We’ve been waiting for months to bring you this one: we can finally talk about the President’s Supreme Court Commission, which just finalized its report this week. We also briefly talk about the recent argument in Dobbs and try to predict what the Court might do.
We’ve been waiting for months to bring you this one: we can finally talk about the President’s Supreme Court Commission, which just finalized its report this week. We also briefly talk about the recent argument in Dobbs and try to predict what the Court might do.
[Divided Argument theme]
Will: [00:00:19] Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: [00:00:24] I'm Dan Epps. Will, speaking of unscheduled, has been a while since we recorded.
Will: [00:00:31] We have. Yeah.
Dan: [00:00:33] It's been a good while. I think we have a good excuse though. You know what that is?
Will: [00:00:37] No, I'd love one.
Dan: [00:00:39] Supply chain problems.
Will: [00:00:41] [laughs]
Dan: Our hot takes have actually been on a shipping container that's been stuck in the Port of Los Angeles for a long time. Sorry about that. Hopefully, these days, supply chain problems really hold everything up. So, not our fault. But we are back, and let's talk a little bit about what's happened in our absence. But then, we actually have a bigger, bigger topic we're going to talk about in a moment. [crosstalk] court.
Will: [00:01:04] The Supreme Court decided to overrule Roe v. Wade, right?
Dan: [00:01:08] Well, they haven't said so yet but that statement might be literally true. The court has conference in that case. Based on how that argument went, it is very conceivable that five justices went into that conference and said, “I will vote to overturn Roe v. Wade.” The statement you made may literally be true, even if it isn't public yet. But, yeah. Heading into that argument, we had talked about this a little bit in our episodes last term. You actually came down on the fact that maybe this is going to be the one where they really do take on the challenge Roe v. Wade based on how you read the question presented. Based on the argument went, it does seem like maybe that's right.
Will: [00:01:51] Yeah. Well, at least Mississippi seems to have read the question presented the same way. So, they came in with a full-fledge, a full-throated argument for overturning, and both sides were very uninterested in any half measures, even though some of the justices, like the two justices were desperately trying to sell some half measures.
Dan: [00:02:07] Yeah. It was really just the Chief Justice, at least among the conservative justices, I thought. He was really pushing this argument that maybe we just get rid of the viability line. He was looking at Justice Blackmun’s private papers, and then--
Will: [00:02:22] But condemning them. They called them-- [crosstalk]
Dan: [00:02:23] Yeah, but then relying on them, saying, “Oh, it's not great that we have these, but I'm going to read them and suggest that maybe there's support in there.” Maybe he thought that the viability line was [unintelligible 00:02:31] so we don't have to follow it. But also, it's bad that his papers are public.
Will: [00:02:37] That was weird.
Dan: [00:02:38] But yeah, it seemed there were multiple votes to overrule.
Will: [00:02:44] Well, definitely multiple, [laughs] the question is the number.
Dan: [00:02:47] Yeah. Maybe more than we were certain about. In particular, heading into this, you might have thought Justice Kavanaugh is one of the more uncertain votes because maybe there's a Robertsian compromise that he goes along with. His questions or statements at oral argument really made me think that he is not going to compromise. He is all in favor of overturning Roe v. Wade, and returning the issue to the States.
Will: [00:03:17] Right. Although I think what's interesting is he kept framing that as a compromise. He kept saying, “Abortion could be constitutionally protected. It could be unconstitutional as some countries have held and some people argue, or we could take the studious, the neutral position of overruling Roe v. Wade and leaving it to the legislature.”
Dan: [00:03:34] Yeah. [crosstalk]
Will: [00:03:34] Once he said it, that--
Dan: [00:03:36] It's all the question of framing.
Will: [00:03:38] Once he said it, that sounded just like justice Kavanaugh. I just hadn't anticipated that was going to be the frame he'd pick.
Dan: [00:03:44] Yeah. And he has this speech about-- it was phrased in the form of a question about like, “Wouldn't it have been bad if the court hadn't been willing to overturn Plessy v. Ferguson and Brown?” And talking about other cases where the court overturn precedent. I think that he seems pretty likely. I think that heading in, it would be pretty easy to assume that Justice Thomas and Justice Alito were pretty likely to want to overturn Roe.
Will: [00:04:12] I think Justice Gorsuch has said so, I think.
Dan: [00:04:14] Has he explicitly said? I don't remember.
Will: [00:04:17] I thought he joined one of those opinions last year.
Dan: [00:04:18] Yeah. Maybe he did. Ex-ante, you would have thought, that's the case where you might expect him to travel with Justices Thomas and Alito with a little dose of uncertainty about where he stands on social issues based on Bostock.
Will: [00:04:35] Not on where he stands on system due process.
Dan: [00:04:37] Yeah. Well, depends on what you make of Bostock--[crosstalk] Depends on whether you think law matters to him.I think it does matter to everybody. But I also think that people's views on the law are shaped by all sorts of things. Also, one issue, the key question really is going to be, stare decisis. Stare decisis is a pretty squishy inquiry that seems to involve a certain amount of policy judgments.
Will: [00:05:10] Has Justice Gorsuch voted for any stare decisis result he's been on the court? I'm not sure he has. Is there cases he decided not to return? But I'm not sure if there are any cases that he said are wrong that shouldn't be overturned.
Dan: [00:05:26] Yeah, that doesn't mean that hasn't happened.
Will: [00:05:28] No. At some point, I was just trying to put him on a list, and he was the one I couldn't. But I may have missed one or may have happened since.
Dan: [00:05:34] Do you remember that tax case from a few years ago, Wayfair?
Will: [00:05:40] Wayfair, was he on the court there?
Dan: [00:05:42] I thought that [unintelligible 00:05:46] got there, maybe not. Maybe that was pre-- no, that was after him, where he was saying that. I'm looking that up. He joined the majority that overturned precedent.
Will: [00:05:59] There you go.
Dan: [00:06:03] I was just going to say he may not be a big fan of retaining precedents with which he disagrees, in the same way that Justice Thomas is on.
Will: [00:06:12] I think Justice Barrett, as a prediction matter, the person whose vote I think will be the most or who's reasonably the most unclear. Whether she’d be open to something like what the Chief Justice suggests that they shouldn't unnecessarily decide, but overrule precedent if there are other things, other narrower grounds or they should find those narrow grounds inappropriate, but I don't really have any insight into what she's likely to do, which is part of why I haven't pressured you to record an episode about Dobbs.
Dan: [00:06:43] Yeah. I felt we've talked a lot about the abortion cases heading in. I don't know if we had much to say that was super insightful though it had a lot to other people that are commenting on it. But yeah, to wrap up that point about Justice Barrett, I thought she was a little bit harder to read at the oral argument. She has sometimes indicated that maybe we don't have to overrule precedent if we don't really need to. I think that if you were making a prediction ex-ante just based on her biography, and I think a lot of people sort of assume she's going to be super gung-ho to overrule, and if there are four votes there, I guess I'm not super confident that she would be the lone holdout. I was more willing to believe there would be like a Roberts-Barrett-Kavanaugh kind of constellation that might adopt sort of an intermediate position, and at least the Kavanaugh part of that, I don't see that based on the argument. People, they can always surprise you.
Will: [00:07:51] Yeah, that all seems right.
Dan: [00:07:53] So, if that happens, I would say that the political focus on the court, which has been high for the last few years, is going to intensify by a factor of 10 or 100. This is just going to be a really, really big deal. It's going to be something that's going to be all over the elections, even more than the court has been, and so buckle up.
Will: [00:08:18] I'm not sure that's true, by the way.
Dan: [00:08:20] Yeah? Say more.
Will: [00:08:21] I don't know. Obviously, it'll be all over lawyers and law professors and people steeped into the Supreme Court. But for regular people, I don't have a good sense of when the Supreme Court becomes a top agenda item, and when inflation and systemic racism and other things are more important. I don’t know whether-- [crosstalk]
Dan: [00:08:44] Yeah, so let me just offer couple thoughts on that. First of all, some people are just assuming that if this happens, it's the number one issue and it helps Democrats across the board, and that might be Democrats being overconfident. It may actually be less politically impactful than people think. But I do think this is the kind of issue that the public can grasp. This is not cases like Shelby County that are about complicated issues of federal statutes and structural constitutional provisions. This is going to be summed up.
[00:09:17] A lot of people, they haven't read Roe vs. Wade, but they know what it means. They know what abortion is and they have views about that. The headline will be “Supreme Court Overturned Roe vs. Wade and Makes Abortion Legal,” people can understand that. Not saying it's going to necessarily change the outcomes of all the elections, but I do think it's going to be very, very, very, very, very high profile.
Will: [00:09:43] Certainly high profile. People understand anything. I'm not sure everybody understands what set of abortion regulations are currently unconstitutional under Roe and what aren't. I think you can ask questions that get difference answers to that question. I'm not sure everybody will understand that your ability to get an abortion in many states will not change [unintelligible 00:10:05] Dobbs because many states will not avail themselves of the new power that court givesthem than other states will. I'm not even sure I know what will actually happen. What that doesn't really mean in a real-world sense if it happens.
Dan: [00:10:14] Yeah. Although, it means they say there is no constitutional right to abortion, Roe v. Wade is wrong, then presumably a total ban that a state would want to enact would be permissible. I think people will-- [crosstalk]
Will: [00:10:29] But we just don't know how many states either will enact them or if you've already enacted one, does it take effect?
Dan: [00:10:34] Yeah. I'd say more than zero. A lot of states have these trigger laws.
Will: [00:10:39] Are those going to be upheld or not? I don't know. They'll have to be a follow-on case to see whether those are treated as valid.
Dan: [00:10:45] What would be the basis for not for overturning them?
Will: [00:10:48] You'd say that some principle of intellectual activity or judicial supremacy or something means that the state has to pass a free and clear choice-- we do the same thing for administrator agencies. Sometimes, we say if they make.
Dan: [00:11:02] Yeah, I guess they could make up a new principal. But that doesn't sound super likely to me, either. I mean, sure, there's going to be follow up questions. [crosstalk] But the thing that they would do, could be summarized, I think, quite briefly and quickly. I think that's what people focus on. They know the court said there's a constitutional right to gay marriage. They don't know what the details, they surely haven't read the opinion. They just know those big picture things even if it doesn't resolve the question, which is actually why I always thought that the strategy for conservatives, the ones that are inclined to being more pragmatic and maybe less principled, would be to chip away at Roe, but never actually say we're overturning it. Because then, you get the outcomes, but you don't get quite as much of the public scrutiny when people just being able to say they're overturning Roe.
[00:11:55] It did seem maybe that was what was going to happen with the Texas law. Court got a lot of attention when it refused to step in there initially. It seems maybe they noticed how much attention that got. I just think it's going to be, obviously, it's an issue that's going to affect a lot of people, I think. I'm certainly don't share your uncertainty about whether it's going to change facts on the ground. It will change facts on the ground quite significantly in ways that will affect people's lives. But I think that it's going to change the public conversation about the court in a way that-- going well beyond what's been happening since then. Maybe from some perspectives, for the better, maybe for the worse, but it's going to be a thing.
Will: [00:12:45] Yeah. Well, in terms of what happens, let's see.
Dan: [00:12:47] That's one where I would anticipate we are going to be waiting quite some time for the decision there, because it's going to-- if they're actually overturning and even if they're not overturning, but just upholding the law, and there's going to be descends, people are going to want to rate separately. I'm anticipating, late June, July. It's hard to imagine them getting it out of the way earlier.
Will: [00:13:09] Agreed.
Dan: [00:13:10] That's actually not the main topic of our episode today. We wanted to talk about something we've actually been dying to talk about for months, probably shortly after we first formed this podcast, but we have been unable to do so.
Will: [00:13:29] Well, I've been unable and you've been very patiently waiting for my gag order-- [crosstalk]
Dan: [00:13:34] I can't talk about it with myself, just monologue [crosstalk] mute.
Will: [00:13:38] [crosstalk] -served to the podcast.
