Strict Scrutiny - Death Eaters

Episode Date: May 31, 2021

Melissa interviews Ian Millhiser about his new book, The Agenda: How a Republican Supreme Court Is Reshaping America. This conversation was originally an event with the Commonwealth Club in April. Follow us on Instagram, Twitter, Threads, and Bluesky

Hi there, Strict Scrutiny listeners. This is Melissa Murray. Because the court's in a bit of a lull as we wait for the final opinions from October term 2020, we have some very special content for you. On April 5th, 2021, I hosted a conversation with Ian Milhiser of Vox about his new book, The Agenda, how a Republican Supreme Court is reshaping America. The conversation was hosted by the Commonwealth Club, a San Francisco institution. And ordinarily, this would have happened in person at their downtown headquarters. But because of the pandemic, we did this live over Zoom. In any event, it was a fantastic conversation with a really rollicking roll through the court's past, present, and future.

And we are really grateful to both Ian and the Commonwealth Club for allowing us to rebroadcast this as a special collaboration of Strict Scrutiny and the Commonwealth Club. Enjoy. 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. Hello and good afternoon. My name is Melissa Murray, and I'm very pleased to be the moderator for today's virtual Commonwealth Club program, How a Republican Supreme Court is Reshaping America. As a longtime Bay Area resident, I have long wanted to moderate a Commonwealth Club program, and I've also wanted to have a conversation with our guest, Ian Milhiser. a more important topic to discuss with Ian than the current direction of the United States Supreme Court, which is the subject of his new book, The Agenda, How a Republican Supreme Court is Reshaping America. Ian Milhiser is a senior correspondent at Fox, where he focuses on the Supreme Court and the Constitution. And I focus on many of those issues in my role as the Frederick

I. and Grace Stokes Professor of Law at New York University School of Law and as a host of Strict Scrutiny. Prior to my appointment at NYU, I was for 12 years a professor at Berkeley Law here in the Bay Area and served briefly as the school's interim dean. Earlier in my career, I clerked for Justice Sonia Sotomayor, which is all to say that the issues in today's discussion are critically important to me both personally and professionally. Let's jump into the conversation with Ian. Ian, welcome to the Commonwealth Club. It's great to be here. Thanks so much. Well, it's great to be here with you. In the last few months, I think Democrats have really had a heady time of it. They've won back the White House. They've maintained control of the House

of Representatives. They've turned Georgia blue. And in the process, they've won two improbable Senate seats, inching closer to control of the upper chamber. Yet your book sketches an almost dystopian future in which these gains are ephemeral, the calm before the storm. Can you tell us a little bit about the book and why you think the present moment isn't as rosy for progressives as these gains suggest? Yeah, I mean, I think a big reason why I'm skeptical of judicial power generally, and the fact that we have such a powerful Supreme Court, is that in a democracy, people should be allowed to correct mistakes. And like, you know, people should be allowed to correct mistakes and like, you know,

nations should be allowed to try new things. And if a party wins an election, then they get to govern for two, four, six, however many years, but they shouldn't be able to govern for 40 years. And, you know, part of, you know, setting aside the question of what the court is going to do, part of the thing that I think is so troubling about this court is that, you know, Donald Trump was president for four years. But because of, you know, certain coincidences, I mean, you know, no one had any control over when Justice Ginsburg would die, but also because of things that were very much engineered. I mean, Senate Republicans very much did have control over the fact that Merrick Garland is not on the Supreme Court right now. Trump got to be president for four years after not winning the popular vote. And yet,

even though he was repudiated in the first opportunity that the nation had to repudiate him, many of his policies are likely to live on for 30 or 40 years or more because of the sort of semi-randomness of the fact that he got to appoint an unusual amount of justices. And that just strikes me as inconsistent with the democracy. You know, I'd hope that if seven justices had died in a tragic hot tub accident during Obama's presidency, that I would have a similar view, which is that, you know, I like Barack Obama, I voted for Barack Obama, but I don't think that his policy should be entrenched for decades if the voters decide that they don't want those policies anymore. Well, with that in mind, back in the 1960s, Alexander Bickel wrote a book

called The Least Dangerous Branch, in which he criticized the court as being counter-majoritarian, specifically the idea that judicial review allowed an unelected, life-appointed Supreme Court to strike down laws and policies enacted by the representatives of the voters. So if the Supreme Court is, as Bickel suggested, a counter-majoritarian institution, should we have more control by Congress and the president? And if that's the case, maybe it is okay that a Republican president gets to make his policy imprint if indeed that is the will of some portion of the voters. Yeah. I mean, I think that as a general rule, we want the lion's share of policy to be made by democratic branches. I mean, we want to have free and fair elections. You know, I could write a whole nother book about Senate malapportionment

and why that is a problem. So like, I think that we want our elected bodies to reflect the actual will of the people. But once you have achieved a democratic republic, then you generally want the democratic arms of government to be making policy. And for a long time, there was really a consensus around this viewpoint. I mean, this is what I discussed in the intro of the book, is Roosevelt, Franklin Roosevelt, had a big war with the Supreme Court where they were striking down New Deal policies. And before they would striking down New Deal policies, they struck down things like child labor laws, often been doing to him, but from the left. He could have appointed a bunch of liberal justices who would just implement the New Deal from the bench. And he didn't do that. What he did is he wanted the court to get out of the way. And that consensus, I mean, if you look at Ronald Reagan's rhetoric surrounding the court,

