• Show Notes
  • Transcript

On this episode of Stay Tuned, “What is Justice?” host Preet Bharara answers your questions about:

  • NYPD Commissioner James O’Neill’s decision to fire Officer Daniel Pantaleo for his involvement in the 2014 death of Eric Garner
  • Senate Majority Leader Mitch McConnell’s ability to block popular legislation, like universal background checks for gun buyers
  • “Blinded by the Light,” the new movie about a young Pakistani boy’s love of Bruce Springsteen 
  • Advice for new law students, plus an anecdote from Preet about his time in Law School

Bonus clips from the interview are available for members of the CAFE Insider community.

You can listen to today’s episode on the player of your choice or here. References and supplemental materials for the episode are below.

As always, tweet your questions to @PreetBharara with the hashtag #askpreet, email us at staytuned@cafe.com, or call 669-247-7338 and leave a voicemail.



Want to work for Preet? CAFE is looking for an experienced Audio Producer: Apply here


Eric Garner

  • 18 U.S. Code § 242: Deprivation of rights under color of law, Legal Information Institute 
  • WATCH: NYPD fires officer for 2014 death of Eric Garner,” PBS, 8/19/19 
  • “NYPD judge recommends firing officer over Eric Garner’s chokehold death,” CBS News, 8/2/19

Mitch McConnell

  • “One Man Could Decide Washington’s Response to Gun Violence: Mitch McConnell,” New York Times, 8/5/19

“Blinded by the Light”

  • “Blinded by the Light,” IMDb



Preet Bharara:              From CAFE welcome to Stay Tuned. I’m Preet Bharara.

Michael Sandel:            I think this is a mistake. I think by trying to avoid engaging with our deepest disagreements about justice and ethics and morality in the common good we impoverish public life. We drive ourselves further apart, because we don’t cultivate the art of listening. Even where we disagree, the art of listening is an important civic art. And we’re not very good at it these days.

Preet Bharara:              That’s Harvard professor Michael Sandel, a man who thinks writes and talks all about justice. He lives and breathes it, and he helped me formulate my ideas about justice when I was just a teenager. So far Professor Sandel has taught some 15,000 students, and I was one of them. Sandel’s writings on age old moral and civic issues have been translated into 27 languages. He was even dubbed the most influential foreign figure of 2011 by China’s Newsweek. Today Professor Sandel joins me to discuss his life’s work, which happens to center on the themes that drive this show, justice, ethics and democracy. I’ll tell you why I wanted Professor Sandel to join me specifically for this episode in just a moment. That’s coming up. Stay tuned.

Preet Bharara:              This fall Stay Tuned is going back on the road, and we’re headed to three new cities, Denver, Atlanta, and Detroit. I’m lucky to have some wonderful guests joining me for the Fall 2019 Stay Tuned Tour. Shannon Watts, founder of Moms Demand Action. Dana Nessel, the Attorney General of Michigan and former acting Attorney General, Sally Yates. We’ll be in Denver on October 24th, Detroit on November 12th, and Atlanta on December 4th. Head to cafe.com/tournow for tickets. Hope to see you there.

Preet Bharara:              Today’s show marks the 100th episode of the Stay Tuned podcast. That means we’ve had more than 100 guests on the show talking about their dedication to justice, fairness and democracy. So, we went back into the archive to see what some of our past guests had to say about what justice means to them. You might recognize some of them, like Bryan Stevenson, founder of the Equal Justice Initiative, or CNN International Correspondent Christiane Amanpour. I also discussed justice and fairness with presidential candidates Julian Castro, and Pete Buttigieg, conservative columnist George Will, Broadway’s Heidi Schrek, and my NYU colleagues, Michael Waldman and Rachel Barkow. We found that the pursuit of justice is something that crosses all fields. Take a listen.

Preet Bharara:              How do you define justice? What justice is?

Michael Morrell:           Gosh, it’s a good question. Treating everybody equally and with dignity.

Heidi Schreck:               One of the first things I learned was do unto others as you would have done unto you, I still carry that as a bedrock for how measure justice.

Julián Castro:                A balance of how somebody is treated.

Bryan Stevenson:          People need justice. And for me there’s a difference between law, and justice. Law says if you don’t file a petition within 30 days, you’re forever banned. That’s not just, that’s just law. So we got to figure out what we do to recover from the way in which the law sometimes doesn’t achieve justice.

Heidi Schreck:               Acknowledging the humanity of every single human being, and respecting that, the dignity of that is justice.

Michael Waldman:        Justice is the sense that the rules give everybody an equal shot.

Ben Rhodes:                 You try to view each person has an individual entity to be treated equally, and respect their dignity, you’ll get better outcomes in the world.

Pat Fitzgerald:               You don’t want to be part of a case where you come to learn that you got the wrong person, and they’re innocent of a crime. That is just a horrible circumstance.

Christiane Amanopour: Your own personal context is second to your professional duty and your professional guidelines. And that’s not a hard concept of grasp.

Mike Morrell:                But justice is being fair. Justice is giving everybody the opportunity to tell their side of the story. Justice is an unbiased authority, weighing in and making a decision on what the outcome should be. That’s to me is justice.

Pete Buttigieg:              The utilitarian perspective, what you’re doing is right or wrong based on how many people makes better off and a more [inaudible 00:04:18] or some would say Christian perspective that really focuses more on your intention and what you seek to achieve. I think when you’re in government it always pushes you more in a utilitarian direction, because you can kind of count up how many people you made better off or worse off, you’re certainly held accountable. But I also think values matter, intention matters, why you’re doing what you’re doing matters.

Michael Waldman:        A sense that decisions are made based on facts and the merits of the decision are not based on prejudice or suspicion or emotion.

David Miliband:             We developed our own four part definition of social justice, which starts with meeting basic needs move through the extension of equal opportunities, but also was willing to say that not all inequalities are unjust, but those that all need to be eradicated.

Rachel Barkow:             I don’t like using the word fair because that’s as loaded and conclusory as the term justice itself is.

Steve Martin:               Fundamental fairness is still at play, and must be and should be in a confinement setting. There’s no less important than a confinement setting that is on the streets.

Preet Bharara:              Do you have a working definition in your head of what justice means?

George Will:                 Treating likes alike, and unlikes unalike. It’s not mine, it’s Aristotle’s.

Preet Bharara:              Simple as that.

George Will:                 Simple as that. And I do think that the adjective social does not modify justice and the phrase social justice, I don’t know what it’s doing there.

David Miliband:            And so, I think there is a very good definition of social justice, which you could just call justice or economic and social justice, or economic, social and political justice, which speaks very, very potently to the modern era.

Heidi Schreck:               I think it’s actually quite hard to do, as we can see. And also on my fully acknowledging the specific real visceral humaneness of that other person.

Steve Martin:               Because they are like, you and I, that are humans, they are people. Inmates have a fairly good understanding and sense of fundamental fairness. They understand when they’re getting screwed in other words. Typically, nothing good comes from that.

Michael Waldman:       We have an interesting and unusual way of doing reform in the United States. We take the institutions of any moment, and this has been the way it’s been for 200 plus years. And we hold them up in the light of these timeless civic values from the Declaration of Independence and the Constitution, knowing fully well that they didn’t live up to them then, and in fact, they’ve never lived up to them. And every generation of performers does that, and in a way that’s what we’re trying to do now and saying, if we really believe in having a democracy, we can’t have gerrymandering like this. We can’t have voter suppression, we can’t have dark, money dominating, and all these other things. For better or worse, we’re very lucky to be able to work on these big issues in this crazy and frequently awful moment. But we know that this stuff matters.

