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Hello and welcome to the five thirty eight politics podcast, I'm Galen Drek.
During the past couple of weeks, changing the size or structure of the Supreme Court has gone from an abstract idea among some activists to at least a consideration within the Democratic Party. Proponents say it would be a response to Republicans contradicting their rationale for not holding hearings for Merrick Garland in 2016 and moving quickly to replace Ruth Bader Ginsburg so close to an election. Senate Minority Leader Chuck Schumer reportedly told fellow Democrats that, quote, Nothing is off the table. House Judiciary Chair Jerry Nadler wrote that if Republicans confirm someone in a lame duck session, quote, the incoming Senate should immediately move to expand the Supreme Court and quote, Other Democrats have weighed in along similar lines, although the party nominee, Joe Biden, has not taken that position and has refused to answer questions on the topic.
The idea is very much a hypothetical. Who knows if Democrats will control the Senate or whether they'll have the support for such a move. But given the recent attention to the idea, it's worth discussing and putting in context. And here with me to do that is Professor of law at Washington University in St. Louis. Daniel Epps was a clerk for former Justice Anthony Kennedy and his research has focused on the design of the court. He wrote a paper about potential reforms titled How to Save the Supreme Court.
Welcome to the show, Daniel.
Thanks for having me.
Dahlia, so you have written that the Supreme Court is facing a legitimacy crisis. Why do you say that?
So when I wrote that, I think the crisis was actually even less than the one the court is facing now. But I wrote that last year when the court had just gone through the confirmation battle for now Justice Kavanaugh. And basically the claim is that the court has been the site of increasing partisan contestation over its membership, that both sides see that control of the court is really, really important. And they're basically pulling out all the stops to try to get control of the Supreme Court.
And the Republicans have ultimately succeeded in that effort. And it's increasingly unclear why Democrats should continue to follow the court. When we think of legitimacy, what we think of as I think the best way to explain it is it's the ability of the Supreme Court to issue decisions that people don't agree with, but they necessarily respect and follow. And the more the court is just seen as a purely partisan institution that is just doing partisan politics and that its membership is just the result of coincidences about when the vacancies arise, the less clear it is why people who don't agree with its rulings should follow them.
And I think that's what's happening.
How widespread is this view within the legal community? Is it overwhelmingly a view of liberal rather than conservative scholars, or is this a concern across the board?
I think to some degree there are people on both sides who share some concerns about the current structure, the Supreme Court. But I think it is overwhelmingly going to be a view that is shared by liberals, in part because the current system has created winners and losers and the current system, as presently constituted, has really created winners out of Republicans. Republicans have appointed 14 of the last 18 justices or 15 of the last 19 openings, depending on how you count moving Associate Justice Rehnquist to the chief justice position.
And they're going to add another, presumably with the latest vacancy, even though they have not controlled the presidency for such a disproportionate amount of time. And I think for that reason, people on the left are more likely to say this system just doesn't make sense and isn't benefiting us and is going to result in a court that's actually going to stand in the way of a lot of potential progressive reforms. I think that's one of the problems with any kind of reform, is that it's going to create those kind of winners and losers.
I was looking at some public polling on this and I saw that in twenty twenty. According to Gallup, 58 percent of Americans approve of the way that the court is handling its job.
And that's pretty high compared with how Americans have historically seen the court.
And it's also high, particularly compared with how Americans view other institutions. So doesn't that kind of contradict the idea that it's facing a legitimacy crisis if it has significant majority approval?
Yes. So this is really interesting. And historically, the court has enjoyed more popular support, I think, than other institutions. If you compare the court with Congress, you know, Congress is generally doesn't do very well in those kind of polls. And there have been other times historically when people have said the court is facing this huge legitimacy crisis and then it is very, very quickly bounced back. And that happened in Bush v. Gore, for example, where the court sort of.
Evely ended a presidential election dispute in a way that was widely seen as unfair to Democrats and in favor of Republicans, but then very quickly, the court's public image bounced back. And we've already seen some of that. That seemed like the court's reputation took a little bit of a hit after the Kavanaugh hearings. But people get over it quickly. And I think part of that is that the court this term, led by Chief Justice Roberts, veered a little bit towards the center.
I think Chief Justice Roberts is a justice who is very aware of the court's institutional standing. And I think he recognizes that it's important for the court not to be seen as sort of too far out on one partisan limb. And I guess the question that is going to arise is, is that going to continue if the court moves further? Right. So Justice Ginsburg's departure from the court and her replacement by someone who is going to be significantly more conservative than she is and probably more conservative than the chief justice is going to move the court's median to somewhere like Justice Kavanaugh or Gorsuch.
