Who hello and welcome to the five thirty eight politics podcast on Gail Gale Indirect. During the past couple 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 the rationale for not holding hearings. merit garland, two thousand sixteenth and moving quickly to replace Ruth, better Ginsburg so close to an election Senate Minority leader, Chuck, humor, reportedly told fellow Democrats, the quote: nothing is off the table house Judiciary, chair, jury, Nobbler wrote that, if republicans confirm someone in a lame duck session, quote the incoming sir It should immediately move to expand the Supreme Court and quote other Democrats, have wait in along similar lines, although

partly 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 of Democrats will control the Senate or whether they 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 we need to do that- is professor of LAW at Washington University in Saint Louis, Daniel Apps apps 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 does save the Supreme Court. Welcome to the shower Daniel thanks Should 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 when the court is facing now, but I wrote that last year, when netteke I just going through the confirmation battle for

just as common awe and basically The claim is that the court has been the sight of increasing. Partisan contestation over its membership that both sides, see that control the court is really really important and thereby sweep hang out all the stops to try to get control. This report and the Republicans have ultimately succeeded in that effort. its increasingly unclear why Democrats should contain new to follow the court when we say of legitimacy. What we think of ass 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 up and the more the court is just seen as a purely part as an institution that is just doing partisan politics and that its membership is just the result of coincidence, is about when the vacancies arise.

The less clear. It is why people who don't agree with its ruling should follow them, and I think that's what's happening. How widespread is this view with in the legal community. Is it overwhelmingly wellmeaning view of liberal rather than concern their scholars, or is this a concern across the board? I think too some degree there are people on both sides who share some concerns about the current structure. This report, but I think it is over going to be a view that a shared by liberals in part because the current system has created winners and losers and system as presently constituted, has really created winners. Out of Republicans rob again have appointed fourteen of last eighteen justice is or fifteen of the last nineteen openings, depending on how you count moving us as you justice ring quest to, just as position there can add another, presumably with the latest vacancy.

even though they have not control the presidency for such a disproportionate amount of time, and I think for them reason. People on the left are more likely to save this system. Just doesn't make sense and isn't a fitting us and is going to result in a court that actually gonna stand in the way of a lot of potential progressive reforms. I think that 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 pulling on this and I saw that in twenty twenty. According to gallop, fifty eight percent of Americans approve of the way that the court is handling its job and it's pretty high compared with how Americans have historically seen the court and its also high, particularly compared with how Americans view other institutions so doesn't it kind of contract? The idea that is facing a legitimacy crisis if it has significant majority approval. Yes, this is really interesting and historically the court has enjoyed more popular sport.

But I think than other institutions or if you compare the court with Congress, you know Greece's is generally doesn't do very well in those kind of poles and there have been other times historically when people come said, the court is facing this huge legitimacy crisis and it is very, very quickly bounced back at having a bush, be Gore, for example, where the court sort of effectively in the presidential election dispute in a way that was widely seen as unfair to Democrats and in favour of Republicans, but then very quickly accords public image. Doubts back and we have already seen some of that. It seemed like the court's reputation took a little bit of ahead after the cavern or hearings with people get over it quickly. and I think part of that is that the court, this term labour she dresses. But if you're a little bit towards the center, I think you ve, just as Robert is adjusted who is very aware of the court's institutional standing? I think he read recognising that is important for the court not to be seen as what it, far out on one partisan, lamb. And I guess the question

That is gonna arise is. Is that going to continue if the court moves further right, so Justice Ginsburg departure Court and replacement by someone who is gonna be significant. Morgan urban than she has probably more conservative than that you ve. Just This is going to move the court's median to somewhere like justice, Kavanaugh or Gorson, and that's that's gonna, be a very conservative court and it is possible that court will a further hidden legitimacy, but further This concern a lot of its perception. The court really is about the substantive rulings that reach, and so a very conservative is likely to make around.