Dan: [00:13:41] Yeah, I could have just released an episode. But what's that? What's our topic?
Will: [00:13:46] Supreme Court Reform, and in particular, the institution, the Presidential Commission on the Supreme Court of the United States that has spent the past a little more than 180 days deliberating over whether the Supreme Court is broken and how it needs to be fixed.
Dan: [00:14:01] Yeah. Although is that actually what was being the question that was put before the commission? Let's give people the background. We have this commission, where does it come from? As people may know, there was a lot of upset on the left and the Democratic side about what's happened with the court. In the last few years, you have Republican Senate refuses to confirm Garland, keeps the seat open. Gorsuch gets confirmed. You have the very contentious Kavanaugh nomination. And then, you have Republicans confirming Barrett, I think, eight days before the election, basically, hypocritically violating their earlier statement that you have to let the next President pick the nominee. Basically, the perception is Republicans have gotten control the court through underhanded tactics. So, a lot of people in the left are calling for various forms of court reform, court packing, just add more justices, retaliatory justices.
[00:14:55] I have done some work with Ganesh Sitaraman where we proposed other kinds of reforms that were aimed more, is there some way we can design a Supreme Court that wouldn't produce this retaliatory political capture? Mayor Pete Buttigieg picked up one of those proposals or proposal for a balanced bench with an ideologically balanced court where there will be some justices from the lower courts sitting by designation. That got to be part of the conversation during the Democratic primary. Mayor Pete really made that topic a bigger topic during the Democratic primary. So, Biden was being asked about it, and then he continued to be asked about whether he was going to court packing during the general election. He tried various things on how to answer the question. I think he doesn't support it, but I think he didn't want to say no, because then he may be turns off the engaged Democratic base. But he certainly didn't want to say yes, because then he fears that freaks out the moderate, possible suburban Republicans who might vote for him. The first answer he tried out was, “I'll give you my answer after the election.”
Will: [00:16:11] [laughs] Which I found admirable.
Dan: [00:16:15] It did. As a marketing strategy, it was not super persuasive to people. And then, he finally came up with a strategy that I think was a little smarter, and that was the creationof this commission. We have the clip where he discusses the plan. Let's play that clip, briefly.
Biden: [00:16:32] If elected, what I will do is I'll put together a national bipartisan commission of constitutional scholars, Democrats, Republicans, liberal, conservative. I will ask them to over 180 days come back to me with recommendations as to how to reform the court system, because it's getting out of whack, the way which it is being handled. And it's not about court packing, there's a number of other things that our constitutional scholars have debated, and I'd love to see what recommendations that commission might make.
Dan: [00:17:07] Okay. That was in the run-up to the election. He's elected, doesn't really do anything with the commission on day one. It takes him, I don't know, what, like three months?
Will: [00:17:18] April 9th is the official announcement although I was contacted, I think during the transition. So, they were working on the commission.
Dan: [00:17:25] But the executive order went out several months, like in April.
Will: [00:17:31] Yes. For months, we were told, “It's about to happen, it's about to happen.”
Dan: [00:17:35] Commission is formed.
Will: [00:17:38] I guess we should tell people in case they don't know. I was on the commission. I was one of the commissioners. You were one of the people who testified in front of the commission telling us what we should do, so we both had a strong eye on the process.
Dan: [00:17:51] Yeah. You were the insider. I was the outsider lobbing stones at the commission. But yes, I did testify. That was interesting. It was on Zoom. So, it was not quite as thrilling as it would have been in a world where, I don't know, you would have been set up in, I don't know, like a room in the senators. I don't have anywhere where they would do that.
Will: [00:18:13] Some random federal building, I think, [crosstalk] we're presidential commission, not senate- [crosstalk]
Dan: [00:18:16] Yeah.
Will: [00:18:17] But we did everything on Zoom.
Dan: [00:18:19] Yeah, it was a Zoom, which honestly sounds pretty tedious to me. Let's just read the charge in the executive order of what you were asked to do. Let me pull that up. This is Executive Order 14023. Executive Order on the establishment of the Presidential Commission on the Supreme Court of the United States. This establishes a commission. It says, “Members shall be distinguished constitutional scholars,” There you go, Will, “Retired members of the federal judiciary, or other individuals having experience with a knowledge of the federal judiciary and the Supreme Court of the United States.”
Will: [00:19:01] That maintains ambiguity. I might be a distinguished constitutional scholar or I might be an undistinguished constitutional scholar, but another individual.
Dan: [00:19:06] You can't be both. It's like or, it's not--
Will: [00:19:10] It could be an inclusive or.
Dan: [00:19:11] It could be, and then it helpfully gives us the parenthetical indicating that they're going to summarize, they're going to refer to Supreme Court of the United States as Supreme Court and under the executive order, very official. Two co-chairs. The commission is asked to produce a report that includes an account of the contemporary commentary and debate about the role and operation of the Supreme Court in our constitutional system, and about the functioning of the constitutional process by which the president nominates by and with, the advice and consent of the Senate, and by and with the advice and consent of the Senate appoints justices to the Supreme Court. And then, also the historical background of other periods of nation's history when the Supreme Court's role in the nominations and advise and consent process were subject to critical assessment and prompted proposals for reform. A big book report summary [crosstalk] encyclopedia entry.
[00:20:02] Also, an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.
Will: [00:20:13] That's right.
Dan: [00:20:13] Produce report, lots of background. And then, an analysis of arguments and an appraisal of the merits and legality of particularly reform proposals.
Will: [00:20:24] This week, we ended up producing and then officially voting to speak to the President, a 294-page document that made it more than he bargained for, that has five chapters. One is the History of Reform. Second is Court Packing, although it's called Membership and Size of the Court, a little gentler. Chapter 3 is Term Limits. Chapter 4 is The Court’s Role on the Constitutional System, which is mostly a reference to things like jurisdiction stripping, other attempts to have the court be more deferential to the legislative process. And then 5, The Supreme Court’s Procedures and Practices, which means the shadow docket and judicial ethics, and cameras in the court.
Dan: [00:21:01] We're going to get into the substance. I think it's impressive that this commission actually was able to produce a document of this length and get everybody to vote for it, sort of, which we'll get to in a second. Let's talk about the membership, and then how the work proceeded. And then, we can get into the substance. The membership, I think there were 36 commissioners originally?
Will: [00:21:24] Well, 36 at first, and then we lost a couple on the way.
Dan: [00:21:26] Yeah. 36, which is a lot. It's a big commission. It's not a size that you want if you want a nimble group. It's a really big group. It's like the size of my faculty at my school or--
Will: [00:21:40] Yeah, mine too. [chuckles]
Dan: [00:21:41] [crosstalk] -hard to do stuff. It was, I'd say almost all law professors, a couple judges, former judges.
Will: [00:21:53] Political scientist.
Dan: [00:21:54] One political scientist.
Will: [00:21:58] And the heads of several public interest organizations, the Brennan Center, the NAACP.
Dan: [00:22:02] It was heavily tilted towards -- if you look at it, it's like, “Here's who we might invite to a very prestigious symposium on the Supreme Court that's going to be held at,” or something like that. Very elite law professors who teach con law or do stuff that's adjacent to that. So, not really people who had written about, and certainly not really endorsed court reform previously, which there are a lot in the academy. Actually, I think, Will, you might be one of the people who'd written the most about court reform heading into this, because you wrote a blog post last year about maybe term limits might make sense just because they'll make people happy.
Will: [00:22:45] I had a couple blog posts. Keith Whittington, I think, has written quite a bit about the history of debates about court packing. I think Tara Grove had written a quite a bit. There were there were a few people who've written a non-trivial amount. But, yes, mostly, two law school deans, mostly people who were in the general, constitutional law, constitutional interpretation area, but we're not necessarily focused on court packing term limits pro or con.
Dan: [00:23:10] Yeah. Tilted towards, I think, the very elite end, so the kinds of folks who write lots of recommendation letters to send their students to clerk under the court. One criticism that was aired pretty publicly after the membership was announced was, it's too elite, it's too many law professors and doesn't have people that are going to be really fired up in favor of reform. It's hard for me to take that on too clearly, because it would have been fun to be on the commission as somebody who had written a ton about court reform, about term limits or about other stuff. But on the other hand, given what the commission was being asked to do, which was analyze and report, it would be hard to have people on it who had their own proposals, and I can understand that. It seems to me, the criticism is more aimed at the charge of what was being asked to do. As I read the charge, the commission was not really being asked to do something dramatic. It was being asked to do a really detailed report.
Will: [00:24:23] Yeah. The report certainly concluded that ultimately, it was not the report's place to offer a list of recommendations, like here's our proposed bill or our proposed constitutional amendment. You could have read the charge of the merits and legality in different ways. One way to appraise the merits of proposals is to say, here's what should be done and analyze all proposals relative to that, but that's not what it did. Again, with 34 law professors from varied backgrounds, maybe that's sort of built into the setup.
Dan: [00:24:54] Yeah, and less in the way of people who are political action groups were pushing for immediate change. One criticism that I think is pretty well placed is, it did strike me as too many law professors, and I say this as a law professor. Too many law professors relative to-- you could have had more political scientists. There's a lot of political scientists who study the court, study judicial behavior, study public opinion on the court. The marginal value add of a few more people like that versus 26th or 27th law professor might have been good. Not a lot of historians. I think, your colleague, Alison LaCroix, she the only-- [crosstalk]
Will: [00:25:40] There are so many people in the commission, I always forget who's on the commission, but not a lot of historians. [chuckles] I think that's right. I will say, totally agree, somebody else should've had my seat, for sure. The funny thing about law professors, as you know, is that law so voraciously consumes other methodologies. Lots of the law professors on this group have written extensively about constitutional history or consume-- participate and write the political science literature, I think law professors often overestimate our ability to mimic political science professors and historians and other methodologies. So, I'm with you that probably some people who had a different set of methodological skills could have been useful, could have been so much better on a larger symposium anyway. But there are quite a few people on this panel who do empirical work about the Supreme Court and things like that.
Dan: [00:26:34] Yeah, that's certainly fair. I'm a law professor who's done some work like that. But it seemed like there were broader representation of different kinds of sources of inquiry might have been useful. It had the feel of, “Hey, let's just invite our friends at Harvard and Yale to be on the commission.”
Will: [00:26:57] Well, I do think there's another interesting-- I was not privy at all to those conversations about who to invite to be on it, and I don't know why they asked me, but [crosstalk] a lot of different--
Dan: [00:27:05] You know why they asked you. Well, it's a bipartisan commission. There were some prominent conservatives asked to be on the commission, right?
Will: [00:27:18] Well, I was going to say it was bipartisan more like the way a law school's bipartisan, not like Congress is bipartisan, couple of token conservatives, none of them actually voted for Trump, and that counts, but that's okay. There were a range of different political backgrounds or ideologies that it was quite racially diverse, there was an effort to make sure it was relatively gender diverse. There are some big names that if they're not on the commissioner, that'd be odd, like Larry Tribe. And once you add up all the different things you're trying to do, you end up with 34 people and they're all law professors already. So, I do see how that happens.
Dan: [00:27:53] Yeah, it's 34-36. On that note, I think the commission was largely full of liberals. Less in the way of people I would describe as true left. I don't want to characterize everybody on there, but the bulk of the folks I would characterize as traditional liberals.
Will: [00:28:18] Liberal rather than progressive or something.
Dan: [00:28:20] Yeah, maybe that's the better word, not progressive. And then, some folks who are seen as conservative. You obviously, former Judge Griffith of the DC Circuit, a Republican appointee. I don't know if Judge David Levi, former Dean of Duke Law School, former federal judge, is considered a conservative, I think he is a Republican appointee, George Mason's Adam White. But then a couple people, conservative folks who quit, which is interesting. I don't have any special insight, but those two are Harvard's Jack Goldsmith, and Virginia's Caleb Nelson, and they were on the commissioner the beginning, they were not on at the end. They haven't really said why, but presumably, they didn't agree with what the commission was putting in the report or was going to put in the report, or they just found the meetings really tedious, which I would have. But you didn't quit, Will.
