Advisory Opinions - How to Fix Congress | Interview: Rep. Jake Auchincloss

Episode Date: August 27, 2026

Sarah Isgur and David French invite real life Rep. Jake Auchincloss of Massachusetts to discuss how to reform Congress, explain multi-member districting, and wtalk about hether the Supreme Court needs more justices. But first, forging Justice John Robert’s signature and fake arresting teenagers.  The Agenda: –Bad criming –Even if a judge is in judges robes, they’re not always a judge –All the headlines are wrong (except ours) –Who wrote the Per Curiam?  –Reforms to the Supreme Court –Are your kids violent? Order Sarah’s book here. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isgar. That's David French. We are going to break down that 6-3 interim docket decision on Trump's mail-in ballot executive order. Headlines raging. Twitter?

Got it right instead? It's hard to say. Unthinkable, but possible. Unbelievable. And then we will talk to. an actual congressman about why Congress isn't doing its job and how they view the Supreme Court and sort of the separation of powers battle that's going on. Is the Supreme Court, in his view, trying to give power back to Congress or is it trying to aggrandize its own branch? All this and more

on advisory opinions. Two and five Canadians will hear the words you have cancer. That's why every step and dollar raised matters. On September 19th, join thousands in Toronto for the Princess Margaret Cancer Foundation Walk. Challenge yourself, friends, and family to walk 21 kilometers in support of life-saving research.

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Oh, and David. Before we go any further, registration is officially open for the Scotus Blog Summit 2026 term preview happening September 16th. at the Johns Hopkins University Bloomberg Center in Washington, D.C., programming will include a keynote address featuring Senator Dick Durbin from Illinois and Congressman Darrell Issa from California, a live taping of the Advisory Opinions podcast with special guests,

and a fireside chat with Cooley partner and former Solicitor General Elizabeth Preliger, a panel featuring Chief Legal Officer of Boeing, Brett Gary, General Counsel of TD, Bank Brian Callananan and General Counsel of ExxonMobil Jeff Taylor, as well as a post-event reception for all attendees, and so much more. Seating is limited, so if you'd like to join us in the room, head to scotusblog.com slash summit to request your spot. We'll follow up with confirmation as we finalize the room. Special thanks to our presenting sponsor, Cooley, for making this event possible,

with additional support from Latham and Watkins, Williams, and Connolly, while Gottschall and Manjee's Pacific Legal Foundation, DRC litigation strategies, Davis-Poke, and Molo Lampkin. Hey, David, before we dive into the real news of the day, the Supreme Court staying the injunction on Donald Trump's executive order on mail-in ballots, I did want to read to you count five of an indictment in Indiana. The defendant. Wait, this is just a random indictment. Sarah. Yes, it is. Okay, okay. Count five, random indictment in Indiana. All right. What kind of podcast do you think this is? Yes, that's exactly what I'm about to read to you. Okay, okay. The defendant, Joshua M. Culver, aka Maverick A. Young,

knowingly concurred in using a forged and counterfeited signature of a judge of the United States, namely Chief Justice John G. Roberts, Jr., and forged and counterfeited seal of a court of the United States, namely the United States Supreme Court, both of which defendant knew to be forged and counterfeited, for the purpose of authenticating a document titled Order of Dismissal with Prejudice, which Culver filed in a case then pending against him in the Superior Court for Grant County, Indiana. We give a lot of advice to would-be criminals out there on how to better crime. And here's our advice today. if you are trying to get your criminal case dismissed,

sending a letter from the chief justice with an order of dismissal is going to raise red flags. It will not get your case dismissed. They will have questions. A lot of questions, actually. So, wait, as I understand that, Sarah, what you are telling me is that this individual created a fake dismissal order

from the Supreme Court of the United States signed by John Roberts and send it to a local state court in Indiana and purported to pass it off as the real thing. Yeah, look, I'm giving some points for creativity and cleverness. You know, he hasn't taken fed courts. I get that. But like now we can use this to teach others who are looking to crime better, you know? Yeah, that's bold.

to quote, what was the movie Dodgeball, bold move there, cotton. Yeah. All right. I'm glad we can perform public services. That's what I do here is how to help people get away with crimes. So can I see your indictment count five and raise you the opening paragraphs of a Sixth Circuit opinion?

Please. Okay. This appeal arises from an encounter. between 15-year-old ELG and Kenneth J. King, a Michigan District Court judge during a vocational program for teenagers that took place in his courtroom. While Judge King was informing students in the program about his career as a lawyer, ELG fell asleep. The offended Judge King, this offended Judge King, so he devised a plan to, quote, scare her straight. Elg was placed in handcuffs, forced to wear a prison jumpsuit and locked in a detention cell for several hours.

Later in the day, Judge King put ELG on a mock trial before the other students in the program, which was streamed on the court's YouTube channel. The record does not reflect how the mock trial ended, but ELG was apparently permitted to go home without further incident. As ELG's mother acting on her daughter's behalf filed suit, alleging that Judge King's conduct violate EDLG's Fourth Amendment rights and constituted various torts under Michigan law. Judge King moved to dismiss on the basis that his alleged conduct is shielded by judicial immunity. The district court denied the judge's motion and he has filed

at interlocutory appeal. Sixth Circuit affirmed that one. Unanimously. No judicial immunity. While you can be in your courtroom, you are not always acting as a judge while in your courtroom. and this will now be the paradigmatic example of someone in their courtroom wearing a robe, not acting as a judge. Who thinks that's a good idea? Like, wow. I mean, you know, I was sort of struck reading that

that like 30 years ago, this wouldn't have been a lawsuit. Like this is sort of like, you know, kids getting whacked at school with rulers. Like maybe now we're like, kind of maybe not a great idea. But like at one point, this would have been very, I mean, not very normal like this,

but like the idea of being able to publicly humiliate a student and not think that they sort of have the full rights of, you know, humans, I don't think would have struck anyone is strange in, I don't know, let's call it 1975. I mean, I do think there is something to that, Sarah. I am old enough to remember when I would be. sitting in basketball practice and a student stopped paying attention to the coach and he whizzed a basketball at his head as hard as hard as he could throw it, wouldn't have crossed a parent's mind

that that was inappropriate because they had been physically brutalized when they were kids. But yeah, I think being held in the detention center for a while as opposed to, I mean, even the fake handcuffs for maybe a moment wouldn't have generated the, the same response, but the... They weren't fake, by the way. They wore real handcuffs, and they told her to strip down to put on the prison suit.

