Strict Scrutiny - Anti-Democratic Super Weapon

Episode Date: July 26, 2021

It’s Supreme Court reform summer! On this episode, Leah talks to Professor Nikolas Bowie about his testimony to the Presidential commission on the Supreme Court and whether we have or should have a democracy. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. Today, we are delighted to be bringing you a special episode with a very special guest on a topic many of you have asked about, Supreme Court reform and the Biden

Presidential Commission on the Supreme Court. We are delighted to have as the special guest, one of the people who testified at the first public hearing at which the commission received testimony, Professor Nicholas Nico Bui. Welcome to the show, Nico. Thanks for having me. So Nico is an assistant professor of law at Harvard Law School. He is a historian who has a PhD in American Studies in addition to a JD, and he writes about federal and state constitutional law and local government law. He's also on the board of Lawyers for Civil Rights, which advocates on behalf of immigrants and people of color, MassVote, People's Parity Project, and others. And this past year, he was the recipient of the Saxfrund Teaching Prize

at Harvard Law School. So Nico, one of the reasons why I wanted to have you on the show is because your testimony really caught a lot of people's eyes and ears. So for those of you listeners who didn't have a chance to read his testimony yet, since you all should read it at some point, could you tell us kind of briefly what your testimony to the commission was as far as what the commission should think about as they are considering various reforms? Yeah, so I was asked specifically to answer the commission's question about how should they evaluate reforms to the Supreme Court and sort of what they should use to evaluate the arguments, what the current debate is, etc. So we were the first panel just setting up the conversation. And my answer is that we should want to live in a democracy. I thought we were a republic, not a democracy.

Yeah, no. So it turns out that's like a descriptive and a normative issue. But, you know, regardless of where we live right now, I would like to live in a democracy. And so I urge the commission to think about reforms that will make the United States more democratic. And since the commission is the commission on the Supreme Court, the reforms that I proposed were all about the Supreme Court and making the Supreme Court into a agent of democracy as opposed to this countervailing force, which it has historically operated as and which it's currently structured to operate as. So maybe we could elaborate kind of on both of those points, both the historical argument and the political theory of the court before we actually dive into the substance.

So I guess I just invite you to share more both about the historical argument about how the Supreme Court has functioned with respect to democracy, as well as its institutional structure vis-a-vis democracy. I think when most people think of the Supreme Court, especially law students, the story sort of starts with Brown versus Board of Education in 1954. And the court presents itself and is often thought of as, you know, this check on the excesses of democracy that harm political minorities or do bad things. But what that story really, unfortunately, ignores is the decades of history that preceded Brown versus Board of Education.

And so when the Supreme Court held that segregation was unconstitutional, it came, you know, 70 years after the Supreme Court held that Congress had no power to eliminate racial segregation. And after the Civil War, when Congress passed all of these laws that were designed to enfranchise former slaves, to give formerly enslaved people civil rights and political rights and allow them to, you know, function as people in free society, the Supreme Court basically invalidated all of these federal laws. So it said that Congress had no power to pass an anti-discrimination law because the 14th Amendment only applies to states. It held that the 13th Amendment, which empowered Congress to eliminate the vestiges of slavery, did not authorize Congress to pass laws to prohibit lynching. It prohibited Congress from punishing lynch mobs or people that went around just shooting

Black voters. The Supreme Court disempowered Congress and then watched as all of these states stepped in in the 1880s and 1890s and started passing Jim Crow laws. And then when the court looked at those laws, they were like, great, separate but equal. That sounds fantastic. And so Brown, in 1954, is the Supreme Court sort of repudiating one line of its precedent, saying, actually, we think that segregation isn't so great. But it never repudiated the second line in which it held that Congress lacked all this power to, you know, enfranchise people and expand American democracy. And that's the problem that I focus on in the testimony is the problem in which the Supreme Court

interprets the Constitution differently from Congress and says that Congress lacks the power to, you know, enact a health care law or expand health insurance to millions of Americans because, you know, it's not within the general welfare or when it says that Congress can't pass a Voting Rights Act because it's not appropriate. You know, all that represents is just the Supreme Court disagreeing with Congress about the meaning of these very vague phrases in the Constitution. And that's pretty anti-democratic, given how the Supreme Court is structured relative to Congress. So maybe we could talk more about this claim vis-a-vis the court's decision in Brown,

