Strict Scrutiny - Gold Highways

Episode Date: February 8, 2021

Leah and Kate are joined by David Schleicher and Sam Moyn, cohosts and creators of “Digging A Hole,” a legal theory podcast. They discuss Supreme Court reform and why none of them were invited to join the court reform commission.  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 to a very special joint episode of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it, and Digging a Hole, the joint legal theory podcast of Sam Moyne and David Schleicher. Welcome to the show. Thanks so much for having us.

We thought this episode would be a fun time to do an episode about the future of the Supreme Court, but not particular cases, but rather, like in the future of the Supreme Court as a political institution, kind of take a step back from specific cases and doctrines to ask, like, what are we? How do we expect the Supreme Court to operate in the next half decade? How should it operate very well? Well, and given that skepticism, how questions about how about how it should operate in democracy. And so I thought I would kick us off with kind of a prediction question. David Landau, a professor at Florida State, has this brilliant paper where he shows that under certain some countries under periods of one party rule, the Supreme Court becomes something like an opposition party.

It kind of fills in the role of an opposition party during periods where one party is completely in control. And this creates certain problems and certain problems for the court's legitimacy. And you could understand what we have in Washington as a period of one party control. I mean, it's not really a period of one party control. We still have a lot of states controlled by the opposition party. The Senate majority is not filibuster proof. It's not even, you know, mansion proof. But you could answer the question I have for y'all, Supreme Court experts is, do you think over the next, say, two to five years, or maybe just next two years, will there be a major conflict between the Biden administration and the Supreme Court? One thing I want to preface this with is like political science models

are really kind of confused on this question. Some of them think kind of in the classic idea, the Supreme Court follows the election returns, and it's basically a majoritarian institution, maybe with some lag, but like, and the other ones are pure attitudinal models. These are many justices appointed by Republicans, and they're going to operate like an opposition party. So do you see the next couple of years as a period of kind of heavy administration versus

Supreme Court conflict? Yes or no? And if so, over what? I would say the time horizon matters a lot here, I think. So I think the chances of really acute conflict in the next year are pretty low, and in the next four years are pretty high. My sense is that the Supreme Court is going to lay pretty low as it has this fall. I think that's in part, we talked about this on our most recent episode, but in part that's that, you know, I think

they kept the docket a little bit light because they wanted to keep space open for a lot of election cases that could arise. But in part, I think they very much dislike being in the political crosshairs and so have tried to just keep the docket very light and relatively low, you know, political salience cases. And to the extent there are a handful on the docket, the border wall and their remain in Mexico policy, those are going to be mooted. And so I think this term could be the sort of quietest, most muted term in a number of years. And I don't think that's likely to hold for a full four years. And I think there's probably, it's difficult to speak in a unified way about the Supreme Court in that I think that the answer, if Chief Justice Roberts

were in the driver's seat to your question, is probably really different than, you know, it actually is right now with Kavanaugh, I guess, as the median justice. So I have more thoughts, but in terms of subject matter areas, if there is a really big conflict that arises, you know, in like the year two, three or four of the Biden administration, I do think that, you know, if Congress is able to actually pass much significant legislation, particularly on things like climate or immigration, I think that, you know, there could be clashes over the scope of congressional power on those questions. I think you could see potentially really big administrative law doctrine. I don't think it's out of the realm of the possible that you actually see the court find that any kind of independence in agencies is inconsistent with the Constitution. I think that Gorsuch and a couple of others might want to jettison notice and comment

rulemaking altogether. So I mean, I think we're talking about much bigger administrative law stakes than Chevron, which I think could probably be overruled without having a huge impact in terms of, I mean, I think that the impact would be significant, but I think it pales in comparison to actually invalidating all notice and comment rulemaking or throwing out, say, the Fed, which I don't think is outside of the realm of the possible. Yeah. So what I was going to say is similar time horizon. I don't think it's going to happen the next year, but will happen over the next four years. And part of that is just because of the way the litigation process works. You know, the Supreme Court will hear cases after they're heard in the lower federal courts. And so it will take some time for these cases to

be brought, you know, after the Biden administration, you know, make some of these regulations or Congress passes some of these statutes. In addition to the areas that Kate mentioned, you know, one area for legislation that I think is inevitably going to spur some conflict will be voting rights. You know, if Congress attempts to pass a renewed voting rights act, there will be immediate questions about Congress's power over state legislative rules, also Congress's power to reinstate a preclearance regime or whatnot. And in addition to the administrative law areas that Kate mentioned, you know, the other one that I was going to put on the table is non-delegation doctrine.

