“This Supreme Court Is Its Own Worst Enemy:” Expert Discusses SCOTUS New Term

CHRISTIANE AMANPOUR, CHIEF INTERNATIONAL ANCHOR: Now, to U.S. politics. The Supreme Court’s new term has just started and the presidential election is just three weeks away. Stephen Vladek is a law `professor at Georgetown University and he joins Hari Sreenivasan now to discuss his concerns about the court’s credibility and the role It could

play on Election Day.

(BEGIN VIDEOTAPE)

HARI SREENIVASAN, CORRESPONDENT: Christiane, thanks, Steve Vladeck, thanks so much for joining us.

So, here we are, a new Supreme Court session. We’ve started to hear some arguments in some of the big cases. I guess one last term that has these

significant consequences that we’re still considering right now because, hello, we’re just a month away from the election, is the presidential

immunity ruling. What are the kind of ripple effects that has had on this election today?

STEVE VLADECK, PROFESSOR, GEORGETOWN LAW: Yes. I mean, Hari, I think the ripple effects are continuing to be felt. I mean, we’ve seen how slowly things have proceeded in really all four of the pending criminal prosecutions against Former President Trump, not just the case in D.C, which was the basis of the Supreme Court’s ruling, but also, you know, the case in Florida, which was thrown out by Judge Cannon in light of Justice Thomas’ concurrence in that case. Now, there’s an appeal pending. And, of course, the cases in New York and Georgia. So. You know, I think the continual effects in the short-term are that we’re going to get to the election without really any resolution of those cases. The long-term effects, I think, very much remain to be seen, not just for Former President Trump, who — you know, if he’s not elected come November, I think it’s still in pretty serious jeopardy, you know, at least some of those cases. But also, for what it means for executive power more generally, that we have the Supreme Court decision recognizing a pretty significant for of executive branch conduct that really can’t be interfered with, investigated, looked into by anybody. So, really, a lot remains to be seen both as applied to President Trump and in the broader constitutional space.

SREENIVASAN: I think that, you know, you raise an important point, because, obviously, the critics of Former President Trump really want to point out, well, look, this gives him a — but if it’s President Harris or a future president, this applies equally to them.

VLADEK: That’s right. And actually, I mean, I think the long-term effects of the Supreme Court’s decision really are much less about criminal prosecutions. We should be lucky enough, hopefully, that we don’t have a number of additional examples in the coming years and really hard more about the relationship between the executive branch and the other branches of government more generally. I mean, I think, you know, we’re going to see future presidents, whether they’re Democrats or Republicans, trotting out the Trump immunity decision not just in the criminal context, but to resist, for example, subpoenas from Congress, to resist aggressive oversight from Congress, you know, perhaps even to resist you know, civil suits in the courts. I think that’s the really big interesting question that it’s just too early to answer, which is how far and why beyond the very specific context of these criminal prosecutions is that decision going to have an impact? You know, Harry, I think the answer is going to be, it’s going to have an impact, we just haven’t quite seen it yet.

SREENIVASAN: Well, one of the cases that came up last week was about ghost guns. And for people that aren’t familiar, I mean, this is the technology now that has been out for several years, but you can essentially — if you or I had a 3D printer at home, and there are people who can afford that and have it at their homes, we could print — take the plans off the internet and print a functioning weapon. And the case was about whether those guns should have serial numbers or not. I mean, what’s at the heart of this year? I mean, that seems really kind of a — you know, a sideways way to get at this.

VLADEK: Yes. I mean, I think for the second year in a row here, we have an important case that is nominally about guns where the actual legal question for the court is really more about the power of administrative agencies in the context of statutes that aren’t specific. So, you know, Congress has given the federal government fairly broad power to regulate firearms, Hari, but of course, the question is, what’s a firearm? And so, the ghost guns issue, you know, here you have a context where everyone agrees that if you or I walked into a store, a licensed firearm seller, and bought the same product, that Congress would have the power to regulate it, not to ban it, that would violate the Second Amendment, but at least to impose some conditions on who can buy it on, as you say, serial numbers, on other registration requirements, background checks. And the question is whether that should also apply when you have companies that are selling kits, either for 3D printers or for, you know, other do it yourself, you know, we’ll send you a bunch of pieces of plastic and you put it together. And, you know, where I was struck by, Hari, is I would have thought the answer there was obviously yes. I think the Supreme Court is going to end up there, but we heard some dissenting voices from some of the more conservative justices, you know, which I think is really a powerful sign of just where this Supreme Court is when it comes to even what I would have thought were pretty straightforward statutory questions.

SREENIVASAN: So, the court is also set to decide the constitutionality of gender affirming care. What are the arguments at the core there?