Will: [00:29:19] I don't feel I can speak to why they quit, if they're not going to speak about it. But I will say, I thought seriously about quitting around the same time, which is around the time that we, as members of the commission, were first able to read the report we've been writing, because as a consequence of the federal transparency rules, it was very difficult for documents or anything like that to circulate them on the commission as a whole, because then that would be a deliberation, which would then have to take place in public. So, it was quite late in the day that we really sat with others on commission to first delivery of the first full draft.
Dan: [00:29:52] And because it was going to split up into sub committees and stuff where people were writing parts of it and then--
Will: [00:29:58] If working groups are studying a particular issue and writing materials about that issue, then that's not a commission deliberation. But once you have a full document circulated with the full commission, then that's more like deliberation that has to be public. When that happened, they suddenly--
Dan: [00:30:13] [crosstalk] -federal bureaucracy.
Will: [00:30:14] Well, I will say that's actually the biggest learning experience I've had about this whole thing, was the federal bureaucracy.
Dan: [00:30:20] That’s your next article. You're going to do the original meaning of the Federal Commission's Act or whatever.
Will: [00:30:26] The case against FACA. I'd worked for the federal government for two years as a law clerk, so I thought I knew what federal bureaucracy is like, but I think I'd not appreciated how much more streamlined the federal judiciary is, as cumbersome as we think about it, compared to a lot of the things that have happened.
Dan: [00:30:42] Yeah. You said you considered-- you saw the documents, and then you were like-- what was the thought process?
Will: [00:30:50] Well, I guess the thought process was, at this point, I had taken an oath. I had a commission, like an actual commission, Marbury vs. Madison commission to hang on my wall.
Dan: [00:31:01] Would you have to send that back if you quit?
Will: [00:31:03] I thought about that.
[laughter]
Dan: [00:31:05] Is it actually on your wall?
Will: [00:31:08] It is leaning against the wall. It is framed and leaning against the wall.
Dan: [00:31:11] Did they frame it or did you pay to frame it?
Will: [00:31:13] I paid to frame it.
Dan: [00:31:14] You paid to frame it, but didn't bother to put it on the wall?
Will: [00:31:17] The law school facilities people have to be the one to hang things on my wall.
Dan: [00:31:20] Okay. Yeah, we have that too.
Will: [00:31:23] And I just haven't called them yet. They will.
Dan: [00:31:25] But you had the wherewithal to frame it. Have you gotten admitted to the Supreme Court bar?
Will: [00:31:29] No. I have until the end of the season, don't I?
Dan: [00:31:33] I mean you have nothing. You should have done it 10 years ago, but, yeah.
Will: [00:31:37] I wasn't eligible.
Dan: [00:31:38] Do whenever you want.
Will: [00:31:39] I guess, I was.
Dan: [00:31:41] You have been eligible for a while.
Will: [00:31:42] 10 years, almost exactly 10 years, I guess. It doesn't matter. [crosstalk]. I thought to myself, the question is not at this point, “Do I agree with this document?” The question is, “Will I be doing more good by staying around the meetings and trying to talk to people and trying to push the document in a direction I think it should go?” I decided for better or worse that it'd be helpful to stay a part of the conversations.
Dan: [00:32:11] In terms of the document that was ultimately produced, the final report, it honestly doesn't take a lot of substantive positions on stuff. A lot of it is exposition, giving background. It's quite useful in that in that regard. I'm going to rely on this and cite it anytime I read anything of a court form in the future. It's really thorough discussion of history and various instances where people have proposed different kinds of court reform. And then it talks about pros and cons of various reforms. It's a lot lighter on bottom line conclusions about, like we should definitely do this or not do that. I read the draft ones at the time, maybe they were a little bit more tilted towards recommendations, but even those were not super heavy handed in taking positions.
Will: [00:33:04] Yeah, I think that’s right. I will say two other different kinds of reports you could imagine, but you could imagine a much shorter report, like a 16-page report designed to actually be widely read that's just like bottom line conclusions. You've called together 34 law professors and we all agree the Supreme Court has gone too far, and the time has come to add four justices. And we hate to say it, but it's time to break the glass or the opposite. All of us agree that it would be premature to pack the court. At a minimum, we have different views of what it would no longer be premature, but we're not there. You can imagine document more like that, that kind of position statement. That obviously is not what the commission produced.
[00:33:48] And you can also imagine one that that decided to lean in more toward legal expertise that just made firm conclusions about the legality of all the proposals. Here's why court packing is constitutional. Here's the deal with term limits, and whether or not you can do this various big debate that you've taken part in about whether you can effectively limit Supreme Court justices' terms without technically limiting their terms so as to comply with the Constitution. You'd imagine one that's all in on law, and then says about the policy, we leave that to politics or something, the commission did not produce any of those options.
Dan: [00:34:23] Yeah. It seems like to me both of those options were unrealistic to expect given the size and diversity of the commission's membership. I can't imagine that every single person on the commission has the same view about the constitutionality of the various reform proposals.
Will: [00:34:43] Apparently not. The report does take a firm position that court packing is lawful. It does not explain why, but it does conclude that the arguments that it is unlawful are wrong.
Dan: [00:34:56] Yeah. I'm thinking about the same part that you're talking about. It references Georgetown Professor Randy Barnett's testimony before the commission, where he argued that partisan court packing is unconstitutional finding some support for this-- claimed support for this and his version of originalism wasn't totally clear to me whether he was actually making that argument with a straight face or not. But yeah, the report does poopoo that argument.
Will: [00:35:26] You can imagine saying it's wrong because I'm an originalist and at founding, there was much more court packing than we see today. A living constitutionalist might have a different explanation, because they might normally rely on 150 years of practice to produce a conceptual norm, and they'd have to have some different explanation. You can also imagine people thinking, actually, partisan court packing might be something that really was just partisan court packing, might be unconstitutional, but that what people are proposing is not really partisan, because it's designed to save the country from evil or--
Dan: [00:35:59] Yeah. It is challenging though to distinguish what's partisan or what isn't given that many things that legislators do, they're doing to effectuate their preferred policies.
Will: [00:36:17] That's absolutely right, one interesting irony. Another way you could resolve this was to say, “Well, it's challenging to know what’s partisan. That's why the Supreme Court has concluded that partisan gerrymandering is not justiciable, and chosen to stay out of that.” We should draw the same lesson here, that for the same reason partisan gerrymandering of the Supreme Court will be effectively fine or not justiciable. But the Supreme Court decision with that is very controversial including among some of the same people who support court packing. It's just complicated to get the story straight, I think.
Dan: [00:36:48] Yeah. In my testimony before the commission, you speak for just a few minutes and you get a couple of questions, but you also submit-- I had the opportunity to submit written testimony. In my written testimony, I said various things. One of the things I tried to do was, "This is a bipartisan commission, can I try to make an argument for our system being broken in a way that doesn't just appeal to people's partisan inclinations?" I think that's really hard. I tried to do my best there, partially just to work the argument out and then talk about different strategies for how those problems that I identify, which I sort of tried to frame as new structural problems, it's like you've got this really powerful institution, the way the membership is chosen is semi-random, subject to manipulation. And it's ultimately, in a world where politics and law are both very polarized. It's going to lead to crisis like we're seeing now.
[00:37:57] I close by sort of saying, look, the main thing, I think would be really good to do is not do something. Try to not come up with a claimed consensus that a bunch of things are impermissible, that are unconstitutional. I feel that is where the commission is much more likely to be persuasive than anywhere else. If the commission writes this, this democratic commission had written this report that said, “We think court packing is unconstitutional,” that's then held out as a cudgel by Republicans say if Democrats tried to do it in 5 years or 10 years. And so, my admonition was try to not take anything off the table, don't do any harm.
Will: [00:38:46] Did we do okay on that [unintelligible [00:38:46]?
Dan: [00:38:47] I think so. They do evaluate the constitutionality of various proposals, and they don't love the constitutionality of mine and Ganesh’s proposals, which is fine, because when we propose them, we specifically sort of said, like, these are adventurous constitutional arguments and our goal isn't actually to make slam dunk arguments, but to say, “Let's think creatively.” They left some things on the table. I think the report says maybe panels would be okay, that doesn't necessarily-- some people have said, “You can't have a Supreme Court that sits in panels, because the Constitution says there should be one Supreme Court.” I always thought that was a dumb argument, and the commission report seems to sort of say, “Yeah, that's not totally persuasive.” So, I thought it was good.
Will: [00:39:36] I don't think we say it's unpersuasive. We just don't take a position on it, I think.
Dan: [00:39:43] Well, I read the report maybe not conclusively ruling it out, but maybe saying we don't think that-- I read the report as saying like we don't buy this argument completely, or this is an argument but there's a lot of counter arguments to it.
Will: [00:40:02] There's a passage where it says, “The commission is not prepared, however, to conclude the rotation in panel systems are clearly unconstitutional simply on the ground that each would entail.” I will say there are individual commissioners who were prepared to make that conclusion.
Dan: [00:40:15] Oh, I'm sure.
Will: [00:40:16] I think this reflects just a lack of consensus on the commission. Not the consensus that the argument is bad.
Dan: [00:40:22] No, that's fair. But I'm just saying the point is, this report cannot be used to try to take that off the table is my point.
Will: [00:40:29] Right. Different from the commission, the report seems to say something slightly stronger about court packing, if not for--
Dan: [00:40:35] Yes, [crosstalk] But I always thought that the report saying something is permissible is certainly not going to be the last word on anything. The commission saying something Democrats want to do down the road is unconstitutional is harder. An example of that being that a big talking point that emerged during-- there was a political debate about court packing in the run-up to the 2020 election that got derailed by the way the Senate broke down, but a lot of people were sort of passing around-- was the 1937 Judge Senate Judiciary Committee report saying that, “Court packing is unconstitutional.” This was a majority Democrat commission, and that was being used as, "Look, they thought it was unconstitutional."
[00:41:21] I don't think that they did anything here that's really going to be super damning, super problematic. If people want to pursue more kind of adventurous reforms-- People in Congress have put forward statutory term limits proposals. This report is not big on those, I would say, but I just think that those kinds of conversations should play out a bit more in the political arena, and not be short circuited by this kind of effort.
Will: [00:41:56] Yeah. I think it's unfortunate that again, the commission of law professors, so our main expertise is law, couldn't come to consensus on even basic questions like, do term limits have to be done by statute or by the Constitution. I talked to some political scientists actually about like, “Is there anything useful this report could actually do to contribute to the conversation?” One of the answers I got was, “The most useful thing you could do would just be to give us a clear answer of whether this could be done by statute or the Constitution.” Some of them had the opposite of your view, like, “It'd be fine if the clear answer is you need a constitutional amendment, and we won't waste our time.” Imagine spending a ton of little capital to get through a statute term limits proposal, only to then have it be held unconstitutional anyway. So, I think it's unfortunate that the report couldn't supply more. [crosstalk]
Dan: [00:42:41] My view is that this report could not conclusively foreclose-- could not make a predictive determination about what would happen. It's a hard question. It depends a lot on your theory of constitutional interpretation. How it is answered, it depends a lot on what's happening in the country at the time. Just realistically, I don't think this is math. I think there are some easy constitutional questions. There are a bunch that are not that you can't just break it all down and then just get the answer, and then it's resolved for all time, you've got the proof. The proof in--[crosstalk]
Will: [00:43:29] I agree.
Dan: [00:43:30] [crosstalk] -unassailable.
Will: [00:43:31] I agree law is not math, probably better at law than I was at math. But at the same time, I say it's unfortunate. It's unfortunate that these legal questions are some of the ones on which it is unclear. And the unclarity seems to be caught up in our polarization. It would be better if somehow either the constitutional texts were clearer, or our ability to find consensus was different, because you might have thought--
Dan: [00:43:57] But I don't think this is a unique problem for like the good behavior clause. Many of the questions that we care most deeply about are ones where constitutional text is vague, other sources are deeply indeterminate. The question has never been firmly answered. It depends a lot on what you think constitutional law is and how it should work. There's just a lot of things there.