half the country happy. A very liberal corporate make around half the country happy and the question is: how unhappy does it make the rest? The country, what are the specific seer of it, this hypothetical, so six, three conservative majority on the Supreme Court? What could he do that would make it lose legitimacy in the public's eyes as it just ruling against public opinion too often look. What are the actual specific things that could put the court of crisis position in the public sphere. Will 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 it, where chief Justice Roberts is no longer should have been control, he's really been in control as the media Justice and he can prevent a sort of concerted allies from going too far. I think if the court were to overturn rivers is weighed, there's a debate about

exactly public opinion would be on that question, but I think we can safely it would make a lot Plurality of the country very upset probably mobilise a lot of people on the left, but there's other things they hit. The court might do that would be troubling. I think something that progressive Democrats are concerned about is the prospect that a very conservative court would actually stand in the way progressive legislation so strike down important progressive legislative initiatives. The court came very close to doing that a few years back and the Obamacare her case, and I think she just Roberts, wisely recognised that declaring the entirety of the affordable, current 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 push further to the right with this additional appointment, how has the court

doubt what this in the past? Presumably, there have been scenarios previously where the court has struck down legislation from one party, perhaps that you know when significantly against public opinion. How did the court and public deal with those kind of dissidents, as in the last year, was a couple responses so first, I think this comic indefinitely What is this is this counter majority institution that it stands up to majorities and says no working to protect individual rights again, you are really aggressive majorities and I think in practice, a lot of people who studied the court carefully have concluded that the quartet, been a lot more majority syrian and it seems, and even when the king, it has done a lot of things that were quite controversial. What it is really doing, this kind of standing against particular regions of the country, so during the night fifties you had the worn cord sort of fighting against segregation in the deep south, but actually a significant amount. 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 do it in the way of public opinion and I think the most they get one was during the sort of last core pack and crisis that the core packing. sewed under Franklin, Delano Roosevelt on the Supreme Court. That was in power when he can presidency was quite conservative. Conservative, listen was made up of a mixer Democrats and Republicans because on the party didn't we 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 try to mobilise public opinion against the court and he partially succeeded impartially fail and too usually are we saying that the Supreme Court, although we whom 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

well there's a couple 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 are 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, veer elites. There the educated, and so there are some places where maybe they can be a little bit ahead of the country and they will but ahead of the country, maybe on some issues, gay rights, but they were sort of where a lead opinion was, and I think that the rest, the country caught up to their views pretty quickly, but they also lot of justice is 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 remove ring for justice is very hard to do something about a stream court justice you dont like, but they don't have guns they dont have an army.

Also report really has is the power to print pdf and put them up on its website, and, except that it has power the power. Is the power to get people are listen when it sang and to say, ok through 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. that's a power that can be lost at a certain point. You get too far away from where the publican as a new really lose the respect of the public and people don't respect your decisions, do not respect the decision making process that leaves those decisions. You know answered point you can be a court were people to start listening judgments. I wanna 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 ass justices have done, which is, as they become the median justice move more towards the centre as a sort of cells preservation mechanism. I think

very possible. I think that's why you will find that there have been a of dire predictions made at various points in the past about how the court moving right. These same cooperation, had been made over and over the past three decades or so? The court has unquestionably moved the right over that time period, but I think it's it fair to say at the same time that the court has not done a lot of things. People, MR thought it would do or has not acted as quickly as people are expected to do, and I'm a person who made some predictions about what the court was. Gonna do, and I was a little surprised at the extent to which actually justice robbers trying later I was. I was curious to see how much that was going to continue over the next few years and its quite possible that someone in that conservative coalition might recognize these constraints, and I do think it's a certain pressure to be that media injustice it's really all coming down to me. Do I really want to pull the trigger on this, or not all that said I

I think that the conservative legal movement has really tried very hard to I d, defy people- and it's still in them- these really rigid interpretive values that discourage them from taking those kinds of considerations into account, and they really and make villains out of people that deal you mentioned that There is always this potential that the public could just lose faith in the court and that there isn't really and 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, Let me 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 and then not gone over it in terms of other countries, Is there many other countries? They don't have a supreme court that say has the power to overturn statutes, will overturn federal statutes.