And, you know, to what extent, you know, this court will actually disable administrative agencies from passing rules and regulations. So those would be the areas that I would identify as particularly rife for court administration conflict. But, you know, I did also want to look back and say the Obama administration and the Supreme Court, you know, also had a somewhat contentious relationship. You know, the court was a hair's breadth away from invalidating the signature legislative achievement of the Obama administration and did invalidate part of that, you know, in the ACA, killed the Deferred Action for Parents of American Citizens program. So this kind of conflict isn't going to be something new. But I do think we are going to see it over the next, you know, few years. With DAPA, you know, the court obviously tied for four,

thus leaving in place the Fifth Circuit opinion. But I absolutely think if Justice Scalia had been on that court, they would have been eager. I don't think there's any question that they would have both found standing and then invalidated the president's authority there. So yes, we've talked about administrative agencies, we've talked about legislation, but I think this conservative court is eager to rein in presidential power when there are Democratic presidents in the White House. So I could well see some actual core presidential authority drawn into question under this president. So I want to, I want to disclaim that the title David awarded all three of us of Supreme Court stands, that's you two. And I think we really want to, you know, hear a

lot more about, you know, the non delegation stuff. But, you know, I would have said that the central reason for, you know, the low likelihood of big confrontation in the near term has to be something like gridlock. The Democrats didn't win big in 2020. And so even with the Senate changing hands, we're going to have little legislation and to the extent it issues centrist legislation that, you know, Joe Manchin et al. sign on to, and maybe, you know, the search for some Republican buy-in. So I think there are a lot of reasons for, you know, Supreme Court caution, even though there are these radical views out there about, you know, exploding the administrative state. But to me, you know, the predicate for something like

the 1930s experience has to be a progressive movement in power, and we don't have it. You know, if that happens in our lifetimes, it will be very cool, you know, from my, you know, political point of view, not least because it will defeat all of these political science predictions that David routinely throws at me. I mean, in the 30s, from 1932, three, four, five, six, seven, well then, the Supreme Court did not follow election returns. And it did not vote in a predictably partisan way because you had the four horsemen from different parties. Finally, after 1937, the Supreme Court did not play the role of opposition party in a one-party state. It was part of the one-party state.

So, you know, that's what I'm looking for once again. And it's just we're not there. So no confrontation yet. would expect to see is a huge number of uh civil procedure cases and kind of access to court's questions that would not create conflict with it but you know you could i mean they already have some personal jurisdiction kate there's a lot of stuff and stuff like that that kind of falls below the the level of constitutional but it allows them to be attitudinal in their preferences but without being creating conflict i mean there are lots of other areas like that like i one thing i'm particularly interested in is property law and like there's they've already got one big property law case and they got it could have a million others where they could do really high profile things um uh you know uh end rent control or something that would not create a controversial um uh require reversing decisions but nothing

that would uh and so i wonder whether at least in in kind of kate short term there's like plenty of space for them to uh achieve their political ends or achieve part of their political project but without um serving the kind of creating this type of kind of direct constitutional conflict which i think there's reasons to believe they'd be somewhat averse to um uh so that's uh that's my that's my instinct but you guys uh know better than me um no i think that's i think that's my instinct, but you guys know better than me. No, I think that's all very possible. I think we were thinking more in terms of active, acute conflict with the Biden administration and so didn't point to other sorts of issues that are part of a larger ideological project, but I think it's absolutely right that all of that could happen in a much quieter

and less likely to provoke real active confrontation way. And isn't the other kind of elephant in the room that's not a direct constitutional conflict but would be uh politically just something about abortion i mean that seems to me that's like the first thing that would come to is that like that would be a way to achieve kind of a classic conservative political but it's not a constitutional crisis in any meaningful sense i don't think in the sense that it's going to create a you know conflict between the president and i'd love for us to turn to like abortion and non-delegation because, I mean, the only thing I'd add is that David's scenario, it's not new. That's what's been happening for 35 years. So it would be more of the same now 6-3 rather than, you know, some lesser reactionary dominance. But,

you know, it's not as if the court sometimes with the collusion of Democratic appointees hasn't been trending neoliberal for decades and right in other discernible areas. What is unique about this moment and as compared to the last 35 years and as compared to the New Deal court, every single justice on the court tracking the political preferences of the appointing president is genuinely new. And so that I think does distinguish what we've seen in recent decades and really seen historically this court. And I think that's part of the reason you're seeing this push for reform now. I think there are a lot of reasons, but I think that that is one significant one. But abortion, yes. I mean, I think that it certainly is a constitutional issue.

It's not going to be a federal separation of powers issue, right? Because of course, we're talking about at this point, state regulations. But I think that, yeah, that's something, again, I think that in the next year, we're unlikely to see. And I think before the first Biden term is done, I think they probably will just overturn Roe in the next four years. That would be my prediction. I'm not sure, Leah, I'm not sure where you are on that. Yeah, so I don't think they will necessarily do it in the next four years just because I think there are too many cases that allow them to kind of chip away at it and, you know, confirm that homeowner's health is overruled and June medical is overruled and a non-precedent and so on before

they actually overturn Roe. But there are so many of these like ideological projects that are already on the docket. You know, David, you mentioned the California property case involving the ability of union organizers to go onto land, but there's also Fulton versus the city of Philadelphia and religious exemptions from non-discrimination ordinances or provisions. That's also an ideological project that they can further without actually engaging in any head-on confrontation with the Biden administration. And so there are many other cases like that that I think that will easily make their way to the court in very little time. So Kate mentioned reform. And one of the things that was really notable about the fall, particularly after Justice Ginsburg passed and during that was that the kind of it was kind of

like the it was a jubilee moment for Supreme Court reform ideas. Biden announces that he's going to do a commission where he's going to bring in, I don't know, basically a bunch of law professors. I don't know who's going to be on the commission. I have yet to receive a call, so I don't know about you all. They would never call me, don't worry. Yeah, I wouldn't call you either. No one calls me.

