How We Can Fix a Fractured Supreme Court: Big Brains podcast

Show Notes

The Supreme Court today may be more politicized than any other time in U.S. history. With the expected confirmation of Judge Amy Coney Barrett, President Trump will have appointed three justices in less than four years, and the American public has come to see the bench as divided by “left” and “right.” But how can we bring the Court back in line with its Constitutional ideals?

Prof. Geoffrey Stone, a distinguished scholar at the University of Chicago Law School, has spent his career studying the Supreme Court and the Constitution. In this episode, he explains the history of how the Supreme Court became a political institution—and how we may turn it around.

Transcript:

Paul Rand: The Supreme Court is arguably more politicized than any other time in US history.

Geoffrey Stone: You know, I spent my entire career studying constitutional law, whether it was conservative justices or liberal justices. What we have now is something that is completely illegitimate.

Paul Rand: That’s Geoffrey Stone. He’s a professor at the University of Chicago Law School, and he's spent his career studying the court and the constitution.

Geoffrey Stone: What's happened over the last half century is that Republican presidents have used their appointment power to the court to manipulate the court in a very extreme political direction.

Paul Rand: With the expected confirmation of Judge Amy Coney Barrett, President Trump will have appointed three justices in less than four years… and the American public has come to see the bench as divided by “left” and “right.”

Geoffrey Stone: Are these individuals judges? Or are they politicians? And I do think this is deeply troublesome.

From the University of Chicago, this is Big Brains, a podcast about the pioneering research and pivotal breakthroughs reshaping our world. On this episode, partisan politics and the Supreme Court. I’m your host Paul Rand.

Paul Rand: The Supreme Court is one of the most revered institutions in American life, and its history goes all the way back to the birth of our country. In order to understand how we should think about the court today, we should probably take a minute to go back to the beginning and ask, is the court we see today what the framers had in mind?

Geoffrey Stone: I think the ideal that the Framers had for the court was that it would not be politicized. To me the most dramatic concern about the current Supreme Court is that the justices are divided based on the political party who appointed them and that is essentially unprecedented. There would be what we would think of as liberal or conservative justices, but the notion that they would correlate with particular political parties and that one could predict how they would vote based upon the president and the party of the president who appointed them is totally unnerving. And we’ve gotten to that point today, and it seriously raises questions about what the court is.

Paul Rand: When do you think that transition really began happening?

Geoffrey Stone: Well, I’d say in the modern era, at least, it started with Richard Nixon.

Nixon Tape: I believe, as I'm sure all Americans do, that the Supreme Court should, in the broadest sense, be representative of the entire nation. But with only nine seats to fill, obviously every group in the country can not be represented on the Court.

Geoffrey Stone: Nixon when he took office had four appointments to the court in only two years and he made a big deal over the Supreme Court in his campaign in 1968.

Nixon Tape: During a four year term, the President of the United States makes over 3,000 major appointments to various government positions. By far, the most important appointments he makes are those to the Supreme Court of the United States.

Geoffrey Stone: And so he clearly sought an ideological commitment on the part of his nominees and so people like Warren Berger, and Harry Blackmun and Louis Powell, and William Rehnquist were all appointed with a very clear sense of what their hope for ideology would be.

Nixon Tape: In the debate over the confirmation of the two individuals I have selected, I would imagine that it may be charged that they are conservatives. This is true.

Geoffrey Stone: Having said that, I want to be clear that the idea of a conservative justice in the minds of a Richard Nixon or in the state of the world at that time was remotely different from anything we would imagine today. The justices who were thought of as conservative in that world would today be regarded as probably moderate liberals. With Reagan, he began moving towards appointments like Scalia.

Scalia Tape: If I make a contribution I hope it will be in recalling the Court to the manner of Constitutional interpretation that used to be orthodoxy which is, what did the Constitution mean when it was adopted.

Geoffrey Stone: And tried to appoint Bork.

Bork Tape: The judge's responsibility is to discern how the Framer's values, defined in the context of the world they knew, apply in the world we know.

Geoffrey Stone: So it began with Bork and Scalia as nominees, and it's gone off the deep end since then. What’s happened over the last basically half century, but particularly the last 40 years, is that Republican presidents led by the Federalist Society have used their appointment power to the court to manipulate the court in a very extreme political direction that is completely inconsistent with the general views in our nation of lawyers and judges. They are more conservative than any justice to serve on the Supreme Court, except Antonin Scalia, in the last close to 100 years—and now we will have six of them.

Paul Rand: Now you mentioned the Federalist Society of which Amy Coney Barrett was handpicked from, it’s almost as if it has been a judge grooming machine for the conservatives.