because I think you presented your argument as kind of a response or an alternative to a common theory that is associated with the courts and that is supposed to explain the role of the courts in a democracy, namely political process theory. So law students are probably familiar with or have encountered this theory. It is associated most with Caroline Products' Footnote 4 or John Hart Ely's book, Democracy and Distrust. that the court would step in to review laws that limited access to the political process or that negatively affected discreet and insular minorities who faced prejudice and therefore weren't prevailing as often as they should in the political process. And this theory had a few good years during the Warren court, you know, in decisions like Baker versus Carr or Reynolds

versus Sims, in which the court enforced the one person, one vote guarantee that prohibited, you know, gerrymanders that packed too many people into some districts and not enough people into others. But for me, you know, your historical argument about the role of the court tees up this interesting question that I often struggle with in thinking about constitutional law, which is, when do we use history and practice to discard a theory? That is, I completely agree with you that the court has never embraced political process theory or elysian, you know, representation reinforcing judicial review, and in fact, has acted in ways that are affirmatively hostile to it and

disempowered the political branches from making our country more democratic. But at what point do we say, well, that's just their imperfect or deeply flawed practice at doing so? Should we still hold out the possibility that maybe they could do it someday? Yeah, so I have two big responses to that. One is historical and one is formal. And so the formal response is, I think there's a really important formal distinction between when the Supreme Court reviews the constitutionality of state laws versus when it reviews the constitutionality of federal laws. To explain that distinction, I think it helps to, which I do in a testimony, talk through the history of this specific statute, the Ku Klux Klan Act. So in 1871, when Congress is passing all of these civil rights laws,

one of the laws it passes basically invites private litigants, just ordinary people, to sue when a state deprives them of their constitutional rights. And this was part of the Ku Klux Klan Act, which was designed to disrupt this terrorist organization, which included many sheriffs and state actors. And so it was like, if a state actor prohibits you from voting, then you can sue them. And what Congress was essentially doing was drafting federal courts into protecting the political process. It was saying states are not doing this on their own. So, you know, we cannot just pass laws overturning every time a state disenfranchises someone. We need someone to,

you know, go around and enforce it. And so Congress said, federal courts, you, it is your job to go enforce the Constitution, as well as federal laws, with respect to states. And so that law today is known as 42 U.S.C. 1983, where it is in the federal code. But it's essentially a congressional invitation for the Supreme Court to review state laws. And so for a very long time, the court just ignored that. So when Alabama said, we're just going to disenfranchise our entire Black population in the name of white supremacy and just like made their whole convention about that, the Supreme Court said, well, we see the problem, but I don't know what you expect us to do about it. So we're just going to allow Alabama to disenfranchise all its Black people. And in the 50s and 60s, this is what the court reversed.

The court said, actually, you know, we do think that we have a role to play in enforcing constitutional and federal law with respect to states. And so the cases you just named are all examples of the court reviewing state laws for interfering with the democratic or the political process. And so the historical argument there is the court's just been really inconsistent about that. You know, there are like some cases in which the court has held that, you know, racial gerrymandering is a problem, some cases in which it's held that it's fine to pack people into districts so long as they're doing it for partisan reasons as opposed to racial reasons, even if it's the same thing. It goes back in court. And I think there's certainly

a partisan or ideological dimension as to which of those decisions I or you or anyone else would think are good or bad. But the formal problem is that when the court gets one of these decisions wrong, so when the court says that a state can't do something or a government can't do something, there's no way for Congress to disagree with the court. And that makes it really different from when the court enforces most federal law. So when Congress passes the Civil Rights Act and says, enforce this, and courts say, OK, a state law that prohibits people from like people of color from doing something like that law is struck down. If the court gets that wrong, Congress can just amend the law and say, you got this wrong. Do it again. But when

it comes to enforcing the Constitution, we have a system in which Congress currently does not exercise any oversight over the court's interpretations. So when the court gets something wrong, or if you or I disagree with the court, our only solution is amending the Constitution. And that's a really big problem. And so the difficulty, again, that I focus on in the testimony is the court's overall power would be far less objectionable if there were a democratic institution or a relatively democratic institution like Congress that could exercise oversight over the court and say, look, we think that you got this case wrong. Here is a better outcome. Or, you know, we think that this whole line of precedent is going the wrong direction. Let's rein it in. And when Congress has attempted to do that, so in the 1990s, it famously attempted to do that, the Supreme Court has resorted to these post-Reconstruction precedents and said, no, it is our job to interpret the Constitution alone. When we say something is appropriate, it's appropriate. When we say it's not, it's not. And there are simply no examples of the court playing this sort of like political process role with respect to the federal government. And so the overall argument of the testimony is that Congress is just a better institution at interpreting the