But there was a whole bunch of proposals from the narrower to Sam's to then to some things that I think are pretty outlandish, or at least kind of bank shotty in terms of effects on the court. But something that I think that is a good question to ask about if there is conflict, or maybe even if there's not, what problem do you think either do you think or do you think the Biden administration either does think or should think and kind of take this wherever you want, is the problem that the court reform stuff is trying to solve?

What I said, I think a couple minutes ago, just that, you know, we have this excessive, what is this appearance of excessive partisanship that for the first time this court, you know, really in history, the justices reliably vote the policy preferences of the presidents who appointed them. And that that feels just really inconsistent with the role of the Supreme Court in our democracy. And that where the court as a counter-majoritarian institution only works if it is understood in some fashion to stand outside of politics, but if it is just another partisan institution, not deploying tools and decisional processes that differ from those utilized in the political

branches, it's hard to see what it does derive its legitimacy from. And so I think that's at the core of it. But there's lots more to say, but I think that's the first thing. Yeah. So I kind of think of it as like a democratic deficit along three dimensions. One is, as Kate was saying, to the extent that the justices are just voting the preferences of the political party that appointed them, there's zero reason that those decisions should be made by the court versus in the political branches. And so, you know, some attempted like reallocation of power, you know, to either administrative agencies or Congress, you know, just to address that relative makeup. But then second is, it's also to me the fact that now a super majority of the Supreme Court represents a minority view in the United States. So it's not just that, you know, it's a relatively undemocratic institution, but that it's also a relatively undemocratic institution that is comprised of people whose own views are out of step with a majority of the countries. And then you add to

that, in my mind, what has become an asymmetry between the two parties and their ability to appoint justices based on, you know, winning popular votes and winning elections. And that, too, you know, creates this asymmetry where you have one political party dominating an institution, not because they represent more people, not because they have won more elections, but just because of like happenstance and, you know, asymmetric conduct between the two parties. And all of that leads to a situation where you have an institution that is making these decisions that just for no apparent reason that we would want them to be doing that. Yeah.

I mean, and just to sort of throw a little additional detail in there. So right on this court, we have five justices appointed by presidents who lost the popular vote, three by a president who lost the popular vote by a very significant amount. You know, you have Justice Kavanaugh, right, was confirmed by 50 senators who represented 44% of the public, in addition to having been appointed by a president who lost the popular vote by 3 million. So, you know, so where Democrats are able to overcome the sort of structural impediments imposed by the Electoral College and the Senate and actually get a majority and, you know, do some governance than to have this other body that

doesn't appear to be functioning in a way that is different from the way the sort of political branches and actors operate and, you know, has no claim to actual representativeness, though deploying the same tools as the actually representative branches to then undo the work, the democratic output of those branches. And that's a little bit predictive, like I'm, you know, I'm talking about now Democrats controlling these political branches. But I think looking down the road, seeing the likelihood of that coming to pass, I think is what makes this feel like something of a sort of legitimacy or democracy crisis. And maybe if I can throw one more thing in, you know, I think right now, I mean, Trump has appointed obviously three justices in a single term as compared to like, you know, Barack Obama, two over two terms.

And sometimes that's like the breaks you catch as a president. But I think the view of a lot of people is that that actually wasn't the breaks that Trump caught, that definitely one and maybe two of those seats were not legitimately filled by President Trump. Certainly Justice Scalia's seat should have been filled by Barack Obama, and arguably Justice Ginsburg's seat should not have been filled prior to the November election. And so I think it's not just that it's a court that's making a lot of decisions that feel inconsistent with democratic processes.

It's a court whose actual composition feels deeply compromised by the sequence of events from basically 2016 to late 2020. The court did briefly represent almost all of the boroughs of New York City, though, so you have to give it that. Not anymore, I don't think, but it briefly did. You coastal elites at Yale, that's all you care about. As well as Harvard and Yale law schools. I want to just go back because it sounds like we're all in agreement that there's some, you know, democratization remedy, but it sounded like Kate was kind of, you know, I don't want to put words in your mouth, like nostalgic for a time when the court had a legitimation it

now lacks. And of course, the coin of the realm in some of these discussions is some value called legitimacy. And I just want to get clear first, what one means by that, because of course you could mean, and you kind of hinted at this, that the people accepted it once as a nonpartisan institution, whatever it was actually doing? Or did you mean it actually had democratic legitimacy rather than what we call descriptive legitimacy? Or sociological legitimacy. Yeah, I think I meant more sociological or descriptive as opposed to deep democratic. Do you imagine that there's a mechanism or means for restoring it? And more important, why would we want to if we conclude that whatever its descriptive or sociological legitimacy, i.e. it's accepted as nonpartisan, it may still lack democratic or normative legitimacy. Can I throw in one more addition there? What's the evidence that it has lost its sociological? I mean, the court is still, I mean, it's become,

it's trended less popular over time, like all American institutions, but it's still much more popular than any actually democratic institution. It has more, I mean, that partisan respect for it bounces up and down based on basically whether you're winning or losing. But it's still, people still like people in robes. And they still respect, as long as there are robes and columns, they have something going for them. Yeah, I mean, I don't think the public opinion data actually is that revealing. It's like in the 40s, I want to say now.

