(dramatic music) - The Supreme Court has gone rogue.

It's nakedly partisan, an abomination.

Those attacks being lobbed at today's conservative Supreme Court were originally among the very same words used to lambast the liberal Warren court back in 1953.

Is the conflict unleashed by the Roberts court primarily rooted in political blow back or by criticism about judicial overreach and ethics?

Here to talk about that plus potential court reform is our distinguished bipartisan panel.

Sarah Isgur, former Justice Department spokesperson in the Trump administration, now an ABC news contributor and podcast host for "The Dispatch".

Cristina Rodriguez, Yale Law School professor and co-chair of the Presidential Commission on the Supreme Court.

And Andrew Weissman, former federal attorney, lead prosecutor for the Mueller investigation, and MSNBC legal analyst.

We'll get to our panel in a few minutes, but first, it's my great honor to welcome Judge J. Michael Luttig.

And Judge, you're a conservative's conservative.

You clerked for Justices Scalia and Berger and served for 15 years as a Federal Appeals Court judge.

You catapulted to national prominence for advising Vice President Mike Pence that he didn't have the power to overturn the results of the 2020 election.

Since then, you've emerged as the top conservative go-to voice on the legal landscape, and we are absolutely delighted to have you with us today.

Thank you.

Here's my first question to you.

You say the only real power that the Supreme Court has is something you call its mere judgment, and that basically, it has to assure and reassure the American people that its judgments inside and outside the court are worthy of their respect.

How do you think they're doing, this court?

- Jane, this is actually from Alexander Hamilton in Federalist 78, when Hamilton was explaining to the American people why they should adopt and ratify the Constitution.

And in Federal 78, Alexander Hamilton was discussing and describing the three branches of government.

And he said, with respect to each, that the judiciary has neither the sword or the purse, unlike the executive and the Congress.

All it has is its judgments.

So to whatever extent, and at whatever times, respect for its judgments ebbs or flows, then the respect for the Supreme Court and its judgments ebbs and flows.

- Given where we are right now, how do you think this court stands in terms of being respected for its judgments?

- So at the top of the show, you put it exactly right by starting with the Warren Court.

You know, by the time that Earl Warren, you know, left office and was succeeded by then Judge Warren E. Berger as Chief Justice, the Supreme Court was ebbing in the respect that the American people had for the court.

Today, 50 years later, the court is ebbing again and this cycle of ebbs and flows for respect of the Supreme Court will continue, you know, for the rest of our history.

- Justice Elena Kagan came out and said that the Supreme Court is not a king, it's not imperial, and as such, it should be subject to the same checks and balances in terms of, let's say, matters of ethics.

Now that, as we all know, is in sharp contrast with what Justice Alito says.

He says that Congress does not have the power to impose any kind of code of ethics on the Supreme Court because it would be a violation of the separation of powers.

Where do you net out on that?

- Well, first off, Jane, the extrajudicial comments that have been made by the various justices in the past year, year and a half are monumentally important.

Rarely, if ever in history have justices spoken out on the legitimacy of the court as an institution, as the several justices have in the past year and a half, beginning with Chief Justice Roberts.

And then fast forward to the past couple of weeks when Justice Alito gave the interview in "The Wall Street Journal" with David Rifkin and he took a hard firm stand on the ethical issue that's confronting the Supreme Court now.

And he said, in effect, he said that Congress has no power whatsoever to prescribe ethical standards for the Supreme Court.

By the way, I had been asked by the Senate Judiciary Committee to testify on that very issue.

It was the most important words that I have ever written because I was addressing the powers of the Congress of the United States and the Supreme Court of the United States, which, you know, were being presented as in conflict.

And I said to the Congress of the United States that you do have the power yourself to prescribe standards of conduct for the non-judicial activities of the Supreme Court.

But paradoxically, you do not have the power to order the Supreme Court to adopt standards of conduct for themselves, for itself.

Now, next came, you know, just very recently, Justice Kagan again, who at least apparently was responding to Justice Alito's interview and Justice Kagan, you know, articulated the view that I had in front of the Senate Judiciary Committee, which as far as it goes is not debatable, namely that the Congress of the United States under the Constitution has broad, broad powers to regulate the Supreme Court in all of its activities, including to the degree of removing jurisdiction from the Supreme Court to decide certain categories.

- I guess the question is, do you think there's any chance of any kind of ethics code being made up for the Supreme Court?

I mean, you think it'd be better if they did it themselves, but what are the odds of that?

- Up until, frankly, Justice Kagan spoke last week, I had little or no hope.

After she has spoken and she specifically said that the court continues to discuss the issue, I am hopeful that the Supreme Court will act on its own.

- I want to go a little bit off topic here because you've also sounded alarm bells.

You continue to sound them about how the GOP, the Republican party, and former President Donald Trump are a clear and present threat to our democracy.