And that's going to be a very conservative court. And it is possible that that court will take a further hit in legitimacy. But as far as the public is concerned, a lot of its perception of the court really is about the substantive rulings they reach. And so a very conservative court is likely to make around half the country happy. A very liberal court would make around half the country happy. And the question is, how unhappy does it make the rest of the country?
What are the specifics here of this hypothetical? So six three conservative majority on the Supreme Court, what could it do that would make it lose legitimacy in the public's eyes? Is it just ruling against public opinion too often? Like what are the actual specific things that could put the court in a kind of crisis position in the public's view?
Well, I think that for a very long time, public debate about the Supreme Court has really been a proxy battle about abortion. And so I think that is the thing that people are going to be most focused on is a court that moves further to the right where Chief Justice Roberts is no longer sort of in control. He's really been in control as the median justice and he can prevent his sort of conservative allies from going too far. I think if the court were to overturn Roe vs.
Wade, there's a debate about where exactly public opinion would be on that question. But I think we can safely say it would make a large plurality of the country very upset and would probably mobilize a lot of people on the left. But there's other things they think the court might do that would be troubling. And I think something that progressives and Democrats are concerned about is the prospect that a very conservative court would actually stand in the way of progressive legislation.
So strike down important progressive legislative initiatives. The court came very close to doing that a few years back in the Obamacare case. And I think Chief Justice Roberts wisely recognized that declaring the entirety of the Affordable Care Act unconstitutional would have created an unprecedented legitimacy crisis for the court. I think it's more realistic to think that a court might do something like that if it gets pushed further to the right with this additional appointment.
How has the court dealt with this in the past? Presumably, there have been scenarios previously where the court has struck down legislation from one party, perhaps that went significantly against public opinion. How did the court and public deal with those kind of dissonances as in the past? Yeah, well, so a couple of responses.
So first, I think the sort of common conception of the court is this is counter majority an institution that it stands up to majorities and says, no, we're going to protect individual rights against you, overly aggressive majorities. And I think in practice, a lot of people who study the court carefully have concluded that the court has been a lot more majoritarian than it seems. And even when the court has done a lot of things that were quite controversial, what it was really doing was kind of standing against particular regions of the country.
So during the 1950s, you had the Warren Court sort of fighting against segregation in the Deep South. But actually a significant amount of what the court was doing there had a fair amount of public support outside of the south. But there have been instances for sure where the court has really stood in the way of public opinion. And I think the most significant one was during the sort of last court packing crisis, the court packing episode under Franklin Delano Roosevelt, the Supreme Court that was in power when he came to the presidency was quite conservative.
The conservative coalition was made up of a mix of Democrats and Republicans because the parties didn't quite have the same partisan alignment that they do today. But there was a coalition of conservatives on the court that was striking down a lot of the New Deal initiatives in ways that were unpopular. And Roosevelt really tried to mobilize public opinion against the court and he partially succeeded in partially failed.
And to essentially are we saying that the Supreme Court, although we assume that it is not accountable to public opinion and it is truly just accountable to the Constitution, takes public opinion as a guide more often than not. Well, there's a. The ways in which public opinion might influence the court, so one I mean, the court, the justices are themselves members of the public and so they're likely to share views that are shared among the community to some degree.
They're not totally representative of the public, though. The justices are older, they're elite, they're highly educated. And so there are some places where maybe they can be a little bit ahead of the country. They were a little bit ahead of the country maybe on some issues of gay rights, but they were sort of where elite opinion was. And I think the rest of the country caught up to their views pretty quickly.
But I think they also a lot of justices, not all of them, but I think that they are aware that they operate under constraints that, yes, they have life tenure. It's very hard to remove it from court. Justice is very hard to do something about a Supreme Court justice you don't like.
But they don't have guns. They don't have an army. All the Supreme Court really has is the power to print PDF and put them up on its website. And to the extent that it has power, the power is the power to get other people to listen to what it's saying and to say, OK, Supreme Court told us we can't do this, we're not going to do that. And there's a long history of political actors respecting the Supreme Court's judgments.
But that's a power that can be lost at a certain point. You get too far away from where the public is and you really lose the respect of the public. And people don't respect your decisions and don't respect the decision making process that leads to those decisions. You know, a certain point you could be a court where people just aren't listening to your judgments.
I want to dig into that a little bit more. But I mean, first, why wouldn't a new even six three conservative majority court also kind of understand those constraints and just do what past justices have done, which is as they become the media and justice, move more towards the center as a sort of self-preservation mechanism?
I think it's very possible. I think that's why you will find that there have been a lot of dire predictions made at various points in the past about how the court is moving. Right. These same kind of predictions have been made over and over for the past three decades or so, and the court has unquestionably moved to the right over that time period. But I think it's it's fair to say at the same time that the court has not done a lot of things people necessarily thought it would do or has not acted as quickly as people had expected it to.