if you look at Richard Nixon's rhetoric, I mean, even to a lesser extent, George W. Bush's rhetoric surrounding the court, it was very similar to Roosevelt's. They thought like, look, we were elected, they weren't, we don't want them legislating from the bench, we want judicial restraint, let me govern. And I think that that is generally the response that a confident political movement has towards the judiciary. You know, Roosevelt, you know, he won four landslide victories. He didn't really, you know, he was confident in his that he had the will of the people behind him. And, you know, Ronald Reagan, you know, whatever else you want to say about Ronald Reagan, very much had the will of the people behind him when he was president. He also won two landslide elections. The point that we're in right now, I mean, in seven of the last eight presidential elections, the Republican candidate has lost the popular

vote. I saw one study recently that said that if it wasn't for a malapportioned Senate, Democrats would have controlled the Senate consistently since like the late 90s. And so the Republican Party, I think, is good reason not to feel confident that they can win fair and square elections, at least running on the policies that they're running on now. And when you can't win with the political agenda you have, you basically have two choices. One is you can moderate. That's how Bill Clinton managed to win while Reagan's ideas were still popular. Or you can do what the Republicans seem to be trying to do right now, which is peel back our democracy. I think this is a really fascinating point.

So you could peel back democracy. And you've talked about in the first chapter of the book, the ways in which the political process is really under siege from these conservative legislative policies that are being enacted, but also being protected by a more conservative judiciary that credits them. Another way that you could seek to preserve your gains, or at least to get gains that you could not get through majoritarian politics, is to turn to the court. So everyone remembers famously the example of John McCain voting thumbs down to repeal the Affordable Care Act. And lo and behold, just after that, we had a turn to the courts, a lawsuit filed in a district court in Texas to do the exact same thing that they could not have accomplished through majoritarian politics. So

this seems to be the antithesis of what the conservatives have been saying for a long time. This seems to be a kind of judicial activism where for many years they had been propounding the idea of judicial restraint. Is that your take on it as well, that there's been an about face on this? Yeah. And I mean, I find it very disturbing. I mean, one thing that I'm sort of hesitant to confess is, you know, I didn't graduate from law school that long ago. I graduated in 2006. And like in the mid 2000s, like if you went to Federalist Society events, the word judicial restraint came up over and over and over again. And, you know, if you looked at what George W. Bush wanted, like he wanted the courts to stop striking down his Gitmo policies. You know, he didn't want them to implement a broad domestic agenda. And my dirty secret is I would attend these Federalist Society events in

like 2005. And I would hear them talk about like why we should have courts do less and, you know, why we want the people who are elected to be able to govern. And I was like, God, I really don't have a good response to that. That sounds right. And having won the argument, the Federalist Society then proceeded to abandon the position that they had won on shortly after President Obama got into office. I mean, I really think, you brought up the Obamacare case that's currently in front of the court. I really think the turning point was NFIB v. Sebelius, the first big Affordable Care Act case to reach the court. And I was very involved in litigating that. I coordinated a lot of the amicus brief strategy in that case. And I remember

the first brief I wrote in that case began with a quote from Justice Scalia from an opinion he wrote in a case called Raish that was really just a slam dunk. I wrote this brief and I opened with the sentence because like, you know, no fair judge can read this sentence from Justice Scalia and think that this lawsuit should be taken seriously. I mean, it really just seemed like Scalia had captured what was wrong with this lawsuit. And then I looked like a fool because the courts took the lawsuit very seriously and we almost lost it. And we did lose a lot on Medicaid. So I do think that there was a turning point where, you know, I don't know if it was because Republicans saw their electoral majority fading and like they realized they didn't have a

winning coalition anymore. I don't know if it was the trauma of the Obama family moving into the White House. You know, I don't know if it was their opposition to the Affordable Care Act. But something really did happen where the sort of rhetoric of judicial restraint that I think had predominated in both parties for 80 years, you know, Roosevelt through George W. Bush, they abandoned it. And, you know, we are now starting to see the fruits of their new way of thinking. So let's get down to specifics. The book focuses on the United States Supreme Court, but you could make many of the same

arguments about the lower federal courts. As you note, with the death of Justice Ginsburg in September of 2020, we now have a Supreme Court that has a 6-3 conservative supermajority. We had been teetering on a 5-4, very fragile conservative majority before, but now it seems to have been cemented. And that is certainly the outlook at the lower federal courts where Donald Trump was able to appoint roughly 30% of the current federal judiciary. So that is a true sea change in the nature of the lower federal courts where much of federal court adjudication occurs. You argue in the book that the threats that people have

been talking about since this new 6-3 supermajority emerged have been about reproductive rights, maybe some rollbacks in terms of criminal justice, but you think that the actual threats are far more quotidian and banal, but no less consequential for their banality. And you focus in the book on assaults on the voting process, assaults on the administrative state, the expansion of religious freedom, and then finally limits on access to the court. So how did these all come together? And why do you see these four as a sort of critical, um, quatrecta, if you will, of concerns that we really should be attentive to? Yeah. I mean, part of the reason why I picked the four chapter, you know, like I, there's four chapters in here that discuss those four areas is like, I felt like there was the most need to

explain those areas. Like I, you know, some, some of it is just that I think the threat to abortion rights is obvious.idious is that it speaks in a language that most people don't understand. I loved law school. And the reason I loved law school is because when I got there, I felt like I was I had arrived at Hogwarts. Everything I had studied up to that point, you know, in college and high school, you know, had been descriptive. It had been stuff that was telling me how the world is so I could understand it. And law school teaches you words of power. Like, you know, like law school teaches you a language that lawyers and judges use to actually change the world. And if you speak that language, you understand the world, you understand that the world is being shaped in a way that you can't if you don't speak that language. Now, the problem with law school being like Hogwarts is that there are also Death Eaters, and the Death Eaters