Now, you know that increasingly, there are millions of Americans who still believe that the 2020 election was stolen.

What can you say in all of your wisdom that would maybe change their minds?

(audience laughing) Just take your time on that.

- I don't know that I could change any of the minds that are irrevocably decided.

That would be, I believe, the president's hard and fast supporters over all these years.

If we turn and ask that question about public officials who could turn this around, again, I'm beginning to be hopeful for the first time that maybe our public officials will see the light and the error of their ways and the catastrophic consequences of them continuing to support the assault and attacks on American democracy that were leveled beginning on January 6th by the former president and his allies.

- Judge, I knew this was going to go like lightning and let's consider this the first part of a sequel, so we're going to have to have you back, but I want to close out with one anecdote that I'd like you to share with our viewers.

And that's what happened on January 5th, the day before the insurrection at the Capitol, when you got a call from Vice President Pence's attorney.

What happened?

- Well, the night that you're referencing actually was the night of January 4th and that call, the vice president's lawyer just said, "Do you know John Eastman?"

And I said, "Yes, I do.

He was a law clerk of mine maybe 25 years ago.

Why do you ask?"

And he said, "You don't know, do you?"

And I said, "No, I don't know."

And he said he's advising the president and the vice president that the vice president can overturn the election, effectively overturn the election, a day and a half in advance.

So I went to bed that night with my wife quite concerned and asking me to do something and pleading with me to stop this and there was nothing that I thought that I could do or would ever be asked to do.

And then I woke up on January 5th, the day you referenced, very, very early here in Colorado and it was probably 5:00, 5:30.

And the vice president's lawyer called me back and he said, "We must do something urgently and immediately."

And I said, "Well, what do you mean?"

And he said, "Well, I don't know what I mean."

And I said, "Well, if you don't know what you mean, I don't know what we need to do either."

And he said, "We need to get your voice out across the country."

And to make a long story short, you know, I tweeted the tweet that I did, saying that the vice president, his only authority and power under the Constitution of the United States was to accept and count the electoral votes as they had been cast and transmitted to Congress and that the only loyalty that either of those two men had was to the Constitution of the United States.

It was not a question of loyalty of one to the other.

- Judge, I have to say, you left out one thing, I think, and that is that, wasn't this your first tweet?

- It was not literally my first tweet, but I did not know how to tweet more than 140 characters or whatever you're allowed.

- Your first thread, it was your first thread.

- And I called my son who's a tech kid (audience laughing) out in Silicon Valley.

- What we all would've done.

- I said, "I got to tweet something that's very, very long."

And he initially said, "Dad, I don't have time for this.

(audience laughing) I'm busy.

I've told you and Mom that you got to learn all this stuff.

You're both Neanderthals."

And I just said, "You either tell me how to do this right now or I'll cut you out of the will."

(audience laughing) And he grumbled like all millennials would, and then said, "Open your email box, do you know how to do that?"

And I said, "I do."

And he said, "The instructions for tweeting a thread are in your email box."

And I hung up and he hung up and that was it.

- And it was the thread that may have saved democracy.

I'm sure you think about that.

(audience laughing) - I do not think of it that way, Jane, but others do.

(audience laughing) - You're such a modest man, you're like a walking history lesson.

In any case, we are so grateful to you for your service to our nation as well as your animating spirit of constancy to the rule of law during this critical time in our democracy.

And Judge, we will have you back.

Until then, you take care of yourself, thank you.

(audience applauding) - Thank you Jane, I appreciate it.

- And now we are going to turn to our panel and we're going to look at big picture issues including the politics we were talking about as well as the overreach and the ethics.

Sarah, I want to start with you because, as you know, President Biden did say that this is not a normal court, that it's done more to unravel basic rights than any other court in recent history and that it's out of step with public opinion.

Now, how do you respond to that?

- I find that to be a pretty dumb thing to say, frankly.

So first of all, let's just look at this term.

There were 58 cases decided.

90%, actually a little over 90%, were decided with at least one so-called liberal justice, Democratically appointed justice, in the majority.

There were only eight cases decided 6-3, you know, along those partisan lines.

So first of all, that's just not an accurate representation of what the court did this term.

Second of all, we don't want the court to decide things based on polling or public opinion.

In fact, the court is supposed to be an anti majoritarian institution.

That being said, of course, when it comes to, for instance, the Affirmative Action case, which the Biden administration spoke out on extensively, the polling's actually on the other side.

So I think that this gets to a larger problem with the rhetoric around the court.

I agree with almost everything Judge Luttig said, he's wonderful, consider him a friend.

But he left out one part of this, which is that partisans on each side of this debate have seen it as, they're incentivized to de-legitimize the court for their own partisan purposes.

And so I think some of what we've seen are real stories, real debates that we should have over, for instance, whether Congress should overturn some of these Supreme Court precedents by statute.

