David Pozen on The Open Mind: Disequilibrium on the Supreme Court
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David Pozen on The Open Mind: Disequilibrium on the Supreme Court

September 20, 2019


I’m Alexander Heffner your host on the
open mind the future of American law and morality
the jurisprudence that will define America is our topic today the High
Court is reaching a potential crossroads return to an aspirational consensus or
deepen a polarizing divide can the court veer from a partisan legitimacy crisis
to neutral constitutional arbiter I’m delighted to welcome Columbia Law
Professor and inaugural Knight Institute Fellow David Posen to consider this
question the bruising nomination battle confirming justice Brett Kavanaugh and
if and how the court can salvage democracy thank you David for being here
today great to be here can the courts salvage
democracy no I don’t think it ever not by itself I’m not by itself the court
can get in the way of democratic developments it can facilitate
democratic trends the court has never in itself however been the main engine of
progressive or conservative lawmaking in this country that that falls to the
political branches and Chief Justice Roberts said in response to a question
the context was cameras in the court but he said something he didn’t have too
recently which was that it’s not the function of the Supreme Court to educate
the American people and to me that was an unusual statement disregarding the
framers intent of the most informed populace that is humanly possible and I
wonder how you reacted to that is someone who’s clerked at the Supreme
Court at the circuit level who’s now a teacher you know is it now the time
after Cavanaugh’s confirmation and the deep deep polarization around it for the
court to teach constitutional theory in a way that can be more neutral than your
way or the highway well I do think that’s where the
aspiration for the court to be a kind of public educator to the
country it’s interesting that the chief said that himself because his opinions
are often written in a way that suggests they are intended for public consumption
very accessible in his prose more important than the courts educated
function though is as you suggest I think its role in safeguarding
constitutional rights and allowing the political process to move forward for
the most part within broad boundaries the I wouldn’t say the court has ever
been truly neutral it’s always had an intense politics to it but we are
potentially reaching the place we haven’t been for some 100 years where
the courts politics are severely misaligned with the country’s politics
that at least could be the world we’re entering post-2020 depending on how the
elections go so I guess I would reframe the concern as being less about
neutrality per se and more about this mismatch between the courts conception
of democracy and the people’s given the lack of equilibrium on the court today
and the fact that the older justices are more likely than not going to be liberal
justices who either resign or have to leave the bench at some point that we
were talking about this there are potentially two avenues for creating
that or recreating that equilibrium one is appointing new judges who are going
to balance the Gorsuch and Kavanaugh effect but another is the idea of
expanding the court or redefining what the Supreme Court is because 9 was
always an arbitrary number it was federal law not the Constitution that
dictated that so which of those avenues potentially is is more likely to restore
equilibrium well first I’d say on the question of what is equilibrium there
life ways to think about that but I do think there’s a strong case to be made
that were out of equilibrium in the sense that the courts
position doesn’t reflect the composition of the political branches in recent
decades the last time that a majority of the justices on the court were appointed
by a Democratic president was made 1969 so we’re about to hit five decades
straight of Republican president dominated courts I believe 15 of the
last 19 justices have been appointed by Republican presidents and that’s in a 49
year window which there have been five democratic presidencies the Senate’s
been controlled by Democrats more than half of the time Democratic presidential
candidates have won a plurality and majority of the popular vote in six of
the last seven elections so that sense of being out of equilibrium is reflects
these these stubborn facts these difficult facts about about the courts
politics needs to be the country’s and I haven’t even mentioned other factors
such as after Justice Scalia died holding open his seat for more than
eleven months prior to president Trump’s inauguration denying the Merrick garland
nomination even a chance at a hearing so I sympathize with the distress on the on
the liberal side that something is out of equilibrium getting back to
equilibrium is a very hard question for starters you have to win presidential
elections and a lot of congressional elections to even potentially begin to
rectify that imbalance the presidency for obvious reasons there need to be
numerous appointments made in the coming decades but Congress because of what she
raised about the possibility of changing the structure of the court itself so
this is known as court packing among constitutional lawyers when the size of
the court is expanded so as to change its ideological composition
it carries a attaint at this point in light of the failure of President
Roosevelt FDR in 1937 to engineer a court packing plan of his own he had
just went a landslide victory Congress was favorable courts had been
blocking his legislative agenda to a remarkable degree circumstances looked
quite favorable for court backing you might think but his plan failed in