Pete Buttigieg:              We should have a certain level of humility in assuming that everything we get is something that we deserve. Understanding that life’s lottery assigns us different circumstances and different gifts. To me, it aligns with a very Midwestern intuition, which is we shouldn’t believe that we invented ourselves.

Preet Bharara:              How do you define justice?

Rachel Barkow:            Oh, boy, I guess I would say the outcome I would want without having any knowledge of who the parties involved would be whether I was on either side of that V, it would be the equitable and appropriate result in a case. Again, without knowing the identity of anybody that’s involved, just looking at the merits and deciding what people call the rosy and veil idea that if you don’t know-

Preet Bharara:              Look at you.

Rachel Barkow:            Yeah. If you don’t know whether or not it would affect you personally. Without knowing in advance whether your ox would be gored or not, what do you think the right approach in a given area would be? And I do think it’s really important that it be administered without any bias toward the identity of the person. I think in our society where we way too often go astray is in knowing the identity of who’s going to be affected. For me personally, that I find to be particularly egregious is really targeting particular kinds of people, whether it’s the color of their skin, the country that they come from, and it skews decisions. And I think if we could not know who’s going to be affected, and just kind of look at the merits of whatever the issue is before us, we get better outcomes that way.

Bryan Stevenson:         I just believe you have to stay hopeful. I actually think that hopelessness is the enemy of justice. Injustice prevails where hopelessness persists. I think hope is our superpower. If I’ve had any ability to do anything, it’s because I’ve been willing to hope for things that haven’t been seen yet, and I’m going to continue with that. You’re either hopeful, or you’re the problem. There’s no real middle ground. And we have to keep pushing, keep wanting more. More mercy, more compassion, more justice, more opportunity. That’s what animates my work.

Preet Bharara:              Just a few of the inspiring guests I’ve had on the first hundred episodes of Stay Tuned. I hope we’ll find some more answers from the next hundred. After my conversation with Michael Sandel I’ll tell you how I think about justice. But first, let’s get to your questions. That’s coming up. Stay tuned.

Preet Bharara:              So, a lot of you have written in questions about the Eric Garner case. That as everyone knows, is the case of an African American man who died while being taken into police custody in Staten Island a little over five years ago. Just after Anne Milgram, and I taped the Insider Podcast this past Monday, the police commissioner Jimmy O’Neill announced that he was firing the cop involved in that arrest, Daniel Pantaleo. With respect to the decision to fire Officer Pantaleo recalled that that decision by Commissioner O’Neill came after a lengthy NYPD disciplinary proceeding that found that the use of a chokehold was a, “Significant factor in triggering an asthma attack that killed Mr. Garner.” The court also found, the NYPD court, “That it constituted a gross deviation from the standard of conduct established for New York City police officer.”

Preet Bharara:              In light of all the evidence and what the disciplinary proceeding found, it seems that Commissioner O’Neill did the right thing. I watched the press conference where O’Neill announced the decision, and you can tell that he was a little bit conflicted about it. And some people might think it was very, very clear that the officer should have been fired. I happened to be one of those people. Doesn’t mean it’s so easy for the Commissioner of the Police Department, who also has all the police officers that he oversees to be thinking about doesn’t mean it was an easy decision for him.

Preet Bharara:              I was kind of struck by how he balanced his responsibility to do the right thing, and to dismiss the officer, and also recognize that it might not be so easy for some people to swallow. Even if those of us on the outside think it should be. He was forthright in saying there might be a lot of cops were going to be mad at him. And in fact, if he were young, on the line cop himself, he might be upset said about the decision. But he has leadership position, and he’s required to do what is correct. As far as the underlying decision by the Department of Justice not to bring charges against officer Pantaleo in the first place.

Preet Bharara:              Now, remember a couple of things. One, a grand jury convened by the district attorney in Staten Island refused to indict officer Pantaleo. Number two, I have seen some speculation and discussion about whether or not it was Bill Bar who interceded in some way and prevented the charging of officer Pantaleo because he was the attorney general, the day before the fifth anniversary of the death, which would also be the day before the statute of limitations would expire. Now, I did not interview all the witnesses. I was not in the grand jury. I have not reviewed all the facts. From where I sat as US Attorney it was not my case. I had no business in that case. The incident happened in Staten Island, which is in the Eastern District of New York. And it seemed to me from an outsider that there was a decent criminal case to be brought.

Preet Bharara:              On the issue whether or not Bill Bar interceded in some way inappropriately, I have not been shy about criticizing Bill Bar. But I don’t think that was necessarily the case here. To remind everyone again, there was a long simmering debate during the Obama administration, between civil rights lawyers in Washington DC, who were more bullish on making a criminal case and find an honorable assistant US attorneys, and a US attorney in the Eastern District of New York who felt there was not sufficient evidence. And that concern by Eastern District of New York prosecutors must have come from their understanding of the very high standard in the statute 18 USC 242 that requires that the officer violated the law willfully. And they clearly must have looked at testimony from the officer who testified that he feared for himself that he would be pushed through a window. He did not intentionally apply the chokehold. They probably took all that into account and thought it would be difficult to establish beyond a reasonable doubt, the willful element of that statute.

Preet Bharara:              Other reasonable people who I respect and who I know from my time as US Attorney felt otherwise and thought a case should be brought. The point of that is only to say that in this particular case, I believe the Eastern District prosecutors concluded that there was no initial chokehold. Ultimately there was a chokehold applied for about seven seconds. And based on their view of all the evidence, they didn’t think there was sufficient proof to prove the case beyond a reasonable doubt. I understand and appreciate that a lot of people will disagree with that. From where I stand on the outside, not having reviewed all of it, I tend to disagree with that also. There is and should be a continuing discussion about what the standards should be of deference to police officers.

Preet Bharara:              The State of California has adopted a new standard in recent days as to what deferences to be accorded to police officers. And whether the law should allow deadly force or certain kinds of force if a police officer reasonably fears for himself or his safety versus a standard that would be higher and require force only to be used when necessary to prevent harm. These are all murky standards, but they can vary in degrees of difficulty to prove. That will be something that both federal prosecutors and state prosecutors and governors around the country will continue to debate and to analyze and to think about. For now, Daniel Pantaleo I think has some right of appeal. But it seems given all the circumstances, the commissioner made the right decision.

Laura:                           Hi, this is Laura from Connecticut. Love your book, love listening to your podcast. I’d like to ask you to explain how Mitch McConnell has so much power to block all kinds of H.R. 1, the Russian hacking bills, the gun bills from the house, every time there’s a bill that you think is going to be a good bill suddenly Mitch McConnell has blocked it. I don’t understand why the other senators don’t do something about it. Thanks, bye.

Preet Bharara:              Hi Laura. Thanks for your question. You’re going to be maybe disappointed with my answer. But this is the consequence of the senate majority leader who doesn’t agree with you on various things. It happens to be true that even the President of the United States can’t pass laws, can’t get things done outside of an executive order unless he has both houses of Congress who will agree to move forward with legislation. And the senate majority leader is a very, very, very powerful position. You have in the current Leader, Mitch McConnell, someone who a lot of people think is especially not in tune with what a lot of Americans want.