Will: [00:44:24] I agree. Although there are times so there seems to be a widespread bipartisan, in my view, deeply mistaken, but bipartisan agreement that the US Supreme Court gets the last word on most constitutional questions, for instance. That's an example that may be good in some ways that we all have managed to reach consensus on that, even if we then find a lot of what the Supreme Court should do. One of the things people said a lot during the commission meetings about the commission, like one of the things this commission might accomplish is show that you can bring together a bunch of people who have different views of the world and show that they can still make some progress or reach some consensus and show that's possible in our deeply polarized world. I guess I wish we'd done more of that. [laughs] [crosstalk]
Dan: [00:45:06] Yeah, I agree with that a lot. I feel that's a motivation for this podcast. I feel we are in a moment in political and legal time where polarization is very high, and it strikes me as extremely threatening, in the sense that in a world where basically all legal questions are just seen as there's Democrat answer and Republican answer, it's very hard to understand how you can have what we call a rule of law in a sense. You just have people picking sides. So, trying to preserve-- and this is something I talked about a little bit in my written testimony. Trying to preserve some area, common ground is really critical even though it's very challenging. Even though there's a lot of reasons why people on the left don't want to preserve common ground, they're very, I think, rightfully unhappy about the political chicanery that led to where we are. Really on both sides, there's a lot of feeling that the other side is acting in bad faith. But we do need to have some core of what we agree on is a correct legal answer to some things, because otherwise, I think everything falls apart.
Will: [00:46:31] I'll say, at the risk of self-aggrandizement, I think we are more successful at [unintelligible [00:46:35] in this podcast than maybe the commission was.
Dan: [00:46:38] Well, there's only two of us.
Will: [00:46:40] Well, that is the question, is if you can do it with two, and you can't necessarily always do it at 34. [chuckles] What's the number, nine? More or less.
Dan: [00:46:50] Yeah, but maybe in some areas, we have views that overlap. I think we have slightly different policy legal views for sure. But we're not hardliners with respect to our own ideologies and legal views. Maybe you're hardline on your legal views, I'm not sure.
Will: [00:47:11] [laughs]
Dan: [00:47:11] [crosstalk] -is on that.
Will: [00:47:13] I don't quite know what that would mean.
Dan: [00:47:15] I don't either. But it also depends on what kind of conversation you're having. If you're having a question about, we know who's on the Supreme Court, we know the legal materials, what's the answer in this case? It's like a prediction versus what is platonically the best answer. That might be a different question.
Will: [00:47:36] It's tough, because I think Congress and the President are often sort of doing both. Obviously, usually you don't want to pass legislation that you can confidently predict will be struck down bythe Supreme Court, although occasionally you might do that to prove a point. But then, also some members of Congress care about the Constitution, some platonic ideal of the Constitution. There might be things that Supreme Court would tell them they could do. They would say, “No, no, no. My understanding of the Constitution doesn't let me do that.” And that'd be different. Can I run a few specific ideas by you that didn't make it into the report just to talk about the merits a little bit?
Dan: [00:48:13] Yep.
Will: [00:48:14] Okay. Here are a few reform puzzles that I've come to think would be good. I'll put them together two as a package. So, I don't think-- Well, I guess, makes me think. On the size of the court, I think at this point, it would be a good idea to have a constitutional amendment fixing the size of the Supreme Court at nine so as to eliminate the fear of each party that the other party will pack the court as soon as they get a chance. Now, obviously, we might later learn nine is the wrong number and need more. But if we ever had like a true bipartisan need for a different number, we could always amend the Constitution to have a different number. At this point, it’d be safe as to just to fix it at nine.
[00:48:49] On confirmation process, I think we should reinstate the supermajority requirement for confirmation by constitutional amendment, not rely on the filibuster. I'm open to what the number should be, but two-thirds or something seems good to me. And thus, that will force presidents to compromise, to pick people who can get-- I mean, you can always try [unintelligible [00:49:05] party just to confirm nobody [unintelligible 00:49:06] you for that but the usual record of shutdowns is that doesn't work very well.
[00:49:12] We should make constitutional amendments easier, because a huge amount of the-- like you can't solve the Supreme Court problem without solving the problem of the stakes of the Supreme Court. One of the reasons we all care so much about the Supreme Court's constitutional decisions is because we think amendments are de facto impossible. And so, we should just make the amendment process much easier. We do those three things together, we'd have a much better system.
Dan: [00:49:33] Okay, super interesting. Let me tackle those one by one. Fixing the court at nine, if that's the only thing we're going to do, I don't love that. I think your view of that depends a little bit on your view on how much do we trust courts versus want to have democratic political input on the system. I do think that having the cudgel of court packing is useful for keeping the court maybe a little bit more majoritarian. I do not love the idea of just saying we have nine, and even if got those nine in a way that seems deeply problematic, we're just stuck with them and there's nothing the democratic process can do about that. I don't know, I think having some of these tools, even if they're never used, probably better if they're never used just in the background like we're packing, like jurisdiction stripping as potential threats is good. I don't love that. I don’t love that one. I could see pairing it with the term limits amendment, I could see that [crosstalk] to the case.
Will: [00:50:43] I think term limits amendments almost all have to also include the number because otherwise the term limits don't--
Dan: [00:50:49] Yeah. I mean depends on what kind of term limits proposal. If you have a statutory term limits proposal, you don’t have to fix it--[crosstalk]
Will: [00:50:55] But constitutional amendments setting up 18-year terms, the assumption is that because there are nine justices every two years.
Dan: [00:51:00] Yeah. I just don't love that, because I can imagine, what if four justices die in a plane crash, and Trump puts four crazy people on? There's just a lot of scenarios you can come up with. I just don't like the idea. Part of my objection to the current state of affairs is this is a really small group of people and they exercise a huge amount of power for a really long period of time. And their membership is semi-random and only kind of bears a partial connection to the results of elections. And I think that makes it worse to me.
Will: [00:51:36] [unintelligible [00:51:36] impeachment should be as off the table as it is, by the way. [crosstalk] but that wouldn't solve all the problems. [crosstalk]
Dan: [00:51:43] Yeah. I mean you can't really change the--
Will: [00:51:45] We can't impeach actual bad people now, so--
Dan: [00:51:47] -rules there. Supermajority. Very interesting. It may be almost confuses symptom for disease, in the sense that the problem with the current-- Supreme Court nominations have gotten increasingly polarized and contentious. We eliminate the filibuster, and now it's a pretty line. But I don't think that's happening because we've eliminated supermajority requirements. I think that's happening because our politics is more polarized and our legal culture is more polarized, a lot of our nomination battles or proxy fights about other things, proxy fights about abortion. In a world where we increasingly have these two, just totally, totally opposed schools of constitutional interpretation and stakes are so high, I don't know, does anybody get-- who gets 60 votes? Maybe Congress cooperates about other things, but maybe you just have much longer periods where no one can be confirmed. I think that having a supermajority requirement for other things in the Senate has not obviously been a great thing, from my perspective. I don't know, would that be better? Maybe there's a lot of like-- I don't know [crosstalk] types that you could-- [crosstalk]
Will: [00:53:06] Yeah, exactly. The big question is there are a set of nominees who we think of as unconfirmable, who would be great. Maybe they are conservatives, who are very differential on like-- they're in conservatives, like Frank Easterbrook, maybe they're just really old. Maybe they're incredibly well respected intellectually, but a little bit unpredictable politically, like former Judge Richard Posner, think about in that space who those people might be. And you're right, it might be that at this point, what we’d actually get is nine empty seats. Although Sam Moyn and some other witnesses for the commission might I think that was an improvement too.
Dan: [00:53:46] Yeah. Well, let me tell you what I do like about that, though. I do like the motivation underlying it, like, “Let's try to find this center.” And that is one of the features of the balanced bench proposal that Pete picked up, was you've got these two groups of partisan justices who are slotted to political party, which is actually not as crazy as it sounds. That's how there's informal arrangements like that and constitutional courts in other countries. But then, you would pick five more justices as by designation, they would sit with the court the way that Court of Appeals judges do with district judges, but they would have to unanimously approve the slate. The idea there was something similar, it's like maybe there are these moderate types, like you suggested, I don't know if Posner's the right call because he's just so wacky, but people that are respected, but are not seen as true partisans. The counterargument, and maybe this applies more to your suggestion than mine, is that what it ends up selecting for is the Kagan-Roberts type, who are both great, but who both very studiously avoided taking positions publicly and it was like really hard to know what they thought. Which I get, but I don't love. I actually have a lot more respect for people that are willing to say what they think. That's what I've always done in my career, and certainly what seems to be what you do. I don't love a process that seems to select for people that lack that kind of civic courage.
Will: [00:55:13] Yeah. I'm not sure I accuse either Justice Kagan or any other Chief Justices of lacking civic courage. But I agree that neither you nor I would be likely to be confirmed under this kind of regime. But that might be-- I mean, yeah-- [crosstalk]
Dan: [00:55:26] Or possibly any other.
Will: [00:55:26] [chuckles] Fair enough. My favorite justices would not succeed under this regime. I don't think-- [crosstalk]
Dan: [00:55:33] I [crosstalk] got like almost unanimous approval.
Will: [00:55:37] That's true.
Dan: [00:55:38] That was a different time. Third one, make constitutional amendments easier. Yeah, that's super interesting. Again, I don't know if that's good or bad in a world of polarization. One thing is, as a Democrat, I'm not going to love that, because the way voters are distributed, Republicans have a big advantage and control of state governments, typically.
Will: [00:56:04] We could do it lots of ways. We could do a national referendum 65% voting roll or something.
Dan: [00:56:08] Yeah, I like that. I'm generally more in favor of stuff like that. It has led to good results in my home state. There's stuff that the legislature won't put through, but it's actually broadly popular. I don't know how it would work out. I think that it could mean we get really big improvements to law. It could mean that we get stuff that's crazy. But I do think something like that, I think would be potentially good.
Will: [00:56:35] I guess the question is, would it succeed and taking some pressure off? Presumably, we get good and bad stuff, who knows? [chuckles] Probably, lot of really bad, from my point of view. But would it succeed in taking the pressure off trying to get the same bad stuff in a worse way?
Dan: [00:56:50] Yeah, I guess it depends. It depends on the breakdown. There's things in which society is really closely divided, like 51-49 or something. The court can either make those things happen or freeze them in their tracks. The fact that a supermajority of people could change the result doesn't necessarily mean anything if society's really closely divided, and so the stakes of the court are still very high.
Will: [00:57:21] Maybe it also changes the way some of the justices think about it.
Dan: [00:57:25] Yeah. It would be interesting.
Will: [00:57:29] [laughs]
Dan: [00:57:29] I'll say that. Maybe a lot depends on the specifics of what it would look like. But in general, I share the inclination that right now, part of the problem is that we're asking them to do much, we expect them to do too much, the justices, and figuring out some way to make them less significant, and make the stakes of what they're doing less significant would be healthy, be healthy for democracy and be healthy for the political process. Not bad. But again, none of those are going to happen, because [chuckles] it's so hard to amend the Constitution.
Will: [00:58:14] I mean who knows what'll happen? I guess maybe this is the version of your original point. It's usually a mistake to write off even constitutional amends, because a lot of the constitutional amends that happen to the Constitution were repeatedly proposed and shot down over and over again, until suddenly they weren't. [crosstalk] -the Senate, everybody always said, “The Senate will never agree to direct elections. Direct elections will never happen, so we have to go through the Senate, and why would they agree to that?" And indeed, they shot it down, like 171 times or something, and then eventually didn't.
Dan: [00:58:47] No, that's fair. Well, I'll say this, which is that I cannot imagine these kinds of amendments passing until we are in a different political moment that is not polarized in the same way as we are right now. And if we are in that different political moment, it is harder for me to know whether we need these reforms or different ones.