control the Supreme Court right now. And so I feel like the best thing that I could do is explain, you know, like, so to take one example, I have an entire chapter in here on administrative law. And like just saying the words administrative law is normally enough to put people to sleep. But what administrative law is, or at least what I discuss in here, is it is all sorts of laws delegate power to federal agencies in order to implement a particular policy. So, you know, the Clean Air Act, for example, says that certain power plants have. So they delegate that task to the EPA. It's the EPA's job to stay on top of this stuff. When there's new technology, they'll update what's called a regulation saying that now power plants have to install this new technology. And that way, Congress is still setting the policy. Congress still made the decision that everyone uses the best available technology, but the law remains dynamic and it can adapt over time. And if you can't adapt in that way, you can't have a meaningful environmental protection regime. And the Supreme Court,

mostly led by Gorsuch, who I think has thought the most about how to do this, wants to dismantle much of Congress's ability to delegate power in this way. And more specifically, I think wants to give itself, wants to give the Supreme Court a veto power over every regulation that is handed down by the EPA, handed down by the Department of Labor dealing with overtime, handed down by the Department of Health and Human Services saying that your insurance has to cover your cancer screenings or your pap smears or your birth control or your children's care or whatever. They want to give themselves a veto power over all of that. And the language they use to do that is very arcane. Most people don't know what the non-delegation doctrine is.

But if once you understand it, you realize that we stand to lose something very important and very profound if the court moves in the direction that it looks like it's planning to move in. It's almost as though these four areas that you've identified in the book are like horcruxes. They are hiding in plain sight, but they really have the power to really transform the nature of government. And that's certainly the case in voting rights. That seems obvious, less obvious with the administrative state, perhaps more obvious with religious freedom. Again, less obvious, I think, in terms of this access to justice question. But what do we mean, though, by judicial activism in this reign? If the present court currently issues decisions that are meant to counteract things that have happened in the past, is that

really judicial activism? Or is it just kind of responsiveness and trying to recalibrate to a more normal environment? And in the same vein, if the court retrenches on something like reproductive rights and overrules Roe, is it really judicial activism if you assume that Roe versus Wade itself was an exercise of judicial activism? And I will note that Roe versus Wade was, in 1973, a seven to two opinion written by a Republican appointee, Harry Blackmun, just for education and information. Yeah. I mean, I think that we could disagree about individual cases. I actually think that Roe is one of the harder cases where there are strong arguments. I've spent a lot of time talking about why democracy should be the rule. So there are strong arguments. I've spent a lot of time talking about why democracy should be the rule.

So there are strong arguments then, well, why shouldn't legislatures be allowed to pass abortion regulations? And so I think you could take seriously the arguments on either side of many individual cases. But the other thing that I think that you have to have is you have to be able to articulate some kind of limits on the judiciary's power. And so the limits that were in place for a really long time, and this was what the post-Rooseveltian settlement was. This comes from a case called Caroline Products, which says that in almost all cases, we want democracy to rule. So in almost all cases, like whatever the legislature decides, that's what the rule is. And then there's basically three exceptions to that. One is if the Constitution says that the courts have to get involved. So like the First Amendment is there,

it says there's a right to free speech, the courts have to protect that, you can't ignore it. The second is what the court referred to as laws that discriminate against discrete and insular minorities. Think of something like Jim Crow. And the theory behind that is that if you are systematically excluding a particular group from political power, that is itself an attack on the democratic process because black people in the South in 1955 should have had as much ability to shape their government and, you know, to be governed fairly by their government as any other person living in Mississippi. And then the third prong is when the government just straight up attacks democracy itself. And so this, for example, is why I think that the court was wrong to uphold partisan gerrymandering, because the purpose of partisan gerrymandering is to entrench a party in power

so that the democratic process doesn't work. And I think that was the right settlement. I mean, maybe you can disagree with that, but if you do disagree with that settlement, then I think your burden is to explain, okay, well, what limits do you propose? What do you say are the times when the judiciary should intervene and when it shouldn't? And I'm just not hearing that from this court. What I'm hearing from this court is that they're sort of lashing out at things. So like Roe, they don't like, so they're lashing out at Roe. Gorsuch doesn't like the EPA, so sort of lashing out at things, you know, so like Roe they don't like, so they're lashing out at Roe, you know, Gorsuch doesn't like the EPA, so he's lashing out at the EPA and the administrative state. And I'm not yet hearing an overarching theory of, okay,

this is the limits of our power, and you can trust us not to transgress these lines. Well, it always seems that you're saying something even bigger than that, that this conservative legal movement that has emerged and has captured the court and the courts isn't exactly consistent in its understanding of what it means to be a legal conservative. So in your view, what would true legal conservatism look like and why doesn't this look like that? I mean, it's a good question. I mean, I'm not often in the business of thinking like a conservative. Just try it on. Yeah. I think that I would not ask the question of like, how do you implement either a conservative or liberal philosophy through the judiciary, because I

think the question of like, what is the specific role on the judiciary and what are the limits on its power really is the fundamental question when you're talking about the courts. I mean, there are certain things where I think the courts have to play a role. There's the three that I mentioned before. The other thing that I would put in that category is criminal justice. And then the reason for that is because every criminal case has to come through the judiciary. You can't be convicted of something, you can't be sentenced without a court being involved. And there's certain amendments. The Fourth Amendment says that there can't be unreasonable searches and seizures. And the courts are going to have to decide whether every individual search or seizure that is challenged was reasonable or not. So like the

courts unavoidably have to play a role in that space. I guess if I were to articulate like a one sentence version of, you know, what the role of the judiciary should be is that if you want the judiciary to intervene in the democratic process, you have to have a really convincing argument for why they should do so. I find the argument that we can't run a criminal justice system without the courts to be very convincing. I find the argument that democracy is so important that the court has an obligation to protect it from itself. Very convincing. And I also, as I said before, lump in protection for minority groups.