And I'm a person who made some predictions about what the court was going to do. And I was a little surprised at the extent to which Chief Justice Roberts triangulated. I was I was curious to see how much that was going to continue over the next few years. And it's quite possible that someone in that conservative coalition might recognize these constraints. And I do think it's a certain amount of pressure to be that median justice and think it's really all coming down to me.
Do I really want to pull the trigger on this or not? All that said, I think that the conservative legal movement has really tried very hard to identify people and instill in them these really rigid interpretive values that discourage them from taking those kinds of considerations into account. And they really kind of make villains out of people that do.
You mentioned that there is always this potential that the public could just lose faith in the court and that there isn't really an enforcement mechanism for the Supreme Court.
What is at stake in that kind of scenario? What happens if Americans lose faith in the Supreme Court's rulings? I mean, do we have examples from other countries or from moments in American history?
So we have examples in American history where we have gone perilously close to that abyss and then not gone over it. In terms of other countries, there are many other countries that don't have a Supreme Court that, say, has the power to overturn statutes or overturn federal statutes. And those countries, they function fine. Britain, the United Kingdom doesn't have a written constitution for a long time. Their Supreme Court wasn't even called us from court. It didn't have the same kind of powers that our Supreme Court has.
You had the principle of legislative supremacy there, and that's a free country. And so I don't think that it's necessarily apocalyptic. And there's a lot of people in the academy who say, let's just stop giving the Supreme Court the power to do all this stuff. We've been letting the Supreme Court decide way too many important issues. Why should we do that? And so that's another class of kind of reforms that people are talking about. It's an idea called jurisdiction.
Stripping is one of the flavors of that, where you just pass statutes that say the Supreme Court is not allowed to decide cases about this topic. And let's just have it be settled by legislatures. Now, that's one possibility, but there's other possibilities, too. You also know things that we fear. Are the courts stepping in to stop tyranny, like if the president starts just jailing people without cause, we want to have courts there to be able to stop that.
And in a world where courts just don't have any legitimacy or authority, there would be one sort of check on government power that would no longer stand and that could be frightening.
What are the moments that you mention when the country has come? Perilously close to kind of going over the edge and the judiciary losing legitimacy.
Yeah, I mean, so one is during the civil war, you had a Supreme Court that was more conservative, more sort of southern oriented, I think is a better way to describe it than certainly President Lincoln was. And there's one instance where the court sort of issued an order to President Lincoln that he ignored. Now, there's a lot to get into there. There's a lot of disagreement about whether he actually was legally authorized to do that. And so I don't want to get into the specifics on that.
But that was a situation where the country was really literally being torn apart by civil war. And the Supreme Court played a big role in that story. I mean, going back a few years before that, the Supreme Court had issued the opinion in Dred Scott. That was one of the events that's really sort of accelerated things towards a civil war. And then in the immediate aftermath, there was actually a lot of partisan wrangling about the Supreme Court, the Supreme Court.
They removed seats from the court in order to prevent President Andrew Johnson from appointing women to the court. Then they added seats after he left office. And so there was a lot of kind of wrangling about the court that period. It seemed to settle down in the decades after that. I think the next really, really, you know, there were some other blips. But the next really, really big moment is the one I talked about earlier, the sort of court packing crisis with FDR in the 1930s.
What role did the founding fathers intend for the Supreme Court to have in American government? And has that role changed over the centuries or decades?
It's kind of unclear and it's debated. And there's a lot of people who debate the extent to which they expected the court to even have the power to overturn federal statutes. I mean, there's there's certainly some evidence that they did. I think it is fair to say that they did not expect the court to be as powerful an institution as it has become or maybe to use its power to declare statutes unconstitutional nearly as often as it does. So, just by example of that, the court exercised the power of judicial review to declare a federal statute unconstitutional, I believe, twice before the civil war.
And it now does so maybe not every term, but with some regularity. There's federal statutes here and there that it says are unconstitutional all the time, not to mention all the state statutes and striking down left and right. I also think it's hard to imagine the founding generation thinking the Supreme Court would really decide a lot of issues that really come down to philosophy and values. I mean, so we go to the Supreme Court and ask them to decide some of the questions that really most divide society, like should abortion be legal, should affirmative action be legal and things like that.
And I think the court really has accumulated power in ways that weren't anticipated, slowly but surely over the last 200 years.
And so how did we get to the place where we are right now where it seems like we're on the cusp of having this six three conservative majority?
The court has accumulated a lot of power and is particularly weighing in on very divisive issues, can strike down federal statutes. As you mentioned, for example, the entirety of the Affordable Care Act, if it wanted to, in this case coming in November. How did it all get to this point?