To her credit, she refused. She took off her hoodie and was like, I'm not taking off any more of my clothes to put this on. And they were like, oh, okay, you can put it on over your clothes. Yeah, by fake handcuffs, I mean, sort of fake arresting, but it was actually more like real arresting. Yeah.

I mean, that's the lawsuit, right? False imprisonment. Like, she was not free to go. Pretty on the nose. Yeah. So, okay, the Supreme Court, we have an interim docket decision here. This was six, three along ideological lines, but David, nearly every headline about this is either flat wrong or wildly misleading.

And like the death of Dolly Parton, this has brought together folks from across the ideological spectrum to say that these headlines are false. and or really misleading, including the lawyer who represented the states, who lost this? He's like, guys, guys, guys, don't, don't worry. There is a 9-0 agreement that this isn't on the merits of Donald Trump's executive order on mail-in ballots. Okay, let me break this down, just like some refresher on what the executive order was. There were three relevant parts to it. one directs the Secretary of Homeland Security to create and send state citizenship lists to each state.

That's it. Like just create the list, send it to the states. The states can set it on fire if they'd like, whatever. Number two, requires the Attorney General to prioritize the investigation and as appropriate the prosecution of state and local officials or any others who issue federal ballots to ineligible voters. That's pretty like core normal stuff for a president to do. President Obama, of course, directs DOJ to focus on white-collar crime after 2008. President Trump in 2017 says focus on gun crimes.

So nothing really unusual. Again, core sort of executive, inter-executive branch stuff there. Okay, but now we get to number three. directs the Postal Service to initiate a proposed rulemaking that includes several proposed provisions. One such provision is that outbound ballot envelopes must contain a unique barcode to facilitate tracking. But the order does not require, for instance, that that proposal be in the final rule. And at the time of the lawsuit, there was no final rule. This is a lawsuit on only the executive order, which directs the Postal Service to create a final rule.

That's all. Okay. This is a six three decision saying that based on those three pieces of the executive order, the states were not yet harmed by any of that. Because creating citizenship lists in DHS doesn't affect the states at all, doesn't demand they do anything, nothing. That is inter-executive branch. Two, directing DOJ to prosecute whatever. Nope, doesn't affect the states, inter-executive branch. And three, directing the postal service to create a final rule still doesn't affect the states.

The final rule might affect the states, but the six are saying all of that is really like hypotheticals built on hype. Like you're asking us to assume what the proposed rule will be. It may well be totally unlawful, but that's not before us right now. So you're going to have to refile your lawsuit. So the three justices, it was Kagan and Sotomayor in one dissent and Jackson and another dissent, their point was like, I've seen enough. Like, come on. Right, right. Like, what are we doing here?

Everybody knows. There is no version of this final rule that's going to be lawful so we can reach the merits. But again, nine justices agree that they did not reach the merits. Right. This was a timing question. And that basically what the court has said, separate from this executive order, which I think is actually kind of important

for, again, future administrations, like the next Democratic administration, you, a state who is, you know, a red state suing a blue president, or in this case, blue state suing a red president, an executive order by itself will not be enough to get you into court because you have not suffered an injury

by nature of just an executive order, you know, directing executive branch things. there has to actually be a thing, in this case, the final rule, or something concrete that could affect the states. A Baukertown executive order does not confer standing. Now, there is a final rule that was promulgated that I believe was finally issued the same day the ruling came out. I think it'll be published in the Federal Register as early as this week or maybe even today, Sarah. So there's going to be more proceedings without. question. There's going to be more proceedings. But this case was, you know, it's an interesting

example of the phenomenon that we've talked about quite a bit, which is there are a lot of injunctions out there. And the Solicitor General's office doesn't appeal all of them to the Supreme Court. It doesn't. So which massively distorts your win-loss record, just massively. It's sort of like saying that you have a huge winning streak when you've lost nine out of 10 cases, but in the one that you win, you actually pursued all of the appeals, not in the other nine. Oh, and in the one that you win, it's basically just jurisdictional and actually nothing on the merits. Right. Which, by the way, may well be the ballroom case as well as we expect.

We expect the Trump administration to win their interim docket application at the Supreme. Court on standing. Yeah. I mean, ow my eyes standing doesn't, isn't going to have, I don't think it's going to have a great deal of success at the current court. But yeah, this is, this was. Wait, did you call it ow my eyes? Yes. Ow, my eyes. Ow my eyes. That is so ugly. Let me go to court. Al my eyes standing. You just said it's so fast like it was a doctrine that we all like learned one oh. I mean, how my eye standing. Blah, blah, blah. Out of my eyes.

Yeah, absolutely. Got it. So this is where very fast reads of cases, often undertaken with very little or very little understanding of sort of the deep background, can lead to extremely misleading early reporting and early headlines. And that is what occurred. And, you know, actually, I'm going to give Twitter credit, which I never do.

Never, ever do. Twitter got this one right, man. Twitter got this right. I mean, as you were saying, left and right, we were popping back in our Slack channel, back and forth to each other, all the people who were saying, slow your role.

Like, slow your role, MAGA, this isn't a great big victory and slow your role resistance because this isn't a big defeat. It was reporters, it was advocates. Like, everyone except the headline writers at major outlets was in violent agreement about this one.