That's totally fine with me.

But the idea for instance, that, well, I didn't like that Supreme Court opinion, so let's just say that the Supreme Court as a whole is illegitimate or not following the majority of the country's will.

That's not what we're doing here and so I think it's a dumb thing to say, I think it's a harmful thing to say and for, you know, an administration that I think wanted to bring back norms and wanted to, frankly, build up our institutions, it's a very delegitimizing thing to say.

- Andrew, I had another question, but I think you may want to respond to that.

- So I think that Sarah's points are correct in as far as they go and that it's true that politicians on the left and the right will have reasons to attack decisions and that the court is there to interpret the Constitution when that's what's before the court and that may be something that's upsetting to one side or the other.

The thing that I would say it leaves out, and I don't know that it's unique to this term, but it is certainly, in my view, apparent this term is that you can't ignore what the court itself has brought on itself.

And that goes to issues not having to do with the substance of their decision, which was disclosure issues, recusal issues, and issues that go to the substance of their decisions.

So if you have a decision that really breaks from, let's say, originalism and is using inconsistent arguments, it does not help with the integrity of the court.

And it's not to say that what Sarah's saying isn't true, it's just that there's another element that you do have to look at, which is that the court on the left or right can be very inconsistent in terms of its rationale.

And I think that's true in the Bruin case about gun rights where Clarence Thomas just in one sentence says, by the way, it's originalism except when it comes to what guns today you can use, which it now encompasses all guns.

Or the 303 Creative case where I think the court was really inconsistent about public accommodation law and how it was being applied to the state's ability to regulate companies that want to discriminate in that situation against people who are gay, but it could be against people who are Black, women, and it seemed really inconsistent with prior case law.

So I do think that it is important to think about what Sarah's saying, but I think it's also not a pass on the court's own conduct.

- Cristina, I want to bring you into this and then we'll get back to Sarah.

You, at one point, clerked for Justice Sandra Day O'Connor, who started out as a conservative and landed kind of as a centrist.

She was instrumental in being the deciding vote on a lot of important civil rights cases and in affirming or upholding a woman's right to choose.

She was replaced by Justice Alito, somewhat ironically, who wrote the majority opinion in Dobbs that overturned Roe.

The point of asking or making that point is that people are saying that the rule of law has been replaced by the rule of judges.

What do you think?

- So I think that Justice O'Connor represented something that is now missing on the court and something that Justice Kennedy also represented, which is a pragmatic approach to judging.

And that pragmatic approach is not about following poll numbers, but it is about understanding the consequences of the court's decisions and it is about understanding where what the court is doing or how it lines up with the general consensus or the general views of the body politic at large.

I think that even though there are many unanimous decisions, the number's below 50%, I believe, this past term, and 90% of cases where you have cross ideological alliances, it's in that 10% of cases where the court is really doing the meaningful work of changing the law and there, I think it is appropriate to call the court imperial.

And when people say that the court is now embodying the rule of judges as opposed to the rule of law, I think what that suggests is the court is deciding for the country what the right answers should be about what the powers of government are, that the court is putting itself in the position that Congress should be in or that the executive branch should be in.

And it is doing so in the last several terms in a way that unravels precedent, that has longstanding foundation, and the combination of those things is what leads to people being concerned about whether the court is no longer acting like a court, to adopt Elena Kagan's phrase.

- You've just tapped into, Sarah, one of your themes, which is that Congress is asleep at the wheel basically, or it's like analysis paralysis or whatever and they're not getting a whole lot done and so more is being, you know, put before the court.

I also want to ask you about, you know, when the Warren Court was in its heyday, people weren't talking about, liberals weren't talking about the muck of partisanship, you know, in their direction.

It was like the natural order of things, it was never going to end.

So now you've got this pendulum swinging back and I guess part of it has to do with the fact that Republicans, conservatives made a conscious decision to amass judicial power decades ago.

This was something very systematic and now we're looking at the culminate, I mean, it's the way it feels at least, this is the culmination.

How do you respond to that?

- I think there's something to that, you know?

In the wake of the Bork confirmation hearings in 1987, the Republican side, you know, Congress administration saw what had gone on and thought, gosh, we're going to galvanize our voters on this.

And so when you look at the politics of the Supreme Court, it has been more politically effective at galvanizing voters on the right than on the left.

And I think you've seen that time after time, including up to 2016 when you had this sort of what we call 'em now, But Gorsuch voters, people who hated Donald Trump but thought that the role of the president and appointing judges was worth voting for someone they didn't like because of that singular power of the president.

But I really want to touch on your point about Congress and Cristina's point about sort of the big cases being 6-3 because I hear that a lot and I totally understand why someone says that, but, of course, we have to decide then what are the big cases?

