Advisory Opinions - Politics of the Supreme Court

Episode Date: October 1, 2020

How will Amy Coney Barrett shake things up on the bench if she is confirmed by the Senate before November 3? “Amy Coney Barrett will not be as revolutionary as the left fears or the right wishes,” Sarah argues, “Because no justice really is, because it’s one vote.” On today’s episode, David and Sarah address the hysteria surrounding her upcoming Senate confirmation battle while breaking down what a 6-3 conservative majority would mean for the future of Supreme Court jurisprudence. Sarah and David are also joined by Ilya Shapiro—director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review—for a conversation about the politics and history of Supreme Court nominations. To a certain degree, politics has always played a role in Supreme Court nominations. What makes this era unique? “What’s different is that you have divergent interpretive theories mapping onto partisan preference at a time when the parties are more ideologically sorted than they’ve been since at least the Civil War,” Shapiro argues. When it comes to divergent legal theories, “every decade provides a new escalation.” Tune in for a conversation about the future of First and Second Amendment jurisprudence, the left’s misconceptions surrounding Roe v. Wade, and the problems associated with public hearings for judicial nominations. Show Notes: -30 day free trial at The Dispatch, CBS post-debate poll, “Why Amy Coney Barrett Should Not Be On The Supreme Court” by Nathan Robinson in Current Affairs, Chevron doctrine, “Qualified and Absolute Immunity at Common Law” by Scott Keller and Jay Schweikert’s response in Cato. -Ilya Shapiro’s new book: Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court and Ted Kennedy tirade against Judge Robert Bork Learn more about your ad choices. Visit megaphone.fm/adchoices

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Welcome to an already contentious Advisory Opinions podcast. Moments before this podcast began, Sarah Isger, my co-host, launched an unprovoked attack on our producer, Caleb, that included the words, hit record, you dum-dum. It's a term of endearment. term okay a term of endearment we were having some mild technical difficulties to get started and uh through some um i don't know technical magic that sarah won't describe we're on we're we're now able to record well the technical difficulties were on my end but you never. They could re-technical difficult themselves. And so I was telling Caleb, like, start the recording before this all falls apart mid-air. Well, we've got a great podcast. We're going to talk briefly about post-debate polling. We're going to talk about how will Amy Coney Barrett shift the court. And then we're going to be joined

by a special guest, Ilya Shapiro from the Cato Institute, who has written a new book, extremely timely. I don't think we got into this, Sarah, but he released his book on the exact same day that I released my book, which kind of- They're pretty different books. They are pretty different, but it sort of makes us like the Sharks and the Jets, West Side Story reference to of book authors.

Well, now I'm just disappointed we didn't do some good snapping. Play it cool, boy. Exactly. But before we dive in, I just want to ask folks, we've had some really great response in our request to rate our podcast and subscribe to our podcast. And I want to make that ask right up front again, go to Apple Podcasts and rate us five stars, please, and subscribe to this podcast feed.

And also go to thedispatch.com. We are in the waning days of our, no, we're done. We're done, right? At the 30-day free trial. Oh, we still have some time. Producer Caleb's still reeling from the reeling, Caleb still reeling from the dum-dum comment

is still able to interject and provide accurate, timely information. So we have seven days left in the 30-day free trial. And that URL is thedispatch.com slash 30 days free, correct?

Yes, thank you. So please check us out, thedispatch.com. But let's roll right into the post-debate phase. Sarah, we have some polling post-debate, more than one poll. You don't like to talk about just one poll, more than one poll. And what is it all telling us? Nothing matters anymore, David. So, okay.

Overall, people who watch the debate think that Joe Biden won, though not by a lot. This wasn't, you know, some 80-20. But by and large, Joe Biden, quote-unquote, won the debate think that Joe Biden won, though not by a lot. This wasn't some 80-20, but by and large, Joe Biden, quote unquote, won the debate. That's what the polls are telling us. However, the polls are also telling us that that doesn't matter and that most people tuned in just to see how their preferred candidate did not to change their minds. So why are you watching the debate from CBS? 73% to see how my candidate does. 41% for the entertainment. And boy, if that doesn't summarize the problems that we have. 8%, it will be the only thing on TV. True enough. And 6%, I'm still deciding who to vote for. And look, before you're like, ooh, 6%, that's actually

pretty high. Maybe, but I would say that there's people out there who think they're still deciding who to vote for and truly believe that, but they are not actually still deciding who to vote for. So I take that 6% even with a grain of salt. We also have how people felt about watching the debate. This is maybe my favorite. How did the debate make you feel? Annoyed, 69%. Fair enough. Entertained, 31%.

Again, everything that's wrong with what's going on. Pessimistic, 19%. That's fair. Okay. Informed, 17%. What were they informed upon? Huh? I have questions about 17% of our country or so. Also, and you wonder if it's the same group here. The tone of the debate was 83% negative. Yes, that was the correct answer. This wasn't really an opinion question, to be honest. 17% positive?

What? What is this 17% of the country that thought it was a positive debate that informed them on the issues? Huh? Yeah. So I think two things are true at once here, Sarah, as is often the case. Truth number one is that by certainly well outside the margin of error of the polls, by statistically significant margin, but not overwhelming, that people believe that Joe Biden, quote unquote, won the debate. And number two, it's not going to change anything fundamental about the race. And then, well, I can believe three things at once. And number three, therefore, that means in the macro sense, it's a Trump loss because of the two people,

he had to change something fundamental. But in going in hindsight, I guess why would anyone, and this is not to beat our own hobby horse, why would anyone expect any dramatic change out of this? Well, you know, the Trump campaign, I think, went in wanting to get under Biden's skin, to goad Biden into losing his train of thought and to get that sort of moment that they could push around on social media. They didn't need money behind on Facebook and various platforms to reach their voters and their potential voters and get their voters turned out and pumped and ready to go.

The problem is that didn't happen. And then you have to ask why that didn't happen. And I think even a bunch of Trump allies, including like Chris Christie, among others, who helped prepare the president for the debate, he was in fact so hot that he would interrupt Biden when Biden may have not been on a roll and basically save Biden. So the things that could have changed the race that I think Trump went in as the strategy of how to change the race, he then undermined his own strategy. Yeah. Yeah. And that's exactly how I saw it. But I guess I think enough about the debate. We kind of debated out on that. If you're a faithful dispatcher, you have now heard the Dispatch Live on the debate, a Dispatch podcast on the debate, and the advisory opinions dipping

the toe in the water on the debate. So I think we'll stop torturing you with the debate and let's move on to the Constitution and the Supreme Court. Let's do it. So, Sarah, I have an overall theory about the impact of a six Republican appointee court with Amy Coney Barrett on it, but I'm going to save it for the end. I'm excited. but um what i thought would be fun is if we kind of ping-ponged back and forth the doctrine the key doctrines that uh will be before in the key issues that will be before the court and how they will be decided differently if differently at all um with a 6-3 court compared to the 5-4 court that we had even a few short weeks ago. Because there's going to be a lot of headline hyperbole about the impact of Amy Coney Barrett.