It was kind of a lovely, As I said, it was a lovely moment. It brought everyone together. It did. It did. And then of course, the second thing that has warmed my heart about Twitter is, oh my gosh, I literally was staying up way too late last night looking at all the Dolly Parton tributes. It's been lovely. I know. I'm here in Nashville and the news hit here like an atom bomb. I mean, just because nobody knew she was sick. Well, and 80's kind of young these days. Yeah. I mean, you're not used to 80-year-old. You're used to hearing, oh so-and-so is very ill and it's just kind of out of nowhere and just the emotional response I mean my own emotional response kind of took me off guard like I was like no you know she's

it was almost like she's too loved like we had we didn't get a chance to say goodbye you know and and so Twitter was just full of Dolly Parton interview clips, Dolly Parton song clips. I mean, for the first time in my life, I learned that Dolly Parton had a killer rendition of stairway to heaven. Yep, I watched that one. Everybody watched that one. So for about 36 hours, Twitter wasn't all bad, Sarah, just newsflash. Supreme Court, Dolly Parton, everyone coming together for one brief moment. Tomorrow we will go back to the hellscape.

David, I was curious. The majority from the court, the six justices, it was a per curiam, which means we don't know who wrote it. But this was written a little bit differently than many per curiums that we see. Let me read you a piece of it. The true, quote, source of any injury, end quote, to the states would be the downstream action that the secretary, quote, might take in the future, in quote, to implement part two. Emphasis on might. That's like a whole sentence.

There was another sentence. Because Part B defines eligible voters as otherwise qualified citizens who are 18 years of age or older, the states insist that they face a real threat of prosecution if they deliver a ballot to a 17-year-old who is eligible to vote in a primary under state law. Not so, period. The order requires to be implemented consistent with applicable law, blah, blah, blah. Given these provisions, the government has unsurprisingly disavowed any intention to prosecute state officials for law. lawfully providing ballots to 17-year-olds. Emphasis on might.

Not so. There's just a little bit more personality in this per curium than we have normally seen. So, David, I uploaded it to ChatGPT and was like, who do you think wrote this? It was kind of a test. Because I have a strong intuitionist who wrote it. ChatGPT said 80% Brett Kavanaugh, which is wrong. I was, I was, when you said that, I was, if people are watching, I'm like head cocking like a curious dog, wait, what? No way.

I am now going to work on creating like a little mini agent for like within chat to see if I can get it to be better at guessing who has written some of these PCs because I do find it really, really hard between the chief and Kavanaugh to guess who wrote it. Perret, sometimes I have an intuition. Mind you, I can never test this because I don't know who wrote them. But in this case, none of the three of those wrote it. This is so clearly a Gorsuch PC to me. Yeah. Emphasis on might. Yeah.

Yeah. When you said that, I thought, I went back and read it. I was like, yeah, I think so. I think so. That's an MMG special. Again, I don't actually know that. But my AI brain who looks for pattern recognition sees some telltale writing signs. So you want to hear something also interesting about ChatGPT?

Of course. Also, in a way related to what you just said, where it just seemed to read something and get it completely wrong. A number of readers have started a practice of sending me ChatGPT's analysis of my columns. So, in other words, asking AI to evaluate my columns. Oh, no. Yeah. So at first I was like, just put it in the trash. Like, I do not care.

But then I got a couple from different readers. It was not the same person just sending it. And I thought, I wonder if it's the same analysis from different readers. I bet it's not. It was not. Yeah. It was not. And what was interesting about it is, you know, I know, of course,

nothing about the other person's relationship with chat GPT, I quote, error quotes relationship, like how they have primed it with all of their prompts and how chat absorbs all of their content and all of that. But it really does make you wonder, is chats analysis warped to be sort of sycophanty to the user? Why are there two different analyses of the same, of the substance of the same column. Now, it could be slightly different prompts, but it seemed to be just tell me, tell me what you think about this in essence. I'm going to send you my prompt, and you're going to upload the opinion, and I want to see if it tells you 80% likelihood of BK. Yeah, please. Okay, I'm very interested. I'm just going to read the paragraph from Justice Sotomayor's dissent that Justice

Kagan joined. I think this is like good overall take. This is the first paragraph. Today's decision does not address whether the president's attempts to interfere with state's administration of the November 26 elections are lawful, nor does it suggest that the executive branch has any constitutional or statutory authority to implement the president's directives. Instead, today's decision merely postpones adjudication of those challenges. Nonetheless, because I believe the respondent states' challenges are justiciable. Now, I respectfully dissent. That's what everyone, that's we're agreeing on. Yeah. So David, some things on some big picture of things to note on the interim docket. We had 37 pages of writing here. Now, it took several weeks. Like I said,

in the last episode, we run the risk of having an interim docket for the interim docket for the merits docket because it takes time to write 37 pages. As we said, all the briefing was done, I think, July 27th. And today, I mean, we got it on August 25th. So nearly a full month to get those 37 pages written. And this is an election case. You know, this is sort of like, if there were an emergency, like elections are generally it. Ballots are about to go out in a bunch of states in like two weeks.

And it still takes a month to write 37 pages. So like if you want more writing on the interim docket, this is, I think, a very reasonable amount of time. that the justices took to get the writing out there. But, you know, again, if you're on the left, for instance, and a Fifth Circuit panel said that Texas's abortion law can go into effect, do you want them to take a month with that law in effect while they decide? No, you now want an interim before the interim. But they're not going to say what the reasoning was for that first interim decision.

And we, in fact, have seen this. So in the ballroom case, David, which again, the Chief Justice issued an administrative stay to give the court a little bit more time to write something, presumably, on the interim docket. Steve Lattuck over at his substack has said that they need to explain the administrative stay. I don't know what you guys want. Well, can I go a little bit more meta here? Because I really think the ballroom case and the speed of which these two things have come sort of back to back are almost perfectly illustrative of why it is a deep flaw in the system or the system, the judicial system is really not well equipped to handle fast moving political disputes. It's just not. It is designed for length and deliberation.

It is designed for testing and retesting and ultimately re-retesting at the Supreme Court. The court system, except in very extraordinary circumstances, is not the place you go for a very speedy resolution of what are ultimately kind of contests of power between the states, between the different branches of government. it's not that the Supreme Court has nothing to say on that. The Supreme Court often has dispositive things to say on that.

