What A Day - Can We Reform the Court?

Episode Date: October 13, 2026

The Supreme Court is back in session — and nearly two years into Trump’s presidency, we have more questions than ever about the justices' ethics rules, shadow docket, and more. Jane sat down with Strict Scrutiny co-host Kate Shaw to hear her four ideas to reform the highest court in the land.Show Notes: Check out Kate’s piece – https://www.nytimes.com/2026/10/13/opinion/supreme-court-reform-democrats.html  Call Congress – 202-224-3121 Subscribe to the What A Day Newsletter – https://tinyurl.com/y4y2e9jy What A Day – YouTube – https://www.youtube.com/@whatadaypodcast Follow us on Instagram – https://www.instagram.com/crookedmedia/ For a transcript of this episode, please email [e-mail]

Honestly, essentially, everything in our dysfunctional politics in this moment is directly traceable to this Supreme Court and its interventions, often striking down acts of Congress and overruling its own precedence. It's Tuesday, October 13th. I'm Jane Koston, and this is what a day. Katie Zachariot, the new White House press secretary, faced reporters for the first time today. And let's just say it could have gone more smoothly. Here's an exchange with Fox News senior White House correspondent Peter Ducey. Is your job just to speak about White House matters or is it to make things less tough for Republicans in the midterms? Well, Peter, I get to do what I was doing on the outside already, which was hoping to amplify, multiply, and expand upon President Trump's incredible agenda for the American people. And what I hope to do in this position is to take that.

into an official capacity and only build on only amplify and only multiply to the extent possible all of the wins he's making for Americans for for Americans to understand how much has changed in this brief period of time what he's been able to accomplish my goal is to be able to communicate that in complete tandem with the president as he is his own best spokesperson and will absolutely be leading the way as with that and I want to ask a policy Has the U.S. stopped sharing intel with Ukraine? I'll have to get back to you on that. I bet you will have to get back to him on that.

Zachariah, a conservative commentator, who most recently worked for President Donald Trump's social media company and reportedly timed her TV hit so that Trump would see them was named to the job on Friday. She appeared for only 14 excruciating minutes and took questions from just three outlets before telling reporters they could go ask the president their questions directly on the south lawn of the White House as he prepared to leave for a campaign trip to Alaska. Goodbye, Kimberly. U.S. Ambassador to Greece, Kimberly Guilfoyle resigned today after allegations of improper conduct.

But insisted she'll, quote, vigorously defend herself. The Trump administration said today it asked Gilfoyle to leave her post. This follows a series of reports on the Wall Street Journal, outlining improper and possibly illegal conduct before enduring her tenure in Athens, including making an alleged threat to a host country official, accepting improper gifts and services, and offering to use her influence inside the administration in return for the payment of a massive credit card bill. Gilfoyle insists she's innocent. She posted on Twitter, quote, I will not allow false accusations to define my decades of public service. What decades of public service she didn't explain further. Trump, however, seems to have already forgotten the woman who was once nearly his daughter-in-law. He told reporters yesterday, quote, she, I guess, dated my son a long time ago.

Woof. The Wall Street Journal also reported today on a video showing Texas Republican Senate candidate Ken Paxton partying in Dubai with two fugitives from U.S. Justice and his mistress on Year's Day, 2025. This incredible news comes after Republican officials and right-wing online weirdos, like Elon Musk, spread bizarre rumors in recent days that Paxton's opponent, Texas Democratic Senate candidate James Tala Rico, suffered a mental health crisis earlier this month. He did not. According to the journal, the two fugitives Paxton was partying with had both been indicted

in federal court for embezzling $15 million from a Chicago. go hospital. So you know, perfect Paxton playmates. But I want to talk about something less fun than Ken Paxton's personal life, but definitely more important, reforming the Supreme Court. Joining me today is Kate Shaw, co-host of Crooked Media's strict scrutiny. Kate, welcome back to why today. Jane, always a pleasure. So the Supreme Court has never been less popular. per Gallup, the court's job approval was at 33% in July of this year. GOP approval fell to 58% and Democratic approval is at 12%. That is a 1 and a 2 followed by the percent sign.