VLADEK: Yes. So, this is probably the biggest case the court has on its docket, at least to this point in the term. It’s called Skrmetti. And, you know, this is a challenge to a Tennessee law that basically bans, right, certain kinds of gender affirming medical procedures, especially for adolescents. And the question that the federal government, which is the adverse party has presented to the Supreme Court, is whether this kind of discrimination, which singles out transgender individuals in ways that it does not apply to cisgender or folks of other gender identity, whether that kind of discrimination actually is in violation of the Equal Protection Clause, the constitutional ideal that government has to have an especially good justification before it treats similarly situated people differently. And, you know, Hari, that’s really a test for this court and whether it’s going to treat transgender status discrimination the same way it has treated, not just race and sex discrimination, but as we saw a couple of years ago in the context of employment discrimination, even sexual orientation discrimination. I mean, that decision in a case called Bostock had both Justice Neil Gorsuch and Chief Justice John Roberts in the majority with the Democratic appointees. So, you know, is the court going to take the step from sexual orientation to transgender status? Is the court going to affirmatively not take that step, or are they going to find some narrower ground on which to not decide that question? I think that’s why a lot of eyes are focused on this case.

SREENIVASAN: The Supreme Court often gets last-minute appeals, especially on death row cases in federal prison. And they took up a case that was kind of interesting. This was 61-year-old Richard Glossip from Oklahoma, who was convicted and sentenced to death for murdering his employer, but he’s maintained his innocence. And there are allegations of prosecutorial misconduct over the last 30 years that this case has been going on. What’s at the center of that case?

VLADEK: Yes. I mean, what’s really remarkable about the Glossip case is really 2 different things. First, it’s not just that Richard Glossip is protesting, the Oklahoma attorney general who was responsible for securing Glossip’s conviction in the first place, now concedes, not that Glossip is innocent, Hari, but that at least there was enough prosecutorial misconduct at his initial trial that Glossip should at least be retried so that there could be a — you know, an untainted verdict. But meanwhile, the Oklahoma Court of Criminal Appeals, the highest criminal court in Oklahoma, refused to allow that to happen on the ground that, in its view, there were some procedural boxes that Glossip had failed to check. And so, you know, I would have thought that this would be a relatively straightforward case for the Supreme Court when you’ve got even the attorney general agreeing with a prisoner on death row that there has to be a new trial, hard to imagine the justices saying otherwise. But the oral argument last week, you know, we heard a lot of skepticism, not just from the usual suspects, like a justice, Clarence Thomas, or a justice Samuel Alito, but even from Chief Justice John Roberts about whether it really was so obvious that Glossip is entitled to a new trial. Really striking hard, these are the only capital cases the Supreme Court is still really taken up when you have this much agreement about what went wrong in the trial court.

SREENIVASAN: You wrote recently in an op-ed in The Times, the Supreme Court is its own worst enemy. Explain.

VLADEK: Yes. I mean, I think the Glossip is a good example of this story, although, it’s a bit of a broader point about where the court is. You know, we have, for the first time in American history, at least in the last decade or so, a court where all nine of the justices are aligned ideologically exactly with the presidents who appointed them. And so, we have, for the first time in American history, a court that doesn’t have any liberal Republicans or conservative Democrats where any time the justices divide along their ideological lines, it at least looks like it’s a partisan decision, like it’s an exercise of partisan political power and not judicial principle. The best defense against that, the way for the court to try to persuade us that’s not true is through its behavior, is through perhaps not deciding all of its big cases in a way that splits the court six to three along those predictable lines, is to perhaps embrace some of the more modest reforms that have been proposed by, you know, me and lots of other folks. But, Hari, is also just like to try to avoid sending the message that in every big case, the best predictor of the outcome is the partisan balance of the dispute. The more that the court can act in ways that makes it look like these are judges and not just politicians in robes, I think the more it might be able to arrest some of the really alarming erosion in public faith in the court that we’ve seen over the last couple of years.

SREENIVASAN: Look, I mean, speaking of that erosion, we have a recent Pew survey found 51 percent of Americans have an unfavorable view of the court. I mean, this was one of the institutions, at least a couple of decades ago, that we had bipartisan agreement was something that we had faith in. And here we are 50/50. That’s not good.

VLADEK: It’s not good. And the reason why it’s not good, Hari, has nothing to do with the results. I mean, I think it’s commonplace for the course defenders to blame the critics for just being unhappy about the results. But the reality is that the court depends upon public support. It depends upon that very faith that is eroding in order to hand down unpopular decisions. Hari, for no other reason than because the court can’t enforce its decisions itself. And so, the more that there is public discord around the court, the more that public faith in the court is eroding, even if it’s only from one particular block of the political spectrum, the harder it will be for the justices in the future cases where it really, really matters to push back against the political branches when they do aggressive, unlawful, unconstitutional things, you know, especially with the possibility that we’ll be heading into a second term of a Former President Trump, I think that’s a specter that we all, and especially the justices, should be pretty worried about.

SREENIVASAN: I mean, how much of that trust erosion is because of really the actions of particular justices? Right now, Clarence Thomas, Justice Alito have — you know, there are several articles published about their connections to the MAGA movement and — you know, and I wonder whether that sinks into the general public as well, you know what, these guys are partisans anyway?