Preet Bharara:              In particular, I’m referring to common sense gun legislation, including background checks, which as I saw this morning in one poll, 89% of Americans agree that there should be universal background checks before you can purchase a firearm. So the question is, what can people do about it? Well, there’s not a lot that the senators can do in minority. The first thing you can do about it is make sure that you are mobilized, and make sure that your fellow countrymen are mobilized to vote in a particular way so that there will be a new senate majority leader in 2020. Lots of people think and believe if they’re Democrats, that it will be an important victory for a Democrat to succeed Donald Trump. That’s all well and good, if that is your view. But as people are also pointing out, that not the end of the ballgame. If you have a Democratic president elected in 2020, and Mitch McConnell remains as intransigent as he has been, and continues as the senate majority leader in the majority, lots and lots of things that you would hope a Democratic president would advance through legislation will not come to pass.

Preet Bharara:              Now, with respect to gun legislation, there is pressure to be brought to bear on the senate majority leader, namely the President of the United States. He has not seen fit so far on issues that are, I think, important on which there’s a lot of consensus like universal background checks to do that. He’s giving Mitch McConnell a certain amount of cover on that. In addition, he and Mitch McConnell probably have a pretty good bond on the one thing that a lot of conservative voters care a lot about, and that’s the appointment and confirmation of conservative judges to the federal bench. It seems that Mitch McConnell’s days of blocking judicial nominees ended with his obstruction with respect to Merrick Garland who should have been on the Supreme Court.

Preet Bharara:              By the way, this is another reason why, at the same time, people are paying attention to the Democratic debates, and focusing on the upcoming primaries. There is a call for some people who are running for president who are not advancing much in the polls to drop out of those races and run for the Senate. Because if you really want the country to change direction, and you really want some things to pass that you believe in, it will take more than just the next president.

Preet Bharara:              This question comes from Twitter user with handle nacb1981, who says, @preetbharara tell me what you think of Blinded by the Light movie. I assume you’ll be watching, #AskPreet. I did go see the movie. For those of you who are not familiar it’s a movie out of the UK about a young teenage South Asian man who falls in love with the music of Bruce Springsteen. And that love of music helps him figure out his own life while he’s in rebellious stage in a strict household. Nothing for me to identify with, right? I was actually unable to make the premiere of the film at the Stone Pony in Asbury Park, New Jersey, but did catch it this past weekend took my two boys, and it was great fun.

Preet Bharara:              Whether or not you like Springsteen… Well, first of all, if you like Springsteen you will love the movie, because there’s a lot of his music, various renditions of his music, characters in the movie singing his music. And there’s a lot of great fun scenes, but it also has appointed side about a young guy who is about as far away and is different from Bruce Springsteen as you might imagine. Who nonetheless feels that Bruce’s music spoke to him. And I think that’s what a lot of people feel about Bruce’s music, that it speaks to them. And to see it through the eyes of this young Pakistani boy was a real treat. Go see the movie. They’re not paying me. This is not a paid endorsement. But I think you’ll enjoy yourself.

Michaela:                     Hey Preet, this is Michaela calling from Canada. I’m about to start law school in a few weeks, and I’m feeling quite overwhelmed and nervous. In an effort to stay positive, I was wondering if you could share a funny or memorable story from your time in law school that you look back upon and smile. Love the show. Thanks.

Preet Bharara:              Hey Michaela, congratulations on law school. I know you’re overwhelmed. It’s an overwhelming feeling to go to law school. I felt overwhelmed also. So, here’s my one piece of advice. I mean, I have a lot, but we have limited time. And it’s very simple. So you should obviously study hard. You should obviously pay attention. You should obviously make connections with your professors and your fellow classmates. But you should also remember to have a good time. You should also find moments to have fun.

Preet Bharara:              I’ll tell you one quick story about how you can be dragged down by people who think that law school is only about work, only about studying. That’s important, but it’s not everything. It was in my second year, my best friend from law school, John, we were working in the law review on a Tuesday evening. And we were talking about where we’re going to go out because we had something to celebrate. And we’re talking about which bars we might go out to celebrate at when a fellow classmate of ours on the Law Review looks at us and literally like a character from a movie frowns and says, “What are you guys talking about? It’s Tuesday night, you should be studying.” And I said, “It’s John’s 25th birthday. We’re going to go out and celebrate John’s 25th birthday.” And he looked at us disdainfully again, “I can’t believe you people would go out on a Tuesday night.” And you know what? We did. And I ended up doing fine. So, celebrate your friends’ birthdays, celebrate your own birthdays, have some fun, watch some movies, study hard, but don’t forget to play too.

Preet Bharara:              My guest this week is Professor Michael Sandel. When I saw episode number 100 coming up, I couldn’t think of any guest more qualified and meaningful to speak about issues of justice than my freshman Professor Michael Sandel. He has dedicated his life to exploring the concept of justice in and out of the classroom. Sandel teaches political philosophy at Harvard College. His introductory course which I took, Justice, was the first Harvard class to be recorded and posted online for free. It has now been viewed by tens of millions of people across the globe. We talked through one of the quintessential philosophical scenarios, why Sandel thinks public discourse today is empty, and the consequences of meritocracy. That’s coming up. Stay Tuned.

Preet Bharara:              And speaking of hiring, I’m looking for an experienced audio producer and editor to join the team at CAFE. That’s the company that brings you Stay Tuned and the CAFE Insider Podcast. If you’re passionate about law and politics and thrive in the startup environment, this is the job for you. Email your resume and cover letter to submissions@cafe.com. That’s submissions@cafe.com.

Preet Bharara:              Michael Sandel, Welcome to the show.

Michael Sandel:            Good to be with you Preet.

Preet Bharara:              So can we just begin by my saying a couple of things, and you’ll indulge me. Number one, you are the guest on the 100th episode of Stay Tuned. It’s kind of crazy that we’ve had so many episodes. And one reason is that this whole project that we’re in, that I’ve thought about in my career, and that we think about on the podcast, and in the book that I’ve written is what is justice? How do you achieve it? How do you avoid injustice? And that’s something you’ve been focusing on your your whole career as a professor and a speaker and a writer and a philosopher.

Preet Bharara:              But more importantly than that, for me personally, which maybe people don’t know, is that Michael Sandel who I remember referring to as Michael J. Sandel. It seems you’ve dropped the middle initial in these modern times, was my professor when I was a freshman at Harvard College 32 years ago, in a big class. I believe in the catalog, denoted as a moral reasoning 22. That was called aptly and broadly justice. And it was the most eye opening class that I think I had in my entire time, because it dealt with issues of justice broadly. You’re one of the most influential teachers I’ve ever had.

Preet Bharara:              I talk a lot about a high school teacher, Mrs. Tomilson, who had a big impact on me. And even though you would not have known it, because it was a very large class 900 to 1,000 people, Professor Sandel caused me to start thinking about things that then became what I would think about for the rest of my career. I can literally remember things that you said, verbatim from the stage at Sanders theater, which I can say about almost no other teacher, professor I’d ever had. So for all those reasons, you did a tremendous honor. You’re a little bit my Dr. Frankenstein. So, thank you.

Michael Sandel:            Well, Preet it means so much to me, which you’ve just said, and having followed your career with such admiration. I really feel honored and privileged to have been there… Well, been there at the start, I suppose. And I’m especially honored to be with you on this 100th anniversary of your podcast. Thanks so much for having me.

Preet Bharara:              So, going back to what the enterprise is that you’ve spend time on in your way, and I have in my way, about what justice is, it’s a hard thing to define. Maybe we’ll figure out a way to talk about definitions of that during the course of this show. But it seems to be one of those things, is education. That an understanding of justice has to begin with some education, and which is why the class that you taught that I was in as a lowly freshman, was so influential, and I ended up the rest of my college career studying political and moral philosophy. I wrote my thesis, in part on John Roll’s in part in your communitarian writings. You then end up abandoning that later in life. I haven’t really gone back to the philosophical bookshelf very much in the last 20 years as a practicing lawyer, and a practicing prosecutor.