What's going on here? You mean who are the 12% of Democrats who approve of the Supreme Court? Because that in some ways is my question. I mean, that would be a fascinating question. I would love to meet the 12%. But what's happening here? Look, I mean, I think that the public is catching on to what a destructive force the Supreme Court is right now. So, you know, the list is almost too long to fully enumerate.

But just in this kind of run up to the midterm elections, the distortions that are a direct result of the Supreme Court's intervention, I think, are all around us. So the hundreds of millions of dollars of dark money being spent on races by, you know, sort of people like Elon Musk and others, the fact that we're going to be. The fact that we have seen really for the first time this wild rush to do this mid-decade redistricting, including basically to extinguish black political power in a lot of southern states because of the Supreme Court's invalidation of what remained of the Voting Rights Act, the fact that Donald Trump feels emboldened to embark on this lawless effort to seize control of voting by mail, honestly, essentially, everything in our dysfunctional politics in this moment is direct. directly traceable to this Supreme Court and its interventions, often striking down acts of Congress and overruling its own precedence. And so I think that people are catching on and they're really unhappy with the Supreme Court. I mean, there's also, you know, some Republicans were unhappy with the Supreme Court because it has occasionally ruled against Trump. So it's maybe not MAGA enough. But I think the more important force here is that Democratic and independent voters understand that something is deeply wrong with this institution.

Yeah, I mean, to that point, Democratic approval for the Supreme Court was at, let's see, 67% in 2016. Overall approval was at 60% in 2006, 45% in 2016, 34% this year. So here's my thought. You just mentioned how Republican support for the court has declined because the court ruled against Trump. Now, the job of the Supreme Court is not to be popular. It's that's not really why they're there. That we'll get into some of your reform ideas, but part of the concept of the Lifetime appointment is that you aren't, you can't really be influenced by the idea that someone

would could kick you off or that you would be tethered to one particular presidency. So why does how we feel about the Supreme Court matter? Yeah, I think it's an important point and it's not supposed to be a popularity. contest, they should feel at liberty to sometimes make what are short-term or even long-term politically unpopular decisions. So that's not really the critique, I don't think. There are, of course, people who are unhappy with individual Supreme Court opinions that has happened regardless of the ideological valence of any particular opinion, and it will continue to happen. I don't think that is essentially the core of what is so wrong with the Supreme Court. But the decisions again and

again to override the judgments of Congress, the people's elected representatives. And it's really hard to get statutes passed in Congress. It's hard today. It's always been hard, even if not as hard as it is in these hyper-polarized times. But when Congress manages to get a majority together to pass campaign finance reform, voting rights protections, criminalization of bribery and corruption, and the Supreme Court on a bare majority five or six justice. vote basically says, ah, we disagree. And again and again, that does feel inconsistent with the role of a court in a democracy, which is, you know, we can, I guess, debate what that role is, but to my mind, there are two core features. One is to ensure that the political process basically

works so that the people can make the most important choices about how we live and how we're governed. And also to protect vulnerable minorities who have a difficult time protecting themselves in the political process. And I think on both of those scores, the court has failed catastrophically. So whether it's popular or not, I think that the court's sort of failure to discharge its baseline responsibilities is the reason the court is so broken and so in need of reform. To that point, you have an op-ed in the New York Times today with four roughly reform suggestions for the court. Term limits, ethics rules, changing what goes in the shadow docket and your final suggestion, regularizing appointments to the court while perhaps expanding it. Can you walk me through