Because what often seems to be the case, and this is not what Cristina was suggesting, but rather a criticism of the media perhaps on my part, is that the big cases are the divisive cases and therefore it's just this circular logic, you know?

Well, the 6-3 cases are the divisive ones, therefore the divisive ones are 6-3.

You know, you look, for instance, at the Supreme Court's 6-3 overturning of the Biden administration's student loan cancellation program, but we don't talk a lot about the 8-1 upholding of the Biden administration's immigration program on the Harvard Affirmative Action case.

There were two other race cases, the Voting Rights Act case where section two was upheld, that was 5-4.

And then you have the Indian Child Welfare case, which was 7-2.

Again, those were also big cases and we don't talk about that sort of holistically because instead, we focus on the divisive ones.

And just the last point about Congress, because this is my like pet peeve, I could do, you know, an hour sermon just ranting and raving about it.

So often, you see a headline, "Supreme Court does X," when the headline should have been, "Congress failed to do X," and then the president tried to step in and do it through his powers, which the Supreme Court said he didn't have.

You can look at it going, you know, DACA and DAPA, back to the Obama administration when he said, you know, "I'll hope Congress gets this done, but if they don't, I have a pen and a phone and I'll act where they don't."

That killed comprehensive immigration reform because he was signaling that they didn't need to compromise, they didn't need to do messy legislation.

And so he was saying one side was going to get everything they wanted if they cut off negotiations.

You saw in the Trump administration around the ban on bump stocks.

That's going to be heading to the Supreme Court this term, and again, you're going to see this headline that I predict says, "Supreme Court strikes down bump stock ban," when in fact, there had been two pieces of legislation pending in Congress, both in the House and the Senate.

But then Donald Trump stepped in, when I was at the Department of Justice for full disclosure, and said, "No, no, no, Republicans, don't take this difficult vote.

We'll do it through the ATF."

There was no power to do that through the 1968 Machine Gun Act.

And so while the headline will say, "Supreme Court strikes down bump stock ban," the headline should be that Congress failed to pass a bump stock ban which would be totally constitutional.

So those sort of things really bother me and I would love to hear what Andrew and Cristina say, two people who I respect so much, on this topic.

- Andrew?

- So I guess I want to go back to this issue of sort of counting decisions and looking at the math and, not to sound glib and superficial, but I don't understand what's wrong with looking at the big decisions and making a judgment, which is clearly subjective, about what you think the big decisions are.

And it doesn't really matter to me, as long as they're five on one side, that's it, which reminds me of something that the justice you clerked for used to say, which was, what's it like clerking on the Supreme Court?

And she said, "Five," and that gave a sense of her background in the legislature, which was like, it's all about getting to five, exactly.

Like, that's it and it was just in terms of her practicality, it sort of told you what you have to do 'cause you don't have small panels, you always have nine.

And so I just think it's very hard not to look at this term and especially when, you know, huge decisions come out in a row at the end of the term that fundamentally change decades, where rights are, for the first time, fundamental rights are being taken away and those are the big decisions and it seems to me it is right to focus on those and talk about them both in terms of, well, I would say both in terms of the way in which they're reasoned and whether it is forthright in the way that the justices got there.

I mean, that, by the way, is a criticism you could make about any justice.

It doesn't have to break down and both of us teach, so like that's part of our job is to try and be apolitical and examine it dispassionately.

But I do think that this term is very exemplary of that problem and it is compounded understandably by, as Judge Luttig referred to, real problems about the Supreme Court policing itself.

So that if you have Justice Alito coming out in "The Wall Street Journal" as to why he didn't think he needed to disclose things and his interpretation, in my view, is so strained, it's very hard then to then take his reasoning in a Supreme Court case and on the merits and not view it through that lens.

And he's not doing himself a service by doing that and so it does, because you do align those two, at least I do, that, you know, he's showing, you know, incredibly poor judgment in my view as to how he interprets a statute when it comes to his personal life and then he imposes his own reading of something on the country.

It is not helpful for the institution of the court to have that going on.

- But, Cristina- - Yeah, I mean, I think that comes across as enormously defensive on his part and the whole point of legal ethics is to ensure the appearance of propriety and to avoid the appearance of impropriety.

And so the standard to which someone should hold themselves is much higher than what you could in, you know, casual debate argue actually suggests corruption.

But I wanted to pick up on something that Andrew said at the beginning 'cause it relates to some of what Sarah was discussing and that is the concern about hypocrisy and he cited the ways in which the justices who invoke originalism might in fact not apply that methodology across the board.

And I think that that is also happening with respect to the philosophy of textualism, where you're supposed to, as a judge, read the text of the statute and do what the statute has delegated or allowed to be delegated to the agencies.

And in some of the recent cases, what the court is doing is saying we're not actually going to read the text of the statute if what the federal government is doing is answering a major question.