Well, I mean, it's a long story. It's complicated, but I think from the period so you have the court back crisis in the 30s with FDR where he tries to pass a statute that would enable him to get more justices on the court. It ultimately fails, but the court kind of backs down from the confrontation and stops striking things down as aggressively as it had been. And ultimately, FDR is able to replace almost all the justices on the court.
And then you have a period of time. You have the Warren Court in the 1950s. The court manages to accumulate a lot of prestige issues, a lot of opinions, some of which are extremely controversial at the time, Brown vs. Board of Education, Miranda vs. Arizona, that generate some resistance, but ultimately, in retrospect, have engendered a lot of public respect. And I think probably the next part of the story is the court decides Roe vs. Wade and says that abortion is a constitutional right.
That's an extremely controversial ruling. It really mobilizes people on the right to focus on courts and to develop sort of a set of legal commitments and ideologies that are going to build a framework for four moving courts to the right. And you have a series of battles between Democrats and Republicans over the coming decades as their kind of judicial philosophies, I think, diverge more and more. And so now we're in a period where Democrats and Republicans, they appoint judges that sort of decide cases very, very differently.
And meanwhile, the court, as we said, has accumulated all this power and prestige. And so the court really looks like this big prize for the taking. If you can get the court, if you can get five justices who are with you, you can do anything, it seems like.
All right. I want to talk a little bit now about some of the reforms that have floated around the legal community and amongst activists and now maybe even some Democrats. But first, today's podcast is brought to you by simply saying, here's the thing about homesick. Charity companies most trap you with high prices, tricky contracts and lousy customer support. So while there are a lot of options out there, there's only one no brainer.
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Don't miss out on week for action. Enter Code five three eight to get a free shot at millions of dollars in prizes with your first deposit minimum five dollar deposit required eligibility restrictions apply. See Draft Kings Dotcom for details. So let's start with what the overall goal is, so, you know, these ideas have floated around in the legal community for a while. Some activists talked about them during the Democratic primary, in fact. But a mayor of South Bend, of course, talked about court reform during the primary.
It didn't really take off with many of the other candidates, but it's been simmering for a bit. And now we've heard from people like Jerry Nadler and even Chuck Schumer, who said everything is on the table. Why? What's the idea here? What do people who want to change the court want to accomplish?
Yeah, well, I think there's different there's different flavors. I mean, I think for a lot of people, ultimately, it comes down to their sort of policy preferences. And so how you feel about changing the court is ultimately going to be determined by how you feel about the current court and whether it's doing stuff that you like or don't like. And I think the issue has become particularly urgent for Democrats as they're seeing a court move far, far to the right and through tactics that seem very hard to justify, that seem very unfair, underhanded, and I think really bring to light some of the structural problems with the court.
It just doesn't make sense, I think, to have an institution with all this power whose membership is decided through random events, through when a particular octogenarian dies or retires. But there's also a lot of other, I think, reformers that are kind of more motivated by more neutral, good government concerns. And let's just have a system that seems fairer, that makes more sense normatively. And I think that where you are in that spectrum may inform a little bit which reforms you find more palatable.
I think there are some reforms that are a little bit more, you might say, kind of neutral. And there are some reforms that are just seem to be more about equalizing partisan advantage or taking a partisan advantage. And so one of those being the latter being just sort of straightforward court back and adding justices to the court is an example of that. You know, it's hard to just for justify that as sort of a neutral, good government reform.
But I think the justification that Democrats would offer is this is principled retaliation for Republicans, violation of norms.
Out of curiosity, the refusal of Senate Majority Leader McConnell to consider Merrick Garland in 2016 and then now this push to confirm a new justice before the election or before Inauguration Day. What are the historical norms or precedents that exist for those behaviors?
You know, it's, again, a situation where you're going to get different answers, depending on whether you're talking to someone who's a Democrat or Republican. If you look back historically, you know, there have been justices that are confirmed during election years for sure. There have been justices that are confirmed by opposite party Senate during the election year, for example. So Justice Anthony Kennedy, whom I clerked for, was confirmed in 1988, which was a presidential election year by a Democratic Senate.
And so some of the justifications that have been offered just, I think are just are just dishonest or are wrong. So in Leader McConnell's initial statement, he just said, we don't do this in election years. That was wrong. And so they've kind of gerrymandered the rule a little bit more carefully.
It's no confirmations by opposite party Senate in a presidential election year where the vacancy arises during the election year, it's OK. And the thing is, when you define it that way, the universe gets really small because many justices timed their retirements strategically. Most of the openings that have occurred in recent decades have been earlier in presidential terms, precisely because the president, the justices are retiring in order to create an opening in a way that can be filled more simply.
And then if you go back further in history, it's harder to draw analogies from it because the roles are in court was very different. I mean, there's a lot of instances where people people just would leave the court after pretty short tenures. Presidents would try to throw people in the Supreme Court because they really didn't know what else to do with them.