It does not, however, it is not a very good vehicle for adjudicating cases that are deeply wrapped in contemporary politics. That is the forum that is in many ways least well designed to facilitate rapid resolution of contemporary political. disputes. It is much more a place designed for contemplation, for testing, for retesting, as I said. And so what is happening because of sort of the dysfunctional reality in the political branches is that we're now pouring almost everything into the judiciary and politics are often demanding that it be done in a way that is frankly too speedy. So for example, if you're Blue State Attorney General and your entire base is like, what are you doing to fight the executive order? And you turn around to them and say, well, I'm not doing anything yet because we haven't had

this promulgation of a final rule. There's only a promised final rule. We don't have an actual final rule. You've already lost your entire base. They're going blah, blah, blah, blah, do something. Right. And so you have this enormous pressure to move very immediately, very quickly for political reasons, which then puts the courts in a position where they're looking at cases that might be premature or where the standing is iffy. So you're not even setting up the case quite right because the political pressure to, quote, quote, do something is aimed at the court system because a lot of people just throw their hands up at the political system and say, that's not even worth trying, not even worth trying. And, you know, look, we're going to have a

conversation here in a minute in the podcast. It illustrates some of the reasons why people think politics, especially in Congress or normal politics, are not worth trying. But that's where we are. The political pressure causes legal mistakes. The legal mistakes engender loss of confidence in the judiciary or put the judiciary in a very difficult procedural posture, which then creates the sense that the judiciary is politicized when in fact they're just looking at cases that are in weird procedural postures and sort of trying to figure the whole thing out. It's a mess, Sarah. It's really a mess. And I think these two cases sort of back to back really illustrate the extent of that mess. All right, David, well, that was a wonderful segue, because after this break, we are

going to talk to Congressman Jake Oshon Klaus. He has represented the Massachusetts fourth, a fight and forth for three terms now. And why are we talking to him? I mean, interesting background, right? He went to Harvard College and then joined the Marine Corps, served in Afghanistan in an infantry position, special operations in Panama. But David, he's liberal.

He's like, you know, he is a Democrat. Massachusetts Democrat even, Sarah, Massachusetts Democrat, yeah. Massachusetts Democrat. That's right. And he really is. But he's so thoughtful about wanting to understand others' positions, be understood, find ways to make the system work again. He has a really deep abiding love for the Constitution and for separation of powers and for the branch that is Congress. And I just thought, what better person to yell at about Congress doing its jobs than a thoughtful city.

Congress then. And also, I will note, now I want to stand in for our millions of faithful and loyal liberal readers who say it's not he's liberal, but he's thoughtful. It's liberal and he's thoughtful. No, I meant more like he's partisan, but thoughtful. Not that he's liberal. Like it, it's not the liberal part. It's the partisan part. Yeah, exactly. He is a hardcore partisan Democrat. Yeah. Yeah. And he was my ally in the Graham Platner Wars. He was out. He was out. He was, You know, and I do think that's actually important to say because we have this partisan team sport thing going on where, you know, Graham Platner was the presumptive nominee for the Democrats who was under fire. And a lot of pressure to circle the wagons there, huge pressure to circle the wagons.

And he said no. He took a lot of crap for it from his side too. Ton of crap. I mean, ton of crap for it. But he was steadfast and he was right. And so I've appreciated him for a long time. I'm, I really enjoyed the conversation. All right.

When we get back, a real live congressman we can scream at. Two and five Canadians will hear the words, you have cancer. That's why every step and dollar raised matters. On September 19th, join thousands in Toronto for the Princess Margaret Cancer Foundation walk. Challenge yourself, friends, and family to walk 21 kilometers in support of life-saving research. Together, we can carry the fire and help create a world for. free from the fear of cancer. Register today at pmcf walk.ca.com. Okay, Congressman, this is actually,

I think David, our first sitting member of Congress on advisory opinions? Oh, I think so. And it's one of my favorite episodes already, before you've even started, because we are the people who want to make you more powerful, Congressman. You should like us so much. But let's start by diagnosing the problem. This is very much a Congress do-your-job podcast. What is preventing Congress from doing its job, or do you reject the premise? I accept the premise. Congress is failing to live up to the founder's exhortations of it, which is they made it Article 1 because they believed it was the prime bulwark against tyranny, and they understood tyranny to take two forms. One was a tyrant, right, an out-of-control executive, which they had seen in King George III, we are seeing in Donald Trump.

The other, though, importantly, was the mob, was the sense of what they would have called the mobocracy and Congress falling whim to demagoguery. And they viewed the House plus the Senate as the bulwark, the prime bulwark against that. We are not doing our job in that regard. And there's a series of structural reasons why. I'll point to just a few, and then I hope we can dig in on other things that Congress can do. Number one, though, is the toxic brew of gerrymandering plus partisan primaries, because that has been a centrifugal force. It pulls members of Congress to their flanks, as opposed to driving them towards common ground.

And that makes it just much harder to do the kind of parliamentary consensus building that is the bread and butter of any legislature. And so Congress has made it harder and harder to adjudicate across the different factions of American life and into that vacuum has run the executive and the judicial branches. Number two has been social media. I think social media has just amplified a lot of the traits and dispositions that are contrary to, frankly, morally serious governance. And so that has been really detrimental to Congress. as a serious institution. And then I think the third one needs to be named is we got to do a better job in how we appoint our leadership in Congress.