Will: [00:59:05] Yeah, fair enough. Ideally, what you'd like are proposals that can serve as a focal point for trying to organize us in getting out of our polarization. I think this is the one thing I'd ever written about court reform before this, is this I feel about term limits. I think term limits are probably a bad idea for the Supreme Court, but probably mostly harmless, but if they have any consequences, they're probably bad. But a term limits constitutional amendment, I could imagine being salutary because I can imagine a world where that becomes the political conversation that helps us get to a better place, that becomes the thing that a way to think about getting us all to agree on what we want from the court in another way.
Dan: [00:59:48] It produces some common ground. I get it. I totally share-- I don't know if I agree with you about the criticisms of term limits or whether doing that would produce that kind of benefit but I definitely I agree with that motivation. I think part of the problem is how do we even agree on what the things are we should agree on. Ganesh and I have an exchange with friend the show, Steve Sacks. He wrote a response to our original piece, and then we have a follow-up where we respond to him. His argument is, look, the problem is the court is that we see this court as a super weapon that can do whatever it wants. And of course, in that world, people are going to fight tooth and nail over controlling it if court has this magic power. I think that's right. The question is what's the solution? Steve says, “The solution, it's converge on the legal materials and real consensus.” But then, our view is like, “Well, that just ends up looking like you're just saying originalism is the solution.” That's for people on the left who don't buy into that, that's not the solution. That's just surrender. I don't know how to do it. I do agree that it is trying to do that is important.
[01:01:06] The other thing that's hard is you also want to be able to call out stuff that you see as bad or that makes you angry, and you don't want to just be like, “Okay, well, everything this court is doing is great and totally, totally fine.” If you really, really fundamentally disagree with the whole project, you disagree with the way in which the court's majority was obtained. I don't know, it's a real challenge for me to think about the right way to do that.
Will: [01:01:32] So, to tie into where we started the show, I think Roe v. Wade also casts a huge and complicated gravitational shadow over these debates. There are a lot of people whose general message on the court and to the commission was the Supreme Court [unintelligible [01:01:49] bad. On the whole, the Supreme Court has done more mischief than good in the constitutional arena. They could be in favor of a different kind of de-escalation, like strong [unintelligible 01:02:00], strong deference to legislatures. Except for Roe, which very few people on the left are willing to openly give up on. Some of them may say that privately. It'll be interesting to see, this is not the most important thing consider for Roe v. Wade overruled. But I do think one of the conversations, will that then free up the space for a more just forthrightly anti-judicial review progressive wing? Then that'll be like we used to be keeping the court around for this one thing, and now they're not even doing the one thing, we can move on? Or will it do the opposite? Will the fight to recover Roe sort of destroy judicial deference forever.
Dan: [01:02:34] Yeah. I tend to think maybe it's going to be the second thing more than the first, but I'm not sure. I'll say that I am someone who is like-- you can be more worried about courts doing bad stuff, or you can be more worried about them not doing good stuff. I'm sort of the I'm worried about them doing bad stuff, like striking down stuff, I think that is good rather than not striking down stuff, I think that's bad. Obviously, most people want the court to do a mix of those things. Most people have one thing, this is the thing they're really worried about. I'm worried about-- I want the court to be majoritarian, striking down things, or I want the court to not stand in the way of democracy. I am more in the second group.
Will: [01:03:16] Me too.
Dan: [01:03:17] Good, but--
Will: [01:03:19] Not for the same reasons, I think, but--
Dan: [01:03:21] I'm sure not. I'm sure it's because originalism commands that or something, I don't know.
Will: [01:03:26] He who asserts must prove.
Dan: [01:03:28] Flesh that out for me?
Will: [01:03:29] I think for the Supreme Court to take the step of disregarding a statute, is to make a stronger assertion than merely applying a statute. Then, the burden of proof falls on them. That's just a core-- a fundamental way to understand the institutions place in the world, is that you need a justification to change the status quo.
Dan: [01:03:51] Yeah, although that doesn't answer the question of whether you think that could be that you think that there are really good justifications in some cases, and it's really bad for the court not to find those. That doesn't answer this question, right?
Will: [01:04:02] That means from the baseline, err on the side of caution. The first do no evil is that. I'm not sure the Supreme Court’s worst decisions ever are all ones invalidating statutes rather than failing to find rights, but I think the fundamental principle of judicial power is that he who asserts must prove.
Dan: [01:04:23] Yeah. What's in the so called anticanon? Some of those are cases that really court failed to protect right. Plessy v. Ferguson, they--
Will: [01:04:29] It's two and two. Lochner, Plessy, Korematsu, Dred Scott.
Dan: [01:04:32] Okay. Yeah, Dred Scott, they do exercise the power of judicial review. Lochner, same. Korematsu, they refuse to find-- in Japanese [unintelligible [01:04:41] unconstitutional, so that's-- [crosstalk]
Will: [01:04:43] Yeah. I assume-- yeah, it's a tidy feature of the anticanon that it's two on each side. So, it's not.
Dan: [01:04:51] It is an accurate, this is-- Jamal Greene’sarticle, The First Place, that really comes up with this. I feel like the assignment of the cases is correct. That seems correct to me.
Will: [01:05:03] Yeah. At the time he wrote the article, Korematsu had not been officially overruled by the court history. So, there's Korematsu was this awkward one.
Dan: [01:05:13] Don't get me-- [crosstalk]
Will: [01:05:14] And Lochner is awkward in different way in that it's the least clear exactly why Lochner is wrong even if everybody agrees it's wrong and it's also maybe not wrong.
Dan: [01:05:24] Lochner is coming back, right?
Will: [01:05:26] I might be becoming pro-Lochner, which makes me really uncomfortable.
Dan: [01:05:34] Do you have privileges or immunities?
Will: [01:05:38] I started a paper on the original meaning of the privileges or immunities clause, and I'm not done yet, but Lochner is plausible.
Dan: [01:05:45] I could see it. Lochner bothers me less than some other stuff. There's a lot of crazy economic protectionism that wouldn't be the end of the world to have the court take a closer look at. But other stuff, the idea that the court is going to strike down healthcare and stuff like that tricks me. I'm more worried about stuff like that. But yeah, it is interesting to see how the anti-judicial review set of ideas, how much that currency that will pick up on the left. It's already picked up some steam compared to where we were a decade ago, five years ago, but is that going to continue? Or is the debate all going to be around, how do we get more democratic-appointed justices on the court so they can bring Roe back?
Will: [01:06:35] This is [crosstalk] restriction. Powerful about the nuclear weapons analogy. We may disagree on what the path to nuclear disarmament looks like, but I think it's good to try to find one, before we blow each other up.
Dan: [01:06:50] Yes, I agree. Another view you can have is it's good for people to just blow the court up, because it's not necessarily good for the court to be super, super legitimate, be able to do whatever it want. Maybe if the court has less legitimacy, we just have more democratic self-government. The interesting thing about--
Will: [01:07:11] [crosstalk]
Dan: [01:07:11] Sorry, I'm interrupting you. But the interesting thing about the argument in Dobbs is some of the Democratic justices are talking really openly about, like, “This is going to look really bad for us. This is going to have a stench on it if we are seen as being persuaded by politics.” One response to that is the court looking good is not the most important thing here. Maybe that shouldn't even be a consideration. I don't know.
Will: [01:07:35] Well, I kind of agree. The nuclear weapons analogy, the radiation damage is not limited to the Supreme Court. [laughs]
Dan: [01:07:43] Yes. That’s--
Will: [01:07:45] Supreme Court is the nuclear weapon and [chuckles] we are the victims.
Dan: [01:07:48] Yeah, that's fair. I do in-- how to say the Supreme Court first piece on this, we do make an argument about Supreme Court legitimacy in our claim is that if the Supreme Court loses legitimacy, that may delegitimize law more generally, that I'm more worried about. Okay, so we've talked a lot about this. Do you have any takeaways? Are you glad you did this? How much time did this take?
Will: [01:08:12] [exhales] I don't know. I learned a lot in doing this although mostly, I think, unintentional lessons. So, I suppose I'm glad I did it. But if I were asked to serve on another presidential commission in the future, I'd probably want to have some more-- I'd have more pointed questions to ask about what exactly we're doing. I do worry a little bit. The thing I feel worst about is you, Dan. I worry about all of the law professors who we got to put on suits and spend weeks of their summer vacation writing us incredibly insightful and well-researched things under the impression that we were going to do something other than what we did.
Dan: [01:08:50] [laughs]
Will: [01:08:50] And if I try to count up the total number of legal genius man hours spent producing this report, I think it's pretty hard to justify.
Dan: [01:08:59] Okay. Well, in fairness, I wasn't really under any illusions about what the commission was going to do. I think I saw it clearly.
Will: [01:09:07] So, why did you do it? [crosstalk]
Dan: [01:09:08] I don't know. Well, first of all, if I don't do it, it looks like I'm mad that I'm not on the commission. It's insulting to people or it makes me look dumb. It looks good to do it, and I don't mind doing it. I've got stuff to say, it gave me an opportunity to crystallize some stuff. I probably spent a week reading my testimony, maybe less than a week.
Will: [01:09:32] Think of all the movies you could have watched.
Dan: [01:09:33] Yeah, but now I'm going to turn it into a short symposium article. So, it's all going to work out.
Will: [01:09:39] Good. I'm glad you're on that, at least about that.
Dan: [01:09:43] I would feel differently about the whole commission if it had come out with this, guns blazing report, just casting doubt on a bunch of stuff and reaching a bunch of conclusions that I disagreed with, but--
Will: [01:09:57] Me too. I will say, I thought it's really important that the commission did not come out with a report with guns blazing the other direction either, endorsing the view that the Supreme Court needs to be burned down and all this stuff.
Dan: [01:10:12] It was never going to do that, given like-- you would have resigned, right?
Will: [01:10:16] Well--
Dan: [01:10:16] You would have resigned.
Will: [01:10:17] If my presence on the commission helped that not happen, then I am glad I did.
Dan: [01:10:23] Yeah. Okay, well, that's the commission. That's the report. [crosstalk]
Will: [01:10:28] Yeah. Not going to be available at any bookstore, as far as I understand. I believe we only had the budget to print 200 copies.
Dan: [01:10:35] Is this going to be sold on eBay? How many you got?
Will: [01:10:38] I got one.
Dan: [01:10:39] You got one? With 200 copies, there's only 34 commissioners, where are the rest of them going?
Will: [01:10:44] Congress and the White House.
Dan: [01:10:46] Okay, can I buy one?
Will: [01:10:48] No.
Dan: [01:10:49] They won't print on demand? Come on, this is 21st century.
Will: [01:10:52] I believe there are GSA regulations for that.
Dan: [01:10:56] [laughs]
Will: [01:10:56] Now, PDF is not copyrightable. Actually, I do think somebody could set up an Amazon shop where you could print it on demand. We could do it and put it in the Divided Argument store, I guess.
Dan: [01:11:07] Law firm style, I'd put it in a binder. A good binder.
Will: [01:11:10] [laughs]
Dan: [01:11:12] But, yeah, wouldn't mind having a bound edition on my shelf for future reference although I'd probably just end up using the PDF anyways. Wow, greatest country in the world, we can only print 200 copies of this lengthy report. All right. Well, should we wrap it up?
Will: [01:11:28] Yeah.
[music]
Dan: [01:11:34] Thanks very much for listening. And if you haven't yet, please rate and review on the Apple Podcast Store and anywhere else you listen to your podcasts. Send the podcast to your friends. Get some merchandise at our website, dividedargument.com, and buy some stickers or t-shirts so everyone knows what you're listening to, and thanks.
Will: [01:11:56] Thanks to the Constitutional Law Institute for sponsoring our endeavors, and thanks as always to Dan for putting up with me.
Dan: [01:12:02] And if we don't come out with a new episode soon, it will be because the President has forbidden us to speak about things.