VLADEK: I think it doesn’t help. I mean, it goes back to what we’re talking about a few minutes ago, like the onus is really on the court to disabuse us of that concern. And so, you know, when you have these stories about Justice Alito, Justice Thomas, you know, one reaction might be, oh, gosh, you know, some of these are genuine concerns, let’s talk about them. Let’s talk about reforms. Instead, what we’ve mostly gotten is entrenchment, is digging in, is suggestions that none of these stories are talking about anything legitimate, that none of the justices’ behavior is remotely problematic, even as Justice Thomas has had to go back and retroactively amend a number of his financial disclosure forms. And I think the problem, Hari, is that when the court, or at least some of the justices, are going to so visibly bury their heads in the sand, that’s when it reinforces the concern that this is not a court that’s interested in accountability. And that’s when I get worried that the court really is setting itself up for a future situation where the court is trying to stand up to a president who is abusing power or a governor who is abusing power. And, you know, they issue some fury, significant decision, and there’s no one left to enforce it. And, you know, this is not just a hypothetical. I mean, we saw as early — as recently as January when the Supreme Court, by a five to four vote, cleared the way for President Biden to continue to remove razor wire that Texas Governor Greg Abbott had placed along the U.S.-Mexico border. We saw Republican congressmen like Chip Roy, going on national television and urging Governor Abbott to defy the Supreme Court. That ought to set off alarm bells, not just in law schools, but inside the Supreme Court itself, because once we’ve gone down that slippery slope, where you have elected politicians seriously talking about ignoring Supreme Court rulings they don’t like, the court is in an awfully precarious position, regardless of who the justices are, and regardless of how we feel about their individual rulings.

SREENIVASAN: Wasn’t there supposed to be a code of conduct behavior that the Supreme Court adopted that was supposed to fix a lot of this?

VLADEK: Well, I mean, I think, you know, it was pretty remarkable that last November the court did, for the first time, adopt this internal code of conduct. You know, I think those who thought that was a solution might have been somewhat getting ahead of the curve here. Hari, the real question is not what the rules are, but who is going to police them and who’s going to enforce them. And, you know, I think what we’ve learned over the last couple of years is that we probably shouldn’t and can’t trust the justices to police themselves. Even Justice Elena Kagan has now said publicly, multiple times in the last couple of months, it shouldn’t be up to us. Justice Kagan has proposed a committee of lower court judges who could oversee the court. Hari, I’m a little skeptical about that as a solution, but I don’t think it would be that bizarre or constitutionally problematic to have Congress create an inspector general for the Article 3 courts, for the federal courts, not with the power to remove the justices, only Congress can do that, but at least with the power to look into these reports to actually investigate them, to publish anytime there’s some concern that a justice has failed to comply with the disclosure requirements or the ethics rules or the recusal rules. And I have to think that, you know, that would not be perfect, but at least then we would not be depending upon the media, you know, as principled as it might be to do the work that the court and the court’s institutions ought to be doing for us.

SREENIVASAN: You know, here we are a month away from the election, and we are, as a nation, poised for this election having court drama attached, and that could be at the local level, and it could be at the national level. If there are situations where the Supreme Court has to be an arbiter, how is it positioned to do that?

VLADEK: It’s an alarming thought. It’s one that I lose some sleep over and I really hope we don’t get there. Part of the reason why, Hari, all of this stuff matters beyond the individual cases and beyond the sort of the — you know, the sound bites that we see in the media is because, you know, it’s a legitimate question. If the election — if we have a repeat of 2000, where the presidential election comes down to one state and where there’s litigation in that one state that is dispositive of which candidate is going to win, are we really confident that if the case gets in the Supreme Court, the court will give it a fair hearing as opposed to, we’ll find a way to rule for Former President Trump? You know, I think we should hope to be confident, but the court’s behavior over the last five, six, 10 years is exactly why a lot of Americans aren’t confident. And that’s really, I think, a damning indictment of the court. I hope, Hari, for our sake, that we don’t get there, that this is more a repeat of 2020 than a 2000. In 2020, of course, you know, the election was sufficiently not close in a sufficient number of cases that the Supreme Court stayed all the way out of it. But it’s hard to imagine if we get a repeat of 2000, if there’s one tipping point state on which all the litigation focuses, either, one, that the Supreme Court would want to stay out of that dispute or, two, that we would have a ton of faith that the court would handle that dispute based on legal principles as opposed to political preferences. And I’ll just say, I mean, you know, the court was able to recover from Bush versus Gore and from how it intervened in 2000 to resolve the election. But, Hari, this is a very different court than that one. I mean, as you mentioned, this is a court that has much less public credibility going in. This is a court that has spent the better part of the last four or five years really in the middle of a ton of public controversy on everything from abortion to affirmative action, to guns, to religion, to the administrative state. And there just comes a point where, you know, the court runs out of capital to spend on these cases. And that’s why, you know, for lots of reasons, I really hope we don’t find out in the next month to two months, if this is really going to be another 2000 all over again.

SREENIVASAN: Professor at Georgetown Law, Steve Vladek, thanks so much for joining us.

VLADEK: Thanks, Hari.