I’ll explain that in a minute, you have a real job where you’re not staring at any window because you.

[00:20:33] Cass: People have to have you in or because something won’t happen unless you think it should happen. So like the, uh, Secretary of State has line authority, the advisors to the Secretary of State don’t. The, um, Attorney General has line authority. The many people who work in the White House with completely amazing jobs, they don’t, They might have incredibly important jobs, but it’s a little less predict.

[00:21:01] Cass: So I was advised and, uh, there, so there was, there’s that advice I got from people. Plus when I worked under President Carter and President Reagan when I was a kid lawyer, uh, there was created this obscure office, the Office of Information of Regulatory Affairs. Yeah. Which I thought was, um, amazing, both because the people there are really strong and because the opportunity to do good even in a month felt to me to be higher.

[00:21:35] Cass: Than almost any other job I could imagine. And before I

[00:21:38] Peniel: ask you what that office specifically does, when did you work for President Carter?

[00:21:43] Cass: So after I worked for president, uh, not president, he would’ve been a good president, Justice Thurgood Marshall. I, I went to take that job in the Justice Department, which was under President Carter and I, and I stayed under Reagan.

[00:21:58] Cass: So I was there for a very intense year between the Carter and Reagan transition. Wow. And while I was, uh, not, uh, I didn’t vote for Reagan, the person. Ran the, the office, the office of legal counsel under Reagan named Ted Olson, who thank goodness is still very much with us, is a person of immense integrity and, um, kindness.

[00:22:24] Cass: And so for him to be Reagan’s assistant nursery general was a blessing to the staff. Oh, he remains a very good friend. So, so I worked in that office during transition and learned a lot. Reagan fortified the Office of Information, Regulatory Affairs, and I can talk a little bit about that. Yeah. But that had been my dream job for, uh, more years than, uh, I can count.

[00:22:50] Peniel: And so what does the Office of Regulatory Affairs, um, you know, do Office of Information and Regulatory Affairs? It sounds kind

[00:22:58] Cass: of ominous, doesn’t it? A little boring Office of Information and Regulatory Affairs. So the coolest thing the office does is there these rules that come from the federal government.

[00:23:09] Cass: They might involve disability, they might involve. Prisons, they might involve the Affordable Care Act. They might involve. Agriculture, they might involve immigration. All those rules don’t become rules unless the Office of Information and Regulatory Affairs gives a check mark. Wow. So, So they clear all the rules, all the important ones that come from the entire executive branch.

[00:23:40] Cass: And that means in the space right now, under review, this is public, at the Office of Information or Regulatory Affairs, it’s probably somewhere between 102 hundred. And that’s this month and next month there’ll be another group and the office has the authority. This is the line authority idea to say, No, that’s not one.

[00:24:00] Cass: That one’s not gonna become a rule, which might be because it doesn’t make any sense, or more likely is because there’s a way to make it better. So it might be rule involving, let’s say, uh, air pollution. Maybe doesn’t pay attention to issues in environmental justice, and maybe it can be reoriented. So it does, And the Office of Information Regulatory Fairs can say to the head of a, a department, uh, what would you think about reorienting this way?

[00:24:34] Cass: And the head of the department can say, I think that’s a terrible idea. Oh, . And then the Office of Information Regulatory Affairs will say, I, I think it’s a good idea. Let’s chat. And there can be, um, a very cooperative or very, um, um, you know, contentious discussions about how to make it right. But frequently I expected, and that was my experience.

[00:25:01] Cass: There’s substantive discussions. Mm-hmm. , like if the Office of Information Regulatory Affairs says, you can protect air quality better this way because of the science. Then we’ll have a nice discussion of the science. Mm-hmm. , I, I expected, and I actually had lunch with President Bush’s head of the Office of Information, Regulatory Affairs after Obama had been elected president.

[00:25:25] Cass: Mm-hmm. at the White House. And I asked her about the job, and as she described it, I thought, this is, this is the best job in

[00:25:32] Peniel: Washington. So tell me about your years there and what do you feel you did? I mean, you’ve written about this too, but tell, tell me like, what, how. On a day to day, and what do you feel the biggest accomplishments were?