If the federal government is addressing an issue of significant public popular concern, unless Congress has written something that is precisely on point, the executive branch doesn't have the power.

- Could you give an example of that?

- So a great example is at the beginning of the pandemic or towards the middle of the pandemic, the Biden administration adopted a requirement that employers either require their employees to be vaccinated or to test on a regular basis for COVID-19.

The court strikes that down because the statute on which the administration relied had to do with safety in the workplace and had nothing to do when it was enacted with pandemics.

But the language of the statute allows the Department of Labor to issue rules to protect safety in the workplace and so it was a very straightforward interpretation of the text and the court said, this represents a major question of political and economic significance and we're not going to presume that Congress thought that this statute, which on its face can apply to workplace safety, would apply in the context of the pandemic, which is not the context that led it to adopt the statute.

And so you could have a reasonable debate about whether we should allow the executive to use that law to address the pandemic.

But the point is that if you were a true textualist, the fact that the statute seemed to authorize it would have been the end of the matter.

So it's not just that Congress is failing to act.

I wholeheartedly agree with Sarah that Congress is derelict in its duties as a constitutional branch, we need an invigorated Congress.

But the court is also interpreting Congress's enactments in a way that gives the court the power to decide what they mean as opposed to the executive branch the power to decide what it means and it's the executive branch that's given the power to make the laws come to life.

- But I want to bring up something, again, that relates to a lot of people's lives and that's this whole elevation, Sarah, of religion within the court.

I mean, I think back in the Warren Court, there were like 41% of of the time, they sort of sided with the religious faction, and in this court, it's like 81% of the time.

And I know this was part of Justice Roberts' wishlist when he started back in 2005 and he certainly has achieved it or seems to be on his way to achieving it.

But, do you understand why, you know, separation of church and state, do you understand why that rankles people or how do you respond to the people that it rankles?

- So many, many of those cases have been unanimous or near unanimous.

I'm thinking here of the scholarship cases, the Fulton County Catholic Charities adoption case.

So first of all, you actually have, for instance, Justice Kagan siding with the religious liberty side of that argument quite often in these cases, which I think is interesting and perhaps shows that the court had strayed too far the other direction, and this is more a corrective measure in a number of these cases.

But for instance, in the case that Andrew brought up in 303 Creative, you can see that as a religious case, someone who said that she did not want to make websites for gay weddings.

But it actually wasn't a religious case at the court.

It was a free speech case and whether you could compel someone to put their own words together for a topic that they didn't agree with.

You know, an example that I like to give is a manicurist can't turn someone away because they're Black.

That's the public accommodation point.

This is where I disagree with Andrew pretty deeply.

That didn't change with this Supreme Court opinion.

What it changed was that the manicurist can turn someone away if you say you want swastikas painted on your nails.

She doesn't have to paint swastikas and that's what this case was about.

So I think sometimes we mistake the religious liberty side of this for the speech side and, you know, we have two parts of this, both the free exercise and the establishment clause side.

I think the free exercise side comes much more into this speech, et cetera.

The establishment clause side and, for instance, the Kennedy v. Bremerton case, this was the coach who wanted to pray on the 50 yard line.

I think that is a place where people should have questions about what we're doing moving forward on the distinction between, for instance, praying at your desk or observing prayer multiple times a day versus compelling, for instance, students or coercing students to feel like they need to pray.

I think that is a great case to debate moving forward.

But, I do think you have to separate the two out.

And if I could just make one point on what Cristina said, the case that she was specifically talking about there, I should disclose, my husband argued that at the Supreme Court so I'm incredibly biased about what a great job the oral advocate did.

But, this was on the (laughing) vaccine mandate case.

But that's a great example similar to the Biden student loan case.

Congress absolutely had the power to do this.

They debated doing it, they failed to reach a compromise, they failed to actually pass legislation to do it in both cases, both passing student loan deferment, passing the employer mandate for vaccines.

That's when the Supreme Court's like, well, wait a second.

If Congress pretty clearly didn't have the political will to do this, why suddenly can the executive step in in sort of an imperial executive capacity and do this?

And I think while Cristina's absolutely correct, that this is sort of a new beefed up Supreme Court striking down executive powers, it is in the hopes of reinvigorating a congress to actually do their jobs.

- Well, let's turn to maybe some of the ways these issues could be addressed, which is where you come in, Cristina, because you were the co-chair of the presidential commission that took a look at this.

And where did you net out?

Is there anything really that can be done?

- So I think that the question is what the time horizon is.

We did not as a commission make any recommendations 'cause the president only asked us to analyze the different proposals for reform.

In my own view, and I think this is supported by the commission's report and by a lot of the testimony that we received, the single most valuable thing that we could do to change the court to make it a better institution is to impose term limits on justices.

Right now, they serve for life, and the consequence of that is that who gets to appoint the justice when someone retires is somewhat random.