And so it's hard to even compare between what's going on now with what was happening 100 years ago. My understanding is that a Republican Senate has not confirmed a Democratic nominee for the Supreme Court, just period in something like a hundred years, whereas Democratic senators have confirmed Republican nominees to the Supreme Court much more recently than that.
So what does the Constitution say about court packing, taking that as the first example of reform? And we'll get into some of the other sometimes more complicated ones. Is it constitutional?
So the Constitution does not specify how many justices are on the Supreme Court. And so it necessarily suggests that Congress has to have a role in defining the court and how many members it it's going to have in the Constitution makes reference to the chief justice, the United States and associate justices, but gives no, no. And the number has varied between five and 10 over American history. Is it constitutional?
I think most people think. It is pretty plainly constitutional for those reasons that the Congress just has the power to do it. There are arguments this the thing about constitutional law, there's always arguments that you can make about why something isn't constitutional. And there are people have tried to make arguments for why plainly partisan court packing would be unconstitutional. You know, for example, people in Congress, the Senate Judiciary Committee made arguments that FDR court packing plan was unconstitutional because it was an attempt to coerce the court into ruling the way that he wanted.
But I think that court packing, most people think it would be plainly constitutional for Congress to just pass a statute saying there are now two more form or however many more seats on the Supreme Court.
Why hasn't it been done? So the number of Supreme Court justices hasn't changed from nine since eighteen sixty nine. Why hasn't somebody just packed the Supreme Court?
So I think that it's what we might call kind of like a soft constitutional norm so that in any system of government, there's going to be the stuff that the Constitution explicitly says you can't do and people are not supposed to do that. But then there's a whole range of other things that aren't going to be thought of, are going to be written down in the Constitution, kind of rules of fair play, rules of the game that people follow, things that if you do, people are going to the other side is just going to sort of lose confidence in you.
Maybe they'll retaliate in some way. This is, for lack of a better word, just these kinds of norms. And it has really been settled as a norm, I think, for a long time since the FDR episode, since FDR tried, FDR actually had his party controlled Congress, but nonetheless was not able to get it through, was not able to sufficiently mobilize public support for packing the court. And I think that it it gets people's hackles up.
It sort of seems like you're trying to undermine another branch of government, trying to kind of reduce limits on your power. It has this sort of flavor of authoritarianism. We see people who come to power in authoritarian countries try to undermine their independent judiciaries. We have this strong tradition of an independent judiciary in this country. And so and also, for the most part, it hasn't really been seen as necessarily, you know, you have limited capacity for legislation when you're a president that you want to kind of try to push through or try to get your Congress to push through.
And a court packing fight is going to be a big fight topic. Why bother? Why not just focus on the substantive legislation you care about? But I think that progressives and Democrats are really coming around to the view that if you don't do this, you're not going to be able to do anything else, anything you want to do. If you want to do a green new deal, you want to do universal health care, the Supreme Court is going to stand in the way unless you fix the court.
And we've been talking about the Supreme Court and legitimacy. Would packing the court kind of throw the Supreme Court into even further of a legitimacy crisis?
It's hard to imagine that it wouldn't. That certainly would generate outrage on the right and necessarily generate some kind of greater escalation by Republicans the next time they had the opportunity, if they were able to get both houses of Congress and the presidency, I mean, they would be crazy not to pack back or do something even more aggressive, that it's hard to even imagine what that would be. And I think it's hard to think that that wouldn't, you know, diminish the court's standing in some respect, diminished the public's view of the court as this sort of lofty institution that is above politics.
Now, that might not necessarily be a bad thing, you know, depending on your how you feel about courts. If you you love the Supreme Court and wanted to have a lot of power, that sounds terrible. But if you're someone who thinks, you know, I'd actually rather live in a world where Congress has more power to do stuff and the court isn't deciding all these questions, that maybe is not the end of the world.
That's more of a situation like Great Britain or Canada or Netherlands or something like that, where the courts don't have as much power.
Yeah, there's a range of possibilities. So in Canada, for example, the Supreme Court does have the power to declare legislation unconstitutional. But there is some avenue sort of it's rarely, rarely, if ever taken. But there is some at least theoretical avenue for the legislature to overturn Supreme Court rulings. And maybe the existence of that safety valve might also cause the court itself to be less willing to strike down legislation and so forth. But, yeah, I mean, you can have a democratic society without a court that has the power of judicial review.
Now, I mean, there is some danger that is just sort of confidence in law more generally is undermined if people just sort of lose faith in this whole idea that there's like law that sort of separate from just Democrats versus Republicans, I think that gets a little scary. I mean, you hear a lot of people talk about the phrase the rule of law, and it's a very slippery concept what exactly the rule of law means. But it's the kind of thing where, like, you kind of know where you see it and, you know, you know, societies that don't have, you know, societies where there aren't any kind of like, clear rules that the government has to follow, that it's basically just who has power at any given moment.
