Scarborough falsely claimed Obama said the Warren Court was "not, quote, 'radical enough' "

During the October 28 edition of MSNBC's Morning Joe, host Joe Scarborough falsely claimed that during a 2001 radio interview, Sen. Barack Obama said that "the Warren Court was not, quote, 'radical enough.' " In fact, during the interview on Chicago public radio station WBEZ, Obama did not say the Supreme Court under Chief Justice Earl Warren was not "radical enough."

Additionally, echoing the Drudge Report's October 27 false headline: "2001 Obama: Tragedy that 'Redistribution of Wealth' not Pursued by Supreme Court," Scarborough said of Obama's comments: "Who would think that when a guy talks about one of the -- that the Warren Court, the Warren Court did not go far enough, that actually one of the great tragedies was there was no redistribution of wealth." Further, co-host Willie Geist falsely asserted that during the 2001 interview, "Obama says one of the great failures of the civil rights movement is that it didn't lead to a redistribution of wealth by the Supreme Court."

In fact, contrary to Scarborough's and Geist's assertions, the "traged[y]" Obama identified during the interview was that the civil rights movement relied too much on the courts in its efforts to bring about political and economic justice. Obama stated: "And one of the -- I think the tragedies of the civil rights movement was, because the civil rights movements became so court-focused, I think that there was a tendency to lose track of the political and community organizing, and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change."

Later in the segment, NBC chief foreign affairs correspondent Andrea Mitchell noted that Obama "wasn't really speaking about income redistribution. He was speaking simply, descriptively about what the court did and what the court did not do, and what is appropriately the role of the court." She went on to say Obama was taking "a strict constructionist view ... of the role of the court. ... He was not arguing against against social action -- hardly that -- but he was saying the courts were not in that business and shouldn't be in that business."

From the January 18, 2001, broadcast of the WBEZ's Odyssey program, "The Court and Civil Rights":

OBAMA: Right, and it essentially has never happened. I mean, I think that, you know, if you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples so that I would now have the right to vote, I would now be able to sit at the lunch counter and order in, as long as I could pay for it, I'd be OK. But the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society.

And, to that extent, as radical as I think people try to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it's been interpreted, and Warren Court interpreted it in the same way that, generally, the Constitution is a charter of negative liberties -- says what the states can't do to you, says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf, and that hasn't shifted.

And one of the -- I think the tragedies of the civil rights movement was, because the civil rights movements became so court-focused, I think that there was a tendency to lose track of the political and community organizing, and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change. And, in some ways, we still suffer from that.

[...]

GRETCHEN HELFRICH (host): Let's talk with Karen. Good morning, Karen, you're on Chicago Public Radio.

CALLER: Hi. The gentleman made the point that the Warren Court wasn't terribly radical. My question is with economic changes. My question: Is it too late for that kind of reparative work, economically, and is that the appropriate place for reparative economic work to take place?

HELFRICH: You mean the court?

CALLER: The courts, or would it be legislation, at this point?

OBAMA: You know, maybe I'm showing my bias here as a legislator as well as a law professor, but, you know, I'm not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn't structured that way.

You know, you just said -- look at very rare examples wherein, during the desegregation era, the court was willing to, for example, order, you know, changes that cost money to a local school district. And the court was very uncomfortable with it. It was hard to manage, it was hard to figure out. You start getting into all sorts of separation of powers issues, you know, in terms of the court monitoring or engaging in a process that essentially is administrative and takes a lot of time.

You know, the court's just not very good at it, and politically, it's just -- it's very hard to legitimize opinions from the court in that regard. So, I mean, I think that, although, you can craft theoretical justifications for it legally -- you know, I think you can, any three of us sitting here could come up with a rationale for bringing about economic change through the courts -- I think that, as a practical matter, our institutions just are poorly equipped to do it.

SUSAN BANDES (DePaul University law professor): I don't necessarily disagree with that, but I think it also depends on -- much of the time what we see the court doing is ratifying the status quo, and, in fact, the court makes redistributive decisions or distributive decisions all the time --

OBAMA: Right.