Preet Bharara:              But what I think was important, the gift I think you gave me and thousands of other students, not necessarily that you change the substance of my thinking, although in some ways, I’m sure you did, but that you influenced the methodology at my thinking. That I learned how to be a more critical analyzer of facts and circumstances and principles because of the way you taught that class. And so, we’re not going to reenact the class here. But I want to go back to if you would indulge us.

Michael Sandel:            Sure.

Preet Bharara:              The first scenario in the very first lecture that you introduce the concept of justice with, and it’s the trolley problem. Could you just state with a scenario and hypothetical is that you present these young eager to learn students with?

Michael Sandel:            We begin with the story of a trolley car driving down the track, and the brakes were out. And there are five workers working on the track who will die if the trolley hits them. Off to the side track there is one worker. And the question, the first question is what is the right thing to do? You’re the trolley driver, the brakes don’t work. All you can do is turn the steering wheel. Do you turn under the sidetrack knowing you’ll kill one but save five? And your answer at the time Preet was?

Preet Bharara:              I remember, wow, this is an interesting way to start a class. I didn’t know that we were going to have sort of mini polls throughout the class, which you do. It’s very participatory, even though there’s 900 people in the room. And I’m quite sure that I said, “Well, you turn the steering wheel, and you kill the one because it’s better to kill one than five,” which I think is the majority answer when you ask this every year.

Michael Sandel:            Yes, absolutely. The overwhelming majority. Then the followup scenario was meant to test that principle, a sensible principle. Save five lives, even at the cost of one. The followup was, suppose now you’re not the driver of the trolley car, but you’re an onlooker standing on a bridge over the trolley track. Trolley comes down, same scenario, breaks don’t work. Five workers on the track. This time, there’s no sidetrack. But you do notice, there is a rather heavy guy standing next to you on the track.

Michael Sandel:            The brakes don’t work. And now, you’re not the driver, you really feel helpless until you notice standing next to you leaning over the bridge is a very fat man. And you could give him a shout. He would fall over the bridge right in the way of the trolley car. He would die, but he would spare the five. How many would push? Most people wouldn’t. Here’s the obvious question. What became of the principal?

Preet Bharara:              I’ve re-watched the lecture since… one version of the lecture, but 32 years later, I can still remember you stating that scenario while I was a student. It’s a jarring one.

Michael Sandel:            All right, we’ll play it out. You play Preet, and I mean, the question is, do you push this guy onto the track, he would die, the five would live.

Preet Bharara:              The other thing that happens is people start to think well, because they’re thinking in advance as to how you’re going to proceed with the conversation? How do you square that different answer with the answer you gave to the first question when it was just a mere matter of turning the steering wheel?

Michael Sandel:            That’s it. Exactly. Yeah, almost no one in the class favors pushing the guy. And yet it’s still five lives versus one. And so, the point of the story is to begin the discussion and critical reflection on the principles of justice that we think are right. There’s the utilitarian principle, save more lives rather than fewer. That seems to work in the first case. But it doesn’t work so far in the second case, which introduces another principle having to do with respect for individual rights or human dignity or requiring the consent of someone whose life might be sacrificed. That is one way into debating philosophical principles, beginning with something very concrete, where people had strong opinions, and exploring where those opinions may lead.

Preet Bharara:              You have another example that you give shortly thereafter, about a doctor who has to treat I think six patients, five are moderately injured. You said, six patients who have been injured in a very devastating trolley accident. One of whom is close to death, five of whom are somewhat injured. And the doctor has the choice if he spends all his time on the one very injured patient, he could cause that person to live, but the other five would die. And if you spend some time on the five, they would live, but the one would die. And virtually everyone says that is an act of triage and moral reasoning. You save the five, not the one. Then analog to the trolley example. Then you again, this time, you don’t have a third person, then you give another example about a transplant doctor, right?

Michael Sandel:            Yes. And they’re five in need of a transplant of one kind or another. And there are no donors. But the doctor then remembers that in the next room, there’s a healthy guy who came in for a checkup, and he’s taking a nap. Why not slip in, steal those organs and save the five at the cost of this person’s life. So it is analogous to the second trolley case. But both of these cases bring out is that utilitarian moral reasoning. Thinking of morality, simply as a matter of numbers isn’t enough. Other things matter to justice and morality, the numbers or counting, or aggregating pain and pleasure. And that’s really the starting point of the course. And it’s the starting point too of much moral reasoning. Where, there certain absolute or categorical principles such as respect for human dignity or individual rights, that sometimes should override utilitarian considerations?

Preet Bharara:              Why is it important to know the principal basis for choosing, course of action one versus course of action to whether it’s a trolley example, or the surgeon example? Because you notice when you ask these questions, before people have reasoned deeply about them, and before you’ve tweaked the hypothetical so they can reason even more deeply about them. Generally speaking, the majority of the audience has a good answer, has a good and moral answer, even if they can’t always articulate perfectly a principle that would imply in other circumstances. So why is it important that people are generally right about the moral decision making, that they understand the reasoning?

Michael Sandel:            The reasoning matters a lot, because our moral intuitions can only take us so far, and sometimes they may mislead us. So this matters to education, because it seems to me that one of the main points of a liberal arts education, and education, and humanities, is really to figure out what we believe and why. And for that project, our moral intuitions, our first impressions matter. They’re a starting point for reason, reflection, but they’re not necessarily the final destination. We have to figure out moral reasoning consists in bringing into alignment our judgments in particular cases, our opinions about what to do, and the principles by which we live or believe we should live if we think about it. So this, I think, is what philosophy is fundamentally about figuring out what we believe and why. I also think it matters to a healthy civic life that citizens be able to engage in this kind of deliberation and debate.

Preet Bharara:              It’s also a method of persuading other people, as opposed to just using examples reasoning matters, right?

Michael Sandel:            It does, it’s a matter of persuasion. And doubtless you’ve found this and displayed this in the courtroom. That it’s very difficult to persuade people, unless one can first identify what they think is the right thing to do, and why they believe that because otherwise, it’s very difficult to really connect with the principles of people with whom we may disagree.

Preet Bharara:              So, can I tell you the thing that I’ve thought about a lot?

Michael Sandel:            Yeah.

Preet Bharara:              And maybe you encountered this with other students who you’ve run into again, years later. I found college to be fascinating, and I found the depth of the debate on social and moral questions, and it was one of the things that I studied, endlessly fascinating. When you talk about what we would now call hot button, political issues. I guess they were hot button then also, like abortion. These are among issues you talk about in the class later, the death penalty, affirmative action, I guess in more recent times marriage equality. I remember debating those things with fellow students and other folks and with professors and TAs, sometimes into the evening. We got into basics, and we really had at it on the fundamental question, is it okay or not? Is abortion justifiable or not?

Preet Bharara:              I found that later in life, meaning starting in my mid 20s, there were very few conversations like that, that I’ve had with people, because they’re difficult to have outside of that sort of early awakening to reasoning, and to debate and discussion on the college campus. And also you find, and maybe this is giving up too soon, you find that people’s views on these things are pretty much fixed. And so the debates, obviously, about reproductive choice, and marriage equality, all those things happen still. But I don’t feel like they happen at the same fundamental level that people were comfortable with talking about on campus. And maybe that’s all inverted now. Maybe I have that all wrong. Does that make any sense to you?