these suggestions? Sure. To start with term limits, this is a proposal that has gotten increasingly popular. It has like 72% approval. Everybody's into it on both sides of the aisle. Everybody loves it. As you know, there is basically nothing in our politics that like more than two thirds of Americans agree about. So I think that is quite revealing. I mentioned an 18-year term in the op-ed, but I think it could be 12 years, it could be 15 years, but some period of time that's long enough to provide a degree of remove from the politics of the moment, but is not forever, which is sort of how the justices have come to serve. And I think you could roll it out in a couple of ways. One, you could say, I mean, you could apply it to everybody, even the current sitting justices, or you could say these limits will apply

to prospective appointments to the court, so any new justice is going to serve for only 18 years. And after those 18 years, the justice's job description will change. They can sit by designation on lower courts or they could step in if there's a recusal of one of the regular justices, but they would keep their titles. They would stay justices and they would keep their salaries. And that, I think, would be totally consistent with the Constitution, which provides that justices hold their offices during good behavior. And you also mentioned ethics rules. So the Supreme Court adopted sort of some ethics rules recently. Can you tell me about, like, what are you looking for and what did they actually do?

My co-hosts on strict scrutiny and I referred to this code that was rolled out a couple of years ago as the code of misconduct, which basically it's the first time the Supreme Court justices have reported to write down what they say are the principles that guide them ethically. And they say that they've always abided by these stringent standards, but they've just never mentioned it and now they're mentioning it. But actually, if you look closely at this document, there is way less to it than meets the eye. It just suggests that they generally are going to behave ethically. There's not going to be any kind of enforcement mechanism. Even the statute that I think very clearly requires recusal if there is either an actual or appearance of a conflict for a justice. They say, we try to abide by that. But if there's some reason we can't, like we need to have a quorum to sit, then that kind of imperative overtakes even clear statutory language. So I actually think that it is a, you know, more than insubriced. is less than insufficient as a document. In fact, it is kind of affirmatively dangerous because it has all kinds of caveats, even to the baseline rules that we all kind of thought the justices abided by. And it is, I think, meant to suggest that nothing further is required by way of ethics regulation. So that internally adopted code of misconduct doesn't, you know,

remotely do the job. I think that there needs to be clear statutory requirements. The justices have to have actual prohibitions on the receipt of, you know, lavish gifts and travel. Like, say, trips on yachts, maybe. Spitballing, private jets, any of those, which, as we know from reporting by places like ProPublica, the justices, at least some of them, have accepted in recent years. So they've accepted them, that's a problem. They haven't always disclosed them. That's a separate problem. So both of those problems need to be addressed.

Recusals, I think, need to be more formal. and maybe most important, there needs to be some kind of real enforcement mechanism. So that could be an inspector general inside the judiciary. That could be maybe a counsel of retired former federal judges. But somebody outside of the Supreme Court itself or the justices themselves to provide, you know, maybe binding ethics kind of opinions or at least ethics guidance that has some kind of enforcement teeth. because it's a pretty basic principle that no one should be the judge in their own case, and yet the justices assert that that is how they roll when it comes to ethics. We'll get back to my conversation with Kate Shaw in just a moment.

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Saturday morning. Try for yourself today, and if you're unsatisfied, they will refund your entire order. No questions asked. Head to Zbiotics.com slash wad, code Wad for 15% off your first order. Zbiotics is a great partner of the show. Let's get back to my conversation with Kate Shaw. Your additional suggestions, which we're going to get to in two in a minute, are changing what goes on the shadow docket and making that more clear. And we will get to expanding the court, or at least making it clear how many justices each president is going to get to nominate. But I want to go actually back to term limits because term limits has broad support, as I mentioned, about 72%. And it's been suggested by Republicans.