Congress elicited a tremendous backlash he really took a hit and his popularity
and his ability to move his domestic policy agenda forward afterwards so a
lot of people have thought that one lesson from that story is that court
packing is largely out of bounds you’re right that the the Constitution itself
does not prohibit changing the size of the court it was done seven times I
believe in the 1800s but the last time it was done it was 1870 so we’re now a
hundred fifty years or so into a kind of stable settlement in which neither side
has tried to pack the court that all said arguably we’re at a point now where
calls for court packing make more sense they have in a long time especially if
the political branches move progressive in the court which is not only
Republican dominated but more homogeneous in its conservative approach
to the Constitution than it has been in several decades Minh that in
misalignment gets increasingly deepened and profound then court packing will
we’ll hear more more calls for my up my own I guess my own my own view is that
there are better options in court packing if if if attainable
I think core packing is very risky it threatens to unravel that 150 year
settlement that neither side effectively accomplishes it it invites tit-for-tat
where Republicans will further expand the size of the court should they win
back Congress in the presidency even further down the line and that’s also
remember that in a world in which Democrats could even conceivably pack
the court they would have to control both houses of Congress and the
presidency so that’s a world in which they have a lot of political power very
different from where we are now and could be doing a lot of other things so
there’s an opportunity cost to focusing on packing the court instead of doing
major voting rights reform which could fundamentally all
the the way our partisan politics plays out there scandalously low voting rates
in many elections in this country as you know well there are bills ready to go
that a lot of liberal groups have been developing to do automatic voter
registration expanded early voting and take other common-sense measures to
increase increase the vote that seems to me like like an obvious priority for for
this future Congress which Democrats have the power to do a lot and you also
point out that in the event that those pieces of legislation are passed it has
to have constitutional muster yeah at least it can’t be overturned by the
Supreme Court it might be adjudicated at a lesser level and not reach the court
but that’s the risk in avoiding the court but but hear hear me out in a
second because the context here is that in the case of Donald Trump it’s a
president who won the electoral college not doesn’t have the popular will the
other potential Avenue for constitutional reconciliation that might
be imminently needed is this idea that moderates on the court or people who are
not just executing the will of the Federalist Society or a pet cause can
unify some establishment of law insofar as you know if their executive overreach
is understanding and underscoring to the American people we as a consensus
whether it’s a seven to two block or an eight one or just you know a unanimous
decision on something that is clearly a violation of the Constitution so how
confident are you if at all that Justice Kagan who said at her hearing we’re all
originalist now can root her thinking in the the letter of the law enough to get
the other side thinking you know I can sign on to this
I’m not at all confident now was standing her great skill and smarts as a
justice and she’s been phenomenal the ability to forge that kind of
consensus seems to me naive on the most hot-button issues that Americans will
care the most about whether it’s in the political process and partisan
gerrymandering or racially inflected gerrymandering whether it’s voter
suppression whether it’s in the area of Rights affirmative action reproductive
rights the justices at this point are pretty well set in their ways all of the
Conservatives have a well-developed track record and jurisprudence on all
these issues there they have not evinced a great desire to meet the liberal
justices in the middle on those most salient of issues where you see the most
compromise are on relatively technocratic legalistic issues that that
aren’t of great political moment so I think it is possible that if our
politics becomes increasingly democratic our progressive that the court
conservative justices will pull back a bit on where they might have otherwise
gone so as in recognition of the precarity of their position and the
legitimacy crisis they may find themselves in that seems to me plausible
that at the margins the court will try to stave off what might be the backlash
in the form of a court packing program or or otherwise jurisdiction stripping
statutes calls for impeachment something even more dramatic but the idea that the
liberal justices through dint of their brilliance and their reasoning or their
adoption or co-optation of originalism will move the minds of the conservative
justices in a deep way just doesn’t seem to me to reflect the way that the courts
been deciding cases for it for a long time now I might add there’s I think
it’s a third way so you suggested one way out of our disequilibrium would be
court backing that the the hardball solution right another would be the
justices reaching consensus themselves through
through whatever means and cooling off the political battles that raged around
them I think that the third way is another effort at reforming the court
that that doesn’t involve court packing and what I have in mind here our
proposals have been many of them supported by conservatives and liberals