And that's. Scary to me, OK, so we've talked about packing the court, we've talked about stripping jurisdiction in general, which means making sure that the Supreme Court cannot strike down particular laws that the Congress passes. Some other ideas I've heard are term limits. And then I think also you have developed some ideas on your Alcott's I've got some wackier ones.
Yeah. Let's do term limits first, though, and actually term limits. I'm currently working on empirical project about Supreme Court term limits with my son of Harvard, Adam Chilton of Chicago and Colorism and my colleague here at Washington University. And we're looking at all the different term limits proposals and try to simulate how they would have worked if adopted various points in history. There's a very common proposal that a lot of people have kind of coalesced around different versions of, which is to give Supreme Court justices 18 year terms that would be staggered.
The idea being each president would get to appoint two justices per term. You'd have one opening every two years and then would just go like clockwork. And so no longer would you have a system where the court's membership can just depend on random chance. So right now in our system, you can have a one term president who could appoint nine justices depending on when the vacancies happen. So President Nixon got four Supreme Court vacancies during his first term in office.
Carter serve for one term. He got zero. And the eight year term limit would kind of solve that problem by regularising appointments. And it would also prevent justices from serving until very old age, as we saw with Justice Ginsburg. And I think it would it would prevent having really big swings happen just on the basis of when a particular person dies and retires. I mean, I think whatever you think about who should be in charge of the term court, what kind of methodology this court should follow, I think it's fundamentally crazy to say that what constitutional rights the court recognizes should turn on whether Justice Ginsburg died in September of twenty twenty or January of twenty twenty one.
That should not be like a world historical event that influences what rights people have or don't have.
So, I mean, are there downsides to term limits?
Yeah, well, so one is it's less clearly possible to do through ordinary legislation. There is a version of the proposal that would try to do it through an ordinary statute. And I actually think the arguments for why that's possible, I find them pretty persuasive, but it is much more controversial. And more people who have endorsed the proposal say that it has to be done through a constitutional amendment, which kind of takes it off the table, right?
Yeah, I mean, the Constitution is really hard.
We haven't done it in a long time. We don't do it much in the 20th century and in a especially a constitutional limit that would likely be favored by Democrats. It's very hard to see that happening soon because you need a bunch of states to agree. And Republicans traditionally have the advantage in Democrats often have more support among numbers of people, but Republicans typically have more support in total number of states. And so it's hard to see that happening at least any time soon.
Now, there's ways you could change the proposal that would make it a little bit more possible. And so when is you sort of don't make it retroactive so that the term limits are not going to apply to any of the justices currently on the court. And so you get to have your six justice majority Republicans. This will say this will apply, you know, decades down the line. But it's hard to amend the Constitution and it just doesn't seem to have gotten any traction.
So you have proposed a couple ideas yourself that could potentially what's the goal with you is to turn the kind of level down on how heated the argument over the court has become?
Yeah, and so in my work with Vanderbilt's Ganesh Gitarama and we tried to identify, I think, proposals that had some features in common with term limits in the sense that they were neutral, in the sense that they would be something that if put into place, maybe both sides could live with it didn't necessarily lead to partisan retaliation. I think that, you know, for reasons we've already discussed, court packing flunks. That test for packing is just an attempt by one side to say, we want more justices, give us more on the other side, would then have an incentive to pack back and so forth.
You know, we don't love the term limits proposals, though, because it actually makes the court even more sort of the focal point of electoral politics. Basically, every president, you'd know exactly how many justices they would get to appoint. And, you know, basically every election would be in some in some large part about the Supreme Court. Now, maybe that's already true of our current system, but it makes the court a little bit more salient. And so we offered a couple proposals, one of which we call the lottery court, which is just to say, let's formally make all the judges who are on the United States Court of Appeals, the intermediate appeals court, Supreme Court justices, and we'll just have them set and sort of randomly pick panels to decide cases for limited periods of time.
And so any one appointment is not going to be a big deal. There's not going to be apocalyptic consequences from any one justice leaving the court or joining the court. And it will sort of diminish the importance of individual justices to make that proposal work, I think you'd have to combine it with a couple of other requirements, such as like a supermajority requirement for the court to declare statutes unconstitutional, because otherwise you could get kind of weird swings between overly, extremely liberal, extremely conservative panels.
But that's sort of one of the ideas.
And what was your other idea for restructuring the court?
The other that we talked about, which is the one that mayor judge ultimately endorsed, we call the balance bench. And here the idea is to kind of break in partisanship to the system in the way that we currently do for things like independent agencies where we're in government. We have sort of requirements about how many members of any one party can be on the board of various independent agencies. The idea being that we'd have five seats that are reserved for justices affiliated in some way with the Democratic Party, five, four justices affiliated with the Republican Party.