And those countries they function, fine written United Kingdom doesnt have a written constitution for What time they are serving court wasn't even call this recorded, didn't have the same kind of powers that are Supreme Court has given the principle of legislative supremacy there and that's so freaking and so I dont think that its necessarily apocalyptic and there's a lot of people me who say: let's just stop giving this report the power to do other stuff. We ve been letting this report decide way too many important issues. Why should we do that? and it s another glass of kind of reforms that people are talking out. Its idea called jurisdiction stripping. I is one of the flavors of that. Where you just pass tat is to say the true court is not allowed to decide cases about this topic. Endless just haven't be settled by letters

That's one possibility, but there's other possibilities to you. Also. You know things that we fear are the court stepping in to stop urinate like if the president starts just jailing people without cause. We want to have courts there to be able to stop that in a world where- court system, heavy legitimacy or authority? There would be one should check on government power. That would no longer stand, and that could be frightened. what are the moments that you mention when the country has come perilously close to kind of gun over the edge and in the Judas, Mary losing legitimacy. Here, I mean a wine is during the civil war. You had a supreme court that was more conservative. Morsel of southern oriented, I think, is a better way to describe it. Then. Certainly President Lincoln was and there's one instance where the court sort of issued an order to President Lincoln. He ignored now

a lot to get into their there's a lot of disagreement about whether you actually was legally authorized to do that, and I don't want to get into the specifics on that. But that was it situation where the country was really literally being torn apart by civil war and a shrink please be roll Nestorian. I'm going back a few years before that this important issue, the opinion Dread Scott. That was one of the events that really sort of accelerated things towards civil war, and then in immediate aftermath. There is actually a lot of partisan wrangling about this report. This report they remove seeds from the court order, prevent present Andrew Johnson from appointing an element of the court than they added. Seeds after he left office, and so there is a lot of kind of wrangling about the court that period it seems the settled down in the decades. After that. I think the next really really. You know there are some other blips, but the naturally really big moment is the one I talked about earlier that this sort of core packing crisis, with after yard than I can thirties. What role did the founding fathers intend for the supreme

we too have in american government and has not roll changed over the centuries or decades. It's kind of unclear its 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 accurate, I mean. There's there certainly some evidence that they did. I think it is fair to say that they did not expect the court to be as powerful and institution as it has become, or maybe to use its power to declare statues and crucial, nearly as often as it does so, just by example of that court exercised apparently shore view to declare a federal statute and constitutional. I believe twice before the civil war. in it now does so, maybe not every term, but with some regularity, there's spread of such you're in there that it says, are unconstitutional all the time not to mention all the state statute is striking down left and right. I also it's hard to imagine the founding generation thinking it's report would really

side, a lot of issues that really come down to philosophy and values, and it so we go to the report and ask them to decide some of the questions that really most divides site like should abortion be legal? Should affirmative action be legal and things like that and I think the court room he has accumulated power on in ways that weren't anticipated slowly but surely over the last on two hundred years, and so how did we get to the place where we are right? Now? Where It seems like we're on the cosmic having this six. Three conservative majority: the court has accumulated a lot of power and in particular we weighing in on very divisive. Years can strike down. You know federal statutes, as you mentioned, for example, the entirety of the fordable correct if it wanted to in this case, coming in November. How did it go

activists point? Well, I mean it's a long story, it's complicated, but I think from the period. So you have the core back and crisis in the thirties, with after your where he tries to pass a statute that would enable him to get more justice and the court. It ultimately fails, but the court kind of back down from the confrontation and stops striking things down as aggressively as it had been an ultimately Sdrs able to replace almost all the justices on the core and have appeared. If you have the worn court in the night, he fiftys the court to to accumulate alot of prestige issues. A lot of opinions are some of which are extremely controversial at the time Brown versus Board of Education brand of since the Arizona, the generator distance, but ultimately, in retrospect, have engendered a lot of public respect and I think part of the next part of the story is the court, decides ROE versus Wade and says that abortion is a constitutional