And it was, in 2002, it was like 50, right after Bush v. Gore, which was, you know, as my old boss, Justice Stevens, predicted, basically that was a fatal and self-inflicted wound for the court. But actually, it was not reflected in the public opinion data. So I just tend to think that the polling is really imprecise. And so I don't put a ton of stock in it with respect to the court. You know, look, I think that when it's functioning in a couple of key ways, the court actually is really important to the functioning of our democracy. And in a couple, you know, one sort of, you know, an alien way of actually facilitating the effective functioning of democracy, right, unblocking stoppages in the political process is a core and correct democratic function of the court.

And I mean, maybe this is something that we should have identified when you were just posing the descriptive question of like, what isn't working and what is leading to these calls for reform? I think that some of the work that the court has done that has been most distressing in the last decade or so, right, so for thinking back to Shelby County, is to undo democratic enactments, sometimes to overturn interventions by lower courts, but both that have the express purpose of facilitating the functioning of democracy. So in some ways, you have this, you know, this little institution, right, that right now has majority of members appointed by presidents who didn't get popular votes and confirmed by Senate, that doesn't represent the majority of Americans undoing these attempts to actually facilitate the functioning of democracy, either, you know, around in a pandemic or before that. And I actually include decisions like

Citizens United in that, right, like trying to actually, you know, through congressional enactments, limit the distorting effects of excessive accumulations of capital on democracy. So the court to undo all of that seems to be to flip exactly on its head, the sort of proper role of the court on a democracy, again, in an alien sense. who's listening she's referring to John Hart Ely this constitutional law theorist who who proposed that the court should not intervene in the name of substantive moral visions but to clear obstructions in the process of of Democratic will formation and especially for the sake of minorities I just query um first whether you think that ever happened. And if it did, why it was so brief, and, you know, what we would have to do, again, to set up an institution that played that function, and no other without getting captured in the way it has been for more or less all or with maybe a few years to the side of our history. Well, let me just say, I think Baker versus Carr and the one person, one vote cases are sort of a paradigmatic example. And I think that's critical. And I actually think that the

court in Ruscio, the case in which the court kind of ridiculous reading of the political question doctrine determined that partisan gerrymanders were non-justiciable, I think revealed, though it would clearly deny this, that the majority disagreed with Baker versus Carr and believe the court should never have intervened. And that set of decisions was unbelievably important to ensuring an actual functioning democracy. be I think, but um, that's my cards on the table. But if you were put on this commission, we said none of us got this phone call. But what would you tell President Biden how he should think about the Supreme Court? I would say take Joe Manchin out to a great steak dinner. Ask him what West Virginia needs. No, I'm just kidding.

Right, right, right. Someone said every bill is going to be called the West Virginia infrastructure bill and – Right. Gold highways for West Virginia and voting rights reform. No. You know, I think all of this discussion is necessarily hypothetical and theoretical for as long as, you know, the existing controlled remains and existing like breakdown remains in the Senate and the House. That being said, I think that what some lawmakers kind of lack right now is a full sense about the, you know, panoply of options at their disposal. So for example, like in the kind of thousand followers blooming period of court

reform that you were referring to, you know, I remember having a discussion with like some journalists where, you know, they asked me, is jurisdiction stripping a real option? Like, is that actually something that Congress has the authority to do? Like, that seems so wrong to me. Like, how is that possibly constitutional? And so I think just beginning discussions with lawmakers, creating kind of like white papers and all of that to say, well, like, here are all of the examples where, you know, Congress has thought about jurisdiction stripping over constitutional cases, like, here's the constitutional authority for this, here's why they weren't done, here's why they, you know, were done. And, you know, again, like,

Congress has never vested the federal courts with, like, the full scope of, you know, federal question jurisdiction over constitutional issues. So getting people to, like, appreciate, right, that this, you know, kind of describes, you know, the status quo would, I think, be helpful. So part of it is just like getting people in Congress on, you know, the same page as far as understanding what the actual options are, is I think, a big part of that. And, you know, and particularly with respect to like jurisdiction stripping and like non Supreme Court expansion, which I honestly don't think people really appreciated, you know, are as constitutional, or at least as plausibly constitutional as many of the other reforms, you know, that were being floated. That sounds totally right. I just want to, you know, not with poor, poor and cold water

on this situation. But you know, Biden's campaign announced the commission, you know, in a very kind of dicey moment, I think it was little more than a week before the, the, the election. And, and, and the, the goal was essentially to throw a hot potato over, you know, over the, the, over November 3rd. So that the debate around that, well, of course. So, so the purpose of committees, but I just, I just want to, you know, I think first of all, though it's been reported in Politico that the commission is being staffed, you know, we shouldn't treat it as something real yet,

even to the extent it comes to exist, not to mention that it was explicitly announced as a bipartisan commission of law professors of, you know, different political, you know, beliefs and so forth. I hope that includes at least some on the left, but I agree with it. No, I mean, I agree with Leah that it's about, you know, we've got a generation of mainstreaming and like undoing the damage of American civics education, you know, where we all learn that, you know, what Kate said, that this is a crucial institution, you know, that's played this, you know, incredibly important role in the sustenance of American democracy. And I just think if we get a better sense of what its actual role