And then we'd ask those, that group of justices to select five other justices from the lower courts who would sit with the court for a limited period of time and decide cases, the hope being that they would have some incentive to pick judges who had a reputation for moderation and fairness, and the idea being that this would be sort of another kind of just fair way to allocate the power of the court.
I've read a little bit about this idea, and I've seen kind of two criticisms or at least challenges. But this one is that the Constitution gives the president the authority to nominate Supreme Court justices. So if the five liberal and five conservative justices are choosing another five more independent or moderate members, then isn't that taking power unconstitutionally away from the president?
So our answer to that is that there's a bunch of ways in which the system kind of currently does stuff like this. To the extent that this is sort of the kind of judicial office that would be created by statute, it wouldn't necessarily be problematic. So, for example, retired Supreme Court justices often go sit on lower federal courts. They were never appointed or confirmed by the Senate to be a judge of a lower federal court. So Justice O'Connor was never confirmed to be a Ninth Circuit judge.
She was confirmed to be a Supreme Court justice, but she's allowed to the statute lets her go set as a Ninth Circuit judge when she wants to. District judges often go sit up on the Ninth Circuit and so forth. There's lots of things that happen like that, and those have not been treated as constitutionally problematic. And so we say this is really just fundamentally the same thing. As long as someone has an Article three appointment, it's OK for them to sort of shuffle a little bit between courts.
Now, it hasn't happened at the Supreme Court level. There's arguments you can make for why it's different for that to happen at the Supreme Court level versus at the lower federal courts. But we think that it's not as different as you might think.
And then who are these kind of independent minded, more moderate justices? I mean, I think increasingly today we see people as falling into liberal or conservative camps. Would it be easy to find these theoretical five people who are really neither liberals or conservatives when it comes to their judicial philosophies?
Yeah, I mean, this is something that I think we struggle with a little bit with the proposal, which is that even in the limited period of time since we published this article in twenty nineteen, I think the law has continued to become more polarized and it's only happening further. And so the Trump administration in particular has taken a very, very aggressive approach, judicial nominations, and has been very, very focused on identifying ideologically reliable nominees. That said, I mean, there's a lot of judges on the lower federal courts, especially if you expand the universe, to look at not just judges on the United States Courts of appeals, but also look at federal district judges.
There's a lot of people in that group and they're not all going to have uniform ideology. And even if both sides are really, really trying hard to identify people that are sort of avowed partisans, some people that are kind of a little bit more in the middle are going to slip through over time. And I think you still see that. I think that, you know, it's certainly looking at the nominees of recent presidents. There's been more liberal or more conservative judges they put on the bench and so much more moderate nominees they've put on the bench.
And I expect the same thing will ultimately be thought to be true of some of the Trump nominees, even if a lot of them seem very ideologically reliable right now.
When I think of Republicans or conservative legal scholars observing this debate about reforming the court in either more or less partisan ways, I mean, wouldn't they just think look like we spent decades trying to shape the court in the way that we wanted to see it shaped? And once we actually achieve that, then then you in one fell swoop or whatever, in one congressional term, kind of blow it all up. I mean, how would that ever fly with Republicans, whether it's straight up packing the court or something, you know, more quote unquote, nonpartisan?
This balanced court idea or the rotating courts that you described first? Yeah, well, a couple of points. I mean, so even some people, you know, you wouldn't necessarily expect do you support kind of this sort of neutral, good government, kind of Supreme Court reform? So Steven Calabresi, co-founder of the Federalist Society, which has been a really important part of the rise, the conservative legal movement, federal society plays a huge role in right now in the staffing identification of candidates for the federal bench.
He's a proponent of term limits. And he came out this last week with an eye with another op ed still arguing in favor of Supreme Court term limits, even though, given his ideological preferences, they're not in his favor. So I think there are there can be people who recognize that the system is just really kind of hard to justify. And I'd like to think that even, you know, Republicans and conservatives who are happy with their good luck are going to recognize that maybe it doesn't make sense to have a system where Lucke controls so many things.
That said, you could imagine reforms that are kind of put in place on partisan lines, but then then people kind of can learn to live with. And I think that's more true of some than others. So I think let's just imagine that Biden wins. Democrats get both houses of Congress if they put their caucus. It's very hard to imagine the Republicans coming into office for eight years, whatever, down the line and saying, OK, we've got a seven to six Democratic Supreme Court.
That seems great. Let's just live with that.
As I said before, I think that they would be crazy not to pack back, but maybe there's other reforms that, you know, they would have public support, would coalesce around them and people would say, OK, look, we don't have a great argument for undoing this. So if if the reform that goes in is term limits or something that looks more like one of our reforms, that really is at least designed to try to look like it distributes power in some relatively fair way.