[00:25:45] Peniel: Because in a way, what you described, I’m thinking of it through an equity lens. There’s a lot of good that you can do. In an office like that and probably good, that’s in a very subtle way too. Right? Good. That has sort of far reaching consequences, but not, might not be the one that captures the headlines for either good or ill.

[00:26:05] Peniel: So it’s not gonna be a lightning rod in a way. That’s kind of how change happens, um, in that sense. Yeah.

[00:26:12] Cass: Okay. So, Two, two kinds of things you can do. Mm-hmm. , one thing you can do is create a kind of structural change. Mm-hmm. that will, it is hoped endure. And, and I’ll give some examples. That’s a abstract.

[00:26:28] Cass: And the other thing is particular rules you can, uh, either participate in or you can spur, or in some cases you can help. Um, it’s a team, so no one person. And how many people work for this office? About 50. Wow. So it’s a small office with about 50, but you’re working with the executive office of the president every day.

[00:26:53] Cass: And now we’re talking hundreds. And you’re working with cabinet departments, so now you’re talking, you know, thousands potentially of people. And how many years did you, were you heading? I was there four years, so I was confirmed in September. President’s first year, but I was working there as a senior counselor mm-hmm.

[00:27:10] Cass: for the first nine months. So I had a, a, a not unrelated role, let’s say. Mm-hmm. , and then I left toward the end of the, the first term. Um, I’d say the, the talk about the structural things first. Yeah. So you used the word dignity. Mm-hmm. , the word human dignity had never been called. In an executive order.

[00:27:29] Cass: Mm-hmm. on, I think anything, but I know that it had never been used in an executive order on regulation and the word regulation. Puts some people to sleep, but keep in mind we’re talking about healthcare, we’re talking about immigration, we’re talking about, um, civil rights, we’re talking about education, we’re talking about everything under the sun.

[00:27:52] Cass: Mm-hmm. . Is human dignity a matter of irrelevance? Is it something that’s part of a cost benefit apparatus, or does it have some separate status? Mm-hmm. and actually with President Obama’s personal, Imprimatur the word dignity got put an executive order called 1 3 5 63. And it’s not just an abstraction. It it is, was used.

[00:28:15] Cass: When I was there on rules trying to protect prisoners against being raped. Mm-hmm. , there’s a prison Rape Elimination Act rule for which dignity was, uh, uh, a motivator. Uh, rules involving protection of disabled people against discrimination of multiple kinds for issues involving race and gender and sexual orientation discrimination.

[00:28:38] Cass: The I idea of dignity is now kind of baked into the DNA Yeah. Of the executive branch. And so that I felt was, uh, a step forward. Uh, you can find, this may sound a little silly, but you can find there’s a website called reg info.gov where you can find every regulation under review at the Office of Information Regulatory Affairs.

[00:29:02] Cass: If you are. A group that’s keenly interested in, let’s say, what’s going on with healthcare. Mm-hmm. , what’s the government may be gonna do. You can see it and you can participate. So public participation is also baked into the Obama regulatory apparatus and the executive order that orients it. And that website is actually, uh, a living and breathing example of that.

[00:29:25] Cass: People are using it In terms of particular things we did, the one that I have a hard time not crying when I talk about and I’m gonna try to get through without not crying, is, um, something which in the deepest recesses of my heart means the most. Though it’s not the biggest and it’s a rule involving.

[00:29:48] Cass: Poor kids who are entitled to free school meals. Mm-hmm. , who haven’t been getting what they have a legal right to. Mm. Now these are kids which may be homeless kids. Mm-hmm. , they may be runaway kids, they may be migrant kids, they may be just poor kids who are really struggling. Yeah. And their families.

[00:30:07] Cass: Don’t have any money and the meals are nutritious and they’re great and they change people’s lives. Mm-hmm. and they relieve the economic burden on the family. Uh, the rule, uh, is, uh, under the general rubric of direct certification, which means that if the kids are eligible, the school districts can say, You don’t have to apply.