Michael Sandel:            It makes a lot of sense Preet. One of the, to me, most precious things about teaching undergraduates in particular is I think there is a window in our lives that runs roughly from age 18 to one’s well be generous, mid, late 20s, maybe early 30s. There is a window when we are eager to explore what we believe are fundamental questions. And when we’re willing to reflect and debate, and argue late into the night in a dorm room, as you were describing you did as a freshman.

Michael Sandel:            And somehow, as we get older, maybe it has to do with entering the world of work. That window begins to close, and we don’t notice it at first. But unless we are really attentive to preserving our openness to moral and philosophical reflection. We find that before long the window has closed. Our views are more or less texts. And the debates we have about politics and moral questions and questions of justice, are mainly offering views that are already preformed rather than exploring a new. And so, this is why I find teaching undergraduates to be a special privilege, the window is still open. There is room for maneuver, philosophically speaking, and pedagogically.

Michael Sandel:            I engage audiences of all ages, and now in interactive discussion, lectures, debates on these kinds of questions Preet, but I invariably find, and this is true, whether in the US or in countries, cultures around the world. I invariably find that young people, let’s say, up to and including in their 20s, tend to be more open in this way. And part of what I think we need to do to make our civic life go better is to try to extend that window to preserve a certain measure of openness for this kind reflection and deliberation.

Preet Bharara:              So we begin earlier? Is there a version of your justice class that is or could be or should be taught in middle school for example?

Michael Sandel:            Well, up to a point and we did an experiment from some years after you took the class Preet. We filmed the entire class and made it available on public television. Now, it lives online free for anyone who wants to see it. And a number of middle schools and high schools tell us that they’ve made use of some of the lectures and episodes. It’s all available free at justiceharvard.org. It’s also on YouTube for anyone who wants to see. Justice is the name of the course.

Michael Sandel:            But I think as a general matter, the best way to prepare students in middle school and beyond, the best way to equip students, elementary school, middle school, even high school is to make sure they are exposed to history and literature. Because history and literature are concrete. They raise philosophical questions, but they raised those questions in the context of debates about The Revolutionary War, let’s say or the struggle over slavery and abolition, for example. Or in literature, debating how this or that character deals with a dilemma. I would rather have my students be exposed to a rich array of literature and history in middle school and in high school, and then by the time they get to college, by the time they’re 18, they’re ready to read philosophers and figure out what they think about them.

Preet Bharara:              You say another thing, I think, in the very first lecture, that’s kind of jarring and surprising. Less so given the answer you just provided on the importance of having concrete things to learn. And it is an article of faith. I think, among lots of thinkers, that depth of knowledge and time spent exercising your brain on issues of philosophy is good, and it’s good for democracy. And it’s good for figuring out what our institution should be, and it’s good for perfecting the social contract and everything else. And that’s what the founding fathers did. I mean, in some ways, it was a practical expression of a certain political philosophy, a certain kind of liberal democracy that was being seen. An ordered society that was being established.

Preet Bharara:              But you say in the first lecture, the following, “You have to allow for the possibility that political philosophy may make you a worse citizen, rather than a better one. Or at least a worse citizen before it makes you a better one. And that’s because philosophy is a distancing, even debilitating activity.” What do you mean by that?

Michael Sandel:            Well, what I mean is that philosophy, in a way, asks questions about the way things are. About the way the laws happen to be at this at that moment in history. Socrates got into trouble for doing philosophy because the people of Athens saw him challenging, questioning, and inviting young people to challenge the laws and the conventions and the assumptions by which people lived. And this can be threatening, this can be dangerous, this can distance at least provisionally distance citizens from the norms that govern their community, the conventions, the laws. The reason, though distancing, this kind of questioning can also make better citizens is that democratic citizens should cultivate the habit of critically examining the assumptions and the principles and the laws by which they live, because that’s the only way we can reason about justice and aspire to a more just society.

Michael Sandel:            We saw this to take one of the most important examples in American history in the abolitionists questioning, challenging the justice of existing arrangements. And in a certain way, I suppose you could say in the 1830s, in 1840s, the abolitionists were estranged from the norms and standard practices of their society. And yet, they pointed us to a more just society. That’s what I mean, we have to be prepared for the dislocating aspect of questioning, of challenging the laws and assumptions by which we live. But that dislocation, that unease is central to being a democratic citizen.

Preet Bharara:              There’s also an unrelated issue, I guess, of whether people think that kind of discussion and talk is elitist, whatever that word means in current society. And I’ll give you an example. I’ve had on the show now a few of the presidential candidates running on the Democratic side, including one by the name Pete Buttigieg, and when I looked at his background and preparing for the interview I noticed he had an interest and studied at Oxford, political philosophy, Kant and Rawls. I find it wonderful. I thought it was a great thing that somebody who aspires to be the president is well read not just in history, but also in philosophy and has given deep thought to some of these issues, even though there may not be any daily impact of that on policy decisions that he’s putting out or policy proposals that he’s putting out.

Preet Bharara:              I saw on social media, some people said how lovely it is that a candidate can talk about political philosophy, and then I saw other people say, well, that’s not going to get many votes. That’s going to alienate people. Do you have a comment on that divide?

Michael Sandel:            I do not think that philosophy is an elitist activity. Now, we’ve been talking about how philosophy needs to be rooted in the concrete in the practical dilemmas and controversies that we encounter every day. This is not restricted to elites. Everyone, whatever their social background, or job or way of life, everyone encounters hard choices, moral dilemmas, whether in looking at the headlines, or in navigating our way through our personal lives. Think of your experience in the courtroom when you seek to persuade a jury. The beauty of the jury system is that it doesn’t consist of a group of elites who are there meant to reflect on the case and to be persuaded.

Michael Sandel:            What gathers the jury is a very concrete particular case, and a question of what to do about it. Questions of fact, questions of law, and sometimes questions of values. Deliberation in the democratic society is like that, too. And so, I think having political leaders who are alive to the philosophical dimension of public life is a healthy thing, especially if they can connect philosophical principles and ideals, to the concrete lives, we live into the arguments they are trying to bring to bear, whether it’s to do with tax policy or health care, or under what conditions to take the country toward. These are very concrete questions that everyone can have a view about. And yet that draws upon competing philosophical principles. That’s why I don’t think it’s an elitist pursuit.

Preet Bharara:              Yes, as long as rooted in the concrete. And in fact, some of these debates that have been going on for decades that we call social hot button issues, some of them, the views on these things have changed very dramatically in a short period of time. Since the time I took that class with you, years ago, the United States of America has come around to a very different acceptance of gay marriage, marriage equality. That happened over a fairly short period of time considering other kinds of reforms that people have sought, and equal protection that people have sought over time. And it wasn’t done through moral reasoning, it seems. It seems it was done through people having concrete experiences with the actual suffering and inequality that people were facing by being denied a certain right, and also experienced with just meeting other human beings who are different from them, and find that there’s a lot more that they had in common with those people than otherwise.

Preet Bharara:              Also true in the courtroom, you mentioned the arguments you make, a lot of it is through storytelling. Even now when we’re talking about the crisis at the border. We’re talking about the immigration policies that relate to deportation. The things that often seem to capture the minds of people are an individual story of an individual person or an individual child. There’s a story just in the last couple of days about someone who was deported to Baghdad, who had diabetes and who just passed away. And the cruelty of that policy can be debated philosophically, morally, legally, ethically. But the thing that often changes minds is the concreteness of that story.