right- that's extremely controversial ruling. It really mobilise as people on the right to focus on courts and to develop sort of a set of legal committee. And ideologies that are going to build a framework for from moving courts to the right and you have a series of battles between Democrats 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 point judges that for decide cases very very differently. And meanwhile the court at, as we said his as accumulated all this parent prestige, and so the court really looks like this big prize for the taking you can get the court. If you can get five justices were with you, you can do anything. It seems like. I want to talk a little bit now about some of the reforms

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with any new system order, there's nothing to lose go today to simply say if dot com, slash politics that simply safe dot com, slash politics. So let's start with what the overall goal So you know these ideas have floating around in the legal community for a while. Some activists talked about them during the democratic primary. If that Peat Buddha, Judge May or south end, of course, talked about court reform during the prime it didn't really take off with many of the other candidates, but it's been simmering bet, and now we ve heard from people like Jerry, now learn and even truck humor, who said everything is on the table. Why? What's the idea here? What do people who want to change the court? What we're complex YO, I think, there's different. There is different avers I'm anything for a lot of people. Ultimately, he comes down onto their sort of policy references, and so how you feel about you,

the court is ultimately gonna, be determined by how you feel about the current cordon, whether its doing stuff that you like or don't like- and I think the issue has become particularly urgent for Democrats as their seeing accord move far far to the right and through tactics that seem very hard to just five that seem very unfair. Underhand it 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 win a particular oxygen. Ryan dies or retires, but there is also a lot of other. I think, reformers that kind of war motivated by more neutral good government concerns and, let's just have a system that seems fairer. That makes more sense, removal, And I think that where you are and that spectrum may in form a little bit which reforms you find

more palatable. I think there are some reforms there, a little bit more, you might say kind of neutral in their summer, forms that are just seem to be more about equalising partisan advantage or taking a partisan advantage, and so one of those being the latter being just for two straight for court back. Adding justices to the court is an example of that. You know it's hard to just for justify that as part of a neutral good government reform, but I think the Jesse in a democratic offers? This is principle, retaliation for Republicans, violation of norms. Out of here, osity. The refusal of Senate Majority leader Mcconnell too consider, merit garland in two thousand and sixteen and then now this push to confirm a new justice before watching porn or inauguration day. What are they? Thorkel norms are precedents that exist for those behaviors its again situation, where you're gonna get different answers depending on whether

talk is someone who is a democratic or a pub again. If you look back historically, there have been a justices that are confirmed during election years for sure there have been justices that are confirmed opposite Party Senate during the election year, for example, so Justice Anthony Kennedy who my court for was confirmed in nineteen. Eighty eight, which was oppressed the election year by Democratic Senate and oh some of the justifications that had been offer- just I think, are just what are just dishonest or Iraq, in May two thousand, it shall stay many just that we don't do this an election years. That was wrong, and so they late they ve come gerrymander the the rule little bit more carefully. It's no confirmations by opposite party Senate presidential election year where the vacancy arises during the election year took ok- The thing is when you define it that way, the universe gets really small, because many justices time their retirement strategically. Most of the openings

have occurred in recent decades have been earlier in presidential terms, precisely because the president of the justice system- tiring in order to create an opening out in a way that can be filled more simply. And then, if you go back further history, its heart draw analogies from it, because the rules require is very good. And there's a lot of its decision, people people just- would leave the court after pretty short tenures presents retorted throw people from quirks, they really didn't do it. I wouldn't What else to do with them, and so it's hard to even compare between what's going on now is happening hundred years ago? My understanding is Republican Senate has not confirmed a democratic, many for this report just period in something like a hundred years, whereas Democratic Senate's have confirmed republican nominees to this report. Much more recently them 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 on this report. And so it necessarily suggests that Congress has to have a role in defining the cord and how many members it it's gonna have its say in the constitution, makes reference to the chief justice, United States and associate justice. But gives no number, and the number has varied between five and ten over american history is ass. You I think most people think it is pretty plainly constitutional. For those reasons, the Congress has the power do it. There are arguments this thing, because you should let there's always arguments that you can make about why something isn't constitutional and their people have to to make arguments for why plainly parties in court packing would be unconstitutional here, for example, people in Congo?