But I thought it might be interesting to dive into some nitty gritty and see what will change, if anything? So let me go first. I'm going to make a prediction that one of the areas where you will see the least change, one way or the other, is First Amendment jurisprudence. I think when it comes to religious liberty and free speech, the margins with most of the cases, and I'm going to caveat it, with most of the cases have been so large and a lot of the consensus so long standing on the First Amendment that everything from free speech to religious liberty,

the court's not going to rule that differently under a Barrett, with a Barrett than without Barrett. And the one potential caveat is I think it does make the outcome of the Philadelphia religious liberty case coming up next term, which is the, I believe, Fulton versus Philadelphia, which is the Catholic adoption agency case, a virtual foregone conclusion that it's going to see its religious liberty vindicated. But I think it was going to win anyway before Justice Ginsburg. So I'm thinking if you're going to go down amendment by amendment, First Amendment, I don't think you're going to see much change. I think there was already a lot of court consensus. What do you think?

what do you think yeah i think that's a fair assessment you know there's a uh there's a lot of projection on to supreme court nominees as well yeah that you know she clerked for justice scalia she'll be in the mold of scalia uh sure maybe to some extent but you know truly each of these people both are their own person, but also once they're on the court, develop their own jurisprudence separately from the past and not because they were trying to fool people or something like that, but because being on the Supreme Court

is a fundamentally different job than being on a circuit court. You're not trying to apply the Supreme Court precedent as faithfully as you possibly can. You are now supposed to think about that precedent itself. And it's just a totally different angle of entry into the law. So it's not surprising that it can

take 10 years sometimes for that jurisprudence to evolve and make itself known. So I just think that's like an important caveat to start with as well, that we won't know to some extent what the Barrett jurisprudential line is for a while on some things. Yes, that's a great point. Great point. What's your issue? Well, so I was sent this article from Current Affairs Magazine written by a guy named Nathan Robinson, a Yale law grad. And he walks through some of her opinions. And it's pretty frustrating. We'll put the article in the show notes because I think it's actually a really good example of legal writing that you should be skeptical of and i think um it may be my favorite example of it now which is somebody talks about a case they talk about sort of the unfairness of the outcome of the case and they don't talk about the legal issues in the case at all. And you're supposed to think,

wow, this person is mean, but this is like 3000 words of that, David. And, um, and there's moments where like, you're like,

oh, that does sound mean. And the case that I think is getting the most attention on the Amy Coney Barrett is a mean judge. It's like a mean girl, but a judge. Yeah. Is this immigration case. Because

there's a lot of unfairness involved here, and then Amy Coney Barrett as a judge sort of sides with the unfairness. Okay, so here are the facts of the case. A United States citizen marries a citizen of Yemen. Her last name is Ahmed. Ahmed applies for a visa to live in the United States. She follows all the correct process. She applies for her children as well. The consular office denies her application because, quote, she attempted to smuggle two children

into the United States that were not hers. She then provides all of this evidence that they were in fact her children and, David, perhaps most importantly, that those two children died. Oh, no. So after she applies for the visa,

her two children drown. It makes some local news. So she has their birth records, their vaccination records, and she has proof of their death as well, so that even if you think they weren't her children, it doesn't matter now because she no longer needs visas

for her deceased children. Nevertheless, they just denied the application and Judge Barrett threw out the case. And so what this guy writing writes is that she said that it didn't matter whether the accusation was based on no evidence. It didn't matter that she could provide giant piles of counter evidence showing that the visa denial had been a mistake. It didn't matter if the officer had just made up the smuggling stuff out of whole cloth. Barrett wrote that because the consular office had cited a statute in denying the visa, the decision was, quote, facially legitimate and bona fide and therefore would not be reviewed by the court. Well, that sounds pretty mean. It sounds so mean. But it doesn't go into what the precedent is that she is forced to apply about the deference that you give to these administrative agencies. And it's pretty funny, by the way, because obviously there are plenty

of times where the liberal judicial philosophy wants enormous deference to administrative agencies. So you have to have at least some through line on what you want the jurisprudence to be and not just on the outcomes. And so that's an example where the legal jurisprudence is actually really uninteresting about whether there is standing and whether there's a claim there. And, yeah, because of that, there's sometimes really unfair stuff. But as I said, that's also very different than being on the Supreme Court. She is expected to apply that precedent to this case. precedent to this case. When she's on the Supreme Court, she can, if she would like to,

write a dissent or a concurrence or a majority opinion for that matter, saying that that precedent should no longer be the precedent and we aren't going to defer to administrative agencies and their decisions like that. But as a circuit judge, all this says to me is that, you know, she is a circuit judge that applies law in really unfair, even when it seems unjust. And that's actually generally what we want in circuit judges. Well, yeah. I mean, and one of the things that's interesting about it, and you mentioned it, this administrative agency deference, is sort of a longstanding progressive legal position that there should be deference paid to the administrative state's interpretation of the statutes it's it is in power to enforce and that this is sort of a conservative hobby horse actually to pay less deference to administrative agencies and kind of

restore the balance of power which actually brings me to an interesting point of the, if Amy Coney Barrett is going to be a Scalia clone, there are ways in which conservatives would not like that actually now, the way originalist jurisprudence and conservative jurisprudence has evolved. For example, Scalia used to support the Chevron decision, which is the cornerstone decision surrounding the establishment of judicial de which is the cornerstone decision surrounding the establishment of judicial deference to the administrative state. Scalia wrote the Employment Division B. Smith opinion, which just ripped the heart and lungs out of the free exercise clause and is one of my least favorite judicial opinions, period. It's not my least favorite,

but it's in there. so i think there are ways in which there are some conservatives who hope she's not a exactly like scalia as much as we respect scalia all right now here's another doctrine second amendment yep now if if you had to pick one single area where i think that you might actually see more court movement in a Justice Barrett regime, it's in the Second Amendment. Although not because of Justice Barrett. I see what your reasons are. Well, I think the reasons are that essentially there will now be confidence that if the court, if the Republican appointee majority decides and votes to take a Second Amendment case, there will be some confidence in the outcome.

And the reason these cases were not taken is that there was previously no confidence in the outcome. And the reason these cases were not taken is that there was previously no confidence in the outcome. And in that sense, I think we'll see some cases taken. But, Sarah, with a caveat. Okay. The caveat is, I think if you were looking for

sweeping decisions in the Second Amendment that will preclude things like a renewal of the assault weapons ban, my thinking is you're probably going to be disappointed. Because my thinking is the next cases the court takes in the Second Amendment are the quote-unquote easy cases. Yes. The one where it's a state that pretty much basically prohibits you from carrying a firearm outside the home. That sort of allow for the keep arms, but not the bear arms part of the Second Amendment.