[00:30:31] Cass: Mm-hmm. You’re in. Yeah. And as of a recent count, 15 million kids in the United States are getting breakfast and lunch for free Wow. Under the direct certification program. And that, uh, is a statistic, 15 million. Mm-hmm. But if we had like a photograph of 12 of them, man. Right. We did a little rule, which was, uh, an interim final rule, a technical term.

[00:31:00] Cass: It’s still on the books, uh, for, uh, homeless and runaway kids, and a quarter of a million of them are getting, um, free school meals. And that one, um, that, that was a good day. Um, there are others that are, are, uh, in some ways. Massive like rules involving. Automobile safety. So you may notice that cars, these days there’s a camera in the car.

[00:31:33] Cass: So if you’ve seen back, it’s called the rear visibility rule. This was much debated. It saves small people from getting run over. Absolutely.

I

[00:31:43] Peniel: have one of them

[00:31:44] Cass: in my car. There we go. And all cars in the United States have to have them. And that rule is something I really cared about. Because even if the number of parents who kill their kids in that way isn’t high for everyone, it’s about the worst tragedy you can imagine.

[00:32:03] Cass: And this camera should avert that. Mm-hmm. . And it also makes driving easier for people. Mm-hmm. , it’s a, it’s, it’s, and the companies, which at, at some point were complaining about it. I think they’re very glad they have the cameras in the cars. Oh,

[00:32:18] Peniel: absolutely. I, I want to ask you, because this has been great conversation about the way in.

[00:32:24] Peniel: Your own, um, activism, sort of as a scholar, but also public citizen has really been about change and transformation. What do you think now, because we’re in 2022, about the Obama years because in so many ways you, you discussed, uh, uh, knowing the president and the 2004 speech and that speech was so extraordinary.

[00:32:48] Peniel: No red states, no blue states. Um, which catapults him to 2008 and the presidency America is a place where all things are possible. Um, and then we have the two administrations, which by and large are very, very successful. Uh, but at the same time, the follow up is going to be Trump. Um, and the follow up is really a, a huge.

[00:33:15] Peniel: just partisanship and divisions, uh, centered, I think around race, um, in this country, but certainly class and intersectional divisions. But what do you think of the Obama administration with the per, with the perspective of time, um, in terms of what, what the president was able to do, but also some of the things he was unable to do, which now.

[00:33:40] Peniel: We’re all grappling with certainly the Biden Harris administration is grappling with, but really all of us, as just Americans in the world, in a way are

[00:33:48] Cass: grappling with. Okay, great. Let me, uh, try to be objective. And I should say, as you were talking, I was thinking that I grew up in Boston when the Boston Celtics had.

[00:34:00] Cass: Bill Russell, the greatest winner in the history of sports? Absolutely. Bob Cooey at the time, the greatest passer in the history of basketball. The immortal John have lech? Mm-hmm. . I’m, I’m gonna, I’m not delaying This isn’t a filibuster. Casey Jones the greatest defensive guard ever. Sam Jones, The greatest clutch shooter ever.

[00:34:22] Cass: And, um, if I were asked, what do you think of the Boston Celtics at that time? I would not be objective .

[00:34:30] Peniel: I’m a Nick fan, so I, I I, I would dispute Cass about the greatest, you know, but, but still, yes. Okay.

[00:34:37] Cass: So the Nicks are great also. And, uh, uh, okay. So I think of the team Obama. I feel a little bit in my loyalty as I do to.

[00:34:49] Cass: Boston Celtics of the Russell Kuzi have Leche Jones years. But let’s, uh, talk about the things that, uh, I think in retrospect look amazing. The country was in the worst economic situation since the Great Depression. There were a zillion choices President Obama had to make in those first years, and I think he nailed every single one and.

[00:35:15] Cass: We don’t see now how close we were on a precipice. Mm-hmm. to economic catastrophe. Places were closed all over Washington. When I got there, the stores were all closed. Mm-hmm. , they were shut down. The, uh, unemployment rate was, uh, jumping the, uh, economic growth rate of plummeting. We have some problems now.

[00:35:36] Cass: They’re, the, the specter of, uh, national and even international economic collapse was loo. And, and I saw in real time the president making, it’s, it’s, it’s stunning to see decision on a Tuesday. I’m gonna save the car companies decision on Wednesday, we’re gonna go for Dod Frank decision on a Thursday.