I think the best argument for Roe v. Wade is that, this was Justice Ginsburg's argument, that if women don't have full control of their reproductive lives, then they're going to be systematically excluded from economic and professional opportunities, and they're going to face diminished political power because of that. And so that is itself an attack on democracy. So I think that you can articulate very good reasons why the court should sometimes be involved. But I guess I would say that the default rule is that we want courts not to decide. We want the one branch of government that's not elected to not make choices for us. And if you want to overcome that default, give me a really convincing argument. Again, I hope I would apply that rule,

regardless of whether there was a liberal or conservative majority on the court. So you're almost espousing, I think, a kind of John Hart Ely view. So John Hart Ely famously in Democracy and Distrust argued that the judiciary's role was to be democracy enhancing. And he really pointed to that footnote in Caroline Products as evidence of that. And so there are certainly times where the judiciary should defer to majoritarian politics and the political branches. But then there are times when the judiciary, again, to preserve democracy and certain fundamental rights, needs to be more protective. And he talks specifically of the guarantees of the Bill of Rights and other fundamental rights. And then in those circumstances where the political process is imperiled or where the rights of discreet and insular minorities who

can't protect themselves in the political process are at stake. And so that, in your view, is the appropriate role for the judiciary. So what are you seeing right now? What is the new emerging judicial role under this new conservative supermajority court? Well, part of what really disturbs me is I think, I mean, you are correct to identify me as a fan of John Hart Ely's, is that they're turning Ely's framework on its head. I mean, like, if I had to identify, like, the most troubling area of the court's jurisprudence right now is voting rights jurisprudence. And, you know, if you're going to talk about voting rights, I mean, first of all, you have to talk about race. And the reason you have to talk about race is that in any given election in this, you know, you see this pattern over the last many elections, between 80 and 90% of African Americans will vote for the Democrat,

and between 60 to 70% of Latino voters will vote for the Democrat. And so lawmakers in, say, Georgia, know that if they want to identify where a community is that has a lot of Democrats in it, they can use race as a proxy. And so if there is a Black neighborhood in Atlanta, and they shut down a bunch of polling precincts in that Black neighborhood in Atlanta, they can be pretty confident that the people who are going to be discouraged from Atlanta, and they shut down a bunch of polling precincts in that Black neighborhood in Atlanta, they can be pretty confident that the people who are going to be discouraged from waiting at a four-hour line where they can't even get a bottle of water are going to be Black people and therefore are likely to be Democrats. And the vehicle we use to stop racist voting discrimination in this country is the Voting Rights Act. And broadly speaking, the Voting Rights Act has three prongs. There's preclearance,

which says that states with a history of racist voter laws have to preclear that law with officials in D.C. to make sure it's not going to discriminate. There's something called the intent test, which says that if a law is enacted with racist intent, it should be struck down. And then there's something called the results test, which is super complicated. If there's anyone in the audience who's ever had to litigate a case under the Gingell standard, you have my condolences. But, you know, the short version of it is that certain laws that have a disproportionate impact on voters of color will be struck down. And in Shelby County, Shelby County v. Holder in 2013, the court basically dismantled preclearance. In 2018, in a case called Abbott v. Perez, they said that to show race discrimination, the burden on the plaintiffs is so high that it's virtually

insurmountable in all but the most egregious cases. And then there's a case in front of the court right now called Brnovich that could potentially get rid of the results test. I actually think they're going to make a more incremental incursion on it, and they'll probably chip away at the results tests over the course of two or three cases. But it looks like the results test is going to be, if not struck down, it's going to be dismantled in much the same way that the intent test was dismantled in Perez, which is so hard to win a case, it becomes meaningless. And if you don't have preclearance, you don't have the results test, you don't have the intent test, you don't have a Voting Rights Act. And if you don't have a Voting Rights Act, then you don't have real safeguards against the kind of law that just passed in Georgia. I mean, then you don't have real safeguards against the kind of laws that said that if you

were black and you wanted to register to vote, you first had to tell the register how many bubbles are found in a bar of soap. So this is really serious. And again, when you asked me for an overarching philosophy, I said the court should protect democracy. And here you see courts doing the literal opposite of that, stepping in to make our nation less democratic. You point to Georgia, and I think you can definitely draw a straight line between the majority opinion in 2013, Shelby County versus Holder, and what we have seen in Georgia and what we are likely to see from other Republican held state legislatures going forward. I think there will be a massive effort to promulgate new voting rules. Can you say a little bit, though,

about the changing understanding of who at the state level gets to make rules about how the electoral process plays out? Because this too seems like a fundamental shift in conservative ideologies. Yeah, I mean, in any legal regime, the most important question is often, okay, well, who gets to enforce the rules? One reason I tend to be very skeptical about leftist arguments against a strong free speech regime is because if we don't have a strong First Amendment, then the person who's going to decide which speech is banned isn't going to be me, it isn't going to be you, it's going to be Sam Alito. And like, he's not going to pick the speech that I want him to pick. With that aside, you know, the most potent part of the Georgia bill that just passed is a provision that allows the Republican state

legislature, through its control of the state election board to basically take control of local election boards in the states. And local election boards decide whether voters can be challenged and denied their right to vote. They decide whether precincts can be closed. They certify elections. So potentially you could have a situation where an election isn't certified in Georgia. And so the question of who has the power matters a great deal. Now, the question of who has the power matters a great deal. Now, this question of who has the power is in front of the Supreme Court right now. There's this doctrine with the, you know, it just rolls off the tongue. It's called the independent state legislature doctrine. That was sort of a fringe idea for a hundred years. I mean,