So I think you'll see some of the easier cases coming next. And the harder ones, we'll see. But that's also probably the way it should be. You should take the easy cases first and define jurisprudence that way and wait on the hard cases as you sort of see the impact as these things percolate in the lower courts. Right. How are the lower courts supposed to make some of those decisions and let some of that percolate and have these circuit splits if you haven't even done the easy stuff? percolate and have these circuit splits if you haven't even done the easy stuff? You know, the assault weapons ban issue is going to be interesting because there is a very real possibility that if there is a Democratic majority Senate and they do away the filibuster, that you could see a revival of the Clinton era gun control legislation, which would immediately be challenged

in court. So you may end up having the Supreme Court taking it just because it's like the Obamacare case, a challenge to one of the most important pieces of legislation in a new administration. But we'll see. We'll see. So that's my next one, the second amendment. Yeah, I think the biggest thing on that is that at least the purported reason why those cases haven't moved forward was because there was a lot of uncertainty around how the chief justice would decide some of those and with barrett in theory they'll feel a lot more confident granting cert on some of them i agree they'll take the easy cases first um and there's of course not a lot in barrett's background to tell us how she would vote on those so they're just assuming that they know her lots Lots of assumptions going on here.

Lots of assumptions. And you know what they say when you assume. You know, I have a great memory of a, in seventh grade, this girl who was a bully to me. I said, I must've used the word assume. And she was like, you know what they say when you assume. Like, can you imagine a seventh grade girl saying that as a way to be mean to another girl? Like it's looking back. It's pretty funny. It like rocked my world. Cause I was like, that's so clever. Oh my God. So what's your next one, Sarah? Uh, criminal justice. Sarah.

Criminal justice. Good. That was my next one. I noticed you're skipping right over the Third Amendment. Do you not care? Come on. Did I tell you about that tweet where the woman said, she's like, I had this guy from the Army come over to my apartment and we hooked up and he asked if he could spend the night.

And I said, no, because I believe in the third amendment. Oh, legal jokes. Yes. Legal jokes. So I think that it's pretty clear that she is right down the middle on criminal justice stuff. And I think that when we talk about qualified immunity, which is going to be your hobby horse, that's probably not great for your hobby horse. So for instance, this one's just like straight down the middle. It's a question over reasonable suspicion. And there are certain shibboleths that police officers say that in order to establish reasonable suspicion in these kinds of cases, and they tend to say that they saw a bulge in the pocket. It was a high crime area and an officer inferred from the person's flight when they ran away that they were fleeing because they knew they were in violation of the law.

Yeah, there doesn't seem to be a lot of skepticism about what police officers are saying when they say that. And reasonable suspicion is not anywhere close to qualified immunity, except that it's totally up to the officer to tell you why they stopped someone. And you've just got to take their word for it. And there's no real good way to not take their word for it because you're not there. And so in that case, I think we're just seeing her apply the law as it is. Not a lot of curiosity on or not a lot of skepticism of police officers and not a lot of curiosity on the underlying jurisprudence. But again, when you get to the Supreme Court, she can then say reasonable suspicion.

This is all kind of BS. You need more. But I don't think she will. Right. I don't think that there's nothing about her background that suggests that she'll be a revolutionary one way or the other on criminal procedure cases. Unlike Scalia, by the way. Right, right. Now, let me ask you this, because I have, let me ask you two hot button questions.

Do you see any prospect that a court with Amy Coney Barrett making up the sixth member of a Republican-nominated majority would overrule Obergefell? No. No, me neither. But that is something I've been asked a ton about. I think the prospect of that is zilch and zero. I don't even know how a case would come up.

come up? I think the only way it could come up is if a state tried to repass or impose an existing same-sex marriage ban. And then there was a challenge under Obergefell, but I don't even see a state doing that, I just don't see it. So, okay. So that was one. I've gotten a lot of questions about that, believe it or not. And my answer has always been zero, zilch, nope, it's not going to happen.

All right, here's the other one. Is Roe going to live or die under this court? Roe, first of all, Roe has turned into this, I don't't know term that doesn't even mean what people think it means it's just a phrase people throw out there nobody even applies roe anymore roe doesn't exist is yeah casey is an actual question does casey survive does casey survive uh i don't know that casey survives in its current form, actually. I'm not sure that the freakouts on that are totally wrong. What do you think? I think Casey survives. You do? Yeah, I think Casey survives. In its current iteration, undue burden. Do you think though, I guess when I say it doesn't survive maybe in its current form,

you can sort of keep Casey alive and say, yeah, we're applying the undue burden test. But the undue burden test doesn't mean what you think it means. It's got to be a burden. Bingo. So I think that's where the play is in the joints because... That's a lot of play. A lot of play in those joints. And so that's one of the interesting things to me, when Casey was decided, those of us in the pro-life community were pretty crushed because we thought that Roe, that the Casey court was going to strike down Roe and return the abortion issue to the states.

Boy, were you wrong about that? Oh, yeah. So anyway, very wrong. And then so we're sitting there just like what just happened. And a lot of my feminist friends were going, that's a bad decision. I don't like that decision. And I said, why? And they said, because the undue burden test what does that even mean what does it mean a conservative judiciary can that's a very malleable term so a conservative judiciary can uphold quite a few restrictions and just say it's not an undue burden because undue is a word that is not self-defining in this context and And I think that's where you might see some real movement on abortion jurisprudence is in these states that have passed restrictions. The states may not even

ever be so bold as to say, please overturn Roe. They'll just say, please uphold this restriction. It's not an undue burden. And what you might end up having is a series of laws that are sort of ever narrowing the abortion right without getting rid of the abortion right in these states. That's how I would predict it going over the short to medium term. over the short to medium term. What's interesting is that you wonder whether, hindsight 2020, if you are a pro-abortion advocate, were you better off without Roe?

Yeah, that's a really interesting question. And it actually goes back to- Politically and legally, by the way. I think you could make an argument on both fronts, legally and politically, you were better off if Roe hadn't been decided. I think that's a very interesting counterfactual, and it's actually one that Justice Ginsburg raised in the early 1990s.

That would we be where we are now if roe was less as she called it the actual literal word she used was breathtaking yeah if roe was less breathtaking in scope and that's a fascinating question that's a world in which you start with Casey, and actually I think all of this turns out quite differently. I would even say if it had been left, if it had been left primarily, so what Ginsburg was advocating for in 1992 is you strike down the Texas laws being overly restrictive without establishing a sweeping counter rule, a sweeping rule that, you know, the trimester structure, et cetera, et cetera, which would have still allowed for a lot of state regulation. Yeah. Yeah. It's a very, that's one of those questions that we will, that ship sailed, that ship sailed. Okay. So we've talked about First Amendment, Second Amendment, Obergefell, Roe, criminal procedure, qualified immunity, Sarah. You knew I was going to raise it.