Rick Perry brought it up during the 2012 primaries. And Perry, Mike Huckabee and Ben Carson brought it up during the 2016 primaries, which happened 10,000 years ago. Conservative writers John Fund and Mark Levin brought it up in a book in 2019 called Fix the Court. Why hasn't this happened? And would it require a constitutional amendment per the language you cited? Yeah, it is interesting that ideological valence of this push for term limits has definitely shifted. It was kind of a more conservative proposal for years. Obviously, liberals are more embracing it now. But it does feel like the kind of thing that could potentially amass relatively broad support. So I kind of wouldn't rule out some kind of coalition that could support term limits that would obviously.

apply to justices, whoever appoints them and sort of whatever their substantive views. In terms of how this could be done, I actually do think it could be done by ordinary legislation that it would not require a constitutional amendment. So these justices under the Constitution hold their offices during good behavior. So it doesn't actually even say life tenure in the Constitution. But that is how we've always interpreted it. And at this point, I think that settled understanding has come to have basically the force of law. But I don't think there's any specific requirement that the job be unchanging for life. So an 18-year term where you are an active justice on the Supreme Court and, you know, an additional term, however long you want to stay or can

stay, as a senior justice on the Supreme Court, both seem consistent with the Constitution's guarantee of life tenure as we've come to understand it. So you keep your title, you keep your salary, your responsibilities somewhat change. But I think that's totally consistent with, Congress's authority to regulate the Supreme Court, which is explicit. Life tenure isn't, but Congress's authority to regulate the Supreme Court is, and I think this would be consistent with that power to regulate. Now, let's talk about the shadow docket, which I maintain didn't exist when I first started following the Supreme Court, and then suddenly the shadow docket is used constantly. You suggest let's change how we use it or, at very least, make it clear what we're doing with it. Yeah. And I think that this is critically important, and I think that there are a couple of different relatively easy fixes here. So one, the justices have adopted this incredibly malleable set of standards. They sometimes apply, sometimes don't. Sometimes, who knows, because they don't even tell us what they're doing, even when they reach in and grant relief, typically to the federal government, relief from some lower court that has taken a careful look at what the administration proposes to do and has said, no, no, that's illegal.

Court basically says no, we disagree, but doesn't actually tell us why, like what the lower court got wrong. That has happened in a slew of cases, most recently, in the administration's policy to engage in these so-called third country removals, right, sending individuals with orders of deportation to countries they have no relationship with, may never have been to or even heard of. And a lower court found three separate times, actually, that was likely illegal, and the Supreme Court has allowed the administration to go forward anyway, essentially without any explanation whatsoever. So essentially to keep them from doing that, require them to explain when they're going to make these incredibly high-stakes interventions, and also to abide by a set of standards that includes a robust evaluation of who is going to be harmed by intervening on the shadow docket.

At the moment, the Supreme Court seems to think that any time the federal government is prevented from implementing its pocket, policy objectives, even if those objectives are totally inconsistent with statutes or the Constitution, that is some kind of irreparable harm that justifies Supreme Court intervention, and that just can't be right. So some formalization of the standards that the court uses, a requirement of reason giving, and maybe a supermajority voting requirement. So there are lower courts, there are state courts that basically require not just a simple majority and not just five of nine, but a supermajority to, say, strike down a state constitutional provision. So you could adopt a similar supermajority voting requirement if the Supreme Court is going to step in and upend what a lower court has done on the shadow docket.

So you could require six, you could require seven, you could even require unanimity. And the idea here, I think, is that this is a pretty extraordinary move to intervene before litigation has really run its course and without kind of full briefing and consideration. and only when it is crystal clear what the legal answer is such that most or all of the justices agree should this kind of intervention be warranted. So that, I think, is another proposal. And I'll just add, you could imagine applying it not just to the shadow docket, but any time the Supreme Court is going to strike down an act of Congress, like we were talking about, you know, voting rights act or campaign finance regulation. A simple majority maybe shouldn't be enough to take such a momentous step. So your final suggestion, which is kind of in two parts, has to do with presidential appointments and kind of an argument for court packing. So you talk about how it would be great if a president knew I'm going to be able to nominate two people or four people to the Supreme Court. For one thing, so we didn't have to keep thinking, hey, how healthy is that particular Supreme Court justice? What are they up to? What's their workout routine? Are they eating enough vegetables? But you also talk about. adding members to the Supreme Court. And here's my concern with that. So Donald Trump has the exact