the Senate Judiciary Committee made arguments that after yard, core packing plan was unconstitutional, because it is an attempt to coerce the court into rule in the way that he wanted, but I think that core packing most people think it would be plain the constitutional for. congress to just past, set your finger now to more for more. However, many more seats on this report. Why as has been done so the numbers of framework justice, as hasn't changed from nine since eighteen, sixty nine? Why hasn't somebody just pack the Supreme Court? So I think that that is what we call Catholic, a soft, constitutional? More so that in any system of government, there's gonna be the stuff that the constitution explicitly says you can't do and people are you're not supposed to do that. But then there is a whole range of other things that are going to be thought of our can be written down in the constitution can have rules of fair play. Rules of the game that people follow things that if you do it,

at the other side is just gonna sort of lose confidence in you? Maybe there were tallied in some way. This is for lack of a better word. Just these kinds of norms, It has really been settled as a norm. I think for a long time since the after your episode, since after your tried at your actually had his party controlled Congress, but none the less was not able to get it through was not able to sufficiently mobilise public support for packing the court, and I think, that it it gets. People's hackles up its further seems like you're, trying to undermine the branch of government trying to kind of reduce limits on your power. It has this sort of fleet verve authoritarianism. We see you know people who come to power and authoritarian. Countries try to undermine or independent judiciary. As we have this strong tradition of an independent judiciary in this three and so animals are for the most part. It has really been seen as necessary. You know if you have limited

asking for legislation when you're president that you want to kind of try to push the or try to get your Congress to push through and a core packing fight is gonna, be a big fight to pick. Why bother wanna just focus on such legislation care about, but I think that progressive You're really come around the view that if you don't do that you're not going to do anything else, anything you want to do You want to do a green new deal. You wanna do universal Healthcare, the Supreme Court, stand in the way unless you fix the court, We ve been talking about the Supreme Court and legitimacy would packing the court kind of throw the Supreme Court in even further of illegitimacy crisis. It's hard to imagine that it. Wouldn't that certainly, would generate outrage on the rights and necessarily generate some kind of greater escalate.

and by Republicans the next time they had the opportunity if they were given 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 diminished the court standing in some respect, diminish the public's view of the quartet sort of lofty institution that is above politics. That may not necessarily be it at their. You know, depending on your, how you feel about courts. If you, you love, this recording wanted to have a lot of power that sums terrible, but if someone who thinks you know I'd actually rather live in a world where Congress has more power to do stuff, and the court is in deciding on these questions that, maybe is not the end of it. Well, that's more of Us Adjuration like Great Britain or Canada. Or another ones, or something like that where the court's dont have as much power yeah there's a range of possibilities, so in Canada, for example, this record does have the power to declare lives

national constitutional, but there is some avenue sort of its 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 their station and so forth. But yeah I mean you could have a democratic society without a court that has the power of judicial review now I mean there is some danger that, if just sort of confidence in law. More generally, it is undermined if people to 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 sure a lot of people talk about the phrase, the rule of law and its a very slippery concept. What exactly the rules?