You had to. Qualified immunity. Hobby horse. Yeah. Yeah, I'm going to ride that hobby horse. What do you think? I think this is the toughest one because it's, it's one where as a circuit judge,

you really do have to fake, like she has no opportunity as a circuit judge to overturn qualified immunity. So you're not like reading tea leaves. You're reading like the little mites that might live on tea leaves. And I don't think you have any particular, um, I don't think there's anything out there to really tell you what she'd do on qualified immunity, except for an overall sense

of her age and life experience. And that qualified immunity is not the knee jerk. Of course, we support qualified immunity that it was in the conservative movement 20 years ago. And so that is the might on the tea leaf floating around in the tea that I am reading. And it's a very small and not very vociferous might. So can I do, we're all familiar with the term guilt by association. we all know we're all familiar with the term guilt by association um can i do virtue by association yes which is sort of how like it's this is how things tend to work out when you're analyzing jurisprudence a lot is because the judicial career track is one that often sort of puts people in an analytical box as opposed to sort of explaining their judicial philosophy very clearly. But anyway, so you end up evaluating someone's jurisprudence by saying,

who do they hang out with? Are they members of the Federalist Society? But she comes from a virtue, but the virtue by association is she kind of, even though I'm evangelical and she's Catholic, she's kind of from my tribe of the Christian conservative legal movement. And if there is a part of a conservative legal movement, aside from libertarianism, that is very dedicated to getting rid of qualified immunity, it's that very tribe. The Alliance Defending Freedom, for example, has joined amicus briefs asking for the end of qualified immunity along with libertarians along with the aclu and so that's a thin read sarah that's about the thinnest possible read but i'll i'll hold on to it i'll hold on to it until

disproven you know what i'm going to put in the show notes, David, for you, for our listeners. So my husband, Scott Keller, wrote a paper on the history of qualified immunity. And Jay Schweikert at Cato has responded to his paper. And there's this nice little conversation going on about how one could reimagine qualified immunity in sort of a Thomas-esque way, going back to the original understanding of when it came about roughly in 1871 and what was qualified immunity at common law pre-1871. And so I'm going to put that in our show notes. And one wonders whether this could be an interesting path forward. And I am just saying that because he's my husband. Outstanding. So wait a minute. Are you saying

that your husband is pro-qualified immunity? No. So that's the really interesting part of this, is that qualified immunity at common law is a totally different thing than our messed up 1970s qualified immunity. And you could go back to common law qualified in absolute immunity and have a much clearer, better, more fair, everything qualified immunity. And in Justice Thomas's last little note on the subject, he said, boy, I wish someone would go back and tell me the history of qualified immunity at common law. And my husband said, ah, paternity leave. I'll write a law review article. I love it. I cannot wait to see that in the show notes.

It's coming out in Stanford Law Review in the spring, but I can put it in the show notes now. Oh, well, that's awesome. I can't wait to read it. So here, before we go to our guest, here's my overall assessment of Amy Coney Barrett. And that is that the jurisprudence of the Supreme Court, imagine it as a big ocean liner and that each additional justice moves the rudder of the ocean

liner a little bit, but not nearly as much as the media says. And I think what the addition of justice barrett will do is keep the ocean liner generally on the course that it was but it's just going to take more to move it from that course now like it's just kind of solidified um it's i i think that let me put it this way. I think you will end the next couple of terms, assuming no other justices leave or depart, with the current court, where I'm not so sure that your jurisprudence, one term, two term, three terms out from here,

will be that different than it would have been. I think the margins will be a little bit different. Here's also something that's interesting when you think about Hellerstadt. And listeners, remember that is the case back in 2015 on Texas's abortion restrictions where it's 5-4 and Roberts is in the dissenting minority saying that he would have upheld Texas's abortion restrictions.

Then you fast forward to this term and it's 5-4 where he says, look, I still think Hellerstadt was wrongly decided, but stare decisis. And I bring that case up because the thing that you won't ever, the counterfactual we won't be able to know is whether Roberts would flip sides

if it were basically 4-4 with him as the swing vote. He is actually a more reliable conservative voter when basically it's already 5-4 the other way. So you're going to see these six, three cases and people are going to say, see, it wouldn't have mattered because they would have had Roberts anyway. And like, ooh, that's not technically true.

Yeah. Yeah. Well, you know, that sort of goes back to the thing that we've said before. I think Justice Roberts would be a reliable seventh vote

to overturn Roe. Right. There are circumstances where Justice Roberts will rule in a particular way when he knows the majority

is sufficient enough. And I do think that is a fair... I think you're exactly right that Amy Coney Barrett will not be as revolutionary as the left fears or the right wishes. Because no justice really is

because it's one vote. Yeah. And also they're human beings and they're not always predictable. See Justice Gorsuch in the buskite decision. That's right. Things happen. Your world

opens up. You're no longer a horse with those nice little blinders. Now, all of a sudden, you have to see the whole field and make decisions accordingly. All right. Well, let's move on. And I'm excited about our guest, Ilya Shapiro from the Cato Institute. And Sarah, please introduce Ilya. from the Cato Institute. And Sarah, please introduce Ilya. And we've got Ilya Shapiro. He is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review. Most importantly, I would say, maybe in order, we'll do a three, two, one importance here. Number three, Ilya clerked on the Fifth Circuit, the best circuit, the premier circuit. He clerked for Judge Jolly, which we'll forgive him for. I mean, it's no Edith Jones, but I would say that Edith Jones might say that Judge Jolly was her favorite

judge. So that should count for something. Jolly is the man behind the woman. Coming in number two, Ilya did not go to harvard law school we won't even like because i got a better offer i went to the university chicago law school perfect and number one ilia must uh i don't know you must have a certain run of good luck because you have a book out called this uh supreme disorder judicial nominations and the politics of america's certain run of good luck because you have a book out called Supreme Disorder, Judicial Nominations and the Politics of America's Highest Court that has come out like right on top of a judicial confirmation battle of the century. So congrats on having great timing. Thank you. The publisher had to pay extra for that.

So we have lots of things to talk about, but I do want to dive in on the book first. So I want to know all sorts of things that you found interesting or new or that you didn't know while writing it. But there's there's this paragraph. Historically, the Senate has confirmed fewer than 60 percent of Supreme Court nominees under divided government as compared to just under 90% when the president's party controlled the Senate. Timing matters too, over 80% of nominees in the first three years of a presidential term have been confirmed, but barely more than half in the fourth year. Did Mitch McConnell write this paragraph? Does he have it tattooed on his person somewhere? Well, I mean, if he wants to tweet it

out, that would help my book sales. But I mean, it's politics all the way down at base. I mean, this is the number one thing I learned about this book, which I started writing and I started proposing to publishers after the Kavanaugh hearings. I really wanted to find out, you know, has it ever been better than where we are now? How do we get here? What role has politics played? I mean, George Washington had a nominee rejected. So this has been a thing from the very beginning. And yeah, if united versus divided government is a huge thing, particularly in a presidential election year, we've had this is now the 30th. It's not like unprecedented to have a vacancy arise in a presidential election year. This is the 30th time, uh, 19 of them under United government, 17 of those 19

resulted in confirmations 10 times and divided government only once was there a confirmation. So just historically without arguing about who's a hypocrite or, you know, what the power play is, but just, uh, this is, this is what gets done. David. So, you know, one thing that I like is your dive into history. And like, if you're a listener and you're somebody who thinks that Supreme Court, that the Supreme Court was really relatively uncontroversial until Robert Bork, or Supreme Court nominations, confirmations were relatively uncontroversial until Robert Bork. What would you say sort of were the key flashpoints before Bork that Americans need to know about?