Michael Sandel:            It’s true that concrete stories can often persuade us. And this certainly played an important part in achieving same sex marriage in this country. And it surely has played a part in the immigration debates. The only thing I would add Preet, is that true persuasion happens when the public mind changes, as it did, just as you say, with surprising speed on same sex marriage. But I think for the public mind to change two things have to happen at once. People have to be exposed to concrete stories that moved them and help persuade them to rethink their position, whether about immigration or about same sex marriage.

Michael Sandel:            But if they are actually changing their minds about the policy, they are also changing their minds about the principle. Even though a moving story may lead them in the first instance to rethink their underlying principles and commitments. I think one of the reasons why the immigration debate is so fraught politically is that our public discourse has failed to address the larger issues of principle that are at stake, and that are not easy to solve. And those larger principles include the question, what if anything, is the moral significance of national borders? Do we owe more to our fellow citizens than to citizens of other countries who may be in need and want to come here?

Michael Sandel:            These are big philosophical questions that rarely get debated directly in the fury and maelstrom we have in politics over immigration. Instead, we’re arguing about the wall and about Trump and about this inflammatory language of invasion, and how damaging that is. Those are important points to address. But I think ultimately, we can’t avoid the larger questions of principle, which in the case of immigration lying deep in the background, or competing conceptions of what national community means and what to do, and it comes into tension with universalist or cosmopolitan universal moral commitments. And I think part of the poverty of our public discourse today is that we’re not very good at addressing big questions of values, or ethics, or justice, and arguing them out on the basis of civility, and mutual respect. I think we need to find a way to a better kind of public discourse in just this respect.

Preet Bharara:              I wonder if part of the reason for that is that in the exercise of politics, in the project of politics, there are particular goals. A politician is trying to get elected, a politician is trying to broaden his or her base. And when presented bluntly and forthrightly with some of these questions and debates, the best route, in order not to alienate people, is to avoid first principles and avoid taking a stance on something that’s deep and personal, and on which people are divided rather than sort of hit around the margins and be sort of generally disarming. The reason I mentioned that is, we’ve been talking about a time when I was very young in your class. But there’s a story that I didn’t know until recently about you when you were young, in high school in California, and I’ll set it up and then you can describe what happened. It sounds like you were a pretty arrogant kid.

Michael Sandel:            Right.

Preet Bharara:              Maybe you deserve to be. And you were very, very proud of your debate skills. You decided, well, you wanted to have a public debate in your high school. I don’t know what kind of kid does this, maybe someone who goes on to be a Rhodes Scholar and a prominent professor at Harvard. Sound familiar? You sent a letter to the governor of California asking for a debate in public in your school. I think that that invitation was declined initially. I believe you sent the governor a bag of jellybeans upon which the governor said yes. And that person was?

Michael Sandel:            Ronald Reagan.

Preet Bharara:              Ronald Reagan. So, you debated… You were a high school senior?

Michael Sandel:            Yes.

Preet Bharara:              And all of your classmates come to the auditorium, and it’s the height of the Vietnam War. And you think you’re going to debate and crush Governor Reagan? Correct?

Michael Sandel:            That is what I thought. I was 18 years old. I was a high school debater. I thought a pretty good one, and I didn’t have a very high view of Ronald Reagan or his forensics skills. He was by then a very prominent figure, a leading conservative voice in the Republican Party. He was Governor of California. He had already sought the presidency once and fallen short. But he turns out he lived in the district of my high school, which was in Pacific Palisades, California, a suburb of Los Angeles. And so yeah, I thought this would be interesting.

Michael Sandel:            Also, I was fascinated with politics. I was a political junkie. Everyone in my high school ranged from liberal to left liberal to left. It was a an upper middle class public high school. Everyone there had long hair at the time, this was 1971. So it was right at the time, as you were saying Vietnam War, protests against the Vietnam War. Ronald Reagan’s views were not shared by hardly anyone in my high school. It was a high school at 2,400 people. He was for the Vietnam War, we were against it. He was against the United Nations, we were for it. He was against the Welfare State and Social Security. We were for those things. And he was also at that time against the 18 year old vote, which of course, we were very much for. I thought it would be an easy matter to dispatch him in a debate, mainly though I wanted him to come because I thought it would be interesting to engage with him, and to have my classmates engage with him on these big political questions. And lo and behold, he came.

Preet Bharara:              How did it go?

Michael Sandel:            I would say I lost the debate.

Preet Bharara:              How did he win the debate?

Michael Sandel:            Well, I had a list of the toughest questions and all the issues I just mentioned, I could think of and grilled him one by one. I can’t say that he persuaded any of us to change our minds about these issues about the Vietnam War, or the Welfare State or Social Security, or the 18 year old vote. But he listened attentively. He displayed a kind of disarming respect really, and humor, civility. He took us seriously. I think that surprised us. Answered, offering his views, and after I had my go, we opened the floor to questions from the students, the same thing happened. And at the end of the hour, I thanked him, he got into his limousine at the back of the auditorium, and he went back.

Michael Sandel:            We didn’t quite realize what had happened. He’d not swayed our views on any of the issues. But I think he did somewhat change our view of him we had been inclined beforehand, and the distance to see him in demonized terms almost. And the charm, more than charm, the kind of perspective he showed us. I think later, nine years later, it turned out helped him be elected President of the United States, even though he even then did not persuade everyone of his unfettered laissez-faire approach to economics, and the various other… Some of the hard line positions he had. And so, that was really a telling lesson in politics.

Preet Bharara:              What does that say about the ability to get underneath things and to make progress in exposing why some of these positions may be wrong in public debate because the questioning is not enforced by a judge. It’s open public square. I wonder if you have a charming, talented politician who knows how to be respectful and can state the reasons that they have for their positions, even if you disagree completely it’s basically a recitation of reasons and the other side recites their reasons, you don’t get anywhere. And that’s kind of an impasse. Is that how it’s supposed to be?

Michael Sandel:            Well, it was an impasse in the sense that we were not persuaded of his views. I suspect because the 18 year vote had come into effect. I suspect very few of the 2,400 people there ultimately voted for him, very few. So you could say it was an impasse. But some learning took place. I don’t know whether on both sides, maybe not on both sides. But I think, well speaking for myself, I learned something about the importance of disagreeing with mutual respect, and civility and attentiveness. If you fast forward to political discourse these days. And what goes on, what takes place on cable TV, and much of talk radio. There’s been a real decline. What passes for public discourse these days consists mainly of shouting matches where partisans don’t listen to one another, are not even addressing the policies or the principles of the positions with which they disagree.

Michael Sandel:            I think this is contributed to the frustration that so many people have about mainstream politics in the US and in democracies around the world. The hollowness, the emptiness, of public discourse. If I could just add one thing about that hollowness, it goes back to something you said a moment ago. We do have a tendency to try to avoid controversy or moral questions or ethical disagreements in politics. Politicians have that tendency. And we as ordinary citizens have that tendency because we know that in pluralist societies, people disagree about ethical questions. It says if we think that we would find our way to a more tolerant society, if we could just steer clear of questions of moral principle. The conceptions of justice or the common good. I think this is a mistake. I think by trying to avoid engaging with our deepest disagreements about justice and ethics and morality and the common good we impoverish public life. We drive ourselves further apart because we don’t cultivate the art of listening. Even where we disagree, the art of listening is an important civic art. And we’re not very good at it these days.

Preet Bharara:              You know, we have one solution, podcasts.

Michael Sandel:            Podcasts. There you go. I think there is hope.

Preet Bharara:              We’re trying a little bit.

Michael Sandel:            There is hope in podcasts. Preet as you now at the 100th anniversary podcast have done demonstrated.