Geoffrey Stone: Yes. I think that’s a fair characterization.

News Tape: The Federalist Society, that's a group of conservative lawyers who want judges to interpret the law as it was written.

Geoffrey Stone: The Federalist Society was created by Robert Bork and Antonin Scalia when they were professors at Yale and at Chicago. Their concern was an intellectual one. Over time what happened was the Federalist Society became distorted, in my view, from being an honest, legitimate, intellectual enterprise to being a partisan political body who saw its mission as essentially distorting the Supreme Court as an institution. I mean, they went from being an ideological intellectual academic entity to being, as you put it, a judge picking machine

Scalia Tape: We thought we were just planting a wildflower among the weeds of academic liberalism, and it turned out to be an oak.

Geoffrey Stone: What the Federalist Society does is to identify individual lawyers, either in practice, or in government, or even law students for that matter and in the legal academic profession who have endorsed in a variety of ways, their extreme judicial philosophy. And what they do is cultivate those individuals, promote them by giving them opportunities for career paths working in Republican administrations, working in law firms, where they have certain visibility and power and ultimately get them appointed to the federal courts when they can, and then from there ultimately to the Supreme Court of the United States.

Geoffrey Stone: And it’s a very conscious effort to do that. And you see it even, I’m sad to say, even in law schools because Federalist conservative judges will hire only law clerks who were members of the Federalist Society in law school. This is a sort of cultivation process, which is in my view completely inappropriate. Judges should not be acting as agents of the Federalist Society, but that’s what they’re doing right now, which never existed before.

Paul Rand: Back in 2011, you wrote: “The judges purporting to engage in originalist analysis, often project onto the Framers their own personal and political preferences.” Talk about that in relation to Amy Coney Barrett who calls herself an originalist?

Geoffrey Stone: Well, the notion of originalism, if honestly pursued, would have the supposed virtue of constraining the judge to being essentially a bit of an amateur historian and linguist, and trying to figure out what people meant when they said no state shall deny any person the equal protection of the laws, or no person shall deny any person, life, liberty, or property without due process of law, or the Congress should make no law abridging the freedom of speech or of the press. The truth is these are very, open-ended vague provisions of our constitution. The originalist mission is to basically purport to figure out what the Framers themselves understood by those terms and then simply neutrally and objectively apply what the Framers understood to the constitution and to apply it exactly the way they would have applied it themselves.

Geoffrey Stone: The problem with that is several-fold: First and most obviously, the Framers themselves were not originalist. They did not believe that those provisions of the constitution that I just quoted and many others besides should be construed precisely the way they understood them. They were persons of the enlightenment. They understood that knowledge changes, that our understanding of right and wrong and good and evil changes over time and that they were putting into the constitution these open-ended provisions that were not meant to be limited to any particular meaning that they themselves might have adopted at the time. They were principles that could evolve. That’s what they understood. Originalism is inconsistent with originalism.

Geoffrey Stone: The second problem though, is that those justices who purport to be originalists, do not in fact act as originalists when being originalist is inconsistent with their political values. A true originalist would not say that affirmative action is unconstitutional. There’s no reason to believe that the Framers of the equal protection clause of the 14th amendment had any view whatsoever about affirmative action. It was not an issue they thought about for a minute.

Geoffrey Stone: And to say that that affirmative action violates the equal protection clause might be right under some principle about what equal protection should mean, but it has nothing to do with originalism it’s directly incompatible with originalism. Or to say the campaign finance regulation violates the first amendment is completely incompatible with any principled approach to originalism. There’s nothing about the original meaning of the first amendment that tells us anything about campaign finance regulation in the world we live in today. A true originalist if they were going to be an originalist, should probably say the first amendment does not constrain laws that restrict campaign finance expenditures. The first amendment has nothing to do with that from an original meaning purpose, but justices who purport to be originalists find the campaign finance laws unconstitutional. And over and over again, when an honest approach to originalism is incompatible with conservative political values, the justices who purport to be originalist completely disregard any meaningful approach to originalism. So A, it’s a bad theory and B, they don’t apply it.

Paul Rand: Well, you know what? It’s interesting, and as you talk about it, quote unquote, it’s being a sham. You look at Lindsey Graham who opened the hearings and basically ended up saying, you’re really, unless something goes terribly off the rails today, this is preordained. That no matter what gets asked of Amy Coney Barrett, Republicans will vote for her, Democrats will vote against her, and that will be that. And so the question really becomes how do you fix this?