Because just in your answer, you said something that's interesting. This has been politics from the beginning. What are some moments pre-Bork that you think really illuminate how, while some things have changed, some things have not? Well, I mentioned that Washington had a nominee rejected. John Adams lost his reelection bid to Thomas Jefferson and then nominated and had confirmed in the lame duck John Marshall, the great chief who established the court into what it was in the early republic, as well as signing the Midnight Judges Act, creating all these judgeships for him to fill and to thwart the Democratic Republicans led by Jefferson. And that was the origin of Marbury v. Madison, a dispute over judicial review of the giving confirmations, certifications of judgeships. Samuel Chase, an early justice, was impeached after that Jefferson Adams election.

I mean, slavery was a huge deal between Andrew Jackson and Abraham Lincoln. Only eight of 21 nominees were confirmed because of debates over the realignments within the Democratic Party, slavery, all these different issues. People ask me what I think the most controversial nomination of all was, hoping that I'll pick between Bork, Kavanaugh, Thomas. I'll go to 1916, Louis Brandeis, the first Jewish nominee, but even more controversially, a big crusading progressive nominated by Woodrow Wilson in that election, presidential election year. It took nearly five months for his confirmation process to run. He was ultimately confirmed by a slightly wider margin than some of the more recent controversies. But for the first time, the Senate had public hearings

on the nomination. It's not like that started initially. They don't have to do it. They started in 1916. But it was considered unseemly for Brandeis himself or the nominee himself to testify. So he didn't do that. And wait, there's more. After he was confirmed, another justice, Charles Evans Hughes, resigned to run against Woodrow Wilson in the presidential election. So if you think 2020 or 2016 was just this unprecedented mashup of politics in the Supreme Court, I'll see that and I'll raise you 1916. I love, before 1882, seven nominees declined to serve. That is... Like that tells you what, you know, at sort of the beginning fits and starts of this country

that the Supreme Court was perhaps seen a little differently than it is now. I mean, who would want that job, especially in the early days where you literally had to ride circuit, go on horseback to the far-flung courts and help out with that? And for a long time, it was just not prestigious. I mean, it would be more prestigious to be on your state Supreme Court, say, or to be a fancy lawyer in Boston or Philadelphia or Richmond or what have you. And so, you know, the way communications worked, a lot of people or several people in our history were nominated or even confirmed before they learned that they were nominated. And then they said, why would I want to do this?

It was, you know, the courtroom was in some basement in the Capitol and the old Senate. It was just a dreary job. I mean, you know, why would you want to do that? So, yeah, things have changed a little bit since 1882 was the last time. Roscoe Conkling, the big New York party boss, declined. One of my favorite founding era stories is actually the Midnight Judges story. And it really sort of sets the stage for how quickly the revolutionaries set to some pretty intense squabbling early in the American Republic. I mean, the same generation

that enacted the First Amendment also passed the Alien and Sedition Acts. And the midnight judges, go a bit into that. I mean, it was in some ways at the lower court level, the first court pack. Was it 16 circuit court judges nominated, confirmed, and commissioned in the lame duck session that Jefferson just flips out about as soon as he gets into office? That's right, and a whole bunch more magistrates and justices of the peace and all of these things

when there weren't that many judges altogether and you add a whole slew, that's a big deal. And, you know, that was that was the original court packing and it was trying to thwart Jefferson's power. The that same act would have reduced, you know, you talk about packing the lower courts, but it would have reduced the Supreme Court to five from the original six at its next vacancy to prevent Jefferson from appointing any justices. Then when the Democratic Republicans took over, they restored the court to six. That sort of led to Justice Samuel Chase's opposition and eventual impeachment, but not removal. And then towards the

end of Jefferson's tenure, a seventh seat was added, trying to temper Chief Justice John Marshall's Federalist proclivities. Unsuccessful. Marshall was so persuasive that even Jefferson's nominees came under his sway. Eighth and ninth seats were added 30 years later under Andrew Jackson to allow him to reshape the court. And that led to ultimately to Dred Scott. So, you know, court packing in our history, it's not just FDR in 1937, but historically court packing has not really been a good thing for our country or for the party proposing it for that matter. When we talked about pre-Bork, you went like real pre-Bork, like

back to the founding pre-Bork, which is technically pre-Bork. It's pre-Bork. It is. But can we go, let's say, more contemporaneous pre-Bork? Walk us technically pre-Bork. It's pre-Bork. It is. But can we go, let's say, more contemporaneous pre-Bork? Walk us through how we get to Bork. Sure. And in fact, my book is like Gall divided into three parts. The first part is the, I call it the past, the history, really the founding through 1968, which of course is a pivotal year for American culture and politics, but also for law, also for the Supreme Court. And then so the second part is 68 to Kavanaugh.

And then the third part is reforms. What have we learned? Where do we go from here? But 1968 is so pivotal because another presidential election year, another vacancy. Chief Justice Earl Warren, the controversial, very significant Eisenhower appointee, right? Ike said that he'd only made two mistakes in his presidency, and they're both sitting on the Supreme Court. Warren especially. Brennan, I don't know if it was, I mean, I'm sure he was disappointed by Bill Brennan's jurisprudence,

but there was no surprise that Brennan was a progressive left-winger on the Supreme Court in New Jersey. And Eisenhower appointed him also a month before the election in 1956 to shore up his Northeastern metropolitan Catholic support. But anyway, 1968, Warren announces his retirement. The very lame duck, Lyndon Johnson, right? The self-anointed named duck decided not to run for reelection because of Vietnam unpopularity and decides to elevate Justice Abe Fortas and then nominate kind of a Texas crony, Homer Thornberry, to replace Fortas as an associate justice, and runs into a buzzsaw. Fortas had given some speeches for which he didn't declare his payment. Now it looks kind of, you know, small beer, but at the time,

huge ethical concerns, bipartisan opposition in the Democratic-controlled Senate. Some people call it the first filibuster of a nominee, but Fortas never even had 50 declared votes, never went to a vote on cloture and all those kind of technicalities, and the opposition was bipartisan. So anyway, that seat never gets filled. It stays open, or Warren never leaves the court, really, until Nixon's elected and then Nixon gets to fill that seat with with Warren Burger, leading to further escalations. And Nixon ends up having two nominees rejected. And away we go. that brings me to, I think, what is really surprisingly for me because so many things, and I've even been guilty of this myself, even recently, sort of starting some of the recent history with discussing Bork. But when I was growing up, the words that you would hear a Republican spit out every bit as venomously as maybe, I don't know, is this a good analogy, Sarah?