has been, then we can take more seriously credible reforms and teach Article III. If we're going to talk about jurisdiction stripping, tell our students just how much power the Constitution textually gives to Congress to structure the jurisdiction of the federal courts. And if I could just add one additional thing, which is I think any serious court reform is going to be technically quite difficult because, you know, think about the, you know, democratic deficit problems that we laid out on the table. You know, different kinds of jurisdiction stripping will solve some of these, but not others. You know, if you strip the Supreme Court's ability to invalidate federal statutes on constitutional grounds, that is going to do nothing for, you know, the Supreme Court's ability to invalidate federal statutes on constitutional grounds, that is going to do nothing for, you know, the Supreme Court's ability to say whether Biden

regulations, you know, adhere to the Clean Air Act or comport with the Administrative Procedure Act. But I don't think a lot of people want to strip all judicial review of administrative regulation. So then the question is like, okay, well, like, which ones, how, how do you craft that, you know, reform policy to actually allow administrations the ability to carry out their policies, like in a socially useful, you know, democratically legitimate way. And I think that implementing that is quite difficult. I don't know that I've seen like the perfect package of Supreme Court reforms that, you know, would address all of the problems that we've raised. And there are other ones as well that

we haven't even put out on the table. So I think just educating lawmakers, getting people to think more about this, identifying the different problems that they should be trying to solve, and getting smart people to think about this is, you know, I think a first step, and perhaps the only one that we can realistically expect, you know, this commission to start given, you know, where we are right now. So I would have thought that the answer you guys would have given would have been in more dialogue with the beginning of the discussion, which is that when Biden first proposed the commission, it was happening as they were filling the Supreme Court seat. And as I understood, part of the gambit was to try to sell them on not doing so

by holding out the threat of, you know, we're going to end this, whatever it is. I mean, I know it was some version of that type of politics. And one idea is that the thing you want is a Supreme Court with not, because of all the technical and other problems, it's just like with its sails clipped a little bit rather than actually achieving any of these reforms. And so one possible response to that is, I don't believe there's such a thing can exist. Like given these people, you know, that's just not a realistic

belief. Or another version is that because the game theory of it is such that they understand the technical problems to be so severe or the politics to be so severe that they are willing to play the game because they don't think in tat, in a tit for tat, there will ever be a tat. I just don't think the commission represented like a real effort to try to get Republicans not to fill the seat, you know, in part for the reasons you gave. And two, just given, you know, who the Democratic presidential nominee was and who's in the Democratic Senate, no reasonable person would think that the Democratic Party was about to go hog wild and expand the Supreme Court. For the kind of Nixon China, like we might be, it just might be crazy strategy.

You have to credibly actually possibly be crazy. And it just didn't, I completely agree that it didn't seem super likely one way or the other. Yeah, David, I think it was about punting. I do think that there are a lot of people who openly say that the whole Supreme Court reform discussion, not the commission, which was punting, but the whole discourse is about credible threat to the institution to avoid radical outcomes, and especially a kind of warning to John Roberts in particular. You know, I think that's fine, but I don't think we can let the good be the enemy of the perfect. And we need to use this, you know, opportunity, which is once in a lifetime, to open up a full-fledged discussion, you know, about what is the proper role for this institution? What role has it played historically? How can we fine tune it? Totally agree with Leah that that's the task is to focus on like the fine tuning,

including of jurisdiction, because it has a role to play, but not the role it's played. And even if its sails are trimmed, will play for the reasons you addressed, David, which is that below the radar, it can do immense damage and has done so for decades. Can I ask, Sam, I don't want to put you on the spot, but I know that you've, so we've been talking a little bit about jurisdiction stripping, and I share Leah's concerns about some of the kind of workability in the details. But I couldn't tell whether you sort of think we should focus on jurisdiction stripping and sort of and not expansion or whether that's I mean, I tend to think that expansion should be on the table as a very real prospect in part for the kind of, you know, the last four years and those reasons. And I think adding two seats, which could, of course, set us on a path of, you know, kind of a seat addition on sort of arms race, but I actually don't know how bothered I am by like a continually expanding Supreme Court. I'm not quite sure where I am myself.

You know, I think Jamal Green has, maybe just on Twitter, I'm not sure if he's ever written anything longer about it, but he's, you know, recently very much a comparativist and suggested our Supreme Court is much too small as compared to the size of the court and other democracies. And I think that makes a certain sense. So anyway, so I guess I'm not worried about expansion in and of itself as a problem. I was just curious, I couldn't tell whether you had a view on size. I'm all for expansion of the lower judiciary. And I'm kind of shocked, maybe it'd be interesting to raise this with Leah also, you know, why hasn't that been more frontal in, you know, recent weeks? Because it seems like that's not even controversial relative to Supreme Court

reform going back to Jimmy Carter. And, you know, if you're really concerned about the Trumpification of the judiciary, like what's the barrier there? But you know no I I guess my trouble with expansion is that by itself it preserves the power of the court and trades on this notion that it just recently fell into illegitimacy because of Mitch McConnell um when, you know, honestly, he seemed to just exercise, you know, the power that the Constitution gives to Machiavellian players of that kind, you know, which says nothing about the modalities of, you know, hearing and replacement of justices. So I think, you know, if court expansion makes sense, it could for Jamal Greene's reasons that, you know, it'd be great to have panels at the apex court. But, you know,