you know, like literally the Supreme Court rejected this thing more than 100 years ago. But the idea is that there's various provisions of the Constitution that says that the state legislature shall have the power to set election rules within that state. And the way that the word legislature has always been interpreted by the Supreme Court is whatever body has the power to make laws, that is the legislative body. So that can be the actual elected body of representatives. It could be the body of representatives plus the governor who has the power to veto laws. It could be the people who write constitutional amendments that constrain the elected representatives. And it could potentially

be a commission or, you know, or a ballot initiative or some other state constitutional process that gives the power to set policy to someone other than the elected body of representatives. And there are now four votes. And the reason there are four is because Barrett hadn't been confirmed when these cases had come up, and we actually don't know where she stands on this issue. But there are four justices who have come right out and said they want to implement this thing. And I'll read you a quote from one of Justice Gorsuch's opinions. He said, the Constitution provides that state legislatures, not federal judges, not state judges, not state governors, not other state officials, bear primary responsibility for setting election rules. Wisconsin or Michigan or Pennsylvania, where you have a gerrymandered state legislature controlled by the Republicans and a Democratic governor, the Democratic governor may not be able to veto

any election bills, or at least ones regarding federal elections anymore. It means that in a state like Pennsylvania, where the state Supreme Court has said that there are state constitutional protections against gerrymandering. The state Supreme Court may lose its power to strike down gerrymandered maps because the court is not the legislature. It means that the governor may lose their power to veto gerrymandered maps because, again, the governor is not the legislature. You have many states where there are independent commissions now, which draw maps to help make sure that these maps aren't gerrymandered. Those could be struck down because a commission rests with the legislature beating the body of elected representatives with the court's decision saying that partisan gerrymandering is just fine. And then you take the fact that in all of these states, Wisconsin, Michigan,

in these really crucial swing states, they have gerrymandered Republican legislatures. And in some cases, I think there was a recent Wisconsin election where 56% of the voters voted for a Democratic member of the Wisconsin State Assembly and Republicans still had a super majority in the legislature. That's how gerrymandered it is. So you have these sort of fake democracies where the legislature is just entrenched and it's not at all clear that it's possible to elect anything other than a Republican legislature. And then the Supreme Court wants to give this Republican legislature potentially total control over election law within that state. And I don't know how far the courts are going to go. Like, we don't know what Barrett's going to do. We don't know whether the court's going to go so

far as to say that, for example, a governor is no longer allowed to veto a bill. But it could get really scary. You know, we could potentially be living in a world where we have all the trappings of democracy. You know, you still have the polling and, you know and you get to cast a ballot and the people who get the most votes within their district still get to be lawmakers. But in reality, the whole thing is rigged so that only one party can win. So one of the audience members has asked a question, and I think it could relate to the issue of independent commissions for districting or to the administrative state more generally. But if the court is to be criticized because it is an unelected life appointed body that

is actually engaged in making policy, couldn't you say the same of these regulatory bodies, whether they are working on electoral policy or more general policy like climate change policy, for example, they're also unelected. Why shouldn't the state legislature make these calls or the legislature more broadly? So let me, because I think these are two separate questions. Like one question is, what about things like independent commissions, which are set up in order to like make our democracy run in a fair way? And then what is, what is something, what about something like the EPA, which is made up of appointed officials and career employees who

set substantive policy? Cause like, I think there are different answers for those two. So, you know, my answer for the independent commission's question is more or less the same answer I had about why I think the courts have a special role to make sure our democracy keeps humming. Which is that, I mean, I do think it's suboptimal. I do think it's suboptimal that a bunch of unelected people in a body that can be captured by a political party and presently is captured by a political party would be trusted with something as important as how our elections are run. The problem is that the alternative is to trust the elected officials with how our elections are run. And I just think that's too much of a conflict of interest. So like,

there is, I think, there is absolutely risk that whether you give the power to a court, whether you give the power to an independent commission, that whoever is given the power to draw legislative maps is going to abuse that power. I don't think there's a way to eliminate that risk. I do think you can mitigate the risk. And I think that it is more dangerous to let sitting lawmakers get to decide who their own voters will be than to let some sort of independent third party make that call. So that's my response for things like commissions. For things like the EPA, my response is a little different, which is that, I mean, the EPA is not run by an elected official. The EPA administrator is appointed by the president of the United States, but the EPA administrator is also appointed by the president of the United States, who is an elected official. And, you know, we've seen huge changes already in how the EPA is approaching its job since Donald Trump lost an election and Joe Biden won an election. And so, you know, I do think that you can have accountability

mechanisms where, you know, if agencies are run by appointees who serve at the pleasure of a president, then the accountability there to the voters is that the voters can replace the president. And then the other thing I will say about administrative agencies, there's also a balance to be struck there. I mean, the other classic defense of the administrative state is that the EPA just knows a whole lot more about power plants than Congress or the president does. And there's a lot of really technical questions. I gave the example before of the Clean Air Act and how it says that the best available technology has to be used. I gave the example before of the Clean Air Act and how it says that the best available technology has to be used. I mean, I have no idea what you would do, what you would install in a coal-burning plant in order to reduce its emissions. I doubt Joe Biden does either.