[00:35:58] Cass: That’s the big financial regulatory package. Absolutely decision. We’re gonna go for this. The biggest package we can get for a stimulus. That’s what we’re gonna. Right now. Yeah. And to see him, you know, he is very deliberate. Mm-hmm. , but to see him making decisions that I think nailed it, given the political constraints.

[00:36:16] Cass: Mm-hmm. , and we think of it now as a challenging time. Mm-hmm. , we don’t think of it as the country almost fell apart.

[00:36:21] Peniel: Oh. I lived through those times. I think the country

[00:36:23] Cass: almost fell apart. Yeah. And, and, and, and so he did that. Then he did the most important. Even to, to today with all props to President Biden, he did the most important social legislation since the 1960s.

[00:36:40] Cass: That’s the affordable carrier. Okay. Yeah. It’s the biggest deal since the 1960s. And he did the biggest regulatory reform that’s dod Frank since the 1930s. Mm-hmm. . And he had the most, uh, ambitious and um, uh, impactful. Environmental record. Mm-hmm. of any president in history. The only rival actually he has is Improbably Nixon.

[00:37:05] Cass: Mm-hmm. who got the legislation passed. But in terms of what was actually achieved, Obama’s the, uh, environmental prize winner. And that doesn’t even include the elimination of Don’t ask, don’t tell. Mm-hmm. , uh, the prison rape elimination stuff. Um, so things done on sex equality. Um, 1,001 things done by the Department of Agriculture, by the Department of Transportation.

[00:37:32] Cass: And so the, the impact of that presidency in terms of what the country looked like after it is, uh, it’s very hard to come up with a superlative that’s sufficient. What

[00:37:44] Peniel: makes you think the country was so vulnerable then to. Then, you know, because I, I have certain ideas. I’d love to talk with you about it, but what makes you, Do you, do you think that retrospectively, retrospectively there were things President Obama left on the floor, like things like, um, student loans.

[00:38:01] Peniel: Uh, and student loan debt. Things like free community college, things like, um, investments in mid, mid mid America, uh, middle America. When you think about President Obama won Indiana. He lost Missouri by 8,000 votes. It seemed like he was gonna be really, some people compared him to a liberal Reagan. Uh, I thought of him more as an Eisenhower figure.

[00:38:22] Peniel: You know, a figure who under an old Congress would’ve been a extraordinarily popular figure who co-op. Aspects of the other side. Um, what, what makes you think, why were we so vulnerable? Because I, I don’t really dispute what you just said, although I would say that there’s, there were a lot more people who I think could have been invested in, in real time, including when we think about the Trouble asset relief program and there was $400 billion left in that, that could have been invested and saved people’s mortgages.

[00:38:53] Peniel: I personally think we should have taken over the. To help people, um, with their mortgages. I think we should have, um, uh, zeroed out, uh, interest rates on student loans. There were so many different things that people proposed that really didn’t get up to the high level of you. And the white, the White House, I’d probably say the person who got to the highest was Elizabeth Warren, who then wasn’t, uh, approved to be head of the Credit Protection Financial Bureau and became senator out of Massachusetts.

[00:39:21] Peniel: Um, so why, why? Uh, what did we leave on the table that made I think actually good people susceptible to Trump because some of, one of the things the data has shown us, they’re both two time and one time white Obama voters who then voted for Trump. So we can’t, our argument can’t be that they’re all racist.

[00:39:44] Peniel: Because some of them voted two times or one time for Obama, and I’m not here to tell people that if you voted for Obama somehow you’re not a racist. But I’m just saying, come on, if you , they’re, you know, they’re, they’re not Trump. The 74 million who vote for Trump are not all racists. They’re not all white supremacists.

[00:40:01] Peniel: Certainly some have said they are, and I’ll take them at their words, the ones who say that. But now all of them are. So I’m saying, what, what made people so vulner? To somebody, let’s say a demagogic figure like Donald

[00:40:14] Cass: J. Trump. It’s a, it’s a fantastic question, and I only have, uh, hunches, I’ll give you one hunch.