kicking around for years now that would change life tenure as we currently know
it the most common proposals would have the
justices serving fixed terms of 18 years as active Supreme Court justices every
president every second year would get a new pick to the Supreme Court
so they’d rotate on a regular basis and you would know ahead of time that each
presidency would get justice every second year and to comply at least
arguably with the Constitution’s requirement that justices get to keep
their office during good behavior you wouldn’t kick them off after 18 years
they would take a sort of senior status which could be organized a number of
ways so what why would that be healthy I mean and by the way you could you could
have this phase in in a way that you wouldn’t know at the moment it’s enacted
which president would benefit to what degree a but it would be a very healthy
reform I think because justices would no longer be able to strategically time
their retirements under presidencies that they favor presidents wouldn’t be
incentivize the way they are now to pick young nominees who could stay on there
as long as possible and there would be less arbitrariness about right and a new
justice ship is you know it’s it’s a disaster for Democrats that Jimmy Carter
got to God no Supreme Court picks Trump has had to in the first half of his
first term as president and these kinds of contingencies of history determining
our political future is really troubling in a democracy it would also deal with
the fourth issue which is justices are staying on the court longer than they
than they ever have for most of the history of the Republic justices
averaged under 15 years on the Supreme Court since 1970 or so they’ve been
averaging over 25 years on the Supreme Court’s there’s a real
democratic problem there in itself in the lack of turnover on the courts so if
you want to get out of our kind of cycle of hardball that we’ve been in for a
while now ideally we would get to a place I think where the court would be
the battles around the court would be cooled off through this sensible good
government reform okay to the the the the difficulty of the paradox however is
how will we ever get there in a world in which one party at one time right feels
advantage by the current regime that they’re the threat of court packing may
be useful not necessarily to actually implement a court packing program but to
bring both sides to the table to think about reforms that are in both parties
interest in the long term you point out packing has a pejorative connotation if
there is an earnest effort to make such a plan it should be called an expansion
because packing it implies something malevolent in your intent and just
that’s a side point but it’s a worthy point because at the end of the day
politics and law are inseparable right and so if you’re going to make the case
to the American public during an election season if you’re the 2020
candidate opposing Trump on the Democratic side then this is something
you put forward at whether it’s your 18-year ya tenure position or a court
packing or expansion idea but saying look we like you just suggested chance
yeah in a democracy is a really dangerous thing just to test chance by
flipping coins to see who gets what as you point out President Carter
revolutionized at least attempted to revolutionize the circuit courts with
what he did with vacancies but he didn’t have yeah in his four years a nominee to
the High Court if there were were recognition that the emoluments clause
was violated because Trump was accepting payments as his organization seems to
from various governments I thought that my friend Neal Katyal should have made
his arguments early about that in the travel ban case
how can you trust the the the the genuine the genuine public service
requirement if you’re imposing the ban on states countries where Trump
properties don’t reside I thought the focus should have been squarely on that
it wasn’t right and so when it comes to if it crystallizes that trumps positions
on Russia or Saudi Arabia emanate from some of his own personal holdings that
that’s relevant context that the court might need to consider in the future and
I don’t know if there can be a consensus formed around the violation of the
environments clause because it hasn’t there’s no precedent for it but on what
issue if not the hot-button ones would you see presumably a
Cavanaugh or Gorsuch or maybe just one of Roberts cabin Al Gore such
recognizing this is about protecting the country and not the president or party
that appointed me I don’t know I the the example you gave of emoluments is a very
plausible one with that where the court would be asked to weigh in sooner than
later on on this administration on this fundamental issue of whether the
president’s business dealings have created conflicts of interest that
potentially skew decision making in deeply disturbing ways as you may know
there are three separate lawsuits winding their way through the lower
courts right now all in this emoluments issue one brought by DC and Maryland
another brought by members of Congress to another brought by civil society
groups and business and hotel owners and at least one of the cases the DC and
Maryland case the dis court judge found that they had standing to bring the
lawsuit right and found that the emollients cause clauses its domestic
and foreign one are being violated de I really didn’t understand the Roberts
decision on the travel ban case because he was in effects
that the president has this right even if it’s unconstitutional or unethical or
unlawful in a sense this is his prerogative as the chief executive this
country but then if you go to the substance yeah of what he’s doing and if
it if it is not based on fidelity to the Constitution then how is it