Preet Bharara:              I’m going to ask you an impossible question about what advice you might give to people when they’re considering whether or not something is just and there’s lots of different areas where the issues of justice and fairness come in, in the criminal justice realm, economic policy, distribution of wealth is part of economic policy, decisions to go to war, healthcare, all sorts of things. What’s your advice to the average person who may be listening when they’re trying to decide is it right or just that a particular corporation does or does not pay taxes? Or is it right or just that a police officer was not arrested after an incident where a young unarmed black person was killed? Or any one of a number of things, tariffs or anything else that have a moral dimension. What questions should people ask themselves in judging is that fair or not? Is that just or not?

Michael Sandel:            Well, on one level, I think there’s no single answer to the question you’ve asked, Preet. There’s not an answer if you’re looking for a formula. Some philosophers of the past have thought it that a formula is possible. For example, the utilitarians when we discussed at the outset, said there is a formula. The right thing to do, the just thing to do is whatever maximizes the overall balance of pleasure over pain, happiness over suffering. So, if the utilitarians are right about that, then for all of the questions you just mentioned, that’s the way to decide it. But I think it’s a mistake. I think moral reasoning by plugging in formulas of that kind I think that’s misleading.

Michael Sandel:            The advice I would give to people who are wrestling with questions of justice and injustice, trying to formulate their views is if they can to engage in discussion and deliberation and debate with those who disagree with them, at least in their first impression. Or if they don’t have access to people who hold the view opposite to theirs. Or if one hasn’t even formulated the preliminary view, to listen to people if you can find them engaged in a recent debate about the question. And then at least the issues at stake can become clear.

Michael Sandel:            Do you think it’s possible to decide whether abortion should be permitted or prohibited without taking a stand or making a judgment about the moral permissibility of abortion.

Michael Sandel:            There are far too few venues for this kind of recent deliberation and debate. In this respect, the media is failing us. I also think that higher education needs to do more to provide occasions for students, young people to do just what you are doing in the dorm with your friends late at night, which is having been inspired or provoked by a set of challenging cases, or readings, to sit and argue it through with people who may disagree with you, who may like you be trying to formulate their own views. I think higher education needs to provide more occasions for this. I certainly think that in public light, the media has to provide more opportunities for this kind of reason, debate about big moral questions that matter?

Preet Bharara:              Is there something you would recommend for people to read? Are their texts that form a basis for moral education or moral reasoning? Something people should pick up and read? [crosstalk 01:02:36].

Michael Sandel:            Well, the one… I mean, if my book is the one to begin with, is my book Justice: What’s the Right Thing to Do? Which actually is based on the course you took?

Preet Bharara:              Yeah, I know, I’ve read it.

Michael Sandel:            But beyond that, and really one of the points of the Justice course and the Justice book is to invite people to read some of the famous philosophers of the past going all the way back to Socrates or Plato who wrote up the dialogues of Socrates. That might be the best place to start. It’s interesting that here, we’ve been talking about how philosophy needs to be rooted in the concrete in the every day. If you go back to the first philosopher in the Western tradition, Socrates. That’s exactly what he did. Socrates didn’t even write any books. He didn’t give any lectures, didn’t have any TED talks or YouTube lectures.

Preet Bharara:              He mostly tweeted, I think.

Michael Sandel:            Well, he did the… Well, it’s not the equivalent, I suppose of tweeting. He wandered the streets of Athens and encountered citizens, ordinary citizens, not fellow philosophers, and asked questions. Questions about the meaning of justice, the meaning of truth, the nature of the good life. But concrete questions, does might make right for example, and he got into disputes and arguments and debates. And he drew other people into it as if in a dorm room. That’s how philosophy began. It emerged from everyday encounters. Now, Socrates was pretty good at posing and framing these encounters with the every day and asking the questions. But this rootedness in the concrete is captured in Socrates dialogues, which Plato wrote up and really made the foundation of philosophy in the Western tradition, so that that might be a good place to start.

Preet Bharara:              You’re working on a new book, as we speak, called the Tyranny of Merit. And that’s an interesting question that relates to profound justice issues. For lots of folks, I’ll just remember one more thing you did in that class 32 years ago that stuns me still. Here we are about 1,000 freshmen at Harvard College, a pretty hard school to get into. And the relevance of that is in the question that you asked. You asked the audience of students, raise your hand if you’re first born in your family. At least in my class, about three quarters of the kids raised their hand. What is the random chance that any particular group of 1,000 people would be the first born?

Michael Sandel:            Right. It is an experiment that we did then and I did subsequently, and the result was always the same. The reason for asking that question, and the reason that all these hands going up is so striking, is that students who get into a place like Harvard tend to think I got in thanks to my own effort. It was my doing that I landed here, and therefore I deserve whatever benefits flow from my admission. We often forget the elements of contingency and luck and good fortune that enable us to have the various opportunities that come our way in life. And so, this question, this experiment was a way of prompting students to reflect on that question. What is the role of my own doing in gaining admission to Harvard College? And to what extent were elements of luck and good fortune a factor?

Michael Sandel:            This is a question that I think we need to ask as a wider society. What I’m writing about in this new book that you’ve asked me about Preet is, why is it that in recent decades the successful in our society seem deeply to believe that it’s all they’re doing to have landed on top? Whether that means success in terms of money, or power, or prestige or recognition, there does seem to be in recent decades a growing sense that those who succeed deserve their success. That it’s their own doing. That they’re not indebted to the grace of God, or the luck of fortune or favorable family circumstances or the place where they were born and grew up. And I think this overweening sense that that successful deserve to have landed on top actually has had a corrosive effect on the sense of community. The sense in which we are all in this together.

Michael Sandel:            If the successful believe it’s all their doing that they landed on top, I think they’re less likely to care for those less fortunate than themselves. And those who land on the bottom or who struggle to make ends meet may become resentful of this attitude. And I think this resentment animates a lot of the populist anger and backlash against elites and that’s what I’m trying to sort out.

Preet Bharara:              That’s a very profound point you make. And I want to read to you something you’ve written along these lines in which will get us to segue to the inevitable discussion about Donald Trump. You have written on this issue of meritocracy. One of the deepest political divides in American politics today is between those with and without a college degree. And if you look at the polling that also represents one of the sharpest divides between people who voted for Trump and people who did not vote for Trump. And then you go on to say, which is an interesting thing for a renowned and longtime college professor to say, “Liberals and progressives have so valorized to college degree, both as an avenue for advancement and as the basis for social esteem. That they have difficulty understanding the hubris a meritocracy can generate, and the harsh judgment it imposes on those who have not gone to college.” Then you say, “Such attitudes are at the heart of the populist backlash, and Trump’s victory.”

Michael Sandel:            Right. I think meritocratic hubris is a big part of what’s generated the resentment that led to Trump. It’s easy to forget that most Americans do not have a college degree. Only about one in three have a four year college degree, two thirds of Americans don’t. And so, if we begin to conduct our public life as if social esteem were dependent on a college degree, and all of the attitudes associated with that, that neglects two thirds of the country. I think that a lot of the anger and resentment against elites that fueled the election of Trump in the US. It’s also true of Brexit in Britain, and authoritarian populace who have found success in other democracies. I think a lot of the anger has to do with the sense that elites are looking down on ordinary working people, and that the dignity of work. Work in the ordinary sense. People who make things and who perform useful services in their communities, that the dignity of work has been eroded.

Michael Sandel:            I think that the response to Trump has to go beyond decrying his violation of norms of democratic politics, that’s certainly serious. There’s the racism and xenophobia, and that provokes outrage, and rightly so. But I don’t think Democrats will succeed unless they find a way to speak convincingly to the dignity of work, and what it means to accord social esteem to people who may make valuable contributions to the economy and to the common good, but who are not wealthy, who are not part of the professions, who don’t hold positions of power. There is a legitimate grievance buried in all the ugliness associated with support for Trump.