And I certainly don't think that there are very many members of Congress who know how to do that, like that requires specialized expertise. And the danger of bringing in specialized expertise is that those, you know, you're going to have a lot of people who aren't elected making decisions. And you're going to have a lot of people with expertise who like, because they just know so much, may be able to steamroll over the political appointees that are supposed to make sure that it's like, that is a real danger. But like, I think that the benefits of having that expertise overcome those costs. And it's not non-democratic. Again, like if Joe Biden loses his next election, EPA administrator is going to go and the voters will have had their say in that.

Fair enough. And I think it's also interesting in your response that the skepticism around the administrative state and the skepticism of expertise is also mirrored in the attacks on quote unquote elitism and universities that we're also seeing from conservative quarters as well. So there is a through line in all of this. Some of our listeners would like us to spill a little tea about the justices, if you will. So there was a time where even conservative presidents in their appointees might make appointments to the Supreme Court that actually turned out to be moderate and maybe even drifted to the left a little bit. So for example, John Paul Stevens was appointed by a Republican president, famously drifted to the left over the course of his time on the court. Sandra Day O'Connor was supposed to spearhead the vanguard

of the Reagan revolution of the courts. And she turned out to be an incrementalist, pragmatist justice, very much in the middle of the court. Same for Anthony Kennedy. Do you imagine that any of these Trump-appointed justices, Gorsuch, Kavanaugh, or Barrett, will drift to the right in any way? And what might we make of them? Would any of them be perhaps in a position to fill the role of Tony Kennedy, for example, in propounding or being interested in thinking about foreign law or other sources of law as part of its interpretive model? So I tend to think that ideological drift explains why justices who were believed to be conservative wind up being moderate

less than the fact that I think that presidents are often very bad at predicting what issues are going to matter in 20 years. So like, you know, Franklin Roosevelt was famously pretty racist. I mean, you know, like Ira Katz Nelson has a whole book about like how much of the New Deal excluded black people. And like when Roosevelt was picking his justices, like he didn't, I mean, he did pick some segregationists, but like he didn't pick peopleices, like he didn't, I mean, he did pick some segregationists, but like he didn't pick people with like, he didn't really care about race. Like he cared about making sure that the New Deal would be upheld. And so he picked some justices who were like Jimmy Burns, who Roosevelt briefly appointed

to the Supreme Court, went on to become the governor of South Carolina, who defended school segregation. He hired the best lawyer in the country to defend segregation. And he was one of Roosevelt's picks for the Supreme Court. So we are very fortunate that Burns left that job and that people like William Douglas, who had more progressive views on race, stayed in the job. And so when Brown v. Board of Education came along, you know, there was a liberal majority and like the Roosevelt appointees were for the most part, you know, the ones who stuck around for the most part, fairly liberal about race. I mean, there's a whole scholarship about what Frank Furter and Jackson thought was the right thing to do in Brown. But anyways, like the reason why Roosevelt, who was at best indifferent to race, wound up playing a major role in the Supreme Court that helped dismantle segregation was that Roosevelt just didn't care.

Like that wasn't what was on his mind. You know, similarly, like George W. Bush just wanted a court that would uphold his national security policies. And like when he picked John Roberts, John Roberts is really far to the right on things like Guantanamo Bay. Like, I mean, as far as you can go. And, you know, and as far as you can go on other national security issues, you issues, he upheld Trump's Muslim ban because he viewed it as a national security question. that was designed by the Heritage Foundation that Republicans would turn vehemently against, and this would become the most important constitutional question in 2012, was not on George W. Bush's mind when he picked John Roberts. And so the John Roberts in 2012, who decided the Affordable Care Act case, was still the same man that he was in 2005 when he when he was

appointed to the Supreme Court. It's just that George W. Bush didn't anticipate what issues would matter to Republicans in that case seven years later. Who knows what we're going to be fighting over in 20 years? You know, maybe in 20 years we'll be very, very grateful that like, you know, Neil Gorsuch turns out to have very sensible views on like, artificial intelligence or something, you know, who knows? I guess like my response is more to push back against the premise of the question than it is to, you know, try to account for ideological drift. I mean, I think you can point to some examples of justice, you know, like Harry Blackmun, there was probably some ideological drift there. But for the most part, I think that presidents tend to pick justices who align with the consensus

within their party at that moment. When Roe v. Wade was decided, the consensus, at least amongst elite Republicans, was very much pro-reproductive rights. I mean, there's nothing surprising about the fact that three of Nixon's four appointees voted the way that they did in Roe v. Wade, because that's the way Republican lawyers thought in 1972. And Nixon just didn't anticipate what would happen to the politics of abortion in the coming years. So yeah, I mean, they could surprise us. We could be having a completely different ideological fight in 20 years. And we'll just be like, man, like, I'm just so glad that Brett Kavanaugh saved us all from having to get a chip in our brain. But for the issues that are before the court right now, I mean, I think that, and it wasn't really Donald Trump who picked

them, it was Leonard Leo, the Federalist Society executive who picked them. I think that Leonard Leo in 2018 did a really good job of identifying judges who would reliably vote the way he wanted them to on the issues that Leonard Leo carried about in 2018. The Federalist Society, as you mentioned, Leonard Leo, is a really, I think, important segue to sort of pivot from past appointments to the current state of appointments. It seems to me, at least, that when Reagan was picking Sandra Day O'Connor or when George H.W. Bush was picking David Souter, they were sort of relying on the sort of standard GOP standard bearers who were looking at their networks, people they knew. John Sununu knew

David Souter from New Hampshire. Sandra Day O'Connor was known because of her friendship with William Rehnquist and her later friendship with Chief Justice Warren Burger. Now it seems having outsourced much of this in the Trump administration to the Federalist Society and other conservative groups that we're not sort of seeing the same kind of network reliance in a traditional sense, but rather a vetting for true movement conservatives. And you saw a little bit of this, I think, with the George W. Bush appointees, Samuel Alito and John Roberts, and perhaps Samuel Alito more specifically than John Roberts. But is that the new sort of standard?