A University of Texas Austin spits out the word Oklahoma, like a UT Austin fan spits out Oklahoma. Certainly as venomously as an Alabama Crimson Tide fan spits out Auburn Tigers, is Warren Court. And that's what I heard growing up, the Warren Court, the Warren Court. And one of the things that I have done recently is sort of go back and look at the Warren Court's jurisprudence. And holy smokes, Ilya, when you look at sort of the in the the the court coming into american life in a way that is very front and center it's really hard to start the story with bork uh at least the modern story it seems to me the modern story starts with the Warren court. Um, and you know,

so I just wanted to sort of get your, get your thoughts on the Warren court. Is that, are those words you spit out as venomously as the modern court really, I think starts with, uh, FDR and not necessarily court packing, although that's sort of part of the overall atmosphere, but with the, what legal scholars call the revolution of 1937, when the Supreme Court started upholding the kinds of federal expansions, New Deal programs that it had been rejecting, also sometimes called the switch in time that saved nine, when another Justice Roberts, Owen Roberts, started flipping. Although some people, the myth is that he was doing that because of the pressure from the court packing scheme, but that's not true at all. Things were going in that direction

for other reasons. But that is really the origin of the divergence in modern legal theory, the progressives versus now what we call the originalists. At one point, it was either conservative or the judicial restraint school or strict constructionist was how they talked about it and how Nixon talked about it in the late 60s and the 70s. And so, you know, what's different? This goes into what's different now if I've said that politics has always been a part. So is there anything different now? And what's different is that you have divergent interpretive theories mapping onto partisan preference at a time when the parties are more ideologically sorted than they've been since at least the Civil War.

So certainly the Warren court is part of that divergence and part of the forcing the reaction and the birth of the modern conservative legal movement. But it goes before that. but it goes before that, and it doesn't become visible until a little bit in 1968, much more with Bork. You also point to Roe v. Wade, which was 1973, which was 14 years before Bork, but it took a while for the abortion issue even to rear its head in these battles. The next couple of nominees after Roe v. Wade, John Paul Stevens in 75 under Ford, uh, Sandra Day O'Connor in 81 under Reagan, uh, Roe was not that big an issue in their confirmations.

Heck, even, uh, Antonin Scalia and, and William Rehnquist being elevated in 1986, the year before Bork, um, you know, Roe abortion was not that big a concern. There were other controversies. And of course, Scalia was confirmed unanimously because he was an Italian-American. Talk about identity politics there. So, I mean, there's a lot of surprises and you can tell kind of this mythologized or streamlined story. But yeah, we can talk about the Warren court, sure. And that drove a lot of concerns, both in terms of the Jim Crow South and the response to Brown v. Board and desegregation orders, as well as things later in the 60s,

especially the late 60s with the revolution in criminal procedure that the Borks of the time were responding to in terms of the judicial activism and that sort of thing. But there's different parts of the story, and every decade provides a new escalation, really. So let's move to the confirmation hearings themselves, which I think is created by Bork's failed nomination that all the other nominees at that point are looking and saying, what went wrong there? I don't want to do that.

And it turns into what Justice Kagan, before she was Justice Kagan, before she was Justice Kagan, called a vapid and hollow charade, which I think sums it up nicely. How did we get to the hollow charade? Yeah. And of course, when she was in the hot seat, the shoe was on the other foot, Mr. Bond, right? All of a sudden she saw the wisdom in pursuing the hollow vapid charade. So Bork, you're right. This was the first, I think the first televised hearings were Sandra Day O'Connor, but Bork was really the first widespread televised and used in the evening news and that sort of thing. And it was the first all-out attack based on ideology and twisting

someone's words. The Republicans were caught on their back foot, the Reagan White House, and the strategy they pursued and that Bork himself pursued were not very effective. They tried to position Bork as neither a liberal nor a conservative, just calls him like he sees him, Bork is neither a liberal nor a conservative, just calls him like he sees him, just like Lewis Powell, the centrist swing vote that he was replacing. But 45 minutes after the nomination came down, Ted Kennedy went to the well of the Senate and, you know, gave this parade of horribles, this calumny about Robert Bork's America and how bad it would be. And it went downhill from there. And Bork did not pursue the tried and true, what's now the tried and true method of talking a lot without saying anything. Instead, he was the academic

that he had been for much of his career and tried to have these kind of turgid intellectual responses as Senator Paul Simon, not the singer, but the Illinois Senator on the Judiciary Committee, wrote. he tried to score debaters points rather than get votes. And that was not effective. And so a few years later, when Ruth Bader Ginsburg was in the hot seat, she patterned the the pincer movement of not talking about specifics because they might come before her, and not talking in generalities because judges should deal in practicalities. And that's been the rubric, the model going forward to the point where, as I write in my book, I've come to the conclusion, at least for the Supreme Court, that given the information and the paper trail that's available on all these nominees

instantly over the internet, that public hearings do more harm than good to our discourse. We don't learn anything about the nominees. We don't learn that much about the law. And all it is is softballs by the same party as the president and attempts at gotcha moments or getting B-roll for their campaign videos from the other side. Well, one point that you make that I thought was really well done is you credit the drop-off in substantive judicial philosophy discussions, the Ginsburg-Pinscher move, future and its evolution, and if people have perfected it, with actually why we're getting more personal attacks on nominees

because they can't attack them on ideology anymore, because they're not going to answer those questions. And so instead, you're left with the only way to score points, so to speak, at a confirmation hearing is to find those non-ideological, personal, you know, something else to get at a nominee. Well, it's trying to make them look outside the mainstream or weird in some way. And actually, you know, if senators are honest about their judicial philosophy and want to say that this person is bad and wouldn't do damage to the rule

of law and the Constitution, I think that's great. And that's where the debate should be. I have no problem with senators voting against a nominee they think would be bad based on judicial philosophy. And again, because of the divergence of theories, those battles are going to be fraught because of that. But yeah, it's not only that in the past, all the attacks would be on ethics or on, you know, you're from the wrong faction of the party or don't comply with regional preferences or something like that. Now, the real battle is about judicial philosophy. But the phony war and kind of the above the water in terms of the iceberg is, yeah, trying to make nominees look look weird or deranged or have these these personal attacks. Well, and it's also one reason why, especially those conservatives who think that when they vote for a president and then they receive a nominee,

a nominee gets onto the bench, they think that what's happening is they're getting conservative bot 9,000 getting up there who's going to just vote the way they want to vote. Well, the reality is what's emerged, you know, and this is my perception, is there's sort of a judicial career track now. So because Ilya, as you noted, you know, Bork goes there and he says, okay, let's have this conversation

about judicial philosophy, which turned him into a folk hero, but did not turn him into a justice, that there is a judicial career track in which you can't really pin people down on all their writings. And so what you're then doing is you're pinning them down on their affiliations. So we're going to assume we're going to know how Amy Coney Barrett's going to rule because she addressed the Alliance Defending Freedom's Blackstone Fellowship five times, which makes her less than half as conservative as me because I've addressed the Blackstone Fellows probably 14 times, but nobody's counting really. So we're looking at affiliations. Were you in the Federalist Society? Who did you speak to? Who did you speak to?