Geoffrey Stone: Well, how do you fix this is a serious and concerning question. One of the issues about Amy Coney Barrett, which is important to, I think, recognize is that I think the primary reason for the stakes being seen as so high in this instance is what the Republicans did to Barack Obama’s nomination of Merrick Garland.

Mitch McConnell Tape: Look to history, we haven't filled a vacancy created in a Presidential election year in eighty years. You'd have to go back to 1888, Grover Cleveland.

Geoffrey Stone: They should have confirmed Merrick Garland, which should have been easy.

Paul Rand: Eight months or whatever it was out.

Geoffrey Stone: And a moderate liberal who was 64 years old. Had he been confirmed, we would not be having this discussion about Amy Coney Barrett.

Geoffrey Stone: I do believe that it’s important to recognize that. It’s not about her as such.

Geoffrey Stone: It’s about what the Republicans have done in these two instances back to back.

Lindsay Graham: I want you to use my words against me, if there's a Republican President in 2016 and a vacancy occurs in the last year of the first term you can say Lindsay Graham said lets let the next President whoever it might be make that nomination.

Geoffrey Stone: This would not have been essentially the double play that we’re seeing. The totally unprincipled and power grabbing effort to act in a completely inconsistent way, with on the one hand refusing to confirm Garland, and the other hand jamming this through at the last minute. So I think part of what we’re seeing is this utter violation of the norms of our nation, of our Senate, of our democracy by Mitch McConnell and the Senate. And that’s what I think has made the stakes so completely high here and made the matter so inflammatory.

Geoffrey Stone: What I would like to see is the members of Congress capable of sitting down together and recognizing that we have undermined the credibility of an essential component of our democratic government, and that we need to figure out how to fix that. One of the ways people have talked about this is to have term limits and to basically say starting at a certain point each president will have two nominees during a term, and each justice will serve only for 18 years. That both limits the time that justices can serve and I think that if one steps back and says, what’s in the best interest of our nation, how do we get back to a Supreme Court that is not partisan, politicized, divided in a way that completely undermines its credibility?

Geoffrey Stone: We have to figure out a way to do that. And what I would like to see happen is members of Congress sit down and say, we’ve got to fix our democracy. It’s not about winning as the Democrats, it’s not about winning as a Republican. It’s about fixing our democracy. That’s what comes first, that’s what’s most important. This is broken in a fundamental way. And I do believe that they’re capable of doing it. I do believe as individuals. I mean, I know not a large percentage, but I know a number of Republican senators and they’re perfectly capable of doing this. The question is they have to have the integrity and the will to do it. And this is a moment in our nation’s history when we have to step up and do the right thing, and the right thing is not about liberals or conservatives. It’s about bringing back integrity, independence, and non-politicization to the Supreme Court of the United States.

(Break)

Paul Rand: Back in 2006, Amy Coney Barrett gave a speech to graduates at Notre Dame Law School. In that speech, she said that these young people should see their legal careers "as but a means to an end... and that end is building the Kingdom of God." Barrett believes life begins at conception, and her judicial opinions point to an expanded role for religion in public life. And yet when Democratic Senator Dianne Feinstein raised this point when Barrett was nominated to be a federal judge in 2017, it was widely seen as backfiring.

Dianne Feinstein Tape: The conclusion one draws is that the dogma lives loudly within you. That's of concern.

Geoffrey Stone: It’s an extremely difficult question. I served as a law clerk with Justice William Brennan when Roe v. Wade was decided, and Brennan was the only Catholic justice at the time and he was also a quote liberal justice. And I saw him struggle to reconcile his religious beliefs about abortion with his understanding of the Constitution, and ultimately come out as a supporter of Roe v. Wade. And I think that we all have to recognize that we have parts of our intellectual, emotional, religious, ideological understandings that should not play a role in our professional capacities, and abortion and religion is a particularly difficult one. Although I don’t happen to share those views, I respect the fact that they feel them, but that should not be, if that’s the religious belief you have, that should not be the reason why you interpret the Constitution a particular way.

Geoffrey Stone: Asking Barrett about this is extremely awkward. It’s extremely divisive. It will alienate lots of people who will say, “How dare you?” But in the real world, it’s a question someone like Barrett truly has to examine, the way justice Brennan did. And they should not decide a case like this because of their religious views that is incompatible with our Constitution.

Paul Rand: So what is the concern about Barrett getting onto the court with the Affordable Care Act and what are the concerns about her coming on versus Roe V. Wade?