I just, I don't, I would, it would really be a shame if we really purport to care about democratic legitimacy to end up with an expanded Supreme Court that isn't part of the progressive reform of the country. And so somehow fitting together, if we wanted an expansion agenda with what we've called a disempowering agenda, seems to me the position I want, the hill I want to die on. Yeah. And the lower courts, it's, I think, great to bring that into the conversation. And, you know, not to make this a grievance campaign, but I did write a New York Times piece about this and didn't get a call from the commission. So, no, just kidding. No, exactly. But yeah, no. And like, as you were saying, like, it's completely uncontroversial. You know, it was most recently No, exactly. the next few years. But you know, who knows? Do you think it would be uncontroversial? Because it strikes me, I think it would be controversial now. But I don't think there is

any serious constitutional question. I don't think there is any serious constitutional norm against lower court expansion. Of course, the Republicans would oppose it. But like Republicans are going to oppose basically any legislation, I think that the Biden administration is going to introduce. So the politics of it don't strike me as obviously good in that it looks like you are filling your kind of it's like a crony hiring type thing as much as it's anything else. As well as as well as the kind of ordinary politics of ordinary, the politics that we saw about court packing generally, which is that it's it's a it seems like a breaking of whatever norms around around kind of institutionalization and burrowing. If anything, the politics seem as bad, but with less meaning than the politics around Supreme Court.

What I would say is like that's partially because of a failure of messaging. And I also don't think this can or should be a standalone bill. Instead, I think it should be part of like a broader access to justice, a broader democracy reform project. So do you want more voting rights enforcement? Do you want like loosening restrictions on complaints? Instead, I think it should be part of a broader access to justice, a broader democracy reform project. So do you want more voting rights enforcement? Do you want loosening restrictions on complaints? Do you want eliminating qualified immunity?

Do you want to actually be able to hear constitutional cases that you file against state and local communities? Well, guess what? In order to adjudicate those cases on their merits, we need more judges. In order to protect the Voting Rights Act, in order to actually adjudicate these claims of partisan gerrymandering, we need more judges, you know, in order to protect the Voting Rights Act, right, in order to actually adjudicate these claims of like partisan gerrymandering, we need more judges. And so I think it can and should be, you know, adjuncts to other legislation. And I think then, you know, the politics would look different. But this is also partially what I think the, you know, commission could do is, you know, like messaging education program where, you know, you are again, like developing facts and teaching people about, you know, the state of the federal courts and what it is they can do and what it is they are doing. I completely support every member of Congress going to your seminars.

It's a, I have one question about. This is why I post my intro videos on Zoom, you know, with background music and all, you know, open invitation, particularly you, Joe Manchin. They put everyone to shame. I can't even look at them. They put me to such shame. My video and PowerPoint game is just so ridiculously deficient. I've hired a DJ to do my classes for this semester,

so I'm pretty excited about that. But I have a question about, there are like a whole bunch of threads we could pull in, but I have one that kind of directly follows on this, which is assuming there isn't going to be any radical reforms here, what do you think nominations are going to look like during the Biden administration? So one of the things that was really notable about the Trump nomination strategy is that it became like increasingly young people. But it's like, do you think the Biden administration is going to be appointing 27 year old, like, like, you'll finish your Supreme Court clerkship and the reward will

be right instead of getting a big bonus from, I don't know, some law firm, you're going to get a second circuit seat or what? There'll be a diversity agenda and rightly so. Especially if they prevail upon Stephen Breyer to retire as he should ASAP. There's no doubt. I mean, there's been a promise to whom that seat's going. And I think, you know, the diversification of the federal judiciary in light of the appointment policies that Biden's pursued, you know, politically is what's most predictable to me. And of course, you know, definitely a high time for it. Yeah. We should say he certainly hasn't promised a seat to anyone in particular, but he has said that he hopes to put a black woman on the Supreme Court. And I think he's got like an incredible list of options. And so I don't see him not doing that. So yeah, I think that

that's a promise that he will make good on. And you know, we hear Leandra Kruger from the California Supreme Court and Katonji Brown Jackson from the District of DC, and there's a long list of others. But those two, I think, are sort of the top of every, then they will both be tremendous. In terms of sort of the broader profile of lower court nominees, no, well, I mean, look, so I was a lawyer in the early Obama administration and, you know, I think that the sort of the work that we did in diversifying the lower federal courts was really excellent. I think that we, the administration, I mean, I was only there for the first couple of years, but fell really short on the age issue. We put a lot of older judges on the bench, many of whom took senior status not that much later. I think that it becomes more

difficult. Sort of privileging diversity often means people who have taken sort of career paths that sometimes involve time at firms, time in government. And so there were people in their 40s and sometimes early 50s who were tremendous candidates, but, you know, and candidates of color, but weren't 27. And these other qualities sort of were front of mind for that for the administration. And I think rightly so. Obviously, the Trump administration didn't care at all about diversity and really did seem to privilege ideological purity and age. And so I think that, you know, I think that the Biden team will be more attentive to youth. But it certainly isn't going to jettison diversity, nor should it. And so I think that they're not going to be a lot of 27 year old judges, nor should there be in any administration.