[00:40:21] Cass: And it’s, it’s actually a database hunch, so it’s not, uh, completely speculative. Um, there’s work on what separates people politically, the right and the left. Um, By Jonathan Height, a professor at NYU that says that liberals and conservatives both care about, um, Fairness and, and about harm. Now they have different understandings of fairness and harm, but just let’s work with it saying that if someone, you know, punches someone in the face or cheats, both liberals and conservatives are gonna think something bad has happened.

[00:41:01] Cass: Uh, conservatives are very attuned to three things that the left is not attuned to. One is authority, another is loyalty, and a third is pur. Take loyalty, uh, the flag. Do wear a pin. Do you talk about the founders with reverence? Do you talk about your community as something that you wouldn’t betray no matter what, Um, authority do you think that being respectful of?

[00:41:31] Cass: Your parents being refe respectful of your traditions, do you give them a kind of authority, purity? Do you get disgusted by stuff? And obviously there’s a relationship between authority, purity, and loyalty and religious commitments. Mm-hmm. of a certain kind, but they’re not the same. And if you test what people’s moral values are, I’m gonna get to Trump in a moment.

[00:41:58] Cass: The left is left a little cold by authority, purity and loyalty compared to conservatives, and that is a systematic thing. Like if you ask people on the left, how much would you be have to be paid to burn the American flag? They’ll say, How much have you got the right will say, You’re kidding. I’m not gonna burn the American flag.

[00:42:20] Cass: There’s no amount you can pay me. Um, if you ask people on the left, how much would you have to be paid to slap your dad? The left will say, Well, a million dollars. Sure. My dad will understand. The right will be more likely to say, I’m not gonna slap my father. You’re kidding, Right? There’s no amount. Okay.

[00:42:37] Cass: Now here’s where things get interesting. If you track the rhetoric and moral stuff of presidential candidates in recent years, um, Obama was pretty good on tradition authority, on on authority, purity, and loyalty for a Democrat, he was pretty good. He was, he was the best of the Democrats. You know, it was the worst of the Democrats, Secretary Clinton.

[00:43:06] Cass: She just didn’t strike those themes of the Republicans. You know, who was the best number one, the champ, Trump authority, purity, loyalty. Trump was all over those things. He didn’t know the research, but he was all over those things. Clinton was the weakest democratic can. In on these issues. Trump was the strongest Republican candidate on these issues.

[00:43:34] Cass: Obama was a good Democratic candidate on these issues, which is, I think, one reason that conservatives thought he’s kind of, in some ways, one of us, he might want the Affordable Care Act, but he wears a, a pen. He seems, you know, they might be racist and they might think he’s, you know, something unfamiliar.

[00:43:56] Cass: He talks in ways that we get mm-hmm. and that resonate. And the voting suggested that the voters that went for Trump, but not for Clinton, were the people who were the authority. Loyalty, purity people. And uh, that is a significant part of the picture. Now we don’t have the data on Biden versus Trump.

[00:44:19] Cass: Mm-hmm. . But I’d be willing to predict with a lot of confidence that biden’s a lot better. A lot more like Obama on these moral foundations. And that, that’s, I think, part of it. I, I’m a big admirer of Secretary Clinton and I don’t mean to, uh, you know, think, say anything negative about her, but it’s a matter of political, um, uh, self-interest, the, her.

[00:44:46] Cass: Rhetoric was not as convincing, let’s say to people. Now, I think this isn’t getting directly at your question, is it that there’s something that Obama did that didn’t excite people about Democrats and the didn’t have coattails? Didn’t have coattails, and maybe. Maybe

[00:45:07] Peniel: and, and, you know, so, so we’re, we’re, we’re closing.

[00:45:10] Peniel: And I, I, I want to talk about, um, before asking you about some books you’re reading, what books are you reading now? Um, where do you think we are today in terms of, when I think about America in 2022, I’m 50 years old and it’s a much different country. Than the one I grew up in. Um, uh, in some ways better, in some ways, in some ways worse.