Constitution and ensuring that states comply with it than the Supreme Court is. It's a more democratic institution. Historically, it's just done better than the court, just empirically. And for those two reasons, the court alone is just not a great primary supreme institution to run a democracy. But it is the law. It is king, or so it tells me. So maybe I could just ask two follow-ups about that. One is whether, and just thinking through a hypothetical here, let's think about some decisions that this Supreme Court has indicated some interest in and whether the problem with those decisions would be less or sufficiently non-existent if Congress could

change them. So the two examples I have in mind are some issues related to the Supreme Court and state law with respect to elections. So one example is Arizona Independent Redistricting Commission. That is the decision where a bare majority of the Supreme Court, when both Justice Ginsburg and Justice Kennedy were on the court, said states could choose to have independent commissions draw legislative districts rather than legislators, thus attempting to avoid the problem of partisan gerrymandering, where legislators draw districts that give one political party an advantage relative to others. other is the so-called independent state legislature doctrine. This is the doctrine first spelled out in Bush versus Gore and that Justice Kavanaugh indicated some interest in during the 2020 election cases in which the Supreme Court says that state legislators and state legislatures alone have the authority to make the rules regarding state elections. State courts can't do so, and neither can state executives. And therefore, if state courts either misinterpret state law to a sufficient degree,

or if a state executive does something that's not authorized by state statute, it's for a federal court to say, you know, you've basically usurped the state legislature's power in order to make the laws regarding voting. And I guess I think both of those doctrines have real anti-democratic potential, you know, in the hands of this Supreme Court and the lower federal courts. And I think I also think that I would think the same thing even if Congress had the authority to say, well, yes, Supreme Court gets to say a state can't adopt independent districting commissions on its own, but we Congress could decide to do that if we wanted to, or we Congress could write a statute that says, you know, state

executives or state courts get the authority to, you know, interpret state laws regarding voting rights or expand voting rights if we wanted to. I would still think that that Supreme Court review of those state decisions is pretty anti-democratic. Yeah, sure. I mean, yeah, I agree with you. Just one note about the independent legislature doctrine. I think it's just so crazy that the current Supreme Court has three people who represented Bush's team in Bush versus Gore. And so this argument that just sat dormant for 20 years is all of a sudden getting revived by the people who made it up when they were representing George Bush. I don't know if fans of the podcast are into the law politics distinction, but it does really threaten it.

I think that they are. I think they are very into that distinction, particularly since Sam Alito gives them fodder for that distinction basically every week. So, yes. I know. It's basically just coincidence that he was not on the team because he was too occupied with his own team. I know. They really missed out on a good one there. He would have brought some real strong emotionalito energy to that team for sure. But I mean, to the hypothetical, I mean, so first of all, one just important observation is that Congress also suffers from, you know,

a huge democratic deficit, you know, the existence of all sorts of things from the filibuster and the Senate's disproportionate of representation to the way that districts are created. Like Congress is not a perfect democracy by any means. It's just relatively more democratic than the Supreme Court. But even if Congress were this ideal democracy, it's certainly plausible that democratic institutions can produce anti-democratic results. I mean, you see that all the time. Legislatures make bad calls. They pass laws that really harm people. They pass laws that disenfranchise people. They pass laws

that turn a democracy into something else. That is something that needs to be avoided. The question that I pose in the testimony is just, okay, like, we all want to avoid democratic collapse. It's just a question of how. And the Supreme Court's just bad at it. You know, when the Supreme Court tried to prevent political collapse before the Civil War, it produced Dred Scott. It was like, here's our solution. You know, we're going to resolve the political problem of the day with a decision that prohibits Black people from ever becoming citizen. It has a very bad track record. And so the idea of, you know, a institution coming up with something bad leads to the question of, okay, so what is the best way of fixing bad decisions? And right now when Congress, you know,

if Congress were to authorize courts or if Congress just directly were to pass a law saying, you know, like no mail-in voting, or no independent redistricting commissions, yeah, that would be bad. The solution would be, okay, we need to organize and campaign and get this law repealed. But when the Supreme Court holds the same thing, you know, you can't do that. That option is off the table. The next option is, okay, I guess we have to amend the Constitution by getting two-thirds of both houses and three-quarters of the states to reverse the court's precedent or, you know, expand the court or mess with the justices to force them to change their minds. And so in dealing with this sort of like bad outcome, the main advantage of democracy is it also puts change back in the hands of the people as opposed to, you know, hoping that this