And should Democrats be replicating that as they look to fill appointments during this new administration? It's a good question. I think that the Federalist Society serves two roles. So one is the role that you mentioned, which is the sort of vetting. And that starts very, very early. I mean, if you're a 1L, a first-year law student at Yale or Harvard, the Federalist Society is looking for ideologically reliable and very, very bright, I should add. Normally, these are very talented students, but ideologically reliable students who in their first year at law school can be put on a path where they will clerk for a feeder judge and then a Supreme Court justice, and then maybe get a good job in government. The bargain is, if you keep hewing to our

ideological line, we'll kind of be Sherpas for your career. And so that's one really important role that the Federalist Society plays and liberals need to emulate that. And there are organizations, there's the American Constitution Society, there's a newer organization called the People's Parity Project that is starting to think in terms of, you know, how can you behave like career Sherpas for liberal lawyers? And that's really important. Here, I might contradict what I said earlier, which is that historically, I think that justices get on the court and they sort of hold the views that they had when they get there and they continue to, you know, push the views that they had when they got there throughout

their career, even if those views are no longer in vogue with their political party. I think one major function that the Federalist Society serves is that it creates a kind of personal and professional incentive structure. You know, and here, like it was Maya Sen at Harvard who sort of turned me on to this theory, which is that judges care a lot what like people think about them. They care a lot about what their friends think about them. They care a lot about what they think their professional peers think about them. And so in like 1977, if the Harvard Law Review published some article that just dogged William Rehnquist and like, you know, made him, you know, just made him look like a jerk. Like, I don't think that it would have kept Rehnquist up all night, but like he would have thought about it.

And, you know, he probably would have cared and like it at least would have caused him to like think about what he was doing. One function that the Federalist Society serves for conservatives is like it fills that need for professional validation with other conservatives. So like, if Brett Kavanaugh is hanging out with his friends, they're probably going to be friends that he's known since he was a member of the Federalist Society in law school. They're not just going to share the conservative values that got him onto the court in the first place. But as the Republican Party wants new things, if he's hanging out with a bunch of smart you know, smart lawyers in the Federalist Society who all watch Fox News together, then like whatever Fox News is wants, you know, in 2027, their views are going to evolve and they're going to adapt to want this thing that

Fox News is pushing in 2027. And then they're going to hang out with their friend Brett. And like their friend Brett is going to want that sort of personal and professional validation that we all want. I mean, I want it too, from my friends and professional colleagues, that you get from like having them think that you're doing a good job and that you're smart and you think the right way. And I think that that's going to exert some pressure on someone like Brett Kavanaugh to, you know, rather than hewing to the views he had in 2018 when he got there, to like continue to adapt to whatever is in vogue within the Republican Party. And so like that would be new. I mean, I just don't think that there was a

force like that in, say, the 1970s. The one justice on the court who I think has shown a remarkable ability to always vote in line with whatever the Republican Party wants at that moment is Sam Alito. And so maybe everyone just becomes Alito now, which I think would be bad. And I would say that I don't think liberals should emulate that. I do think that the career sherpa-ing, so that people who are smart and have solid progressive values can have someone look out for them and find their next career opportunity, potentially if that next career opportunity is a judge as well. I think that's something that liberals and the Democratic Party would do well to emulate. But once you get to the court, I don't think that the job of a judge or a

justice should be to figure out whatever was in the Democratic Party's most recent platform and then try to implement that from the bench. I think the career sherpa-ing is certainly one, I think, very interesting development that would be worth emulating. But I also think just simply focusing and surfacing the courts as an important issue for your policy agenda, not necessarily the courts for making policy, but defending your majoritarian policies. And I think they've made a quite good case for the courts in that realm. One of the through lines in your book is that the judicial dominance that we are seeing today is really the result of a kind of congressional dysfunction. And so the question is, how do we fix this? Is it reform of the upper

chamber? You seem to hint at maybe changing the way the Senate is composed so that Wyoming doesn't get the same number of votes as California, which is four times as populous. Alternatively, some have talked about reforms of the court itself and structural reforms of both the Supreme Court and the lower federal courts. Is it one or the other? Or do you think both are necessary? You know, there's sort of a chicken and egg problem here in that, like, if you try to enact Senate reform, which basically would involve admitting a bunch of new states because that's the only way to do it constitutionally. You know, there's a risk that the Supreme Court would try to strike that down. And if the Supreme, if we have the

Supreme Court that we have, it's going to be even harder for Democrats to win elections, such that they could get the majorities they need in order to do something like Senate reform. So like, it's going to be tough. Now, I think that Joe Biden is doing a very good job right now in like playing his political hand. And what I mean by that is that, you know, if you look at like position polls, like, you know, the issue polls, the views that people hold on issues, we really are a center left country. Like, you know, the stimulus bill that Biden just signed is hugely popular, like 70% of people support it. Something like, I think half of Republicans support it. I mean, just a tremendously popular bill. You know, and about 70% of the country has left of center economic views. You know, they believe that rich people should pay more taxes. They believe that

we should have a minimum wage. They believe that we should have some sort of guarantee that if you're sick, you'll be taken care of. On economic issues, there really is a left to center left consensus. On cultural issues, and by cultural issues, I mean more like, are you mad about Dr. Seuss than I mean something like abortion? Like college educated liberals really are outliers in terms of public opinion. And, you know, on many of these cultural issues, I think the polls show that Republicans have a slight advantage. That's why while Biden was trying to pass the stimulus bill, Republicans were talking about Dr. Seuss because Biden wanted to talk about the thing that is good