Will: [01:12:11] [laughs]
Dan: [01:12:13] And so, like every time, we just come up with an excuse like that.
Will: [01:12:15] Yeah, that's good.
[Divided Argument theme][Divided Argument theme]
Will: [00:00:19] Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: [00:00:24] I'm Dan Epps. Will, speaking of unscheduled, has been a while since we recorded.
Will: [00:00:31] We have. Yeah.
Dan: [00:00:33] It's been a good while. I think we have a good excuse though. You know what that is?
Will: [00:00:37] No, I'd love one.
Dan: [00:00:39] Supply chain problems.
Will: [00:00:41] [laughs]
Dan: Our hot takes have actually been on a shipping container that's been stuck in the Port of Los Angeles for a long time. Sorry about that. Hopefully, these days, supply chain problems really hold everything up. So, not our fault. But we are back, and let's talk a little bit about what's happened in our absence. But then, we actually have a bigger, bigger topic we're going to talk about in a moment. [crosstalk] court.
Will: [00:01:04] The Supreme Court decided to overrule Roe v. Wade, right?
Dan: [00:01:08] Well, they haven't said so yet but that statement might be literally true. The court has conference in that case. Based on how that argument went, it is very conceivable that five justices went into that conference and said, “I will vote to overturn Roe v. Wade.” The statement you made may literally be true, even if it isn't public yet. But, yeah. Heading into that argument, we had talked about this a little bit in our episodes last term. You actually came down on the fact that maybe this is going to be the one where they really do take on the challenge Roe v. Wade based on how you read the question presented. Based on the argument went, it does seem like maybe that's right.
Will: [00:01:51] Yeah. Well, at least Mississippi seems to have read the question presented the same way. So, they came in with a full-fledge, a full-throated argument for overturning, and both sides were very uninterested in any half measures, even though some of the justices, like the two justices were desperately trying to sell some half measures.
Dan: [00:02:07] Yeah. It was really just the Chief Justice, at least among the conservative justices, I thought. He was really pushing this argument that maybe we just get rid of the viability line. He was looking at Justice Blackmun’s private papers, and then--
Will: [00:02:22] But condemning them. They called them-- [crosstalk]
Dan: [00:02:23] Yeah, but then relying on them, saying, “Oh, it's not great that we have these, but I'm going to read them and suggest that maybe there's support in there.” Maybe he thought that the viability line was [unintelligible 00:02:31] so we don't have to follow it. But also, it's bad that his papers are public.
Will: [00:02:37] That was weird.
Dan: [00:02:38] But yeah, it seemed there were multiple votes to overrule.
Will: [00:02:44] Well, definitely multiple, [laughs] the question is the number.
Dan: [00:02:47] Yeah. Maybe more than we were certain about. In particular, heading into this, you might have thought Justice Kavanaugh is one of the more uncertain votes because maybe there's a Robertsian compromise that he goes along with. His questions or statements at oral argument really made me think that he is not going to compromise. He is all in favor of overturning Roe v. Wade, and returning the issue to the States.
Will: [00:03:17] Right. Although I think what's interesting is he kept framing that as a compromise. He kept saying, “Abortion could be constitutionally protected. It could be unconstitutional as some countries have held and some people argue, or we could take the studious, the neutral position of overruling Roe v. Wade and leaving it to the legislature.”
Dan: [00:03:34] Yeah. [crosstalk]
Will: [00:03:34] Once he said it, that--
Dan: [00:03:36] It's all the question of framing.
Will: [00:03:38] Once he said it, that sounded just like justice Kavanaugh. I just hadn't anticipated that was going to be the frame he'd pick.
Dan: [00:03:44] Yeah. And he has this speech about-- it was phrased in the form of a question about like, “Wouldn't it have been bad if the court hadn't been willing to overturn Plessy v. Ferguson and Brown?” And talking about other cases where the court overturn precedent. I think that he seems pretty likely. I think that heading in, it would be pretty easy to assume that Justice Thomas and Justice Alito were pretty likely to want to overturn Roe.
Will: [00:04:12] I think Justice Gorsuch has said so, I think.
Dan: [00:04:14] Has he explicitly said? I don't remember.
Will: [00:04:17] I thought he joined one of those opinions last year.
Dan: [00:04:18] Yeah. Maybe he did. Ex-ante, you would have thought, that's the case where you might expect him to travel with Justices Thomas and Alito with a little dose of uncertainty about where he stands on social issues based on Bostock.
Will: [00:04:35] Not on where he stands on system due process.
Dan: [00:04:37] Yeah. Well, depends on what you make of Bostock--[crosstalk] Depends on whether you think law matters to him.I think it does matter to everybody. But I also think that people's views on the law are shaped by all sorts of things. Also, one issue, the key question really is going to be, stare decisis. Stare decisis is a pretty squishy inquiry that seems to involve a certain amount of policy judgments.
Will: [00:05:10] Has Justice Gorsuch voted for any stare decisis result he's been on the court? I'm not sure he has. Is there cases he decided not to return? But I'm not sure if there are any cases that he said are wrong that shouldn't be overturned.
Dan: [00:05:26] Yeah, that doesn't mean that hasn't happened.
Will: [00:05:28] No. At some point, I was just trying to put him on a list, and he was the one I couldn't. But I may have missed one or may have happened since.
Dan: [00:05:34] Do you remember that tax case from a few years ago, Wayfair?
Will: [00:05:40] Wayfair, was he on the court there?
Dan: [00:05:42] I thought that [unintelligible 00:05:46] got there, maybe not. Maybe that was pre-- no, that was after him, where he was saying that. I'm looking that up. He joined the majority that overturned precedent.
Will: [00:05:59] There you go.
Dan: [00:06:03] I was just going to say he may not be a big fan of retaining precedents with which he disagrees, in the same way that Justice Thomas is on.
Will: [00:06:12] I think Justice Barrett, as a prediction matter, the person whose vote I think will be the most or who's reasonably the most unclear. Whether she’d be open to something like what the Chief Justice suggests that they shouldn't unnecessarily decide, but overrule precedent if there are other things, other narrower grounds or they should find those narrow grounds inappropriate, but I don't really have any insight into what she's likely to do, which is part of why I haven't pressured you to record an episode about Dobbs.
Dan: [00:06:43] Yeah. I felt we've talked a lot about the abortion cases heading in. I don't know if we had much to say that was super insightful though it had a lot to other people that are commenting on it. But yeah, to wrap up that point about Justice Barrett, I thought she was a little bit harder to read at the oral argument. She has sometimes indicated that maybe we don't have to overrule precedent if we don't really need to. I think that if you were making a prediction ex-ante just based on her biography, and I think a lot of people sort of assume she's going to be super gung-ho to overrule, and if there are four votes there, I guess I'm not super confident that she would be the lone holdout. I was more willing to believe there would be like a Roberts-Barrett-Kavanaugh kind of constellation that might adopt sort of an intermediate position, and at least the Kavanaugh part of that, I don't see that based on the argument. People, they can always surprise you.
Will: [00:07:51] Yeah, that all seems right.
Dan: [00:07:53] So, if that happens, I would say that the political focus on the court, which has been high for the last few years, is going to intensify by a factor of 10 or 100. This is just going to be a really, really big deal. It's going to be something that's going to be all over the elections, even more than the court has been, and so buckle up.
Will: [00:08:18] I'm not sure that's true, by the way.
Dan: [00:08:20] Yeah? Say more.
Will: [00:08:21] I don't know. Obviously, it'll be all over lawyers and law professors and people steeped into the Supreme Court. But for regular people, I don't have a good sense of when the Supreme Court becomes a top agenda item, and when inflation and systemic racism and other things are more important. I don’t know whether-- [crosstalk]
Dan: [00:08:44] Yeah, so let me just offer couple thoughts on that. First of all, some people are just assuming that if this happens, it's the number one issue and it helps Democrats across the board, and that might be Democrats being overconfident. It may actually be less politically impactful than people think. But I do think this is the kind of issue that the public can grasp. This is not cases like Shelby County that are about complicated issues of federal statutes and structural constitutional provisions. This is going to be summed up.
[00:09:17] A lot of people, they haven't read Roe vs. Wade, but they know what it means. They know what abortion is and they have views about that. The headline will be “Supreme Court Overturned Roe vs. Wade and Makes Abortion Legal,” people can understand that. Not saying it's going to necessarily change the outcomes of all the elections, but I do think it's going to be very, very, very, very, very high profile.
Will: [00:09:43] Certainly high profile. People understand anything. I'm not sure everybody understands what set of abortion regulations are currently unconstitutional under Roe and what aren't. I think you can ask questions that get difference answers to that question. I'm not sure everybody will understand that your ability to get an abortion in many states will not change [unintelligible 00:10:05] Dobbs because many states will not avail themselves of the new power that court givesthem than other states will. I'm not even sure I know what will actually happen. What that doesn't really mean in a real-world sense if it happens.
Dan: [00:10:14] Yeah. Although, it means they say there is no constitutional right to abortion, Roe v. Wade is wrong, then presumably a total ban that a state would want to enact would be permissible. I think people will-- [crosstalk]
Will: [00:10:29] But we just don't know how many states either will enact them or if you've already enacted one, does it take effect?
Dan: [00:10:34] Yeah. I'd say more than zero. A lot of states have these trigger laws.
Will: [00:10:39] Are those going to be upheld or not? I don't know. They'll have to be a follow-on case to see whether those are treated as valid.
Dan: [00:10:45] What would be the basis for not for overturning them?
Will: [00:10:48] You'd say that some principle of intellectual activity or judicial supremacy or something means that the state has to pass a free and clear choice-- we do the same thing for administrator agencies. Sometimes, we say if they make.
Dan: [00:11:02] Yeah, I guess they could make up a new principal. But that doesn't sound super likely to me, either. I mean, sure, there's going to be follow up questions. [crosstalk] But the thing that they would do, could be summarized, I think, quite briefly and quickly. I think that's what people focus on. They know the court said there's a constitutional right to gay marriage. They don't know what the details, they surely haven't read the opinion. They just know those big picture things even if it doesn't resolve the question, which is actually why I always thought that the strategy for conservatives, the ones that are inclined to being more pragmatic and maybe less principled, would be to chip away at Roe, but never actually say we're overturning it. Because then, you get the outcomes, but you don't get quite as much of the public scrutiny when people just being able to say they're overturning Roe.
[00:11:55] It did seem maybe that was what was going to happen with the Texas law. Court got a lot of attention when it refused to step in there initially. It seems maybe they noticed how much attention that got. I just think it's going to be, obviously, it's an issue that's going to affect a lot of people, I think. I'm certainly don't share your uncertainty about whether it's going to change facts on the ground. It will change facts on the ground quite significantly in ways that will affect people's lives. But I think that it's going to change the public conversation about the court in a way that-- going well beyond what's been happening since then. Maybe from some perspectives, for the better, maybe for the worse, but it's going to be a thing.
Will: [00:12:45] Yeah. Well, in terms of what happens, let's see.
Dan: [00:12:47] That's one where I would anticipate we are going to be waiting quite some time for the decision there, because it's going to-- if they're actually overturning and even if they're not overturning, but just upholding the law, and there's going to be descends, people are going to want to rate separately. I'm anticipating, late June, July. It's hard to imagine them getting it out of the way earlier.
Will: [00:13:09] Agreed.
Dan: [00:13:10] That's actually not the main topic of our episode today. We wanted to talk about something we've actually been dying to talk about for months, probably shortly after we first formed this podcast, but we have been unable to do so.
Will: [00:13:29] Well, I've been unable and you've been very patiently waiting for my gag order-- [crosstalk]
Dan: [00:13:34] I can't talk about it with myself, just monologue [crosstalk] mute.
Will: [00:13:38] [crosstalk] -served to the podcast.
Dan: [00:13:41] Yeah, I could have just released an episode. But what's that? What's our topic?