unelected body is going to exercise its discretion more favorably. One question that I posed to my students this past semester was, you know, just to imagine that you lived in a dictatorship where the dictator happened to align with your values. You know, so like you live in a dictatorship in which the dictator went to Harvard Law School where I teach and they sort of are like the typical Harvard Law student. They share all of your politics for the most part. And so if you like a Green New Deal, so does the dictator. If you like reproductive justice, so does the dictator. You know, it could be a really nice society until the dictator changes their mind. And then, you know, you're screwed. Then what are you going

to do? You have to, you know, first get rid of the dictator. And the Supreme Court, I feel, is very similar, where it can issue some great decisions and decisions that you can really strongly agree with and think this is how the world should be. But to the extent that the decisions are being made in a manner that isn't democratic, or at least overseen by a democratic institution, then if it gets it wrong, you know, you're in real trouble. Yeah, I think that that, to me, is how I talk myself down, or at least away from this fear that what we are telling people is, you know, to fix how skewed our elections are, or to fix, you know, the rigging of elections, be it through partisan gerrymandering or voter suppression, by using the elections that are rigged by those things to fix them. But I think, right, that is the kind of best solution in a world of very bad ones, you know, particularly with the world the way it looks now. Historically, that's true. You know, it's a legislature in which women were disenfranchised

is what enfranchised women. A legislature in which Black people were disenfranchised is what enfranchised Black people. It wasn't the court. And so, you know, democratic institutions, like one major advantage of democratic institutions is by putting political power in the hands of people as political equals and saying, we all deserve to participate. It creates a huge moral claim for disenfranchised communities to participate. It makes it very difficult to rationalize excluding them. This is true worldwide, that democracies can be self-reinforcing by, you know, when people are excluded, they demand to participate. And when they do participate, they exercise that power to continue expanding the franchise. And so, of course, it can contract and of course, it can lead to bad outcomes. But we have a lot of historical precedents of excluded people

demanding and exercising power through legislative processes as opposed to through judicial processes. I did want to reinforce this point that, you know, what we are saying is in part the idea that the better institution to make these decisions in is the one that is more democratically accountable in structure and design, and not necessarily that that institution is always or necessarily going to be producing better decisions like vis-a-vis either democracy or like particularly affected groups. You know, I think the example of segregation and what the redemption court did to reconstruction is a particularly powerful one because there you really do have Congress attempting to achieve by legislation what the court did, you know, 60 to 70 years later and what the

court prevented Congress from doing, you know, the 60 years before. But, you know, in other areas, be it Native American affairs or immigration, it's not like Congress was all that great, you know, for groups who were excluded from the political process. You know why Congress was in the wrong to do so and also like a vehicle to attempt to change that. So that's just something that I would add to the historical account. Yeah. And they gave it two thumbs up. Yeah. It was like, oh, you want to prevent Native Americans from being citizens? Excellent. 14th Amendment be damned. Like, they're not citizens. You want to exclude Chinese immigrants? Fantastic. Go nuts.

And these decisions are not just, it's not just tolerance. It's not just, oh, the Supreme Court's going to keep its eyes closed while Congress does these bad things. Like, these decisions are inviting Congress to continue. And it basically forecloses further debate. So when the Chinese exclusion case says, you know, Congress can do this, Congress can exclude whoever it wants. So says the Constitution. So says us. Like that marks the end of congressional debate over the constitutionality of immigration

restrictions. And so the first immigration law was part of the Alien and Sedition Act, and it was allowed to expire because so many people, including James Madison, thought it was unconstitutional. But when the Supreme Court weighs in and says, yep, you can exclude whoever you want, including a particular racial group, that ends the debate. I'm so glad you said that specifically about the Chinese exclusion cases, because that is actually part of my argument for the article that I have been working on in the pandemic about habeas. So notice to the editors of the Texas Law Review and my tenure reviewers, Nico has validated my argument. Secondly, and more seriously, I think the, you know, part of the idea that you were alluding to that Congress wants the Supreme Court weighs in or the people