I have no idea, honestly, what the profile of these judicial nominees is going to be. Like, I absolutely agree that professional diversity, you know, diversity on the basis of race, sex, sexual orientation, gender identity, you know, is going to be something that the administration is going to value. But I don't know whether they will try to nominate and push and go to bat for someone who has taken unapologetically, like, left-leaning positions and political positions in the same way that, you know, the Trump administration did for their appointees. I just don't know, you know, the answer to that question. And it's possible they don't know and they might try some and see how they go. But yeah, I don't know. But I do know that it's going to be a

priority. I mean, it's also sort of parking back a minute to the Obama administration. I think that in the early days, the progress was way too slow on filling vacancies. And I do think that there'll be probably a lot of judges taking senior status. And there are not a lot of vacancies right now to fill because Trump filled so many of them. He really basically filled all of them. But I think that as more judges take senior status, I think that there probably will be a lot of vacancies. And I have no doubt that that team is just not going to let vacancies sit. The West Virginia Gold Plated Highways and Judicial Vacancies Act of – Right.

Yeah. But, like, even though this administration, you know, has said they are prioritizing filling nominations, you know, they sent that letter from the White House counsel telling senators they had to submit, you know, possible nominees within 45 days of a vacancy. That itself is still a much longer period than the Trump administration took, you know, to nominate people for vacancies. You know, they had someone nominated to fill Judge Barrett's then seat on the Seventh Circuit, you know, immediately when she was nominated before she was even confirmed. So, you know, I am taking some hope from the letter from White House counsel and the fact that Ron Klain is chief of staff and like Paige Herwig is in the White House counsel's office. Like all of those are really

good things, but I still just, I don't know what we're going to see. So I'm going to do one counterpoint here, which is that it's not obvious to me in any way, shape or form that that given a limited agenda, that this is the most valuable thing. I mean, it's possible it is. It's possible. And there are ways in which it is. But there's a kind of regular criticism of the Obama administration that they didn't focus on this enough. But part of the reason they didn't focus on this is because they're focusing on a lot of other things that they were doing that were also very valuable and the biden administration just a lot of stuff to do um and so um i don't know how excited they are especially in a 50 50 senate i don't know how excited they are about a million vacancies because like i don't know they're gonna have to get all their people nominated they're gonna have to save the country from a pandemic and whatever else it's one of the things that i find about the supreme Court discourse as an outsider to it. It's like its primacy is assumed rather than proven. And there are periods in which it's deeply important. And there are lots of periods in which

it's not so important. I mean, I joked during 2008 that the Federal Reserve was more important. Not only was the Federal Reserve more important than the Supreme Court as an institution, it was more important in one given year than the Supreme Court had been for a decade. And it was probably, if you go through the crisis period, it was more important each 12 hours than the Supreme Court had been for 12 months. So I don't know. I'm curious to see whether they adopt this Supreme Court primacy type view. Look, I mean, I think the answer to your question depends on how big the threat is, which leads me to, I hope, ask a last question, which is for our two real experts, it concerns something we bypassed, which is the non-delegation doctrine, you know, the emerging picture in Gundy versus the United States, that there are actually a lot of votes to destroy the administrative state, even before Amy Coney Barrett, you know, ascended to power. So, you know, that would be a very big

deal if in the next two years, just the, you know, majority of that existed before she came around with, you know, Sam Alito saying in Gundy that he was going to wait until Brett Kavanaugh was in his seat. Now he is, and they've got an extra. That would be a huge, big deal. And I just want to, we talked about abortion, but how real do you think the prospect is

that they'll beef up the non-delegation doctrine, which would then, I believe, provide an answer to David, that actually it's an incredibly big priority to circumvent that or have a response ready if it happens? So I personally think that that is a very real threat. I think even if they don't endorse the same version of the modified or overturned non-delegation doctrine from Justice Gorsuch's dissent, I think we will see a more rigorous review of congressional delegations to agencies. And I think that poses a major burden to addressing things like climate change. I think, and even if they don't, you know, reinvigorate the non-delegation doctrine, I think there are enough tools at their disposal to basically gut, you know, administrative efforts to address climate change. You know, I think back to the Clean Power Plan, again, during the Obama administration, or again, you know, using statutes

like in Michigan versus EPA, there are just enough tools at their disposal to do that. They have shown a willingness to do that, that I think, you know, the Biden administration needs to multitask. And yes, I understand that they want to prioritize things like a Clean Dream Act, you know, coronavirus, climate regulation, voting rights, and so on. But we have to learn to do more than two things at once. And, you know, governing is hard. Find people who will work around the clock to do that. Like, you just need 20 Leas in the White House Counsel's Office, and this can all get done. Like, I assure you it is doable. Or just one. Or maybe just one. It's true. I mean, it's just like, I totally get like what you're saying, David, but it just it bothers me a little bit when I hear that, like, well, we can't do judges because we need to do this other thing. Also, to respond to David's question. Yeah. So I think you're right, like this sort of its import does sort of wax and wane. But obviously, you have to put judges in place now, because you have no idea when those moments might come. On non-delegation, I mean, I actually think that I may be on non-delegation. And when I said at the beginning, you know, maybe finding all notice and comment rulemaking unconstitutional, that's, you know, on a non-delegation theory that just like actually agencies issuing binding rules,

right, rules that have the force of law is impermissible lawmaking, and that only Congress and not agencies can do that. And that's how agencies do most of the important work they do is these rules. So you have to, you know, like read tea leaves, like they have said it, like they've, you know, probably a majority of them now. Now, again, saying it when you aren't actually voting for it. It's a little bit different. So I guess I would say I think I'm on non-delegation where it sounds like Leah is on abortion, which is I think they probably do it in a number of steps. Like I think they probably take a case that is Gundy-esque that, you know, involves criminal penalties and they're fined an excessive unconstitutional delegation, maybe find an extremely broadly worded statute.