Armenians base that having where that you gotta know where you see it, and you know you know, societies that don't have you no societies where there aren't any kind of like clear rules that the government has to follow those basically just who has power at any given moment and ass scary to me. Ok, so we ve talked about patting the core. We ve talked about stripping jurisdiction in general, which means making sure that the Supreme Court can straight down particular laws that the Congress passes. Some other ideas, I've heard, are term limits and then goals are. You have developed some ideas on your gets. I've got some whack your whence yeah. Let's do turn limits, so enacting terms, I am currently working on a purple project about Serbia for term limits with myself of Harvard Adam Child no Chicago and covers a my colleague here at university, and you're. Looking at all the different, I turn on its proposals and to how they would have worked. If adopted, various points in history, there's a

a common proposal that a lot of people have conical western different versions of which is to give its requests, is eighteen. Your terms that will be staggered. The idea being each president would get a point to justice is per term. We have one opening everyone years, enemy just go like clockwork and so no longer wish to have a system where the court's membership can just depend on ran a chance. So right now in our system. You can have a one term president took at two point: nine justices to banana when the vacancies happens. At present next then got for serving court vacancies during his first term in office Carter, Sir for winter me get Europe and eighteen your term. It would come to solve the problem by regular, rising appointments, animal also prevent justices from serving until a very old age, as we saw with Justice Ginsburg, and I think it would. It would prevent. Having the really big swings happened. Just on the basis of windbreaker person dies retirement ethic.

Whatever you think about who should be in charge of this report? What kind of methodology report you followed? I think it's fundamentally crazy to say that what cost equal rights to quit recognize you should turn on whether justice, Ginsberg I'd in September of twenty two me or January, of twenty one, that should not be like a world historical of that that influences what rights people have done. So I mean either downsides third term limits yeah well, so one is its less clearly possible to do through ordinary legislation there. The version of the proposal that would try to do it through an ordinary statute and I You think the arguments for wine as possible. I find them pretty persuasive, but it is much more controversial and more people who have endorsed the proposal say there has to be done through a constitutional amendment which granted takes it off the table right

yeah? Maybe because you she's really hard, we haven't done it in a long time. We dont do it much in the twentieth century and in a especially a costume limit that would likely be favoured by democratic. It's very hard to see that happening soon, because you need a bunch of states to agree and Republicans strictly have advantage and Democrats often have more support among numbers of people, but the Republicans typically have more support in total number of states, and so it's hard to see that happening, at least anytime soon others ways you could change the proposal. That would make it a little bit more possible, and so one is, you should have don't make a retroactive seated and determine returned can apply to the justice is currently on the court, and so you get it have your six justice majority Republicans this was this will apply. You know decades down the line, but it's hard him in the constitution and it just doesn't seem to have got interaction. Write to you have proposed a couple ideas yourself. That

could potentially? I watch the goal with yours to turn the kind of level down on how he did the Argo over the cork has become yet and so on. In my work with Vanderbilt agony should remain. We tried to identify, I think, proposals that had some features in common: a turnout in the sense that They were neutral in the sense that there be something that is put into place. Maybe both sides could live with. It didn't necessarily lead to partisan retaliation. I think that, in a for reasons, we already discussed court packing flunks. That test for backing is just an attempt by one side to say we want more justice is give us more neither side within Heavens. The pack back and so forth. You don't we don't love the term limits proposals, though, because it actually makes the court even more so to the focal point of electoral politics. Basically, every then you'd know exactly how many justices they would get to appoint and they are basically every election would be

in sum in summer for about this report. 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 proposed was one of which we call the latter report, which is to say I'm. Let's Will you make all the judges who were on the units is court of appeal? Sooner media appeals Court Supreme Court Justices and we'll just have them said answered randomly picked panels to decide cases for limited periods of time, and so anyone point man is not going to be a big deal. There's knock em, you apocalyptic consequences from any one justice leaving the court are 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. Other requirements, such as a super majority requirement for the court to declare statutes unconstitutional, because otherwise, you can get kind of weird swings between overly finally liberal extremely conservative panels. But that's where one of the ideas and what was your other idea for restructuring the court, the other that we talk about, which is the

on that mirror. A bitter judge elsewhere endorse, we call the balanced bench, and here the idea is to come bake in partisanship to the system in the way that we currently do. for things like independent agencies were wearing government. We have two requirements about how many members of any one party can be on the board of verse, independent agencies, the idea being that we have five seats that are reserved for justice is affiliated in some way with a democratic party. Five for justice is a failure. The Publican party and then we'd ask those decker, but justice is too slow at five other justices from the lower court. You he said with the court for limited period of time and decide cases the the hope being that they would have some incentive to pick judges who had a reputation for moderation and fair. Yes 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. Had I've seen kind of two criticisms or ITALY,