for his team and Republicans want to talk about the thing that is good for their team. What I think that Biden is doing is really smart, is he's trying to show all the economic benefits that liberal policies can bring to people. He's trying to say, look, you elected me, I'm just not going to talk about Dr. Seuss. Like, I mean, for one thing, he can't do anything about there isn't a policy solution to the fact if you don't like the fact that the owner of a private copyright has decided that they are no longer going to publish a book that they own the intellectual property to. Like there isn't a policy solution to that problem. But he is saying, you know, he is trying to improve as many people's lives as possible with his policies. He's pushing policies that are very popular among Republicans. And maybe that actually succeeds in creating some sort of realignment where voters who economically are in a rough shape, who haven't gotten much from the government and

from governance in the past 10 or 20 years, who felt like they've had a boot on their face for a while, and who also agree with Republicans on cultural issues. And so if you think the government can't help you, and you agree with the GOP about something And so if you think the government can't help you and you agree with the GOP about something, you're probably going to vote for the GOP. But if Biden could show them, wait, I have something for you too. And like a $1,400 check is worth more to you than some cultural fight about Dr. Seuss, then maybe you can have a realignment. And if you have a realignment, then you can start, you know, maybe the Senate problem of Senate malapportionment fixes itself,

because maybe we like start having competitive elections in Wyoming. Maybe Democrats can just pick up two or three more seats, and then they can nuke the filibuster and they can admit DC as a state, they can admit Puerto Rico as a state, and we can have a Senate that while still having the problem where Wyoming has two senators and California also has two, at least there isn't such a built-in Republican advantage in the Senate. And then, you know, things like court packing become options. Now, my views of court- I think you're not supposed to call it court packing. We're not supposed to call it that now. We're not supposed to call it that. Structural reform.

Yes, yes. Well, here's where I use the bad word for it. The reason why the United States has nuclear weapons is so that we never use them. It's because if anyone else who has a powerful arsenal tries to come at us, we have the threat of like, if you come at us, we're going to destroy you. And so, like, I do not think the best possible outcome is for Congress to pass a bill saying, well, I guess Roe v. Wade is going to stick around and we have to obey it. It's going to lead to Texas saying, I'm just not, you know, it's going to lead to massive resistance. We're just not going to obey these courts anymore. And, you know, I think that as terrible as that sounds, I think that that's not the worst possible option. You know, I think dismantling our voting rights is worse than that.

So, like, there is a point where I think you have to launch the missiles, but we are talking about launching the missiles. And so I want to give the court every opportunity to behave responsibly because they know we have a nuclear deterrent. And if the threat of court packing is looming there, I hope that will be enough that maybe Roberts or Kavanaugh or Barrett or all three of them will say, you know what, let's keep the results test. So you're hoping for a new switch in time. That makes sense. It's time for our final question. We're almost at the end of our program. You've written this terrific book. It's a great read, completely sobering, engrossing, slightly dystopic. Now what do you want us to do?

What are our marching orders from you, Ian? What can the average reader do to deal with some of the problems you've identified? The most important thing is to vote and to vote no matter what obstacles they put in front of you. So like the key to like this new wave of voter suppression laws, you know, Stacey Abrams, the former Georgia gubernatorial candidate, probably future Georgia gubernatorial candidate, has described these laws as trying to make disenfranchisement look like user error. We didn't take away your right to vote. You shouldn't have the right ID.

You just signed your name wrong. And so if they tell you that you've got to wait at a six-hour line and no one is allowed to bring you a bottle of water, then you got to wait in that line and you got to bring your own damn water. And it's not fair and it's not right, but it's the only way that democracy wins. And so the most important thing is making sure that people are outraged. Because the way that we change the courts is that if Sam Alito is lost at sea, we want Joe Biden to pick the replacement and not, you know, I don't know, Josh Hawley. So that's the first thing, you know, and then the second thing, and like, we really are seeing progress here is that we need to make sure that lawmakers understand that this is important and that and that they understand that their constituents think that this is important.

You know, like the reason why Mitch McConnell works so hard to block Merrick Garland and to keep Obama also from confirming very many circuit judges when he was president is that a bunch of conservative activists worked really, really hard for a really long time to get Republicans to understand that the judiciary is really powerful and that it was very important to people that Mitch McConnell needs if he wants to keep his majority, that he does everything he can to make sure that Republicans control the court. And we can also work really, really hard for a really long time to make sure that Chuck Schumer knows that it is really important to the people that he needs to keep his majority that, you know, when you're playing on an unlevel playing field, you have to, you know, you're going to get out of breath sooner and you're going to have, and you're going to have to run harder and you're going to have to stay on top of that ball.

Cause if you just let it sit there, it starts rolling in the other direction. And that's, that's not fair, but it also doesn't mean you're guaranteed to lose the game. It just means you got to get out and you got to hustle harder. All right. So hustle harder, go and vote. When you do, pack a lunch. That is your mission if you choose to accept it. Thanks so much for listening to this very special episode of Strict Scrutiny. Ian's book, The Agenda, How a Republican Supreme Court is Reshaping America, is available at most popular book outlets. Thanks again for joining us. We are really grateful to our producer, Melody Rowell, who makes this program so fantastic,

and to Eddie Cooper, who does our music. And of course, we are grateful to you listeners. You can support the podcast by purchasing Strict Scrutiny merch and get your hot girl summer on or you can subscribe for the podcast at our glow campaign which is at glow.fm forward slash strict scrutiny thanks so much see you next time