Ultimately, personnel is policy, and we need term limits on our committee leadership. So can I ask about one other systemic issue? Please. What about the rules for leadership bringing issues to a vote? So, for example, you know, in the past, we've had something called, a Hastert rule, this sort of informal rule that says, if I'm a speaker, I'm not going to bring a matter to vote unless a majority of my party supports the measure. And I think a lot of people would be really surprised to know how difficult, if a Speaker of the House doesn't want something

to go to a vote, how difficult it is to force the matter, how hard it is if leadership is not with you to actually make anything happen in the House of Representatives. Yeah, I, I, I, I almost, David, would say that that problem is secondary to the more structural issues, though, is that I'm a big believer in regular order. I guess let me put it that way. Regular order, which for our listeners is the concept of how does a bill become a law? The way under regular order it becomes a law is the committee of jurisdiction consults stakeholders with request for information, draws in a lot of commentary, consults members on the committee, draws in a lot of commentary, works staff to staff on a first draft, then they do a markup,

and we amend and debate, and then you do a pass it out of the committee, and then it goes to the full floor. And my view is if you follow that general process of regular order, one, just you end up with better policy, but two, the kind of, the sort of conventions that you're describing become less operative because to actually create that bill, you had to work through the various interests at stake there. I don't have an issue in general with, though, with the speaker's ability to control what comes to the floor, actually.

In the House, I think that's actually an important part of majoritarian rule that is still consensus-based is you've got to have somebody who can be the air traffic controller for legislation coming to the floor. And the rules committee and the speaker doing that as important. Okay, so it feels to me like partisan gerrymandering is an 80-20 issue. Hell, it might be a 973 issue with the 3% already being in Congress. You guys could fix this with a bill, you know? Why is that being discussed?

Why isn't that a major campaign topic of like, hey, here's this bill, the ban partisan gerrymandering. Everyone's on board. Well, Democrats did try. I mean, we had HR1 in 2021, which would have, struck a major blow against partisan gerrymandering. Now, of course, we're dealing not just with partisan gerrymandering, but with race-based gerrymandering in the South. I would say, though, that I'm increasingly convinced that we have a deeper problem at stake than just the single-member

gerrymandering of districts. Because no matter how well we write the rules and how well-intentioned we are, I worry that the incentives and shenanigans at the state level are always going to outpace that. And for that reason, I'm increasingly sympathetic to the concept of multi-member districts, which make it much more challenging. And the Harvard Election Lab has done very good research on this, much more challenging to basically silence sizable minorities through cracking and packing. Okay, explain to our listeners how multi-member districting would work. So right now, it's single-member districts, which is not in the constitution. That's a determination made by Congress and the states, that there's 800,000 people in a congressional district, and if you get 50%

plus one on election day, you are the representative. And that could be if there's 49.9% who are Republicans and you're a Democrat, that's how it is. Multi-member districts, multiple people are running on the ballot, and multiple people are elected from that district. And it's in proportion to the vote that they get. And you can have a sort of a threshold of credibility, like you have to get above 15% to be considered, for example. But if you have 40% and 60%, the members from that district would reflect that. So the district might be 2 million people, but now it has three members. Potentially bigger districts. It doesn't necessarily have to be bigger districts that way, but yes. Oh, how do you, well, as long as we're talking reform ideas,

as a member of the house, Sarah and I have talked about and floated the possibility of expanding the house also as a means, because I could easily imagine you could have a situation where you, let's say, have the exact same number of congressional districts, but each district is now three members. So you both expand the house and you have multi-member districts. You would have a lot more ideological, political diversity coming from each state, but each member would be less powerful. How have you been, have you been tracking the expand the house debate? Do you think that's even something worth talking about? We're so pie in the sky that you're like, that's for podcast stuff.

That's not for real politics. Definitely worth talking about. And as you two obviously know, it's actually in the scope of American history relatively recent that we capped the size of that. I think what a hundred years ago or something like that? So the majority of American history, it was growing proportionate to population, right? And then we stopped that. So I think certainly willing to encompass that.

I think what I would be skeptical of, though, is a theory of the case that's simply increasing the number of representatives fixes things that is not married to a theory of the case about how do you change the incentives? At the end of the day, politicians are human beings. Human beings follow incentives. Look at the incentives. You'll see the behavior in the long run. You've got to have incentives that orient politicians towards the median voter in their district and that allow sizable minority viewpoints to be represented. Okay, let's talk now separation of powers. Let's talk about the other branches. I think we are in, you know, radical agreement about Article 2 being a problem. And I assume you would agree that Article 2 was a problem, you know, before Donald Trump came on the scene. The idea of the imperial presidency and rule by executive order and all of that predates, post-dates and everything in between Donald Trump. He maybe made it worse. There's not a maybe there actually, strike maybe. But, This isn't a person problem. This is now a structural problem that we have.

Yes. Okay. So we don't even really need to talk about that like we all know. But let's talk about the judiciary because I think there is disagreement and valid disagreement even over whether the judiciary is becoming too powerful, whether it is aggrandizing itself vis-a-vis Congress or are these opinions from especially the recent Supreme Court decisions trying to sort of jumpstart Congress. with the defibrillator paddles to do its job again by saying only Congress can decide student loan debt forgiveness, tariffs, eviction moratorium, vaccine, like, you know, you name it, balls in your court, asylum at the southern border, you know, all of these were statutory decisions. Is that the Supreme Court saying we're more important than Congress, or is that sort of trying to help you do your job? What's your take on that? I think both things can be true. I think it can be true that the Supreme

Court is telling Congress, hey, guys, do a better job here. I think Chevron's a good example of that. I actually thought Chevron was an important prod to Congress to write legislation more thoughtfully, for example. And it can be true that I think the Supreme Court is improperly expanding its imprimatur on American public life. And to me, the official immunity ruling and the independent agency rulings are the two examples of that that I found really the least defensible of, you know, You eyes are intruding in ways that I think the framers and I think, you know, jurists would think is really outside of your bounds. You know, I, when I'm thinking through this and I'm thinking about the Congress to do your job story, you know, we don't have to name any names. We don't have to cast dispersions on anyone.

But how, what do you feel is the consensus with your colleagues? Because I will say to you, and this is probably self-selection bias, every. congressman I've ever interacted with says we need to do more, every single one of them. But also, we've seen members of Congress really respond to the new attention economy. Yeah. You know, most famously, you know, Madison Cawthorne, former congressman said, I've got more comms people than I've got legislative people. How much, how content are your colleagues with the present state of affairs? Is there a critical mass that wants to expand congressional authority? Or has, a critical mass kind of accommodated themselves to the new reality?