BANDES: -- and it --

OBAMA: But, but, but --

BANDES: Let me give you an example, which is that the court considers whether it's OK to take a program, a federal Medicare program that provides -- you know, that recompenses people by insurance for every medical procedure they can have except abortion. And it upholds that --

OBAMA: Right.

BANDES: -- and says we can except abortion from that. Well, that's a decision about what kinds of subsidies we're willing to uphold and what we're not.

OBAMA: Although, typically, I mean, the court can certainly be more or less generous in interpreting actions and initiatives that are taken by the legislature, but in the example of, for example, funding of abortions or Medicare and Medicaid, the court's not initiating those funding streams. I mean, essentially what the court is saying is, at some point, OK, this is a legitimate prohibition or this is not. And I think those are very important battles.

From the October 28 edition of MSNBC's Morning Joe:

GEIST: John McCain's got a new ad out talking about taxes, he's also out talking about Barack Obama the redistributor, talking about this 2001 audio clip where Barack Obama says one of the great failures of the civil rights movement is that it didn't lead to a redistribution of wealth by the Supreme Court. So, here he is, John McCain talking about Barack Obama the redistributor.

McCAIN [video clip]: He said that, quote, one of the "tragedies" of the civil rights movement is that it didn't bring about a redistribution of wealth in our society. That's what change means for the Obama administration -- the redistributor. It means taking your money and giving it to someone else. He believes -- he believes in redistributing wealth, not in policies that grow our economy and create jobs.

GEIST: Now, this issue just fell into his lap because of something Obama said. Why haven't they been seizing on this earlier? Why didn't they find it themselves?

SCARBOROUGH: You know, they really should have seized on it this earlier -- they should have seized on the second -- Obama talked about spreading the wealth. They should have been a lot more aggressive. You've got -- you've got, what is your theme? And you go with that one theme and you hammer it home, especially when you have all of this -- the clutter out there, and they haven't done that.

JOHN HARWOOD (CNBC chief Washington correspondent): It may be, though, guys, that because they knew about this ahead of time, but at an earlier point in the campaign, when they weren't as needy as they are now, they thought it was ridiculous because it is ridiculous.

SCARBOROUGH: What's ridiculous?

HARWOOD: This whole redistributive change stuff.

SCARBOROUGH: That's ridiculous to you?

HARWOOD: John McCain favors redistribution, OK? He favors a progressive tax system. He favors refundable health care tax credits to people who don't pay taxes, which is what he's attacking Barack Obama for. His solution for Social Security is to take money that's scheduled to go in benefits for rich people and give it to people who make less money.

SCARBOROUGH: OK, so you're talking about John McCain, and I --

HARWOOD: I'm talking about John McCain --

SCARBOROUGH: I agree on these things --

HARWOOD: -- what I'm saying is the exact charge that he's making against Barack Obama, that he favors policies that take more from people at the top and give to people on the bottom, he also favors.

SCARBOROUGH: OK, but I mean, if you want to go down that path you can say that John McCain also was one of the only two Republicans that voted against this tax -- the tax Bush tax cuts --

HARWOOD: Yes.

SCARBOROUGH: -- which he's now championing, and of course I agree with --

HARWOOD: Yes, which is part of the incoherence problem that you mentioned earlier because he was against it and now he's for it.

SCARBOROUGH: But if this is the tack they've decided to take, they should have weighed in, and I agree with you completely that there's a double standard. But I will tell you I am personally concerned by any politician that talks about the redistribution of wealth, that the Warren Court was not, quote, "radical enough." I'm concerned when somebody tells a guy that wants to start a small business that he should be for spreading the wealth. I mean, these are things that cause concerns not just to conservative --

HARWOOD: It's a matter of degree, OK?