constitutional well I guess Roberts would say that by the time the travel
ban reached the Supreme Court it had gone through several iterations and if
you just read the text of the presidential directive at the time by
the time it reached the Supreme Court on its face it did not clearly discriminate
on the basis of prohibited grounds such as religion so to read in that unlawful
discrimination whether a violation of the First Amendment or the Fourteenth
Amendment into the travel ban you had to be willing to look beyond the four
corners of the document to what the president and his allies were saying
understood but there’s almost a clause in that decision that says we we can
even expect the overreach or examples of abuse but it is still within the
prerogative of the executive we’re running out of time David
one more question okay final thought on that well there I’ll say I I forgot I
disagree with the travel ban decision I thought I sent it the far better of it
the that was a troubling early test of the courts willingness to stand up to
this presidency I look forward to seeing what happens to the mulling that’s cause
area though because there without the national security clause that makes at
least some justices generally more likely to defer to the executive there’s
a very plausible constant concert violation it’s an obscure set of causes
but they serve an important anti-corruption function that I think
most Americans would be upset about if they if they trained their minds on
what’s happening and the Supreme Court could within the coming years hear that
case so that’s an area to look out for for how the riots court with cabin on it
will deal with the present the other potential example is the president’s
unwillingness to accept subpoena if
a special counsel or someone investigating him decides that he in
order to complete his investigation or she needs to get some information and
there is the idea that he might refuse that and then that could also be lost
but I would just put it in slightly larger frame yeah I I do think people
should also look ahead to this if Democrats are able to take both houses
of Congress in 2020 and also take the presidency although the whole world
again in which court packing is at all plausible is a world in which that
happens I think where the most profound tension may it may happen between the
court and our political system is if Democrats are able to do a
transformative statute in any of the areas that progressives have been
talking about from right voting rights health care let’s zero in on voting
right include because there is the argument
Aniki Lamar made it to me not so long ago when I was with him that voting
rights are sacrosanct they are the original intent of the framers and when
you update it with the 13th 14th and 15th amendments and later on you bring
women and people of color into the picture and that’s the Constitution
that’s the original document as we interpret it now in the voting rights
and the purging case purging voters off the ballots in Ohio in which the court
basically said you don’t have the right not to vote you only have the right to
vote and to be rewarded by staying on the ballot or staying registered and and
I thought about what Akhil amar said at Yale Law when we were together recently
and he was arguing that it is actually most originalist to believe in
representation and voting rights it’s it’s that founding principle of this
republic and so you said to me before no no chance of the really no real
plausibility of the of the the so-called Federalist Society judges
the conservative strict textualist coming around and finding some consensus
it brings to mind to me the analogy with the NRA which is if all the Liberals
went out and became members of the NRA they might have a majority and they
might want to be responsible gun owners and and enact gun safety reform and
still preserve the Second Amendment and so I come back to this question not
specifically of Justice Kagan but this idea of the and qu’il talks about this
ganesh tea – raman talks about this is there any potential for those who are
marginalized as living constitutionalists to take ownership of
the document and to become the true originalist
I agree with amar that the Constitution is best read – it doesn’t
it doesn’t take much creativity to read it this way to envision very robust
voting rights coming out of the Reconstruction Amendments as you say
more and more groups are enfranchised the Constitution’s never in its
amendments cut back on the right to vote it’s only moved in one direction from
people of color to women to younger Americans but I’m looking at the track
record of the Supreme Court’s cases since at least Bush vs. gore itself a
extremely worrisome decision in which the court effectively gave the
presidency to George W Bush old history in 2000 but since 2000 there been a
welter of voter suppression efforts at the state level that the court has not
very productively engaged with the court has let a lot happen at the state level
that’s extremely troubling from a voting rights perspective the court itself
partially neuters the canonical Voting Rights Act as reauthorized by Congress
the court has not been responsive to claims of partisan gerrymandering many
different troubling practices are happening right now to dilute the right
to vote on the ground and the court not only has failed to stop that but it’s
it’s it’s enabled some of that behavior that’s what gives me concern so be
continued David thanks for your time today thank you very much from me and
thanks to you in the audience I hope you join us again next time for a thoughtful
excursion into the world of ideas until then keep an open mind please
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