But a lot of the actual writing is much more analytical than it is anything else. And I think that means that we're nominating and confirming people who we really truly just presume we know what they think rather than knowing what they think. what they think rather than knowing what they think. But there's an earth too, in which, for example, Ilya, you would be like an ideal judicial candidate with your qualifications and your record of, you know, your record of advocate advocating for, for particular kind of jurisprudence of annoying both parties at different times. Yeah. Yeah. And you'd go up there and you'd have it out about your philosophy. But yeah, this judicial career track kind of troubles me, honestly. Well, the thing is there are asymmetries as well. I mean, for one thing, there have only been four Democratic appointed justices in the last 50 years, since 1968 and there's uh much more room for error if you will or less worry uh among democrats because the legal profession skews left and whatever broad legal philosophy

they might have whether they're pragmatists or living constitutionalists or briar's active liberty or the the purpose of the statute whatever kind of theory they all tend to end up in the same place without fail in the major controversies, which you can't say that about the right because there's a difference between the judicial restraint school and minimalism and incrementalism versus originalism, and how do you look at stare decisis, and all these, you know, the importance of history or deferring to law enforcement, deferring to government in other ways. And you see the kind of the intellectual diversity on the Republican appointed justices now. It's kind of funny. Sheldon Whitehouse, Senator Whitehouse, who's on his crusade to talk about the corrupt

corrupt court and talks about the Roberts five. But the Roberts five has diverges all over the place, whereas the Ginsburg for the the late Ginsburg Four, was marched in lockstep. And you see that in terms of the reception of the nominees. Those that get attacked personally or made to look like extremists tend to be Republican appointees. Merrick Garland was not attacked for being extreme. That was a process argument, very controversial, of course, but it was a process argument about who gets to fill the seat and when and all of that. And, you know, I think the ship has sailed, but I think the Democrats would have been actually more effective now not attacking anything about Amy Coney Barrett, just like the Republicans

didn't attack Garland, just saying, look, she's perfectly nice, whatever. We might disagree with her on certain things, but it's not about her. It's about this, you know, shouldn't fill the seat so close to the election. They might have gotten some Barrett supporters to then vote for Biden or Democratic senatorial candidates. But anyway, there are these asymmetries, both in terms of how Republican versus Democratic appointed justices perform on the court and in terms of how Democratic and Republican senators treat nominees. in terms of how Democratic and Republican senators treat nominees. Before you came on the pod today, David and I discussed how Amy Coney Barrett is likely to shift the court. Do you have thoughts, feelings to share? Well, most importantly, she will make John Roberts the superfluous man, the sixth vote,

rather than the median vote, rather than the deciding vote. I wouldn't call John Roberts a swing. He's not like a true moderate like Kennedy who could go in different directions. When he deviates, quote unquote, it's because he's thinking about his strategery and how to position the court and that sort of thing. So now you could get a, I guess, for lack of a better term, I'll call it a principled majority without having to think about which way to tack in order to play the long game or whatever it is that Roberts has been doing. And so even beyond maybe changing directions on some abortion regulations like the one that was taken up this past term being invalidated now will be upheld even beyond things like that. I think that kind of the dynamic, the types of opinions you're going to get from the court are going to be less head scratching, less splitting the baby.

Yeah, I mean, I agree with that overall. I do wonder, you know, one is that you did bring up, there's two things you brought up that let me start with one strand. You said there's been four Democratic nominees and how many years? 50. 50 years. So I think if you could describe Democratic frustration with the Supreme Court, that one sentence almost does it. And that's not the same ratio that we have had. You know, we've had multiple Democratic presidents in the last 50 years, but only four nominees.

And it's really interesting how sort of the randomness of when these judicial nominations come open is has really influenced sort of who feels alienated from the court. And it's obviously quite clear that the Democrats feel extraordinarily alienated. And four nominees in 50 years is probably one of the foundational reasons why. I mean, I'm sure they'd be much more alienated if it weren't for Stevens and Souter and Brennan and all the rest of the Republican nominees, which are to the left of many of the Democratic ones. Byron White was a Democratic appointee, and he was to the right on a lot of things. But look, Justice Ginsburg could have retired in 2013 when the Democrats had the Senate

under President Obama, and she didn't. But you're right. There is that frustration. And at the bottom, it's a matter of politics. President Carter didn't get any Supreme Court nominees, but as a consolation, the Congress rapidly expanded the lower courts, and for that matter is why the Ninth Circuit is so to the left. It's a historical function of that expansion, not a not a geographic reason. We always think of these things as blocks, 5-4, maybe now a new 6-3 block. But I don't see the Republican nominees as a block in many ways. How would you parse the five and now about to be six justices in their judicial philosophy?

Sure. sure um well thomas is uh the most uh pure historical originalist i guess i'd say with uh very weak if if any existing uh stare decisis i don't think he's ever met an erroneous precedent he wouldn't want to uh overturn um alito, uh, more law and order oriented, um, uh, similar to Thomas in result in a lot of places, but, uh, um, a little different on certain criminal justice issues or first amendment that, that involves, uh, uh, certain traditional law and order concerns, I guess, of, of Republicans. Um, Kavanaugh is, uh, definitely an originalist and a textualist, very historically backed. Also has some pragmatism or some caginess to him,

so he's somewhere between a Roberts and a Thomas or a Gorsuch. Gorsuch is kind of the purest natural rights, natural law approach to his originalism and very strict textualism. Probably the most libertarian of the justices, the most classical liberal, even more accurately stated. more than any broad ranging interpretive theory, definitely a conservative. I don't think he's, you know, quote unquote grown in office to the left or anything like that, but especially as the chief and the youngest chief when he, when he assumed that post in 2005, since John Marshall and the first median vote as chief, well, since Earl Warren, a couple of years, but at that point, the court was so to the left, the median vote didn't matter so much, really, since the 30s. So that's significant. And now Amy Barrett is going to be basically like Scalia, maybe a little softer on stare decisis, but you read her stuff and it's like Scalia, whether you talk about the structural constitution, whether you talk about the Second