[00:45:33] Peniel: You know, I think, um, uh, the career of somebody like. President Obama, um, has been extraordinary, an extraordinary example for so many young black people and people of all colors that I couldn’t have imagined when I was in school. You know, I couldn’t have imagined a black president. And at the same time, when I look at Black Lives Matter, mass incarceration, um, George Floyd, I couldn’t have imagined in certain ways either.

[00:46:00] Peniel: Um, uh, Where do you think we are? You know, I’ve argued that we’re in a third reconstruction. So much of what’s going on with, um, allegations of voter fraud, the January 6th uprising, uh, is connected to the first reconstruction, which is the decades after the Civil War and this effort at multiracial democracy.

[00:46:23] Peniel: Um, That being said, we also are in an era of redemption, is, you know, the lost cause. This idea that, uh, America is really this white, ethno nationalist state. You know, President Trump had Steve Bannon and these, these, these rhetorical czars who. Otherwise, everything in everyone , right? So unless you’re from, let’s say, Scandinavia, or, or, or somewhere that they find you light enough to be an American, um, they don’t want you around.

[00:46:54] Peniel: And that rhetoric has become normalized. And even talking about aspects of American history, you, you clerked for Thurgood Marshall, um, they’re gonna say that’s critical race. And this critical race theory hoax against truth teaching. Where do you think we are just as, as a democracy? Because so much of your work, the way I read it is, um, in, in defense of democracy and trying to expand democracy for all citizens of all backgrounds.

[00:47:21] Peniel: You know, uh, everywhere really in a global scope, not just local or federal. Where do you think we’re we are today? Where, where we

[00:47:30] Cass: headed? I love everything you said. I think in some ways where we are is amazing and inspiring and incredible. So if we look at 40 years ago, And ask a bunch of questions about what our society would be like, 40 years, hence.

[00:47:51] Cass: And we see, you know, uh, uh, forms of equality and recognition of dignity. Mm-hmm. that 40 years ago would’ve seemed like a dream. Mm-hmm. , And you can take your pick with respect to an issue. Congress enacted it, just cuz we’ve discussed this, uh, Prison Rape elimination Act. Mm-hmm. , um, same sex marriage is now the law of the land.

[00:48:19] Cass: Uh, the idea of Black Lives matter for many people who. Maybe would’ve been uninterested in civil rights issues or skeptical. That idea is a rally in Kori that connects with what they care most about, and that is playing a role on issues that involve even the apparatus of, you know, Um, benefits programs mm-hmm.

[00:48:48] Cass: that have nothing to do with criminal justice. Mm-hmm. , certainly not directly, but the idea of Black Lives Matter as being about human dignity and history and not just about, um, an event or a series of events, but something that is uh, um, uh, there, there’s an English word for it. Exactly. Maybe there’s a German word.

[00:49:13] Cass: Uh, we have to, we have to fix that. Mm-hmm. . And that’s, there’s both wide recognition of that and there’s action and responsive to that. In response to that, in. You know, diverse places in all, in, in states where you wouldn’t think that would be happening. It’s happening. Mm-hmm. And sometimes it’s not crowd crowed about because people don’t want to stir, but they do want to help.

[00:49:39] Cass: So that’s fantastic. Um, and not predictable from 40 years ago. Mm-hmm. . Uh, but I think you’re right that there’s a danger. In where we are now. Mm-hmm. , that is also extremely surprising that, uh, there’s a normalization, as you say, of things that are by my lights, um, uh, grotesque a and that that doesn’t speak for the better angels of our nature across.

[00:50:15] Cass: Real political divisions. Mm-hmm. . So, you know, there, I’ll tell you a story. Uh, there’s a member of the US Senate who’s no longer in the US Senate, who I met with in my first month in the Obama administration or Republican, and he is, You know, very Republican, not a little Republican. He’s not like a moderate, and he’s not in the Senate anymore.

[00:50:43] Cass: And he said to me behind closed doors, and I’ll say this cuz he’s not there anymore. He, he said, Cas, um, I’m conservative. He said, I’m, I’m very conservative. He said with some puzzlement, he said, I’m really conservative. But then he said, Some of my colleagues, they’re crazy. , and this is someone who spent much of his career as being on the, very much on the right.