So Donald Trump gets to appoint three justices in four years.

Jimmy Carter gets to appoint zero.

Donald Trump appoints three justices in four years.

Obama, Clinton, Carter together in 20 years appoint only four justices.

So there is a misalignment between who is controlling the political branches and who ends up on the Supreme Court.

So the proposal is that Supreme Court justices serve for 18 years, which is understood, I think, the world over, no other country in the world has life tenure, to be a sufficient amount of time to ensure their independence, which is a crucial value.

You don't want them to be subject to political whims, but it would then mean that each presidency in a four year period gets two nominations to the court.

And I think that one of the hopes for term limits is not only would that mean that the Supreme Court and its decisions are more aligned with the body politic and the outcomes of the electoral process, but also that it might make the stakes of each nomination a little bit lower and therefore make the process of nominating and appointing justices and the reception of what the court does less tense, less polarized.

That's a big wish, but I think regardless of whether that is possible to achieve less polarization, we should have a much more rational process.

- We're the only democracy, major democracy, that doesn't have some sort of retirement age or term limits.

- Exactly, and there's only one state too that does not have a term limit or a retirement age.

49 states also have term limits, on their state's supreme courts.

- All right, I have to ask which state?

- Rhode Island.

- Okay.

(audience laughing) Sarah, now if I read this correctly, I did listen to a lot of your podcasts with David French, but you're not a fan of term limits.

- I think everything Cristina said is great if that's what would happen.

But one, as someone who's worked in three presidential campaigns, I can tell you if every president was suddenly guaranteed two spots, you're going to end up having, on the ticket basically, a president, a vice president, and two Supreme Court picks and I think that will be very dangerous to the Supreme Court when they end up basically running for the presidency.

I think that could have a very destabilizing, delegitimizing effect on the court and that leads to Cristina's other point that it is an unalloyed good for the Supreme Court to be more in step with the political branches.

I think that's exactly the opposite.

You know, I think of a case like Brown v. Board of Education.

The court doesn't lead culture.

For 10 years, schools were not desegregated just because the Supreme Court said, you know, with all deliberate speed.

You can argue that that's, you know, it was deeply upsetting, it was bad for the country.

All of those things are true.

But if you had had a Supreme Court that was more in step with the politics, with the culture, they wouldn't have decided Brown v. Board of Education because that's how far out of step it was with the culture at the time, that, in fact, nobody desegregated their schools after Brown v. Board.

I think you want an anti majoritarian institution.

You want people standing athwart of the, you know, mob, if you will, because we don't need free speech rights for popular speech.

Popular speech is totally acceptable to everyone.

You need a court willing to say, you know what, even flag burning is constitutional, even if that's deeply unpopular with the American public.

- And that's why you have 18 year terms, precisely to give them that kind of insulation.

And I think those kinds of concerns can be addressed through the design of the term limit system.

And the system we have today is one where presidents run promising things about the Supreme Court.

Donald Trump promised to nominate people who would overturn Roe versus Wade.

President Biden made his own promises on the Supreme Court.

I think that is by far the lesser evil than a system in which who gets on the court is distributed randomly across presidential administrations.

- I wildly agree that our confirmation process is so fundamentally broken.

I think it's actually a pretty good example of the unintended consequences problem because I would go even further in describing why the confirmation process is broken.

Harry Reid got rid of the filibuster for lower court judges and Mitch McConnell got rid of it for Supreme Court justices.

So there's a whole argument one has for partisan politics over like whose fault this is.

Let's set aside the fault question.

What has ended up happening then is whereas you used to have lower court judges, for instance, 'cause that's been 10 years since the filibuster's been gone.

Lower court judges, or rather let's say even law students, lawyers who wanted to become judges knew that they would need votes from the other side to get over that filibuster hurdle.

And so they would, you know, address their careers around that sort of knowledge that if you want to be a judge, you really shouldn't be too far out there on anything, promising things to constituencies, et cetera.

When you got rid of the filibuster, that all changed.

Now, judges on both sides of the political spectrum know, or potential judges know, that they don't need to have votes from the other side and so I think you've seen more extremism on the lower courts.

Not just in their opinions, which I think you have, sort of the snarkiness, the like humor, the like pay attention to me opinions, but even in who is wanting to become a judge in the first place.

I think that's been really bad for the judiciary, even though getting rid of the filibuster was thought of as a way to fix the confirmation process.

So I'm very Burkean about this, or Chesterton's fence, right?

Like before we tear down the fence, we should really think about why there's a fence there.

And the confirmation process, for what it's worth, I came out in favor of Elena Kagan's nomination.

Not because I thought I would agree with any of her decisions, but rather because I think it's the role of the Senate, constitutionally to advise and consent, to thumbs up judges who are qualified, not look at whether you agree with their jurisprudential philosophy.