Will: [00:13:46] Supreme Court Reform, and in particular, the institution, the Presidential Commission on the Supreme Court of the United States that has spent the past a little more than 180 days deliberating over whether the Supreme Court is broken and how it needs to be fixed.
Dan: [00:14:01] Yeah. Although is that actually what was being the question that was put before the commission? Let's give people the background. We have this commission, where does it come from? As people may know, there was a lot of upset on the left and the Democratic side about what's happened with the court. In the last few years, you have Republican Senate refuses to confirm Garland, keeps the seat open. Gorsuch gets confirmed. You have the very contentious Kavanaugh nomination. And then, you have Republicans confirming Barrett, I think, eight days before the election, basically, hypocritically violating their earlier statement that you have to let the next President pick the nominee. Basically, the perception is Republicans have gotten control the court through underhanded tactics. So, a lot of people in the left are calling for various forms of court reform, court packing, just add more justices, retaliatory justices.
[00:14:55] I have done some work with Ganesh Sitaraman where we proposed other kinds of reforms that were aimed more, is there some way we can design a Supreme Court that wouldn't produce this retaliatory political capture? Mayor Pete Buttigieg picked up one of those proposals or proposal for a balanced bench with an ideologically balanced court where there will be some justices from the lower courts sitting by designation. That got to be part of the conversation during the Democratic primary. Mayor Pete really made that topic a bigger topic during the Democratic primary. So, Biden was being asked about it, and then he continued to be asked about whether he was going to court packing during the general election. He tried various things on how to answer the question. I think he doesn't support it, but I think he didn't want to say no, because then he may be turns off the engaged Democratic base. But he certainly didn't want to say yes, because then he fears that freaks out the moderate, possible suburban Republicans who might vote for him. The first answer he tried out was, “I'll give you my answer after the election.”
Will: [00:16:11] [laughs] Which I found admirable.
Dan: [00:16:15] It did. As a marketing strategy, it was not super persuasive to people. And then, he finally came up with a strategy that I think was a little smarter, and that was the creationof this commission. We have the clip where he discusses the plan. Let's play that clip, briefly.
Biden: [00:16:32] If elected, what I will do is I'll put together a national bipartisan commission of constitutional scholars, Democrats, Republicans, liberal, conservative. I will ask them to over 180 days come back to me with recommendations as to how to reform the court system, because it's getting out of whack, the way which it is being handled. And it's not about court packing, there's a number of other things that our constitutional scholars have debated, and I'd love to see what recommendations that commission might make.
Dan: [00:17:07] Okay. That was in the run-up to the election. He's elected, doesn't really do anything with the commission on day one. It takes him, I don't know, what, like three months?
Will: [00:17:18] April 9th is the official announcement although I was contacted, I think during the transition. So, they were working on the commission.
Dan: [00:17:25] But the executive order went out several months, like in April.
Will: [00:17:31] Yes. For months, we were told, “It's about to happen, it's about to happen.”
Dan: [00:17:35] Commission is formed.
Will: [00:17:38] I guess we should tell people in case they don't know. I was on the commission. I was one of the commissioners. You were one of the people who testified in front of the commission telling us what we should do, so we both had a strong eye on the process.
Dan: [00:17:51] Yeah. You were the insider. I was the outsider lobbing stones at the commission. But yes, I did testify. That was interesting. It was on Zoom. So, it was not quite as thrilling as it would have been in a world where, I don't know, you would have been set up in, I don't know, like a room in the senators. I don't have anywhere where they would do that.
Will: [00:18:13] Some random federal building, I think, [crosstalk] we're presidential commission, not senate- [crosstalk]
Dan: [00:18:16] Yeah.
Will: [00:18:17] But we did everything on Zoom.
Dan: [00:18:19] Yeah, it was a Zoom, which honestly sounds pretty tedious to me. Let's just read the charge in the executive order of what you were asked to do. Let me pull that up. This is Executive Order 14023. Executive Order on the establishment of the Presidential Commission on the Supreme Court of the United States. This establishes a commission. It says, “Members shall be distinguished constitutional scholars,” There you go, Will, “Retired members of the federal judiciary, or other individuals having experience with a knowledge of the federal judiciary and the Supreme Court of the United States.”
Will: [00:19:01] That maintains ambiguity. I might be a distinguished constitutional scholar or I might be an undistinguished constitutional scholar, but another individual.
Dan: [00:19:06] You can't be both. It's like or, it's not--
Will: [00:19:10] It could be an inclusive or.
Dan: [00:19:11] It could be, and then it helpfully gives us the parenthetical indicating that they're going to summarize, they're going to refer to Supreme Court of the United States as Supreme Court and under the executive order, very official. Two co-chairs. The commission is asked to produce a report that includes an account of the contemporary commentary and debate about the role and operation of the Supreme Court in our constitutional system, and about the functioning of the constitutional process by which the president nominates by and with, the advice and consent of the Senate, and by and with the advice and consent of the Senate appoints justices to the Supreme Court. And then, also the historical background of other periods of nation's history when the Supreme Court's role in the nominations and advise and consent process were subject to critical assessment and prompted proposals for reform. A big book report summary [crosstalk] encyclopedia entry.
[00:20:02] Also, an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.
Will: [00:20:13] That's right.
Dan: [00:20:13] Produce report, lots of background. And then, an analysis of arguments and an appraisal of the merits and legality of particularly reform proposals.
Will: [00:20:24] This week, we ended up producing and then officially voting to speak to the President, a 294-page document that made it more than he bargained for, that has five chapters. One is the History of Reform. Second is Court Packing, although it's called Membership and Size of the Court, a little gentler. Chapter 3 is Term Limits. Chapter 4 is The Court’s Role on the Constitutional System, which is mostly a reference to things like jurisdiction stripping, other attempts to have the court be more deferential to the legislative process. And then 5, The Supreme Court’s Procedures and Practices, which means the shadow docket and judicial ethics, and cameras in the court.
Dan: [00:21:01] We're going to get into the substance. I think it's impressive that this commission actually was able to produce a document of this length and get everybody to vote for it, sort of, which we'll get to in a second. Let's talk about the membership, and then how the work proceeded. And then, we can get into the substance. The membership, I think there were 36 commissioners originally?
Will: [00:21:24] Well, 36 at first, and then we lost a couple on the way.
Dan: [00:21:26] Yeah. 36, which is a lot. It's a big commission. It's not a size that you want if you want a nimble group. It's a really big group. It's like the size of my faculty at my school or--
Will: [00:21:40] Yeah, mine too. [chuckles]
Dan: [00:21:41] [crosstalk] -hard to do stuff. It was, I'd say almost all law professors, a couple judges, former judges.
Will: [00:21:53] Political scientist.
Dan: [00:21:54] One political scientist.
Will: [00:21:58] And the heads of several public interest organizations, the Brennan Center, the NAACP.
Dan: [00:22:02] It was heavily tilted towards -- if you look at it, it's like, “Here's who we might invite to a very prestigious symposium on the Supreme Court that's going to be held at,” or something like that. Very elite law professors who teach con law or do stuff that's adjacent to that. So, not really people who had written about, and certainly not really endorsed court reform previously, which there are a lot in the academy. Actually, I think, Will, you might be one of the people who'd written the most about court reform heading into this, because you wrote a blog post last year about maybe term limits might make sense just because they'll make people happy.
Will: [00:22:45] I had a couple blog posts. Keith Whittington, I think, has written quite a bit about the history of debates about court packing. I think Tara Grove had written a quite a bit. There were there were a few people who've written a non-trivial amount. But, yes, mostly, two law school deans, mostly people who were in the general, constitutional law, constitutional interpretation area, but we're not necessarily focused on court packing term limits pro or con.
Dan: [00:23:10] Yeah. Tilted towards, I think, the very elite end, so the kinds of folks who write lots of recommendation letters to send their students to clerk under the court. One criticism that was aired pretty publicly after the membership was announced was, it's too elite, it's too many law professors and doesn't have people that are going to be really fired up in favor of reform. It's hard for me to take that on too clearly, because it would have been fun to be on the commission as somebody who had written a ton about court reform, about term limits or about other stuff. But on the other hand, given what the commission was being asked to do, which was analyze and report, it would be hard to have people on it who had their own proposals, and I can understand that. It seems to me, the criticism is more aimed at the charge of what was being asked to do. As I read the charge, the commission was not really being asked to do something dramatic. It was being asked to do a really detailed report.
Will: [00:24:23] Yeah. The report certainly concluded that ultimately, it was not the report's place to offer a list of recommendations, like here's our proposed bill or our proposed constitutional amendment. You could have read the charge of the merits and legality in different ways. One way to appraise the merits of proposals is to say, here's what should be done and analyze all proposals relative to that, but that's not what it did. Again, with 34 law professors from varied backgrounds, maybe that's sort of built into the setup.
Dan: [00:24:54] Yeah, and less in the way of people who are political action groups were pushing for immediate change. One criticism that I think is pretty well placed is, it did strike me as too many law professors, and I say this as a law professor. Too many law professors relative to-- you could have had more political scientists. There's a lot of political scientists who study the court, study judicial behavior, study public opinion on the court. The marginal value add of a few more people like that versus 26th or 27th law professor might have been good. Not a lot of historians. I think, your colleague, Alison LaCroix, she the only-- [crosstalk]
Will: [00:25:40] There are so many people in the commission, I always forget who's on the commission, but not a lot of historians. [chuckles] I think that's right. I will say, totally agree, somebody else should've had my seat, for sure. The funny thing about law professors, as you know, is that law so voraciously consumes other methodologies. Lots of the law professors on this group have written extensively about constitutional history or consume-- participate and write the political science literature, I think law professors often overestimate our ability to mimic political science professors and historians and other methodologies. So, I'm with you that probably some people who had a different set of methodological skills could have been useful, could have been so much better on a larger symposium anyway. But there are quite a few people on this panel who do empirical work about the Supreme Court and things like that.
Dan: [00:26:34] Yeah, that's certainly fair. I'm a law professor who's done some work like that. But it seemed like there were broader representation of different kinds of sources of inquiry might have been useful. It had the feel of, “Hey, let's just invite our friends at Harvard and Yale to be on the commission.”
Will: [00:26:57] Well, I do think there's another interesting-- I was not privy at all to those conversations about who to invite to be on it, and I don't know why they asked me, but [crosstalk] a lot of different--
Dan: [00:27:05] You know why they asked you. Well, it's a bipartisan commission. There were some prominent conservatives asked to be on the commission, right?
Will: [00:27:18] Well, I was going to say it was bipartisan more like the way a law school's bipartisan, not like Congress is bipartisan, couple of token conservatives, none of them actually voted for Trump, and that counts, but that's okay. There were a range of different political backgrounds or ideologies that it was quite racially diverse, there was an effort to make sure it was relatively gender diverse. There are some big names that if they're not on the commissioner, that'd be odd, like Larry Tribe. And once you add up all the different things you're trying to do, you end up with 34 people and they're all law professors already. So, I do see how that happens.
Dan: [00:27:53] Yeah, it's 34-36. On that note, I think the commission was largely full of liberals. Less in the way of people I would describe as true left. I don't want to characterize everybody on there, but the bulk of the folks I would characterize as traditional liberals.
Will: [00:28:18] Liberal rather than progressive or something.
Dan: [00:28:20] Yeah, maybe that's the better word, not progressive. And then, some folks who are seen as conservative. You obviously, former Judge Griffith of the DC Circuit, a Republican appointee. I don't know if Judge David Levi, former Dean of Duke Law School, former federal judge, is considered a conservative, I think he is a Republican appointee, George Mason's Adam White. But then a couple people, conservative folks who quit, which is interesting. I don't have any special insight, but those two are Harvard's Jack Goldsmith, and Virginia's Caleb Nelson, and they were on the commissioner the beginning, they were not on at the end. They haven't really said why, but presumably, they didn't agree with what the commission was putting in the report or was going to put in the report, or they just found the meetings really tedious, which I would have. But you didn't quit, Will.