wants the Supreme Court weighs in think that ends the debate, right? And that alleviates our need to kind of engage with the constitutional issues is this idea of a juristocracy, you know, the, that the structure of judicial review and our constitutional culture, as we know it, pretends or acts as though, you know, the Supreme Court knows more about the Constitution or has more expertise in telling us what the Constitution means that there and that their resolution of these issues kind of removes our obligation or a necessity for us to think about them. And there was one particular moment in your testimony that I want to play for our listeners here, where you kind of invite the commission to think about their own role as lawyers and law professors vis-a-vis the Supreme Court. I will only adhere that it was not easy for me to criticize the Supreme Court in my written testimony, just as I imagine it will not be easy for any of you to

criticize the court in your final recommendations. As members of the elite, as academics and as lawyers, our influence with our students and our clients currently depends on our ability to maintain close connections with federal judges. It harms our careers to alienate judges, and it helps our careers to praise them. In this respect, asking lawyers and law professors to testify about reforming the Supreme Court is like asking a worker to testify about whether their boss is doing a good job. If they look over their shoulder and say everything is fine, I can understand their hesitation. But I think our commitment to democracy demands that

we be honest about the harm the Supreme Court as an institution causes. We are all harmed when some of us can't afford health care because the court declared the expansion of Medicaid unconstitutional. We are all harmed when some of us cannot vote because the court rendered the Voting Rights Act ineffective, and we are all harmed when some of our younger colleagues are harassed at the beginning of their legal careers by judges to whom no one ever says no. It is time for us to raise our expectations for how democratic our country and our profession can become. We must not be afraid of alienating our social betters or fear how the people might rule without them. We must take inspiration from democracies the United States once inspired, but which have taken our ideals far beyond what we allow ourselves. Democratizing the Supreme Court will be hard, but we must do it.

You know, just to kind of like spell this out to our listeners, you know, it is like a serious like pat on the back or, you know, pat on the head for an academic to get their work cited by the Supreme Court or by a federal court of appeals. It's a good thing, you know, for law professors to be able to help their students get clerkships if they want them. And that power structure is something that kind of enables this or is at least a kind of manifestation of, I think, the dynamic, you know, that you're referring to there. Yeah. So I was really honored to be invited to participate in the commission, but I also don't have tenure. And so my own thought about it was, well, you know, I don't really want to criticize anybody because they're going to control my future.

Like a bunch of people on the commission are eventually going to review my tenure file and, you know, anything that I say could affect my future employment. And I felt like that, to me, was an illustration of the problem with the commission itself. Because it was like, you know, in some respect, you know, tenured law professors are the most powerful, you know, they have the most powerful jobs in the planet given relative to their employer in the sense that they can't be fired. But relative to federal judges, judges exercise a tremendous amount of authority over, you know, or discretion at least over what law professors can say or do. And the examples you said are good ones. I personally would focus on clerkships. I think, you know, I have students who I write recommendations for. And I know that for many of my colleagues, it's, presences on campus and to get invited places, like having a good relationship with federal judges is a big deal. And so to invite

a bunch of us, and this is not even mentioning litigators who actually have to go and present arguments on behalf of clients in front of the courts. But so courts just occupy a very high position within American legal culture that makes them very difficult to criticize because they can affect us personally on the basis of our criticism and without us knowing it. You know, I hope that the commission presents a case for reform or at least does not poo poo it too harshly. But I had to admit going into it that I'm a little skeptical to ask people to criticize judges who can retaliate. And that's what it comes down to. It comes down to retaliation. You know, judges can retaliate against litigators. They can retaliate against law professors in very subtle ways. And they can obviously retaliate against Congress and against states.

So there isn't really an institutional check on the discretion of a judge. And to the extent that that's defended in the name of judicial independence, I think it has to be judicial independence compared to what? Because I, for one, do not want to live in a country that is run by judges as independent as they may be. I want to live in a democracy. Yeah. Just to reinforce the idea, I think it is true that judges can retaliate in subtle ways. And I say this as someone who has received a public dressing down by a federal judge for speaking out about the behavior of another federal judge, as well as having other federal judges tell other people that I am a crazed person engaged in this, like, you know, wild-eyed campaign to get judges stop harassing their