You know, the first judge to be voted down on philosophical grounds was Bork in 1987.

That's why I think most people see that as the kickoff to the confirmation wars, to the breakdown of this process, each side tit for tatting and raising the stakes.

The Democrats under Harry Reid during the Bush administration refusing to vote on particularly the non-white nominees from George W. Bush because they didn't want him to have non-white Supreme Court picks.

It was disgusting at the time.

That continued then during the Obama administration when the Republicans got revenge by then not approving any of Obama's judicial picks at an even higher rate.

That's why Harry Reid gets rid of the filibuster, it continues and continues.

But I don't think we're in a better place because we got rid of the filibuster.

I think we're in a worse place.

And if there's going to be an advice and consent role, they have to be able to say no to unqualified judges and justices.

And if you build in a, you can only say no so many times, you just run into problems, whereas I will say, I am advise and consent reform very curious, but you're going to have to convince me that the other side and the trade-offs are better- - Okay, all right.

- Than what we have now, which isn't good.

- Time is running here and I want to ask, before we go on to expansion, I mean, is it a constitutional amendment?

What do you need to change term limits?

- So there is a very plausible legal argument that Congress could do it by statute because Congress has the authority to create the status of senior status.

When justices retire, they continue serving on the courts of appeals, they retain their office under the Constitution.

And I find that argument persuasive, but what I will say is that term limits would be a dramatic change in the character of the judiciary and that even if you can make the argument that Congress could enact a statute, you might want a broader deliberation, a cross-partisan deliberation, that would come in the form of a constitutional amendment or a statute that has widespread- - Oh no.

- Widespread support.

- That's a whole new can of worms because now, Sarah's- - It is a whole new can of worms.

- Going to want to talk about how we have to amend the amending process.

- True.

- We're not talking about that.

- To make it easier.

- We don't have time, no.

Okay, so let's talk about court expansion.

Andrew, where do you net out on that?

- So I'm a lawyer and I'm an institutionalist, and so with full disclosure, like that makes me sort of conservative in sort of the way I think of the court.

And I do think about it in terms of, you know, what if the shoe were on the other foot?

And so I understand the argument for expansion in the sense that it's happened in the past and the court has changed over time.

I think at this time with what's going on, which I think is sort of a fundamental challenge to democracy, it is not the time to do it or I think the harm to any legitimacy of the Supreme Court is too great.

And then that other comment is that I do think that if there were to be a Trump presidency, I would be very concerned about an expansion of the court and a sort of Netanyahu style restriction of what the courts could actually decide.

And Judge Luttig referred to this in terms of Congress having that ability to greatly restrict what providence the court has.

And so whatever this lovely debate we're having could become very quaint very quickly.

- [Jane] Okay, what do you think?

- I think that there's no support for court expansion in the political system generally.

There's a lot of support for it on the left.

I don't think the president and the political establishment support it, so it's a non-starter and I think it's for reasons that relate to the country's past experience with the attempt at court expansion.

When FDR during the New Deal introduced a court packing plan in order to have justices on the court who would uphold the New Deal legislation that it had been striking down, the country reacted very negatively.

The Democrats in the Senate that had previously been supporting him reacted very negatively and I think it's because of the concern that changing the composition of the court for partisan reasons undermines legitimacy of the court.

And you would be probably surprised to hear that one of the most controversial questions on the Supreme Court Commission was how to interpret the court packing plan all these years later.

For some people, the threat of expansion actually led the court to change its mind and to back off and let Congress act to address the economic crisis of the Depression.

But for other people, it so poisoned the political arena that it meant that FDR was limited in what he was able to accomplish, that he didn't get a much more expansive New Deal, which he could have gotten and which might have changed the course of US history.

So you could see that episode in very different ways, but however you see it, it relates to this fragile thing that we started out with, which is the legitimacy of the court and whether attacking it for partisan reasons undermines that legitimacy in a way that's dangerous for our legal system as a whole.

- So for people who are clutching their pearls or out on the ledge, what can you say to them?

I mean, 'cause it's not sounding like anything here is really that imminent, that these reforms are around the corner.

- Yeah.

- So what can you say to those folks to make them feel better?

- The number one thing that I would say is that if you're concerned about the court, make it an electoral issue, win elections, because elections determine who composes the judiciary.

And as we've also discussed, the Republicans have known that for decades and have acted on it and really shaped the judiciary in their image.

That's number one.

- Underscore that again, because I still don't know that people make that connection, believe it or not.

It's like gun safety.

It's single issue voters that have been driving the other side of that for years.

So once again, conservatives, this was a goal and- - It's been a goal I think because the party has been able to focus some of its core issues around the judiciary.

So the drive to overturn Roe versus Wade and the politics of abortion is a major dimension of that.