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 justice- are choosing another five more in depth. dead or moderate members than isn't that taking power on constitution way away from the president. So our answer to that is there's a bunch of ways in which the system can have currently does stuff like this. To the extent that this is one of the kind of judicial office that would be created by statute, it wouldn't necessarily be problematic. So, for example, our retards, have been Gore justices, often go sit on lower federal courts they were never appointed or confirmed by the Senate to be added age of a lower fat awkward suggested O Connor was never confirmed to be a night circuit judge. She was confirmed a biased report justice but she's aloud to the statute. Let her go said as a nine circuit judge when she wants to

as for judges, often go sit up on the night circuit and so forth. Are lots of things that happen like that, and those have not been treated is 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, too, should of shuffle a little bit between courts. Now hasn't happened at the Supreme Court there's, an argument you can make for why it's different for that to happen if 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 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 you are really neither liberals or conservative is when it comes to their judicial philosophies.

Yeah I mean this is something that way. Can we struggle with a little but with a proposal which is that even in the limited period have since we publish this article, twenty nineteen, I think the I continue to become more polarized and it only happening further. It so tromp administration in particular, has taken a very, very aggressive approach. Initial nominations and has been very, very focused on. I did fine, eighty reliable nominees, that's it I mean there's a lot of judges on the lower federal courts. I especially if you expand the universe through to look not just judges on the USA. Courts appeals but also look at federal, desert judges. There's a lot of people in that group and they are not all going to have uniform ideology, and they, even if both sides are really really trying hard to identify people that are surest avowed partisans, some people there have a little bit more in the middle are gonna slip through over time. I think Don't say that I think that you know it certainly looking at the nominees of recent president's, there's been more

fuller, more conservative judges they put on the bench and so much more moderate nominees they put on the bench and I might 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 largely reliable right now, when I think of rob begins or conservative legal scholars. You know 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 than 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 its straight a packing, the court or something you know more corner quote non

Artisan, like this balanced court idea or the rotating courts that you describe first yet was a couple points at me. So even some people, you know you wouldn't necessarily expect do. Support kind of this sort of neutral, good government kind of shrink were reformed, so even our crazy co founder of the a society which has been a really important part of the rise, the concern of legal movement. That also plays a huge role in right now in the staffing. Vacation of candidates for federal bench he's a proponent of terminal, and he came out, really know this last week, with an eye with another Abed, still arguing in favour of supreme term limits. Either No, given his ideological preferences they're not in his favor, so I think there are. There could be people who recognized that the system is just really kind of hard to justify and I'd like to think that even you know, Republicans and conservatives were happy with their good. Luck are going to recognize that it- maybe it doesn't make sense to have a system where,

controls. So many things that said, you could imagine reforms that are going to put in place on your partisan lights, but then, then people kind of can learn to live with. that's more true of some than others. I think, let's just imagine that Biden winds democratically. Both houses are Congress, they if they put their cork hacking. It's a very hard to imagine there, Republicans coming into office for eight years, whatever down the line and saying ok, we ve gotta no, the seventy six democratic to record. That seems greatly to live with that. As I said before, I think that It would be crazy, not back back, but maybe there's other reforms that do you know they would do Copecks aware, recall us run. Then people would say: ok We don't have a great argument. It's you know four undoing this. So if, if the reform that goes any is term limits or something that looks more like one of our reforms, that really is at least designed to try, look like it distributes power in some relatively fair way.

you can imagine a universe where it gets back in power and says: look it's not when that we like, but we can live with the next Actually true, if you Jen People's predictions about what the future is. Gonna look like change it, so it could be that life tenure is great for Republicans right now, the current system, but that there could be other scenarios looks like you're gonna be more likely to lose their presidency for a period of years, and this I am not saying this can happen under saying that can change over time and what looks advantageous for one party that could change. down the road and the people could decided, live at 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? What I mean is that the kind of thing that has any doubts- nobody overtime or does every party do that and then just undue whatever was prevented the Supreme Court from striking down a particular along the past?