[00:51:09] Cass: Mm-hmm. and behind closed doors, he was saying, What is happening to my party? Mm-hmm. . And this was, you know, this was long before, uh, January

[00:51:18] Peniel: 6th. Yeah. All right. So my final question is, what are you reading right now for, And you can give me three books, but for souls, for inspiration, for you. Just what, what are you, you know, for, for the future?

[00:51:34] Peniel: You know, what are you, what are you

[00:51:34] Cass: reading? I’m reading a book by a Stanford historian called, I think it’s the Second Creation, Jonathan Guap. Uh, which is about how the constitution became the Constitution and the idea in the book, which I found stunning, meaning new, which is a little embarrassing cuz I do constitutional law.

[00:51:59] Cass: is that the original conception of the Constitution was as a kind of, um, uh, tentative first crack at a system of governance that where the text wasn’t the whole thing. We, the people were gonna be kind of figuring it out. Mm-hmm. . And that after the founders did their work in the next decade plus, it got really solidified and congealed into something that was much different from what it was supposed to be.

[00:52:30] Cass: And the book is actually Democratic with a small d I have no idea what the author’s politics are. Oh, very interesting. And it says that we’ve, we’ve lost sight. The actual historical conception of the Constitution was, and it puts the idea of originalism, you know, we go back to the found, it makes it look historically bizarre.

[00:52:49] Cass: Yeah. And that’s funny because his, the originalists are seek to be historically not bizarre. Yes. And this book, So I, I find that, uh, a completely inspiring book and great. Um, For fun. I’m reading a book called The Seven Husbands of Evelyn, something by Taylor Jenkins Re Oh really? Who is a really good novelist.

[00:53:19] Cass: She also wrote Daisy Jones and the Six, which is about a rock. Group. Kind of like Fleetwood Mac. Yeah. And the law professor isn’t supposed to be that excited about books that are kind of about Fleetwood Mac. Oh, that’s great. But I’m really excited about that book and the seven husbands of Evelyn Black, the last name.

[00:53:37] Cass: It’s, it’s great. And I’m about three quarters of the way. Done. I’m also rereading, uh, basically for my classes and my academic scribbling, uh, a book called Scarcity, which is a behavioral science book about cognitive scarcity. And it’s an argument that each of us has limited bandwidth. And the kind of punch of the book is if you’re poor or hungry.

[00:54:06] Cass: Or sick or old, your bandwidth will be really limited, and that means you are, because if you’re poor, you’re trying to get through the day, and if you’re sick, you’re trying to get not sick. And then your ability to navigate life is severely compromised. And that means a lot of the stuff that. Private and public institutions demand of people who are poor or old or sick or struggling in one or another way.

[00:54:33] Cass: They’re extremely terrible, those things, because if you are limited in your capacity to do other things that handle your family situation, then to ask you to go 10 blocks away or two miles away to. Government help is effectively to create a wall between you and the help, and, uh, tear down that wall as Ronald Reagan.

[00:54:58] Peniel: Wow. That’s great. Thank you for those recommendations. I’m actually eager to read those. Um, we’ve been talking with Kas Sunstein, who’s the Robert Walmsley University professor at Harvard University. Um, he’s worked for the Carter Obama Biden Administrations. Um, he was the head of the White House Office of Information and Regulatory Affairs, um, and has done so many other.

[00:55:26] Peniel: Uh, Professor Sunstein is the author of hundreds of articles and dozens of books. My favorite is Nudge. Um, but there’s also how change happens, which you’re gonna be speaking about. So, um, Kas, thank you for joining us. Thank you. Great

[00:55:39] Cass: pleasure.

[00:55:40] Peniel: Thanks for listening to this episode. And you can check out related content on Twitter at Pane Joseph.

[00:55:49] Peniel: That’s p e n i e l j o s e p h. And our website, csr d dot lbj dot u texas.edu, and the Center for Study of Race and Democracies on Facebook as well. This podcast was recorded at the Liberal Arts development studio at the College of Liberal Arts at the University of Texas at Austin. Thank you.