Amendment, or whether you talk about criminal justice, where Scalia would often get together with Ruth Ginsburg or others for kind of a principal defense of the Fourth or Sixth Amendments. So, you know, a lot of intellectual diversity there. So, two questions regarding things we've already talked about in the pod. What does this mean, do you think, a Barrett nomination for Second Amendment jurisprudence? And what does this mean for my hobby horse, qualified immunity? On the Second Amendment, I think it means we'll finally have

some Second Amendment jurisprudence because, of course, the court hasn't taken a Second Amendment case or hasn't decided one since Heller, since the very first one in the modern era where the rule that there was an individual right protected by the Second Amendment. Two years later, McDonald v. Chicago, that was a 14th Amendment case extending the right to the states, but it wasn't about the scope of the Second Amendment. And, you know, this past term, everyone thought that when they

finally took a case after a decade, presumably because Kavanaugh replaced Kennedy and thus those on the right could be sure of how he would vote. But that ended up being moot. And presumably because of something that Roberts told his colleagues, they declined 10 cert petitions, presenting every which issue of this. Now, I think they will take a Second Amendment case and start fleshing out exactly, not even what kind of rights are protected, but how lower courts should apply, should evaluate challenges based on the Second Amendment. Qualified immunity, it's hard to predict, because there's this cross-ideological agreement, at least based on amicus briefs supporting cert petitions, that something needs to be done to this judicial made doctrine. And by the way, that was made by the Warren court

as well as kind of a consolation to expanding criminal procedure rights in the 60s. Then they thought, okay, well, we'll toss a bone to law enforcement by saying they can't be sued in their personal capacity unless there's clearly established law to the contrary, and that's been blown out of proportion. Interestingly, Justice Thomas was the only one who dissented from denial of cert petitions, both in the slew of Second Amendment and qualified immunity cases this past term. Those denials came, another trivia question, the same day that Bostock came down. So that was a huge news day for us legal nerds of course but who knows uh just as uh well soon to be presumably justice barrett has some qualified immunity cases and she's not uh

um she's not against uh denying qualified immunity there's a famous case of a detective who falsified an affidavit for a probable cause requirement causing a guy to languish in prison for two months, and she denied qualified immunity correctly there. So I think it'll probably come back into play. It was probably unfortunate that these petitions came to a head right when we had people demonstrating in the streets the Black Lives Matter protests and all that. So John Roberts probably thought it was not an opportune time for the court to stick its head into that, but I think it's going to happen in future. Okay. You also address in your book,

potential fixes, solutions, lowering the temperature ideas about the court, including term limits. Something that's been mentioned a lot recently, I think, is this idea of ensuring that every president gets two picks to the court by rotating out other justices and that basically every justice would really be a circuit court judge who then has the opportunity perhaps to fold up to the Supreme Court for a certain number of years, and then they just end up back down on their circuit and continue about their merry way after their term is done. What do you make of all of these various options?

Well, term limits is the one that's gotten discussed most often historically, going back to Thomas Jefferson versus Alexander Hamilton. In modern times, whenever there are too many octogenarians on the court or there hasn't been turnover in a while, this gets thrown out again. Stephen Calabresi, one of the co-founders of the Federalist Society and his Northwestern Law School colleague, Jim Lindgren, wrote the definitive article in the Harvard Journal of Law and Public Policy about 15 years ago on term limits, and they convinced me this is the reform I'm most amenable to, this 18-year term, every two years there'd be

a vacancy. That would regularize when we had vacancies. It would also crystallize for voters that when they pick a president or vote for senators, they are definitely affecting the composition of the Supreme Court. And so that would get rid of politically timed retirements or these morbid death watches over octogenarian justices. What it would not do is change the ideological balance of the court, decrease its power or significance in our lives. So we have to be realistic of, you know, even if it would be healthy and increase public confidence, it wouldn't change kind of a lot of the reasons why we have these big clashes. And it would take a constitutional amendment. There are some clever academics who suggest, and there's a bill that was just introduced in the House to this effect,

that if you just make the most senior justices who are beyond 18 years, literally senior justices who still get their pay and are the accoutrements of being a justice, but aren't necessarily on the court, then that will satisfy the constitutional requirement. I don't buy that. So I do think that there would be a constitutional requirement to be an amendment. And if we have the political unity or will for that amendment, then maybe there wouldn't be the underlying dissension anyway. The other proposals, whether it's expanding the size of the court or having this kind of lottery among circuit judges that you mentioned, or here's a real clever one that Pete Buttigieg glommed onto during the primaries, that you'd have five explicitly Republican

justices, five explicitly Democratic ones, and then five that would have to be unanimously agreed upon by the partisan justices. I mean, how you depoliticize institution by making it more explicitly partisan, you know, I'm not smart enough to figure that one out. So, I mean, at the end of the day, all of these proposals are, you know, tinkering how hearings work or what have you. At the end of the day, this is rearranging deck chairs on the Titanic. And the Titanic is not the process, it's the ship of state. Because the problem fundamentally is the product, is the fact that you have centralized power in Washington

and within Washington is skewing away from Congress deciding political controversies, but punting it all to the executive branch of the administrative agencies, which then gets sued and the courts decide all that. So it took us decades to get to where we are and I have no magic bullet or overnight solutions. It'll, you know, rebalancing our constitutional order, reinforcing the separation

of powers and federalism so that the court isn't deciding so many key issues for such a large and diverse country as ours. That's the only way that we're going to dissipate this toxic cloud. You know, I have neither, I'm realistic about this probability, and also I realize it would take a long time for us to get there. So thank you, and especially thank you for ending by singing my song about federalism. I have been, you know, I think you use a phrase, correct me if I'm wrong, let California be California and Texas be Texas. I've been using that except it's let Tennessee be Tennessee because, of course.

Well, see, there's a third one. Depending on where I'm speaking, I'll say let California and let Texas, and the third one will be like wherever I'm speaking at any given moment. Yeah, there you go. So we usually end with a culture question. So I've got a culture question for you. Um, are you watching Cobra Kai on Netflix? And if not, why not? Yeah, my wife and I watched that about a month ago. Um, really enjoyed it. Uh, like, uh, really enjoyed the eighties flashbacks and all that just well-produced as well. So looking forward to season three.

Yeah. See, that's the right answer, Sarah. Why is it so hard for you to say, I'm either watching or have watched it? I had a nightmare about it. I haven't even seen a trailer for this thing. And because of you, David, it's now in my nightmares.

Thank you. I'm only in season one. And you want to know another culture thing? My wife and I are having our first date night tomorrow night in a long, long time. And we're going to a drive-in movie. Very exciting. What movie are you going to see?

Tenet, the Christopher Nolan thriller. Good luck. No, it's amazing. It's amazing. No, not that. It's seeing it in a drive-in where the sound already is maybe not the best. I think it goes through your speakers. I think it's broadcast FM or something. Yeah, it's different now. You don't

put a little box in your window. Yeah, that's probably better. Yeah. Yeah. No, maybe you might even hear it better. I sat on like the fifth row in one of these big D Dolby IMAX theaters. And I would describe the sound as a physical assault, but it was very cool. I just needed to think about it for a while when I got out of the theater, and I'm still thinking about it, so I need to see it maybe two or three more times. But, Ilya, thank you so much for joining us,

and thank you, listeners, for listening to the Advisory Opinions Podcast. Please go to Apple to iTunes and give us a rating and feedback. I've been reading some of your comments and some of them are pretty amusing. They can be as amusing as you want them to be as long as you add five stars at the end of it. That's the part that really makes it nice. But anyway, thank you for listening.

And your listeners should add five stars to their Amazon review of my book, Supreme Disorder Judicial Nominations in the Politics of America's Highest Court. Exactly right. Thank you, Ilya. And thank you guys for listening. Wow.