But also the drive to limit regulation and government's power to regulate requires putting judges on the court who are going to limit Congress's power, who are going to limit the executive's power and they have succeeded wildly in accomplishing that objective.

And so making the connection between what judges do and what you can accomplish in the political process is crucial.

And so winning elections to get the judges who will be part of the overarching agenda is an important way to think about the next step.

- All right, I'm going to ask Sarah sort of the same question, which is for those folks, your colleague, I'm going to go back to David French, who wrote a column talking about, you know, the court's not rogue, it's not an abomination and you just, you know, there will be another court someday and just bide your time.

But what do you say to those folks who are very upset?

- That the two oldest justices on the court are Justice Alito and Justice Thomas.

Don't freeze history here and assume that this is now the way that the court is.

The next president may get two picks, maybe even more.

So I just totally agree with what Cristina said.

There are times for changes and there's times for political accountability.

The right made and educated their voters into becoming court voters, like Cristina said.

The left could do that, should do that, frankly, and that's how this should get decided because unfortunately, I just want to emphasize what Andrew said because I hope it didn't get buried.

When you start making these changes to the court, you're opening up sort of this feeling that changes are easier and easier to make.

Donald Trump becomes president, he will make changes potentially to the jurisdiction of the court, expanding it for the purpose of delegitimizing it.

Because, don't forget, the court during the Trump administration was striking down all sorts of Trump administration policies.

Chief Justice Roberts is no friend of a Trump administration.

And so be careful, the powers you give one president or the powers you do in this moment here, have some humility.

History changes, the pendulum changes.

You don't know what comes next.

- All right, I'm going to give you 30 seconds 'cause you do TV and you can do this.

What is your story when you were walking across the Harvard campus in 2005 with Justice Scalia?

- Justice Scalia handed me his books to carry to his class that he was teaching at that point and so I was sort of dumbstruck and didn't quite know.

He'd forgotten kind of that I was there and didn't work for him.

And so I was like, "What's the biggest change you would make to the constitution or to the law?"

And he said, "I would make amending the constitution a lot easier."

- And that's why you're into amending the amending process basically.

- I think he's exactly right.

We have too few amendments, the Constitution gets sort of calcified.

And other justices, Justice Breyer has been in favor of this.

I think many Supreme Court justices think, we don't want to make it easy, we want to make it easier.

(audience laughing) - Okay, Andrew, I'm going to give you the last word here in terms of what do you think, at this point, aside from elections have consequences, what should people be taking away?

- Well, I do think it's this issue.

I just wanted to talk about the amendment of the Constitution because I do think it's important, just like expansion, just like term limits, I do think it's important to think about the time that we are in and whether an idea that might be fine in another time makes sense now.

For me, having the Constitution be difficult to amend is going to be critical at this time, even if it has consequences in terms of the things that Sarah, I know, that like in good faith are thinking would be useful in terms of it embodying rights.

I think the point of a constitution is to sort of give some security with respect to sort of violent swings within a majoritarian process and we are in such a precarious time in this country that I don't think that's a good idea now, even if I would agree that it has merit at some point for the- - I'm not going to ask you whether you're optimistic, I'm going to go- - Yeah.

(Cristina laughing) - I'm going to go to Cristina to close out 'cause we have about 30 seconds.

- I think it's important that the people have a way to respond to the Supreme Court.

If the people disagree with the Supreme Court's interpretation of the Constitution, there has to be a means by which that can be changed.

That might come through an easier amendment process and I think you have to have some form of super majority requirement, but it should be easier than it is now.

It could also come by giving Congress the power, not just to rewrite a statute if the court interprets it in a different way, but to say what the meaning of the Constitution is, that, in fact, the court's wrong about gun rights or the court's wrong about equal protection.

And so finding avenues to allow Congress as the people's representative to do that is also important because one of the reasons we're having these divisive debates is because we have a powerful court and not that much that we can do about it.

The means are too hard, so we need an easier way of the people being in control of the Constitution.

- She's still optimistic.

(Cristina laughing) Okay, (laughing) I want to thank our fabulous guests and we always close out this show with a silver lining.

And in today's silver lining, we leave you with words of wisdom about how to bridge what divides us.

First, as Judge Luttig says, to begin to walk ourselves off that ledge, we have to have a conversation with each other.

We scream, cast aspersions, criticize, and refuse to discuss any issue at all.

As long as that's the case, the country will be in spiraling decline.

Talk to each other, it's just common sense.

And from a 20 year old gay Latina activist from Texas named Olivia Julianna, who's raised millions on social media for social justice, the system isn't broken in terms of people who don't have a voice.

It's broken because so many people don't use their voice.

Your vote is your voice.

We're grateful to our extraordinary guests and to you out there for joining us.

Until we see you back here next time, from the other Washington, For "Common Ground", I'm Jane Whitney, take care.

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