Geoffrey Stone: Well, with the Affordable Care Act, I think that the concern is that Barrett has made pretty clear that she believes the Affordable Care Act should be held unconstitutional and should have been held unconstitutional in the prior decision. So I think given the fact that the current makeup of the court is what it is, there’s every reason to believe that with her on the court there will be five justices to strike down the act. And the effect on millions, 20,000,000 Americans, of their health coverage at a time of COVID is just utterly shocking, but there’s just no reason to believe that she would not vote that way.

Geoffrey Stone: And also she has an extraordinarily strong position against precedent. How far one goes in upholding precedent is always a complicated question and obviously justices do overrule precedent, but on the other hand to have a legal system that is stable and predictable, judges do give a high degree of deference in general to precedents. But Amy Coney Barrett has written extensively about the fact that she believes that precedent has been given too much weight and that the responsibility of the judges and justices is to reach what they believe to be the right result, not to follow precedent.

Paul Rand: Let’s apply the same questioning to Roe v. Wade.

Geoffrey Stone: So with Roe v. Wade, again, we know that there are five justices on the current Supreme Court who would not have voted for Roe v. Wade. and the same is absolutely true of Amy Coney Barrett. So the question now is one of precedent and here it’s also clear that these justices, including Barrett, regard Roe v. Wade not only as wrong, but as a truly evil decision. And with Roberts on the court, they could have overruled Roe and they’ve held away from doing that thus far. Probably they will take a bit of time. Probably they will hand down decisions that give states enormous power to restrict abortion, but without quite explicitly overruling Roe v. Wade, because they know how inflammatory and political that will appear to be. But I have very little doubt that they will effectively give states the ability to regulate abortion to the point of one inch from prohibition and the practical effect of that will be to overrule Roe v. Wade. And then they will do it eventually, probably within two or three years, and in my view, that is utterly tragic for our nation.

Paul Rand: And I hate to date this podcast, but let me ask a timely question: Do you think there’s any way she won’t be confirmed?

Geoffrey Stone: I think it’s highly unlikely. I think the Republicans have made up their minds that they are going to do whatever it is that Donald Trump tells them to do, and that to me is one of the great disappointments of this era. The fact that Republican senators are prepared to do what they know is wrong, because a lot of them are not terrible people, but for whatever set of reasons they have decided to collapse their integrity and to do what they know is wrong.

Paul Rand: That goes well beyond, of course, the court selection.

Geoffrey Stone: Yes, absolutely.

Paul Rand: There’s a few criticized points that are coming up both with the Biden and Harris. They have refused to publicly take a position on court packing. And I wonder if you can talk a little bit about what is your prediction on what we may be in for should we end up getting a Biden presidency?

Geoffrey Stone: Ordinarily, I would say it is a bad idea. Ordinarily, I would say we should respect the norms of our traditions and having nine justices is something we’ve had now for well over 150 years, and we should leave it that way.

Geoffrey Stone: But there are two arguments to be made now. One is that the current makeup of the court is so distorted in terms of American legal thought that because the Federalist Society, and Republican presidents, and Republican senators have used every measure at their disposal to distort the makeup of the court. That we now have this insane situation of six extreme, right-wing justices who do not represent the legal system, who do not represent the traditions and history of our legal practice and of our constitution that, that’s a distortion that we cannot tolerate.

Geoffrey Stone: Refusing to confirm Merrick Garland, giving totally dishonest justifications, and then turning around and reversing all of those policies in order to get Barrett confirmed we have a situation where we have a makeup of the court that has been the product of utter corruption. And that is true. And the question Is, what do you do given those two arguments?

Geoffrey Stone: The downside of quote, court packing, is that it legitimates something which is normally highly inappropriate. We don’t want majorities when they get control of the House, the Senate, and the White House to suddenly screw around with the makeup and the Supreme Court and the size of the Supreme Court so they can impose their majority. That again, undermines completely the credibility of the court as an institution. So we have at the moment a serious dilemma. My own view is that I hate the thought of doing this, but I also recognize that we are the victims now of completely, and I do believe this absolutely, of completely illegitimate and corrupt actions on the part of Mitch McConnell and the Republicans. And the question is what’s the solution to that?

Geoffrey Stone: So my view is this, had Merrick Garland been confirmed, there would have been five quote, liberal justices on the court and four conservative justices. Then when Ruth Bader Ginsburg passed, Donald Trump could have appointed a justice, had Merrick Garland been confirmed, in a principled way, and there would then be five Republicans and four Democrats instead of six, three. So my view is that, what I would like to do is go back to what the world should have been, but there’s no way to go back to five, four, but it shouldn’t be six, three. So probably the right thing to do is to make it six, five and add two more Democrat nominated justices is to make it six to five, rather than six to three.