Congress has been called the world's largest green room, and it's a legitimate criticism of people who are chasing an algorithm more than they're chasing policy. I do think there's a critical mass. Now, Congress operates generally for two reasons. One is a crisis and the other is leadership. The crisis is here with an out-of-control executive. The question is, will leadership emerge? Now, Mike Johnson is not that person. He's made clear that he's a lapdog of this president. But if we are able to elect a new leader in the next term, can that leader put together a bipartisan Article I agenda? I think the answer is yes. Does it pass in Donald Trump's lame duck term? Maybe not, but it could set the table to pass it

with the Democratic president in 2028 or going forward. I think it's really important that we act in the 120th. There's obviously a portfolio of things that Congress needs to do on taking back its power. We could talk about tariffs or Pasi-comitatis. I would choose three in this order, though. One would be war and peace, for sure. Number two would be appropriations in our power of the purse. And number three would be independent agencies and pairing the independent agencies with Chevron and how we respond to Chevron. Those three things, I think, would strike a major blow for Article I. So do you, do you sense in your colleagues? And this is a, I think this is, if I look back at the Biden administration, there were some things that I appreciated, some structural reforms, for example, the Electoral Count Act, which was a nightmare.

Yeah, grateful. That was a great reform. That was a great reform. I can think of others that would be excellent structural reforms that I think you can pass on a bipartisan basis. At the same time, you have a situation where, in many ways, a lot of people will say the rules of the game have changed, that this is now, what's good for the goose is good for the gander. as far as unlocking new levels of vengeance, unlocking the friend enemy distinction, punish your enemies.

If there's a new Democratic majority, which way Democratic Party? Is it going to be structural reform? Or is it going to be you're going to get what you gave us good and hard? Well, David, I don't think that question is truly salient in the 120th Congress. I think it's truly salient in 2028 if a Democratic president takes the White House. But let me respond to this. spirit of what you're asking. So in terms of the 120th Congress, right, next year, I don't want to

use the word vengeance, but I think there's going to be some brass knuckles put on with oversight and investigations. I think P. Heggseth should start saving his files. I think R.A. Jr. needs to get ready. So absolutely, we got to hit hard. This is the NFL, and we're putting on pads. And I think it's true that in 29, if there's a Democratic president, I would not advise my party to let the pendulum swing hard the other direction where we say, now it's our president

and now we're going to run roughshod over the rule of law to get things that we think are good for the country. The paradigm here that we need to adopt, and I'm going to nerd out with you two because I know you two are here for it, is we've got to think, in terms of the structural reforms, we're Whigs. You know, we're dealing with Andrew Jackson,

Jackson. Singing Sarah's song right there. You're singing Sarah's song. My Twitter handle is Wig Newton's. It's legislative primacy. It's rule of law. It's individual rights. It is decentralization, which is not something you often hear Democrats talk about, right? Decentralization is one of the core pillars of the American experiment. And I think Democrats can be the party that says, hey, there's a reason mayors are the most trusted elected officials in the country. It's because actually people want to see them get stuff done and we should empower them to do it. Are we seeing an actual political realignment right now? Because I thought we were, you know, in like 2018 to 22-ish, where we were seeing something like perhaps the emergence of the Democrats and a version of the

Democratic Party morphing into a Whig Party and the Republican Party, again, with new voters morphing into something, you know, the New Deal coalition meets populism with Teddy Roosevelt or something. But here we are in 2026. And I guess, while yes, I think voters realligned, I feel like the two parties aren't realigning themselves. And I'll give you one example from the Republican side that has then been, you know, followed by other states. But the Texas redistricting battle, where they redraw these five districts in a way, where because they have new voters, they almost certainly are going to lose some of those districts that they thought were creating for the purpose of gerrymandering because they didn't understand they had new voter so they weren't really

changing their own vision of their party. And now I feel like the Democratic Party isn't taking an opportunity to reimagine itself because we're not in 1850 anymore. And so there are professional activists, professional outside groups. I know you guys call them the groups and a whole lot of entrenched interests for the Democratic Party to be the Democratic Party and not evolve? I don't want to over extrapolate from individual races. I think that's a danger that the political class can make. I think overall we are realigning. And I think of that sort of the addressable electorate for that realignment. I'm from Massachusetts. I represent Massachusetts. I'll use a Massachusetts example is the kinds of voters who very happily voted for Charlie Baker, a Republican

for governor, left office as the most popular politician, arguably in America. Right. Republican in Massachusetts, right? The kinds of voters who voted for him for governor, twice happily, and voted for Elizabeth Warren for Senate twice happily. There's a lot of those voters in the Bay State. And those voters, I think, are the kinds of voters that both parties are going to need to realign around. Now, I don't want to dig too much in the Massachusetts example because it's different in Massachusetts and a lot of different ways with how toxic the MAGA brand is. But overall, that

type of electorate is what the parties have to realign around. And I think what's interesting is, yes, we can use historical examples with the Wigs and Sarah, you and I can talk about the hard cider and log cabin campaign of 1840. Any so. Don't threaten her with a good time. But the campaign I looked at is actually the campaign run by Tisha in Poland, excuse me, in Hungary, to take out Victor Orban, right? They ran this guy. His party is named after the sort of Heritage River in Hungary, Tisha. And he runs a campaign based on patriotism, based on anti-corruption,

and based on sort of a market-oriented but kind of tough on crime and tough on border security style election. Okay? And all this sort of Hungarian political pundits said, you can't do that. Well, he did it, and he beat Victor Orban. And if you look in America now, the candidate who is most doing this, the Tisha strategy, is Rob Sand in Iowa. Watch how he's running that campaign in Iowa.

Hmm. Okay. That is fascinating. There's not enough attention to pay to that race. I'm with you. I don't think there's enough attention to pay to that race because a lot of people have just put Iowa in that red category. Watch Iowa.