You can imagine a universe where the other side gets back in power and says, look, it's not the one that we like, but we can live with it. And it could be especially true if you imagine people's predictions about what the future is going to look like, change it. So it could be that life tenure is great for Republicans right now, the current system. But there could be other scenarios where it looks like they're going to be more likely to lose the presidency for a period of years.
I mean, I'm not saying that's going to happen. I'm just saying that things can change over time. And what looks advantageous for one party that could change, you know, down the road and the people could decide to just sort of live with the status quo.
What about this idea of limiting the Supreme Court's power and preventing them from striking down certain laws that Congress and the president have signed into law? I mean, is that the kind of thing that has any durability over time or does every party do that and then just undo whatever was prevented, the Supreme Court, from striking down a particular rule in the past? I mean, does that also kind of like court packing? Yeah, it's different.
I mean, I think it would have a partisan cast to it in the sense that presumably, you know, you would strip the court of jurisdiction to hear issues where you think they'd be likely to stop your side from doing what it wants to do. And so I would imagine that a Democratic Congress, if we're going to pass jurisdiction stripping it would say we are going to take jurisdiction away from the court to hear cases involving challenges to the Affordable Care Act or challenges to the Green New Deal or challenges to Medicare for all or, you know, whatever you can, progressive legislation in the future.
You can imagine, but not taking away the power of the Supreme Court to hear challenges to abortion laws in Mississippi. So I think that once you create that precedent, you can see it going different ways. You could see people just getting used to the court having less power used to the court not stepping in. You could see people being really outraged and wanting to bring back full jurisdiction. Or you could see just being flip flops where they say, OK, we're going to come back and we're going to put in provisions that are going to allow the court to hear all these cases where they can strike down things we don't like, but take away their jurisdiction in other areas.
And I think it's just hard to know. It doesn't necessarily it might be more of a flip flop, doesn't necessarily have the kind of escalating feature that court packing.
Some people worry about where it's you know, we've asked the court, you pack it back, we pack it back again, and then you've got a thousand Supreme Court justices at the end of the day, because it's not like there's only so far you can go eventually. And I think that some of the advocates of jurisdiction stripping say, OK, at the end of the road is Supreme Court doesn't have any jurisdiction, assuming that, you know, putting aside constitutional problems with that which are unresolved and some of them say, great, you know, I have more confidence in legislatures, I believe in democracy, and I want us to solve these problems for ourselves.
And let's just take the court out of the picture. So that might be a feature, not a bug.
Lastly here, it seems like a big part of the argument about the Supreme Court from the left is that it's anti majoritarian right. So Republicans have lost six of the past seven presidential contests. So justices appointed by Trump or Bush in their first terms were not appointed by the president with popular support. Republicans have not won more votes nationally for all one hundred Senate seats combined since the 90s. There's also just the arguments about the norms more recently with McConnell, like, aren't those largely criticisms about the whole of American government and its structures?
Like if that's your issue with the Supreme Court, then you probably also take issue with the Senate as a whole and then, of course, the Electoral College.
So where does this end? Like, can you actually accomplish your goals of making the system work by messing with the Supreme Court, or do you have to abolish the Senate? And the I mean, where does this end?
Well, I mean, so for one, fixing equal representation in the Senate, that's hard, right? Because the Constitution has a provision that says no state shall be denied of equal suffrage in the Senate without its consent. So that's even harder to do than all the other stuff that would require a constitutional amendment that requires everybody to agree to it. And that's just never going to happen unless we have the only way to do that is to have some kind of new constitutional convention, some kind of new something looks like a second American Revolution.
But the way the court currently works, it kind of has magnified some of those problems in the sense that because the court's vacancies are kind of random, they have happened to come up at times when some of these democracy deficits have been. Most presidents, as you as you noted, like Bush lost the popular vote in his first term, Trump lost the popular vote in his first term. Obama only got with her for two terms, only got two nominees.
Why does he only get two? And Trump is going to get three, you know, just coincidence. And so you could you could fix this even if that doesn't fix everything. I do think it makes it a little better. I think having some fixed correspondence to Supreme Court vacancies that some way they correspond to sort of winners of electoral contests, I think would be an improvement, even if it doesn't solve all the problems with American democracy. All right.
Well, let's leave things that we've covered a lot of ground. Thank you so much for joining me today. My pleasure again. Thanks. Daniel Pipes is a professor of law at the University of Washington, St. Louis. My name is Galen Droog. Tony Chao is in the virtual control room, but a Gary Curtis is on audio editing. You can get in touch by emailing us at podcasts at five thirty eight dotcom. You can also, of course, treated us with any questions or comments.
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