law clerks. So, you know, this happens, like, judges are people, you know, even though they are independent people with life tenure. It's just, you know, part of how it goes. So you testified before the end of the Supreme Court term. Then the Supreme Court term ended with a bang. Want to update your testimony at all? Or I guess like one one addition I would make is, you know, we have been talking so far about the real anti-democratic difficulties when the Supreme Court precludes Congress from correcting or adopting a different constitutional interpretation. That is, the Supreme Court is anti-democratic when it invalidates acts of Congress. But at the end of term, we also kind of see how it can be anti-democratic in

interpreting acts of Congress. You know, Brnovich versus DNC obviously rendered quite toothless Section 2 of the Voting Rights Act. And we've talked about that on previous episodes. And I completely get how removing the power to invalidate goes a big step in the right direction. a statute that says, no, when we prevented states from adopting laws that result in discrimination on the basis of race, we actually meant laws that result in, you know, disparate burdens on different racial groups, you know, notwithstanding any of the other factors you incorporate into the analysis. Yeah, just repass it with some underline. Right, exactly.

All caps, underline, italics, large font, right? We meant what we said. But I guess, you know, part of my hesitation about using this theory or this idea as the metric or the only metric for Supreme Court reform is litigators, and I think Congress, like rely on the courts to enforce the statutes as written. And it's true, Congress could always come back and rewrite a statute, right, in clearer fashion, right, and to like override a Supreme Court decision. But right, that could happen an awful lot if you have a Supreme Court, you know, so wedded to the political or ideological project that motivated Brnovich or the Supreme Court that has adopted such stingy interpretations of Title VII, like in Vance versus Ball State or

Nassar versus, you know, UT Southwestern, which just made it more difficult for plaintiffs to pursue retaliation or harassment claims under Title VII. So is that just what you get if you accept that the most important thing and the thing we just need to prioritize is, you know, making change through a democratic institution and saying that that is the ultimate check? You know, yes, like we'll leave us with a bunch of courts that could consistently interpret statutes in ways that undermine them, but Congress can always come back and fix it? Or is that just not part of the project or analysis? So I frame the testimony as an opposition to judicial review, which I defined very precisely to mean when a federal court declines to enforce a federal law. So that's what happens in a case like Shelby County, in which the court declines to enforce the Voting

Rights Act on a theory that it's not appropriate under the 15th Amendment. And you're right that it doesn't necessarily include Brnovich. But I think it's the same issue in which the court's looking at the statute and just thinking like, no, we're just not going to enforce the statute because we think it's too radical, or we think that it's too much. Not this is what we thought Congress meant. It's just too much. But I think, you know, the issue that you're raising is one that I think is, you know, sort of inherent in government in which courts are necessary to enforce laws. To the extent that there is a separation of powers,

that Congress passes laws and then the members of Congress themselves do not go out and enforce those laws. Like there is going to be issues of interpretation. It'll be either by the president or by courts. And I don't think it's possible necessarily to eliminate interpretation, even if the people interpreting the laws, you know, like a

presidential administration just says, we think this law is stupid, so we're just not going to enforce it. Or if a court says, you know, we think that this law means something different than what Congress meant. I do think that is an argument for making the Supreme Court's exercise of its power more equitable. So I think the primary argument is to disarm the court of its, what I called it in the Testament, this anti-democratic super weapon. So to take judicial review of federal laws away, I think that would help a lot. And we can talk about what that means, but to have a court system in which their only job is to enforce what Congress asks of them. But I still think, you know, even if that's all that federal courts did, it would still be a problem if, you know, appointments by one political party just control this very powerful institution for 50 years

on the basis of when people choose or not choose to retire or when they happen to die. And so I think that there are better ways of making the distribution of judges and justices more equitable. And so I'm sympathetic to arguments like, you know, the argument to have a rotating system of getting appeals judges on the Supreme Court or term limits or other alternatives to our current exclusive form of appointment. But I would call it a secondary issue. I would call it a secondary issue to the primary problem that we have allowed this unrepresentative body to exercise the supreme authority of deciding what we as a nation are allowed to do. And so I think democratizing the Supreme Court includes both making sure that its exercise of power is democratically accountable, but also

could include ensuring that the people who occupy this position are democratically rotated or otherwise disempowered. So it's not just one or nine people exercising lifetime authority to decline to enforce whatever laws they want. But then I'll have to come up with so many different nicknames for so many different justices. So it'll make my job harder. I would gladly take that hit, though. Yeah, like 500 judges. Right. Exactly. You'd have to have baseball cards or something.