Yeah. Hit Josh Turrick at the top of that ticket, plus two down ballot house races with dynamic candidates. Watch Iowa this cycle. Rob Sand, it's anti-corruption, it's patriotism. The man has his town hall attendees sing America the Beautiful before they start their sessions. Okay. And then he's got sort of a moderate, market-oriented, but, you know, skeptical of big government, skeptical of big corporation style message, you know, pro-public safety.

This is, in America we call like a Route 66 rather than Tisha, right? It's like a Route 66 strategy right through the American Heartland. I guess you're right that this would really be a 2029 thing in terms of it practically going into effect, but I don't know that it's going to wait until 2029 to be proposed and sort of put forward at least as like press release legislation, as we've been calling it. Reforms to the Supreme Court. Yes. You know, expanding it, term limits with the concept of ending the Roberts Court, basically, and ending the Supreme Court as a counter-majoritarian check on presidents, but really just having whatever political party. is in power, get to have it say. What am I supposed to think about this? How are you thinking about this? How are you going to vote on this? All the things. Here, Sarah, is where you and I might diverge, and you've been very cogent on why you think some of these ideas are a mistake. I'm mostly

subscribed to them. I'm a co-sponsor of the 18-year term limit where you cycle the Supreme Court justices and the senior status. I think that's in keeping with the intent of what a lifelong appointment meant back in the 1700s, number one, from an originalist perspective, but also, too, I think it stabilizes what has become too overtly political of a process in terms of the nominations. I'm in favor of us imposing a code of ethics on the Supreme Court. Shame on them for not doing it themselves. I would need to get smarter on exactly what to do about the emergency docket and it may not be something that Congress can handle and it may not be as big of an issue going forward as it was for a period of time, but I think that does need to be addressed for the credibility of the

court. And I'm very open to changing the number of justices so long as it doesn't become a ping pong game, right, of court packing by both sides. But nine is not sacrosanct. So let me ask you this, Congressman. We had a constitutional amendment episode recently, which I really enjoyed the heck out of it. And one of my suggestions was fix the number of the court, but also add turn limits. So it's nine for all time, but you have the 18-year limit. And it feels to me that that would address, I mean, over the long run, not over the short run, over the short run, you would have the 6 to 3 majority. But for actually, it would not be fixed for a very long time because the way it would work is

the very next presidential election would trigger the 18-year term limits. Got it. And so that seems to me to be a far better way to harmonize the concerns because it's very difficult to say, okay, well, what we want to do is we want to add enough justices to override the Roberts Court and then stop right there because then that's, we have too much instability if then the next party comes in and adds more justices. I don't really understand why we have to write the number of justices into the Constitution, though. It hasn't been necessary the last 250 years. It's been relatively stable. So I don't fully understand why that's part of it. I think you're overstating,

though, how easy it is to add justices to the Supreme Court, right? Like, FDR was super popular and had a ton of political capital. And he tried to do it and it didn't work. And so I think the idea that if the trifecta perfectly harmonizes and if public opinion is with you because of the depredations of the executive that went unbounded by the Supreme Court in their estimation, and you do it, those stars don't align again for a long, long time. Like, I think it's hard. It's instinctively like, oh, it becomes a ping pong game. Like, really? The Republicans are going to get a trifecta again with public opinion on their side again

that quickly. I mean, every president in the last 30 years has come in with both houses of Congress. But not a filibuster-proof maturity except Obama in 08. So then that raises the filibuster. No, no, but Democrats are talking about, yeah, they'll blow up the filibuster to do it as the idea. But wait, so the problem we're trying to solve is we don't like the decisions of the Supreme Court. So we're going to add justices. The problem we're trying to solve, I think, is. So I think the Supreme Court needs to be a constitutionally grounded counter-majoritarian institution. I subscribe to that idea.

And I expect as a citizen that I'm not going to agree with other decisions, you know, part of what I sign up for. The problem to me is a Supreme Court that is seen by the American public as more and more overtly political, as the third chamber of Article 1 of Congress. And that is, I think, way too accommodating of executive power. And I worry that he's going to get another justice in his next term, potentially. And I think that Congress has a right to step in and say, we think that the separation of powers and checks and balances is not well calibrated, and we're going to fix it.

We're going to fix ourselves, but we're also going to interject in Article 3. I think we'll agree to disagree on that one, Congressman, and then we will, but we will agree to enthusiastically agree about many of your ideas about reforming, reforming Congress. I could not agree more about the problem of partisan gerrymandering combined with social media and the partisan primary has created a dynamic, wherefore we're in a very closely divided country. but if you look at, say, for example, the Cook Political Report, which some people critique for being a little bit too conservative and sort of saying when a race is up for grabs. But as of the last time I checked, we're in a closely divided country,

and yet less than 10% of the House races, are considered actually up for grabs right now. Yeah, David, well, I mean, what's happened in the last 50 years is the number of contestable house seats has gone down by a factor of 10, roughly, from 250 to 25. And, and this is important, the amount of money in terms of just raw wealth in the United States, but also the amount of political interest,

has gone up by a factor of 10x. So what that means is that for any given contestable house seat, there's a hundred times more money, because there's 10 times fewer seats and there's 10 times more money. It's 100 times more money. And so that is why Americans are so disgusted by the whole thing. As they look at this, they look at those 25 seats, and it doesn't even feel like those voters get to,

it feels like an auction, not an election. And so fixing the structural system also helps with the problem of money, not fully, but it helps with the problem of money in politics. How old is your youngest child? Three. Mine is turning three next week, and I'm just wondering, is yours as violent as mine? She's not violent, but she's the youngest of three, and so she's had to kind of make her own way in the world. So she's got an attitude to her. Yeah.

Yeah. No, mine, mine's like, I think we're, I hope we're just getting out of the, like, hit you in the face to, like, get your attention. He'll say, excuse me, mommy, and then, like, grab my face. Oh, for sure that. No, no, no, no. If you're talking to another adult and it's not interesting to them or if it's something more urgent, they just kind of come up and grab your face towards. It's very effective, though. I mean, you are going to pay attention to them.