understanding of the Supreme Court you would think Donald Trump has, which is that he nominated justices and they are supposed to vote in the way that he wants them to vote, which is why he posts all the time about how his justices have betrayed him and how the liberal justices never would betray Barack Obama or whomever nominated them to the court. Here's my concern. If you say have 15 justices on the Supreme Court. You could get presidents of either party that have basically chosen those justices because they're supposed to rule in their party's favor. So maybe you get seven Democratic justices and eight Republican justices or vice versa. And isn't that kind of what we're trying to avoid? How do we, if we were to add members to the Supreme Court,

how do we avoid, if that's what we're trying to do, the idea that you, basically have your team and their team and they go in there and I don't know, fight over the ball. Right. A couple of responses. One, I think at this point, we basically do have that with this court. And obviously, Trump is channeling that when he invades against his justices for not always voting with him like in his, you know, the tariffs ruling or birthright citizenship. But those are really the outliers. For the most part, they have totally backed him. So it feels like there is a very real chance that this, the kind of reform proposal. that I'm talking about would change things for the better. So one, I think that kind of regularizing appointments so that presidents do know that they're

going to have some appointments to the court will mean the temperature is taken down on the kind of selections and the confirmation process in that it is not maybe the only shot a particular president has of changing the balance of the court. Each seat becomes so valuable when they become open only every decade or so. and a president doesn't know if they're going to have only one or, you know, maybe two shots at actually changing the composition of the court. So they all have four. So maybe that sort of lowers the temperature. It also, I think, at the front end, if the next president is able to appoint two or maybe even better for justices, that does sort of jumpstart the kind of change to the Supreme Court, which is maybe more short term than long term. But at this moment, I think this Supreme Court, as presently constituted, is going to be an enormous obstacle to any kind of reform. agenda that a kind of democracy candidate for office, the president, and in Congress, wants to pursue if they want to restore voting rights, if they want to limit campaign finance, if they want to create some accountability mechanisms around the president or around Supreme Court justices,

I think this nine-member court is going to be incredibly hostile to any of that. So it is a way to potentially facilitate the actual implementation or serious pursuit of other kinds of reforms, but it's not a one-off the way some court-packing proposals are. So the next president gets four, and then we leave it at 13 and sort of go home and hope that things are better at the Supreme Court differently constituted. So this, I think, does achieve that at the front end, but also kind of changes the politics of appointments going forward. And if it's paired with this kind of term limits proposal, it's going to be a bigger court, but, and it maybe it will be a variable-sized court. So depending on the sort of how the 18-year terms are phased in and whether it's

two or four appointments per presidential term, this could be a 13-member, 15-member, 19-member court that could shrink and grow somewhat. And maybe that is okay too. If there's not always exactly nine justices and their votes are basically predictable in all of the big cases, that I think changes some of the gamesmanship around litigation and also, again, kind of lowers the stakes of any individual decision because there's going to be a newly composed court within a matter of years. So that's a number of responses to the concern. And I think that this proposal has the advantage of kind of pairing this one-off expansion with something more enduring by way of composition change to the court paired with term limits that I think has a chance of really changing for the

better the way the court functions in our democracy, which at the moment is not well. So I think my overall thought with regard to your op-ed and thinking about this issue more broadly, you wrote in your piece that, quote, when the court develops an outside sense of its own authority and when it uses its authority to impose its policy preferences and increasingly its partisan preferences on the rest of us, the arrangement becomes untenable, the arrangement being kind of the way the court is supposed to interact with society. That has happened before and has manifestly the case now. But Kate, I would argue we did that. We did this. It's us. We have met the problem and it is us. You know, the court has had to make since the Warren court giant decisions because either Congress couldn't or Congress wouldn't, whether that's school desegregation or Vietnam war protests or whether or not you should have to stand for the Pledge of Allegiance or whether or not you can practice specific religions or whether or not my marriage would count in my home state. A lot of those decisions were, you know, obviously came up from smaller courts or had to do it with state law. But a lot of this has to do because Congress wouldn't make a decision. They just wouldn't do it. I mean, Congress's inaction and our lack of action are why the Supreme Court feels like it's so important all the time. We're asking the court to make decisions that we cannot.