Yeah, no, that's very true. So I guess how do or how should progressives or liberals think about walking and chewing gum at the same time? Because I read your testimony to be part of I'm going to use a phrase and it sounds pejorative, but I don't mean it pejoratively, as part of like a delegitimation campaign, right, to attack the legitimacy of the Supreme Court and its current role in our constitutional democracy and the role of the federal courts more broadly. And I think that that is absolutely warranted, you know, for the reasons you gave in your testimony and the reasons we've discussed today. But I also think that delegitimation campaign makes it hard to simultaneously put forward an affirmative progressive agenda for the courts and to get progressives to care about judicial appointments or to say, like, well, we will appoint judges who will do X, Y, and Z. So I guess, like, how should progressives think about trying to do both or maybe giving up on the second, you know, to do the first? I certainly don't think they should

give up the second. The way I think about it in particular is there are many laws that I would like to see Congress pass. There are many ways I would like to see the United States become a more just society. I would like to see us embrace reproductive justice. I would like us to do something about this impending climate crisis. I would like us to resolve inequities and inequality and wealth and the racial wealth gap to so many forms of injustice worldwide. So I have like a list of laws that I would love to see passed. And literally for every one of those laws, I can think of a way in which the Supreme Court could either invalidate them or make them ineffective. I can easily, easily, easily imagine them striking down the Women's Health Protection Act

or striking down the New Voting Rights Act or even the one that Joe Manchin has been promoting, which would, you know, make nationwide Section 5's old rule or, you know, H.R. 1 or just, you know, it's like a very easy, it's an easy exercise. It's just this is the stuff of con law professor exams. It's just here's the law. Tell me how professor exams. It's just, here's the law, tell me how you would strike it down if you didn't like it. And it's very difficult to come up with a law that you can't think of that for. And so I think this goes hand in hand with literally any agenda, whether it's a progressive agenda or a conservative agenda. It's just really hard to

think of an agenda that would not survive federal courts, because right now we have a system in which the laws that are allowed to be enforced depend on the discretion of these nine people, specifically five of them, forever. Can't just win 2022 elections, like forever. So long as they're on the court, they are going to exercise this power. And so I think it's not just a question of walking and chewing gum. It's like chewing gum while breathing. It's like if you don't do the breathing part, you will die. Democracy will die. So from that perspective, it's just like, what do you care about? Because if what you care about requires a law, it's not going to survive if the Supreme Court doesn't like it.

I'm definitely with you there. And the last completely unrelated point, but I saw you tweeting about this and it's something that I think about, but we haven't talked about on the podcast, which is how do you strike a balance between what people say is an alarmist reading of Supreme Court decisions or or as we were just talking about, you know, an alarmist reading about what the Supreme Court might do, you know, to democratically enacted legislation, with, you know, what they say in their opinions are possible limits on those opinions. So this issue came up in opinions ranging from Cedar Point Nursery versus a SID, in which the court, you know, adopts a new definition of takings, but then says, but there are all these limits on this definition that might not call into question, you know, civil rights statutes like Title

VII, or decisions like TransUnion, you know, which invalidated one statutory cause of action, but might not invalidate all the others, or, you know, June Medical Services versus Rousseau, or like, you name it, you know, a decision in which some people are saying, you know, taken to its logical conclusion, this decision could have these extremely far reaching consequences, notwithstanding the Supreme Court's line or two that says, you know, this decision isn't the end of the world. I guess the way I would approach this question is thinking about the Supreme Court at its most self-aware. So its most self-aware. So the most self-aware Supreme Court opinion, I think, is Planned Parenthood versus Casey,

in which the court was asked to overrule Roe versus Wade. And the three justice plurality said, no, and here's why not. Or at least we're not going to reverse the essential holding of Roe, what that means. But here's why not. And the court's answer was roughly, we get our power, not from our control over troops, not over control over money. We get our power from the public's perception that what we are doing is in principled analysis of what the Constitution means. Like to the extent that that is not true, we have no power. And so if we were to overrule this, because, you know, three new Republican justices were appointed, people would no longer think that what we are doing is principled exercise

of interpreting the Constitution, and we would just be nine people, you know, writing opinions to ourselves, like law professors. So I think the court's current justices all recognize that. I think Justice Breyer, like I think his current campaign is very much in this line of if people do not think that what the court is doing is principled analysis, then the court just has no power. Like its power depends on its public relations campaign. And so every time the justices go out and say there are no Trump justices and no Obama justices, or they say we are not politicians in robes, like that is them reinforcing their own power. So I think from their perspective, it is a really strong challenge to say that, no, like what you are doing is the same sort of exercise of discretion that I would be doing if I were up there, that anyone would be doing if they were there, which is like, sure, you may want

to reach the right answer. It just happens to align with everything else you think is the right answer. Like, I think the right type of government is a libertarian one in which there are no regulations. It's not surprising that your interpretations lead to these sorts of outcomes. And so we also live in a country where right now on the basis of this power, everything the court says just depends on their discretion. It's not as though we, the people, are checking them. It's not as though Congress is checking them.