Preet Bharara:              Is anyone doing that on the stage at the moment you think, on the Democratic side?

Michael Sandel:            Not as effectively as I would like to see. I think that of the current crop of candidates, three or four have gestured in the direction of politics that is concerned with the dignity of work. But I think they need to go further. I think they need to be more explicit on what it would mean to restore the dignity of work, to overcome the meritocratic hubris of elites. Because creating any sense of solidarity or a sense of mutual responsibility for one another really depends on addressing the legitimate grievances that many working people have against those who have inhaled I think too deeply of their success.

Preet Bharara:              You also talk about the role of outrage and moral outrage and you’ve written this, “Moral outrage can be politically energizing, but only if it is channeled and guided by political judgment.” What the opposition to Trump needs now is, and this is an interesting phrase, is an economy of outrage, disciplined by the priorities of an affirmative political project. So how do we economize on outrage? What does that mean as a practical matter in the aftermath of these devastating shootings in El Paso and in Dayton, the President said a lot of stuff and didn’t say a lot of stuff. And after other things happen, it’s easy for people who don’t like his policies and don’t like his rhetoric to get outraged. How do they practice an economy of outrage?

Michael Sandel:            By paying less attention to every tweet that issues from Trump and focusing on the ones that really matter? Now, the ones that speak about an immigrant invasion, those really matter, and they need to be attended to. The ones that provoke racial bigotry, and hatred, those really matter and need to be addressed. But I think that the chaos… Trump thrives on generating chaos, and a kind of undirected outrage. I think much of the breathless coverage, for example, of what Mueller would come up with. For a year there was breathless cable news coverage. Every day, every hour, breaking news we were told of this or that speculation about what might be in the Mueller report. I think so much of that was kind of anticipatory, unfocused outrage ill spent. It was a kind of distraction.

Michael Sandel:            I think it led many democrats and critics of Trump to hope and expect that Robert Mueller would deliver us once and for all from the Donald Trump presidency, I never thought that was realistic. I think it was a kind of misplaced political energy. Democrats also need a more affirmative response to the predicament of workers who for basically four decades have had stagnant wages. The Democrats need to critically examine the embrace by the Democratic Party over the past four decades, basically, of a market driven version of globalization that heaped its rewards on those at the top and basically left the bottom half of the country, no better off than they would otherwise have been. That takes its toll, not only on the lives that ordinary working people live, it also takes its toll on the credibility of the Democratic Party.

Michael Sandel:            Here’s another way of putting it, Preet. I think the idea that after Trump, the Democratic Party can simply go back to the way things were before Trump was elected as if this were a kind of random interruption. I think that’s a fundamental mistake. I don’t think that returning normalcy, where normalcy means going back to the embrace of market driven globalization and the results that that had. I don’t think that’s feasible. I think Democrats have to find a way to speak to the grievances, to the legitimate grievances, not xenophobia and the racism, but the legitimate grievances that are entangled with the ugly sentiments that led to Trump.

Preet Bharara:              Professor Sandel, it has been a real treat and a real honor to have you on the show. Thank you.

Michael Sandel:            My pleasure Preet. Thank you so much.

Preet Bharara:              The conversation continues for members of the CAFE Insider community. I talk with Professor Sandel about the global hunger for intellectual discourse, why he’s reached a celebrity status in China, and Sandel’s call for progressive patriotism. To get the Stay Tuned bonus and the exclusive weekly CAFE Insider Podcast, go to cafe.com/insider. That’s café.com/insider.

Preet Bharara:              So folks, you may have noticed, this is a special week for Stay Tuned, our 100th episode. We’ve talked to more than 100 people now about pursuing justice and defining justice. And what’s interesting to me is every time I pose that question directly to a guest, how do you define justice? I probably got the longest pause of the entire interview. Because it’s complicated. It’s broad, it’s difficult. Some people took several seconds to marshal their thoughts. Would give an answer and then asked to revise their answer because it’s not easy.

Preet Bharara:              Michael Sandel, our guest today has spent a lifetime trying to define conceptions of justice. And that content to theories of justice that have been around for centuries. In fact, millennia. As I say in my own book, which has the word justice in the title. Justice is a broad and hazy subject. It is one of the most elusive and debatable concepts known to humankind. And disagreements over its meaning have spawned revolutions, religions, and civil wars. The question, what is justice is an almost impossibly difficult question to answer.

Preet Bharara:              A slightly different question and a more easily answerable one is, how does justice come to pass? How is justice achieved? And how people come to believe that justice has been done. People will regard a result as just if two things are true. If they regard the process leading to it to be fair, and if they believe the people responsible for it are fair minded. So justice is about process. The reason I title my book, Doing Justice using a verb is because justice is something that is an ongoing thing. That it is defined by the features of process, fairness, and rights, and notice, an opportunity to be heard, and being equal before the law and not being treated differently. And so that people can see openly and publicly that there’s a process that doesn’t treat people differently because of their color, or because of their gender, or because of where they’re from, or because of their wallet. All those things need to be in meshed in the rules, in the laws. So, that’s one aspect of justice.

Preet Bharara:              But the other aspect is equally important that the people involved in the process are and are perceived to be fair minded. The people responsible for achieving justice have to understand that it’s not about the result. It’s not about the outcome. It’s about the fairness of the process, and it’s about their own open mindedness, and it’s not about victory. It’s not about winning. It’s about doing the right thing. I often quote from Clarence Darrow, who said this during one of his summations back in the 1920s. “After all, every human being’s life in this world is in inevitably mixed with every other life. And no matter what laws we pass. No matter what precautions we take, unless the people we meet are kindly and decent and human and liberty loving, then there is no liberty. Freedom comes from human beings, rather than from laws and institutions.” Darrow was using the language of liberty and freedom there. But what’s he talking about? He’s talking about justice.

Preet Bharara:              Here’s how another famous lawyer put it, which helps me think about the proper definition of justice. This is Judge Learned Hand in a speech from 1944. And I would quote this often to the staff and lawyers in my own office. “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes. Believe me, these are false hopes. Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it.” Learned Hand also is talking about justice. It’s not just the laws that matter, the rules that matter, the regulations that matter.

Preet Bharara:              As I wrote, “Smart laws do not assure justice any more than a good recipe guarantees a delicious meal. The law is merely an instrument. And without the involvement of human hands, it is as lifeless and uninspiring as a violin kept in its case.” So, just as about all the things that my guests have mentioned, and all the things that Michael Sandel talked about, and all the things you read about in books, not just about the law, but also in fiction. But the thing to me about justice is that you need both things. Good rules, good laws, and also good people. That’s how justice is done.

Preet Bharara:              Well, that’s it for this episode of Stay Tuned. Thanks again to my special guest, Michael Sandel. Tweet your questions at Preet Bharara with the hashtag AskPreet or you can call 669-247-7338 and leave me a message. That’s 669-24 Preet or you can send an email to staytuned@cafe.com. If you like what we do, rate and review the show on Apple Podcasts. Your reviews help new listeners find the show. Stay Tuned is presented by CAFE. The executive producer is Tamara Sepper. The senior producer is Aaron Dalton. And the CAFE team is Carla Pierini, Julia Doyle, Calvin Lord, Vinay Basti, and Geoff Isenman. Our music is by Andrew Dost. I’m Preet Bharara. Stay tuned.

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