I mean is that also kind of my court packing yeah? It's different, I'm anything We have a partisan cast to it in the sense that presumably INA you strip the characteristics 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 converse if arena past restrictions ripping it would say we are you're, not gonna. Take your six away from the court to hear cases involving challenges to the affordable, correct or child. As to the green new deal are challenges to care for all or in a wider. Whatever you can a progressive legislation in the future, you can imagine, but not taking away the parish report to hear challenges to abortion laws in Mississippi. So I think that once you create that president, you can see a going to four ways you could see. People just getting used to the court and was power used the court not stepping in, and you can see people being really outrage in wanting to bring back full jurisdiction or you could see I just being flop

Where are they say? Ok were to come back and we're gonna put in provisions that are going to allow the court to hear all these cases where they can strike down things we dont like, but take away their jurisdiction in other areas. I think it's just hard to know I'm. It doesn't necessarily it might be more of a flip. Live, doesn't have the kind of escalating feature that core packing, as some people were about words, you know we back the court Pack, a back. We back it back again, and then you ve gotta thousands reward justices at the end of the day, because it's not like theirs so far. You can go eventually, and I think that some of the advocates of jurisdiction Say: ok, the into the road is sovereign we're, doesn't have any jurisdiction. Assuming that you are putting aside constitutional problems with that which are unresolved, and some of them is a great you know, I have more confidence in legislatures, I believe in democracy, and I want us to solve these firms forestalls unless just take the corner, the picture, so that might be a feature and not about. Lastly, here it seems like a big,

of the argument about the Supreme Court from the left is that its Anti majority area right so republicans have lost six of the past seven presidential contest, so justice is appointed by Trump or Bush and our first terms were not appointed president, with popular support, Republicans have not one more votes nationally for all one hundred Senate seats combined since the nineties. There's also just the arguments about the new more recently with Mcconnell Black. Aren't those largely criticisms about the whole of american government and its structures like if Thatcher 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 or your goals if

king, the system work by messing with the supreme quartered. You have to abolish the Senate and the electoral I mean. Where does this end? Well, I mean so for lunch fixing equal representation in the Senate. That's hard right, because the constitution has approved and it says no state- shall be denied of equal suffrage in the Senate without its consent, so that even harder to do than all the other stuff that would work ass usual

therefore, like everybody, to agree to it, and this is never gonna happen unless we have in the only way to do that is to have someone a new constitutional convention. Some kind of new Sunday 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 off at times when somebody's democracy deficits have been most present says he has noted, like Bush, lost popular voters, first term trump, less popular rodents. First term Obama Holding got was her for two terms only got to nominees. Why does he only get to and tromp is gonna get three, you know just coincidence, and so you could. You can fix this. Even if that doesn't fix everything I do think it makes it a little better. I think, having some fix correspondence to.

HU the streets were making sees that some way they correspond to sort of winners of electoral contest, I think, would be an improvement, even if it does not solve all the problems with american bankruptcy aright Wall closely things there. We have covered a lot of ground. Thank you so much for joining me tonight. My pleasure gonna thanks Ghana acts is a professor of law at the University of Washington, Saint Louis My name is Galen droop Tony child is in the virtual control room Clare. Bulgaria Curtis is on audio editing you can get in touch by emailing us at podcast, set five thirty, eight dot com. You can also, of course, treated us with any questions or comment. If you're a friend of the show, leave us a rating or review in the Apple pie cast store or tell someone about us based

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