No one's checking them. It's just their discretion. It's what as though we, the people, are checking them. It's not as though Congress is checking them. No one's checking them. It's just their discretion. It's what they think goes. And so when they issue an opinion and the opinion is, here is the new principle and we think the limit should be X. You know, then you can read that opinion and say the court says X is safe. Or you can read the opinion saying, like, right now, as an exercise of their discretion, they wrote that. But next year, when X comes up, they might change their minds. And for litigants, and I think for many law professors, the public relations move aligns with that of the court. Because if you're a litigant and you go up before the court a lot and they issue an opinion that says X is safe,

if you have clients who are going to be harmed by the removal of X, like you want to reinforce that too. You want to say X is safe, says the court. The court says X is safe. Like in a landmark decision, the court says X is safe. It's like, it's in your interest to try to build up as much political capital as possible to make overturning X difficult. But ultimately, it does depend on just the court's discretion. And so I think for my own, like when I read an opinion, and the court announces this very general rule, and it just says, trust us, you know, we won't harm the things that you care about, it's still just up to them to decide whether or not they're going to adhere to that promise.

And absent any checks on what the court does, other than a common acknowledgement that this is just a discretionary body that's interpreting the law as it sees fit, then I think it's really dangerous to subscribe to a view that what they are just doing is, you know, principled, objective analysis of the correct solution, as opposed to, you know, it's basically just a jury for life. It's like you get nine people in a room, and they're going to come up with answers that you may not have come up with if you were in there. And so just as we do not trust a single jury to decide all cases, it's really dangerous to trust the same nine people to decide every issue that comes before them forever. And I think that's also what I tell myself I am doing when I say, you know, under this decision,

you know, this could threaten the validity of Title VII, even if I don't think there are currently five votes on the court to say Title VII constitutes, you know, an unconstitutional taking. And the reason I say that is because the only kind of mechanism we have to challenge the Supreme Court or to impose some democratic constraints on it is through popular organizing or by getting members of Congress to care about what the Supreme Court is doing to pay attention to them, which then influences the Supreme Court. And I think that is not a great nor is it a sustainable mechanism of controlling the power of this institution. But as it is currently structured, that's the only one. And that's part of why I say what I say about some of the opinions, because like,

you know, in their hands, who knows what they will do with them? like title seven enough that they won't strike it down? Or do you think that like their lives will be miserable by striking down title seven because they won't get invited to symposiums and they won't be able to speak and people won't like them? Like, it's just a question of predicting, do these five people, do you think that you're going to just continue their lives as they, as they currently do upholding title seven or not it's not a question about like what is the law it's not a question of what does the constitution allow it's just what do you think they're going to do and i yeah uh one way of reading that is well they said they won't strike down title seven so good and another way of reading it is wow i i can i can imagine the precedent right just as after um you know that namundo case before Shelby County, like the court's like, the Voting Rights Act is upheld for now.

And then the headline is like, Supreme Court upholds Voting Rights Act. Yeah, for two years. Right. Couldn't see this coming. Right. Exactly. So that's probably all we have time for. Thank you so much for giving us your time, particularly pre-tenure, Nico. We really appreciate it. Should we submit all of our podcasts as comments to the Presidential Commission on the Supreme Court? Is that an idea worth pursuing? Yeah, or definitely press clippings because the justices here read those too.

Yes, also true. I don't know if the transcripts are also clipped. That's true. Yeah, I'll start tweeting them out and hope that makes its way to the Supreme Court Public Information Office. Thank you so much, Nico, for joining. Thanks to our producer, Melody Rowell. Thanks to Eddie Cooper, who makes our music.

Thank you to the organizers whose demands led to this commission, even though they were not included on it. Thanks to Liam Bendix scrutiny, or by purchasing some merchandise, including a I dissent not respectfully shirt or a I burn for textualism one. So have a wonderful summer.