On October 27, the Drudge Report featured the following false headline: “2001 Obama: Tragedy that 'Redistribution of Wealth' not Pursued by Supreme Court.” Later that morning, Fox News' America's Newsroom echoed the Drudge Report with a false on-screen graphic that read “Obama: 'A tragedy' Supreme Court hasn't addressed wealth redistribution.” In fact, as the YouTube audio that the Drudge Report headline linked to demonstrates, during a 2001 interview on Chicago public radio station WBEZ, Sen. Barack Obama did not say it is a “tragedy” that the Supreme Court has not addressed wealth redistribution. Contrary to what the Drudge Report and Fox News asserted, the “tragedy” Obama identified during the interview was that the civil rights movement “became so court-focused” in trying 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.”

During the 2001 WBEZ interview, Obama went on to state: “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.” He later added, “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.”

Harvard Law School professor and Obama adviser Cass Sunstein also disputed that Obama was broadly discussing “redistributive change” during the 2001 interview. In an October 27 entry on his blog, posted after America's Newsroom aired, Politico senior political writer Ben Smith reported that Sunstein “argued that Obama is discussing redistribution in a relatively narrow legal context: The discussion in the 1970s of whether the Supreme Court would create the right to a social safety net -- to things like education and welfare. He also noted that in the interview, Obama appears to express support for the court's rejection of that line of argument, saying instead that the civil rights movement should aim for the same goals through legislative action.” From Smith's post:

Obama's remarks came in a long interview on civil rights and Constitutional law with two other law professors on the Chicago public radio station WBEZ in 2001. (The full transcript is here, and audio is here.) Sunstein argued that Obama is discussing redistribution in a relatively narrow legal context: The discussion in the 1970s of whether the Supreme Court would create the right to a social safety net -- to things like education and welfare. He also noted that in the interview, Obama appears to express support for the court's rejection of that line of argument, saying instead that the civil rights movement should aim for the same goals through legislative action.

“What the critics are missing is that the term 'redistribution' didn't man in the Constitutional context equalized wealth or anything like that. It meant some positive rights, most prominently the right to education, and also the right to a lawyer,” Sunstein said. “What he's saying - this is the irony of it - he's basically taking the side of the conservatives then and now against the liberals.”

[...]

Sunstein argued that in the context of a long, legalistic interview, the words referred to the narrower forms of redistribution -- education, legal filing fees, legal representation, and other issues -- that had been discussed in the case Obama cited and in discussions around it.

From the October 27 Drudge Report:

From the October 27 edition of the 9 a.m. ET Fox News' America's Newsroom:

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 that have to be fought, and they do have a distributive aspect to them.