SCARBOROUGH: -- fiscal conservatives like me but people in the middle. This sort of worldview collapsed when Ronald Reagan got elected, but I think we all agree here -- and two great points. You say it's not in his gut. You talk about how there are inconsistencies here. McCain, in the end, is just not the man to fight back against this message, is he? Not the Republican -- we don't -- I know you don't want to editorialize, but there would be better fiscal conservatives to carry this message forward, right?

[...]

MIKA BRZEZINSKI (co-host): Here with us now, NBC News chief foreign correspondent and host --

SCARBOROUGH: We don't gotta get to Andrea. We love Andrea.

BRZEZINSKI: I want to get to Andrea. That's my point.

SCARBOROUGH: This is -- this is -- that's why we wake up in the morning, we've got Andrea.

BRZEZINSKI: Yeah, and that's why we need to get to her.

MITCHELL: Thanks for that.

BRZEZINSKI: She is the host of MSNBC at 1 o'clock Eastern time -- Andrea, it's a great show, you gotta watch it. Andrea Mitchell joins us. Andrea, good morning.

MITCHELL: Hi.

SCARBOROUGH: Andrea, we're talking --

MITCHELL: Glad to hear you all arguing the major economic, you know, debates of the 20th century. The only problem is this is the 21st century. This all seems like so old.

SCARBOROUGH: It is the 21st century, but I'll guarantee you if people's tax rates are increased by four percentage points on income tax, this will suddenly become a 21st century issue.

MITCHELL: Yeah, but not the way it's being framed, not by -- as Mark Halperin was just saying and John, by pulling up a little snippet of a seven-year-old interview, a symposium on Constitution and the law from NPR in Chicago, where it's not even clear what Barack Obama was discussing unless you have a law degree from Harvard University. That's all.

SCARBOROUGH: Well, I mean he talks about redistributing wealth and that the Warren Court was not radical enough --

MITCHELL: Not really.

SCARBOROUGH: -- because it didn't, there wasn't the redis -- what do you mean not really?

MITCHELL: If it -- well, it's not clear that that's what the words -- it's not clear that that is not taking it out of context, Joe. In fairness to everybody involved, I tried to read deeper into this yesterday, more deeply into this, and was persuaded by people a lot smarter than I about the law that he wasn't really speaking about income redistribution. He was speaking simply, descriptively about what the court did and what the court did not do, and what is appropriately the role of the court. There are some people arguing that he was taking a conservative position about the -- this was not the business of the court, that the court didn't do this.

SCARBOROUGH: Which people would that be?

MITCHELL: This was the business of community organizers.

SCARBOROUGH: David Axelrod and --

MITCHELL: No, no, no.

SCARBOROUGH: Who would think that when a guy talks about one of the -- that the Warren Court, the Warren Court did not go far enough, that actually one of the great tragedies was there was no redistribution of wealth.

MITCHELL: I will send you the full --

SCARBOROUGH: I mean, I did go to law school, and there is nothing conservative about what he said.

HARWOOD: But actually, Joe, he said that the court can't do that --

SCARBOROUGH: But actually, I'm not a good lawyer, exactly, good point.

HARWOOD: No, actually, he said -- he said the court's not equipped to do that.

SCARBOROUGH: Not now.

HARWOOD: Yeah.

MITCHELL: Exactly.

HARWOOD: It didn't sound like he was advocating that the court to do it. What he was saying the civil rights movement needed to recognize that if that's the kind of change they want, they weren't gonna get it from the court.

SCARBOROUGH: And now he's saying -- and again, he's said it didn't go far enough. Now he's saying it needs to be done by legislators or needs to be done administratively. Now, is that correct, Andrea?

MITCHELL: I don't know what he is saying today about the subject. I know what he said seven years ago, which is that it was not the business of the courts to get into this. He was taking if you, would you believe, a strict constructionist view --

SCARBOROUGH: No, I wouldn't believe that.

MITCHELL: -- of the role of the court. OK. He was not arguing against against social action -- hardly that -- but he was saying that the courts were not in that business and shouldn't be in that business.