The incentives are not well aligned there. All right. Congressman, thank you so much for joining us for this conversation. We are cheering you on to make Congress do its job. And we're also going to hold you accountable to help Congress do its job. And I like your little succulent wall behind you. That is cool. That is cool.

Next time I'm on, I love to talk about appropriations because the power of the purse, after the power of war in peace is the next biggest thing for us. I thought you were going to say you wanted to talk about succulence. And I was like, yes, you're invited tomorrow. The power of the purse, you're invited on like the next. next hour. So absolutely. We need to talk about impoundment and all of that stuff. Like we're, let's get into the weeds of how Congress actually works. Totally. Good to be with you. Thank you. Thank you so much. Two and five Canadians will hear the words you have cancer.

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Okay. And Guy Pearce. Arm up! The Dog Stars, directed by Ridley Scott, in Theaters Friday. Get tickets now. David, I feel like I need to chew on that even more. Yeah, I do too. I do too. You know, I like, it's very, I like what he said about regular order. I liked that a lot. I mean, he's hitting the nail on the head with the partisan gerrymandering combined with the partisan primary. I mean, I think anybody who looks at this stuff closely realizes, yikes,

Violent discreement, well, nonviolent disagreement about term limits, because I do think the mechanical way that it would occur would have to come through the destruction of the filibuster, which would then, now, I would say the term limit argument if there, I'm sorry, not the, the, the nine, the court packing argument, when you have nine justices and you keep the filibuster, his point is more persuasive to me. if you have a filibuster proof majority and a Democratic, but I'm still, I still like my constitutional amendment better. But I think as a practical matter, what you would be looking at is the demolition of the filibuster. And that would be extraordinarily destabilizing. Because as you said, Sarah, we've had multiple trifectas, multiple trifectives. And I could easily imagine a demolished filibuster followed by tit for tat. But you know, in a smart good faith guy like the congressman is for it. This is my problem.

This is a really smart, thoughtful guy who I disagree with on something that I will be really telling on myself that I'm not sure I thought smart thoughtful people could disagree on. But therefore, I'm wrong about that. So it's like, what else am I not getting? I'm not getting it. Well, what he did is he convinced me to put it in a column because... you know, to put the argument in a column. I want to do that in the relatively near future

or sort of the next time that it pops up as a debatable matter because I want to make that case to smart thoughtful people because if a smart thoughtful congressman is open to it, that tells me that my side of the argument's got work to do. Work to do, Sarah. No, I mean, my takeaway is I've got work to do

because he obviously believes that the court should be counter-majoritarian, disagrees with their decisions. Although, as we've said, David, that's an interesting part of it. He's right that public opinion is on their side about the court. Though, again, I think all institutions

have lost altitude, and I don't know. You'd want to actually run sort of a regression on how much the court has lost altitude more steeply than other institutions to actually measure that. But fine, we'll put that off to a side. But the actual decisions have been popular. Yeah.

So, like, there's that problem. Like, what do you mean public opinions on your side? People don't like the court and they don't approve of individual justices, but then they approve of the decision. So, like, what are we actually? What's the problem we're trying to fix? But the fact that he doesn't think that would be destabilizing. He is a co-sponsor of this bill.

Like, my head is blowing up a little bit of, like, why does he think it won't be destabilizing? Obviously, he thinks that it won't happen again. But, you know, to your point, David, you have to get rid of the filibuster to do this. Therefore, all you need is a trifecta of government for the next party coming in to the White House, which again has happened for every president at some point, you know, going back to the 90s. Mm-hmm. So I don't understand. I honestly think as a practical real-world matter that an 18-year term limit plus code of ethics actually in the real-year term limit plus code of ethics actually in the real. real world would solve the problem that we're dealing with, which is the sense that a lot of people

have that there is the definition of entrenched power is the Supreme Court, that we're now nominating people for 30 to 40-year terms, that, you know, we're looking at almost in essence what looks like kind of a class of nobility, that these are men and women who get 30 to 40 years to stamp their imprint, which then creates a situation in which any given presidential election, and Sarah, I think you very effectively pointed out the problem because there's no such thing as a reform proposal that's all sweetness and light. Like there's going to be downsides. And one of the downsides I think you very effectively pointed out is, won't people start campaigning with judges? Like, or, you know, won't the judges, like actual individual judges become part of the campaigns? Yeah,

Although, to be clear, when it comes to term limits, I absolutely think smart people who believe in the rule of law and an independent. All those things can absolutely be in favor of term limits. And like, mine is sort of a chicken little thing where I'm trying to tell you what I think could happen. I don't have proof that that's going to happen. You sort of have to, like, you know, follow my political gut a little bit on that. So, like, you disagree with me on that. Totally makes sense to me. You might be right.

I don't feel that way about expanding the court. It's the same for me. It's the same for me. And it's not that I think that people, that it's a bad faith position at all. Not at all. I do think there are people who have not thought through all the consequences, run the traps on it. But I see that as a very, very dangerous development. That people are approaching in good faith. But when you think through the downline consequences of it, it gets scary to me, quite frankly. From a rule of law standpoint, from a constitutional law standpoint. And part of my thinking would be if you have a giant consensus, the sort of thing where you've got the filibuster proof majority, you've got the great weight

of public opinion, that's an ideal time to start a constitutional amendment process. If you've got a tsunami, there's a democratic process to ride the tsunami. And it's not just legislation, it's constitutional reform.

All right, David, we'll leave it there. But I'm going to keep chewing. That's what we try to do. That's what we try to do. Two and five Canadians will hear the words, you have cancer. That's why every step and dollar raised matters. On September 19th, join thousands in Toronto for the Princess Margaret Cancer Foundation walk. Challenge yourself, friends, and family to walk 21 kilometers in support of life-saving research. Together, we can carry the fire and help create a world free from the fear of cancer.

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