How do we change that? How do we reduce the importance of the court? Yeah. I think that's very insightful. And I think that Congress is a huge part of the problem bears an enormous responsibility in kind of this shrinking Congress. We have this expanding and virtually all-powerful Supreme Court. So I would say a couple of things in response. One, part of the reason I think we have this disempowered Congress is because of this Supreme Court and its interventions in a bunch of kind of more technical ways, but also in these kind of areas that we've been talking about, the way it has distorted the electoral process that has resolved.

resulted in these highly gerrymandered districts and this kind of unregulated flow of money, that has given us this kind of Congress that has refused to act in all kinds of critical ways. Now, some of those are more recent, but some of them are longstanding. But there are also ways that the court has hobbled Congress from actually interacting in active ways with administrative agencies that get fairly technical. But I do think that the Congress that we have, which is wildly insufficient, deficient in all kinds of ways, is largely a of the Supreme Court. So fixing the Supreme Court, I think, has a chance of getting us a better Congress that's going to do the things that we want it to do. But I also think that where Congress has acted, where it has passed environmental legislation, the Clean Air Act, the Clean Water Act, where it has passed the Voting Rights Act. And again, campaign finance regulation, the court has again and again said, basically, we know better. We're going to read statutes in a way that don't give agencies power. We're going to strike statutes down. If we just disagree with the factual predicate that statutes are based in, like the Voting Rights Act renewal. We just don't think racism is a big

problem anymore, so we don't need preclearance. That was the Shelby County case, essentially, in a nutshell. And, you know, it is of course the case that the Supreme Court has, in particular invalidating state laws in defense of constitutional equality principles. You know, obviously think about Brown versus Board of Education, think about Obergefell. So those are cases where you had state laws inconsistent, fundamentally inconsistent with constitutional equality guarantees. And the court has struck those laws down, I think, obviously, for the enormous good. But I don't think any of these reform proposals that I'm talking about would remove the court's ability to do that kind of work. Like, that is the court at its best. But that has honestly been, and again, not obviously to minimize

the significance of those decisions for a minute. But in the sweep of history, the court has much more often intervene to undermine rather than to further equality guarantees. So I think reform efforts that are mindful of that history, but don't remove the court's ability to intervene when needed to protect equality, in particular to enforce federal legislation guaranteeing equality. All of that is, I think, where we need to move when it comes to both thinking about the Supreme Court and the way the Supreme Court is empowered in our democracy. Kate, as always, thank you so much for joining me. Thank you so much for having me. It is always a pleasure.

That was my conversation with Kate Shaw, co-host of Crooked Media's strict scrutiny. She'll be talking more about court reform with her co-hosts at this year's CrookedCon. Before we go, you may have heard that our November 5th Pots of America live show is sold out. But there are still some tickets available for strict scrutiny live, love it or leave it live, and our day-long November 7th Crooked Con event. CricketCon is going to be bigger and, dare we say, better than last year. That means more panels across bigger stages, more live shows, interviews. In addition to the first ever live taping of still counting, you can also attend

hysteria, long play, and pods of America only friends live tapings at the all-day event. Get your tickets now at crookedcon.com. That's all for today. If you like the show, make sure to subscribe, leave a review. Donald Trump made the first promise in his life I really, really, really hope he sticks to and tell your friends to listen. And if you're under reading, and not just about what he said it is rally in Ohio yesterday. You know, if they get in and you have a bad presidential election in the next, because we have some very good people, but if you had a bad presidential where one of these lunatics got in, you will look at me right now and you will say he's going to be the last Republican president in the history of our country. I will be. I will be. Like me, what a day is also a nightly newsletter. Check it out and subscribe at crooked.com slash subscribe. I'm Jane. And Lord, if you're listening.

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