And actually, I mean, that would be a huge deal. I don't want to undersell the significance. But I can't imagine they basically say that in one decision, as opposed to a series of decisions, that much of the administrative state is unconstitutional. But I do think it's very possible that the Supreme Court, as currently constituted, could get there. And I don't know what the time horizon is. I don't even know if it's the next four years, but I think it could be, but certainly in the next decade if we don't see big changes. So I've always wondered something about the non-delegation doctrine, which is that

non-delegation is very active in state courts. For it has a like a for those of you who uh uh like pay attention to new york city the soda ban the big soda case is a non-delegation case in new york and like the world didn't end i mean it's an unbelievably stupid opinion um and an unbelievably stupid doctrine in the states and so the question is like do you think that they will use it in a kind of stupid but not harmless but like you know like modestly harmful way or use it in a kind of stupid, but not harmless, but like, you know, like modestly harmful way? Or in a, like, you know, in the federal government sort of way? Right, Kagan, like much of administrative governance is unconstitutional, right, is what she, what Kagan has said. So that's not an alarmist position, right?

I mean, I think she's, it was a rhetorical flourish that was quite deliberate and not necessarily like short-term predictive. But she wanted, I think, to issue a warning. Yeah, I think it's an interesting question. I mean, the soda ban, it was like this weird, it was a local regulation. There was a sort of complicated backstory as to the soda ban. But it's certainly right that there is a more robust non-delegation doctrine in the States. And I think there's a new paper on this. In the last couple of weeks, somebody actually took a good look at it in the States. Yeah. Keith Whittington has a piece on it. That's pretty good. Oh, does he? Okay. So I'll have to look at that. But yeah, like how much is it? I don't know. States can be pretty dysfunctional. So it may well be that it's actually

It's only one of the reasons they can be dysfunctional, but sure. I mean, like in Michigan, they use a non-delegation doctrine to invalidate one of the governor's, you know, coronavirus restrictions. So I think like even if they do it in a, quote, like modestly harmful way and don't invalidate all of government, you know, again, I would go back to like climate regulation is just going to be first on the chopping block. And that's real bad. Yeah. So Nick Bagley had a great piece in The Atlantic that basically said that Michigan Supreme Court decision is a blueprint for the Supreme Court if it wants to strike down something significant. I don't remember if he pointed to climate or sort of further, you know, federal COVID interventions,

I'm not sure. But yeah, I mean, I think that the groundwork has been laid in some state courts, for sure. I mean, obviously, it doesn't apply, but you could you could sort of transpose it pretty easily to the federal context. I just add that, you know, we wouldn't want to rate around for the kind of showy world ending decisions. I mean, if you take abortion, I mean, the evisceration over a generation is already so advanced that, you know, we're not talking about the same abortion right anymore. And so the climactic overruling of Roe becomes less necessary. But, you know, the court's power is dangerous, especially when it's exercised by stealth sam you're a therian you must be in favor of it of the non-delegation no no no of the rollback

on i mean it's a it's a it's a court denying type thing i'm just trying to get sam in trouble here i mean you must be thrilled about the abortion decisions. They're enabling democracy. missable to talk about, including in, you know, inauguration speeches, that the Congress should, you know, adopt a Section 5 strategy and say, we own, you know, the 14th Amendment, we can, among other things, pass a federal abortion right, and, you know, demand the overturning of City of Bernie V. Flores, and say, you know, we can define, you know, the people's rights, which, you know, the Congress mostly has, Civil Rights Act, the Americans with Disability Act, Voting Rights Act, and, you know, why we would want to defend this one precedent, you know, rather than, you know, taking the power in the Congress that the Constitution gives precisely to, you know, taking the power in the Congress that the Constitution gives precisely to,

you know, allow for citizens' rights. I don't know. But no, Thayer is cool. Bernie's a huge obstacle there. I wonder, you know, Biden, Bernie, you know, versus Flores, not Bernie Sanders. Not the dude in the cold in the mids. He's just really on the mind today. But, you know, Biden did talk about this, a federal protection on the campaign. But I don't think he's said anything about it recently. And I don't know. I think there's a decent chance the court would strike it down. But it does seem like it should be certainly permissible as far as I'm concerned.

Thanks, everyone, for listening. Thanks to David and Sam for this joint episode. Thank you guys so much for, I don't really say having us on or us coming on or whatever it is what you do when you have a joint episode. But this was really fun. I learned a lot. And I thought this was terrific. So thank you so much. Thank you.

You're amazing. Thanks to Melody Rowell, our producer. Thanks to Eddie Cooper for making our music. And thanks to all of you for listening. If you'd like to support the show, you can become a Glow subscriber at glow.fm forward slash strict scrutiny.