Will: [00:29:19] I don't feel I can speak to why they quit, if they're not going to speak about it. But I will say, I thought seriously about quitting around the same time, which is around the time that we, as members of the commission, were first able to read the report we've been writing, because as a consequence of the federal transparency rules, it was very difficult for documents or anything like that to circulate them on the commission as a whole, because then that would be a deliberation, which would then have to take place in public. So, it was quite late in the day that we really sat with others on commission to first delivery of the first full draft.
Dan: [00:29:52] And because it was going to split up into sub committees and stuff where people were writing parts of it and then--
Will: [00:29:58] If working groups are studying a particular issue and writing materials about that issue, then that's not a commission deliberation. But once you have a full document circulated with the full commission, then that's more like deliberation that has to be public. When that happened, they suddenly--
Dan: [00:30:13] [crosstalk] -federal bureaucracy.
Will: [00:30:14] Well, I will say that's actually the biggest learning experience I've had about this whole thing, was the federal bureaucracy.
Dan: [00:30:20] That’s your next article. You're going to do the original meaning of the Federal Commission's Act or whatever.
Will: [00:30:26] The case against FACA. I'd worked for the federal government for two years as a law clerk, so I thought I knew what federal bureaucracy is like, but I think I'd not appreciated how much more streamlined the federal judiciary is, as cumbersome as we think about it, compared to a lot of the things that have happened.
Dan: [00:30:42] Yeah. You said you considered-- you saw the documents, and then you were like-- what was the thought process?
Will: [00:30:50] Well, I guess the thought process was, at this point, I had taken an oath. I had a commission, like an actual commission, Marbury vs. Madison commission to hang on my wall.
Dan: [00:31:01] Would you have to send that back if you quit?
Will: [00:31:03] I thought about that.
[laughter]
Dan: [00:31:05] Is it actually on your wall?
Will: [00:31:08] It is leaning against the wall. It is framed and leaning against the wall.
Dan: [00:31:11] Did they frame it or did you pay to frame it?
Will: [00:31:13] I paid to frame it.
Dan: [00:31:14] You paid to frame it, but didn't bother to put it on the wall?
Will: [00:31:17] The law school facilities people have to be the one to hang things on my wall.
Dan: [00:31:20] Okay. Yeah, we have that too.
Will: [00:31:23] And I just haven't called them yet. They will.
Dan: [00:31:25] But you had the wherewithal to frame it. Have you gotten admitted to the Supreme Court bar?
Will: [00:31:29] No. I have until the end of the season, don't I?
Dan: [00:31:33] I mean you have nothing. You should have done it 10 years ago, but, yeah.
Will: [00:31:37] I wasn't eligible.
Dan: [00:31:38] Do whenever you want.
Will: [00:31:39] I guess, I was.
Dan: [00:31:41] You have been eligible for a while.
Will: [00:31:42] 10 years, almost exactly 10 years, I guess. It doesn't matter. [crosstalk]. I thought to myself, the question is not at this point, “Do I agree with this document?” The question is, “Will I be doing more good by staying around the meetings and trying to talk to people and trying to push the document in a direction I think it should go?” I decided for better or worse that it'd be helpful to stay a part of the conversations.
Dan: [00:32:11] In terms of the document that was ultimately produced, the final report, it honestly doesn't take a lot of substantive positions on stuff. A lot of it is exposition, giving background. It's quite useful in that in that regard. I'm going to rely on this and cite it anytime I read anything of a court form in the future. It's really thorough discussion of history and various instances where people have proposed different kinds of court reform. And then it talks about pros and cons of various reforms. It's a lot lighter on bottom line conclusions about, like we should definitely do this or not do that. I read the draft ones at the time, maybe they were a little bit more tilted towards recommendations, but even those were not super heavy handed in taking positions.
Will: [00:33:04] Yeah, I think that’s right. I will say two other different kinds of reports you could imagine, but you could imagine a much shorter report, like a 16-page report designed to actually be widely read that's just like bottom line conclusions. You've called together 34 law professors and we all agree the Supreme Court has gone too far, and the time has come to add four justices. And we hate to say it, but it's time to break the glass or the opposite. All of us agree that it would be premature to pack the court. At a minimum, we have different views of what it would no longer be premature, but we're not there. You can imagine document more like that, that kind of position statement. That obviously is not what the commission produced.
[00:33:48] And you can also imagine one that that decided to lean in more toward legal expertise that just made firm conclusions about the legality of all the proposals. Here's why court packing is constitutional. Here's the deal with term limits, and whether or not you can do this various big debate that you've taken part in about whether you can effectively limit Supreme Court justices' terms without technically limiting their terms so as to comply with the Constitution. You'd imagine one that's all in on law, and then says about the policy, we leave that to politics or something, the commission did not produce any of those options.
Dan: [00:34:23] Yeah. It seems like to me both of those options were unrealistic to expect given the size and diversity of the commission's membership. I can't imagine that every single person on the commission has the same view about the constitutionality of the various reform proposals.
Will: [00:34:43] Apparently not. The report does take a firm position that court packing is lawful. It does not explain why, but it does conclude that the arguments that it is unlawful are wrong.
Dan: [00:34:56] Yeah. I'm thinking about the same part that you're talking about. It references Georgetown Professor Randy Barnett's testimony before the commission, where he argued that partisan court packing is unconstitutional finding some support for this-- claimed support for this and his version of originalism wasn't totally clear to me whether he was actually making that argument with a straight face or not. But yeah, the report does poopoo that argument.
Will: [00:35:26] You can imagine saying it's wrong because I'm an originalist and at founding, there was much more court packing than we see today. A living constitutionalist might have a different explanation, because they might normally rely on 150 years of practice to produce a conceptual norm, and they'd have to have some different explanation. You can also imagine people thinking, actually, partisan court packing might be something that really was just partisan court packing, might be unconstitutional, but that what people are proposing is not really partisan, because it's designed to save the country from evil or--
Dan: [00:35:59] Yeah. It is challenging though to distinguish what's partisan or what isn't given that many things that legislators do, they're doing to effectuate their preferred policies.
Will: [00:36:17] That's absolutely right, one interesting irony. Another way you could resolve this was to say, “Well, it's challenging to know what’s partisan. That's why the Supreme Court has concluded that partisan gerrymandering is not justiciable, and chosen to stay out of that.” We should draw the same lesson here, that for the same reason partisan gerrymandering of the Supreme Court will be effectively fine or not justiciable. But the Supreme Court decision with that is very controversial including among some of the same people who support court packing. It's just complicated to get the story straight, I think.
Dan: [00:36:48] Yeah. In my testimony before the commission, you speak for just a few minutes and you get a couple of questions, but you also submit-- I had the opportunity to submit written testimony. In my written testimony, I said various things. One of the things I tried to do was, "This is a bipartisan commission, can I try to make an argument for our system being broken in a way that doesn't just appeal to people's partisan inclinations?" I think that's really hard. I tried to do my best there, partially just to work the argument out and then talk about different strategies for how those problems that I identify, which I sort of tried to frame as new structural problems, it's like you've got this really powerful institution, the way the membership is chosen is semi-random, subject to manipulation. And it's ultimately, in a world where politics and law are both very polarized. It's going to lead to crisis like we're seeing now.
[00:37:57] I close by sort of saying, look, the main thing, I think would be really good to do is not do something. Try to not come up with a claimed consensus that a bunch of things are impermissible, that are unconstitutional. I feel that is where the commission is much more likely to be persuasive than anywhere else. If the commission writes this, this democratic commission had written this report that said, “We think court packing is unconstitutional,” that's then held out as a cudgel by Republicans say if Democrats tried to do it in 5 years or 10 years. And so, my admonition was try to not take anything off the table, don't do any harm.
Will: [00:38:46] Did we do okay on that [unintelligible [00:38:46]?
Dan: [00:38:47] I think so. They do evaluate the constitutionality of various proposals, and they don't love the constitutionality of mine and Ganesh’s proposals, which is fine, because when we propose them, we specifically sort of said, like, these are adventurous constitutional arguments and our goal isn't actually to make slam dunk arguments, but to say, “Let's think creatively.” They left some things on the table. I think the report says maybe panels would be okay, that doesn't necessarily-- some people have said, “You can't have a Supreme Court that sits in panels, because the Constitution says there should be one Supreme Court.” I always thought that was a dumb argument, and the commission report seems to sort of say, “Yeah, that's not totally persuasive.” So, I thought it was good.
Will: [00:39:36] I don't think we say it's unpersuasive. We just don't take a position on it, I think.
Dan: [00:39:43] Well, I read the report maybe not conclusively ruling it out, but maybe saying we don't think that-- I read the report as saying like we don't buy this argument completely, or this is an argument but there's a lot of counter arguments to it.
Will: [00:40:02] There's a passage where it says, “The commission is not prepared, however, to conclude the rotation in panel systems are clearly unconstitutional simply on the ground that each would entail.” I will say there are individual commissioners who were prepared to make that conclusion.
Dan: [00:40:15] Oh, I'm sure.
Will: [00:40:16] I think this reflects just a lack of consensus on the commission. Not the consensus that the argument is bad.
Dan: [00:40:22] No, that's fair. But I'm just saying the point is, this report cannot be used to try to take that off the table is my point.
Will: [00:40:29] Right. Different from the commission, the report seems to say something slightly stronger about court packing, if not for--
Dan: [00:40:35] Yes, [crosstalk] But I always thought that the report saying something is permissible is certainly not going to be the last word on anything. The commission saying something Democrats want to do down the road is unconstitutional is harder. An example of that being that a big talking point that emerged during-- there was a political debate about court packing in the run-up to the 2020 election that got derailed by the way the Senate broke down, but a lot of people were sort of passing around-- was the 1937 Judge Senate Judiciary Committee report saying that, “Court packing is unconstitutional.” This was a majority Democrat commission, and that was being used as, "Look, they thought it was unconstitutional."
[00:41:21] I don't think that they did anything here that's really going to be super damning, super problematic. If people want to pursue more kind of adventurous reforms-- People in Congress have put forward statutory term limits proposals. This report is not big on those, I would say, but I just think that those kinds of conversations should play out a bit more in the political arena, and not be short circuited by this kind of effort.
Will: [00:41:56] Yeah. I think it's unfortunate that again, the commission of law professors, so our main expertise is law, couldn't come to consensus on even basic questions like, do term limits have to be done by statute or by the Constitution. I talked to some political scientists actually about like, “Is there anything useful this report could actually do to contribute to the conversation?” One of the answers I got was, “The most useful thing you could do would just be to give us a clear answer of whether this could be done by statute or the Constitution.” Some of them had the opposite of your view, like, “It'd be fine if the clear answer is you need a constitutional amendment, and we won't waste our time.” Imagine spending a ton of little capital to get through a statute term limits proposal, only to then have it be held unconstitutional anyway. So, I think it's unfortunate that the report couldn't supply more. [crosstalk]
Dan: [00:42:41] My view is that this report could not conclusively foreclose-- could not make a predictive determination about what would happen. It's a hard question. It depends a lot on your theory of constitutional interpretation. How it is answered, it depends a lot on what's happening in the country at the time. Just realistically, I don't think this is math. I think there are some easy constitutional questions. There are a bunch that are not that you can't just break it all down and then just get the answer, and then it's resolved for all time, you've got the proof. The proof in--[crosstalk]
Will: [00:43:29] I agree.
Dan: [00:43:30] [crosstalk] -unassailable.
Will: [00:43:31] I agree law is not math, probably better at law than I was at math. But at the same time, I say it's unfortunate. It's unfortunate that these legal questions are some of the ones on which it is unclear. And the unclarity seems to be caught up in our polarization. It would be better if somehow either the constitutional texts were clearer, or our ability to find consensus was different, because you might have thought--
Dan: [00:43:57] But I don't think this is a unique problem for like the good behavior clause. Many of the questions that we care most deeply about are ones where constitutional text is vague, other sources are deeply indeterminate. The question has never been firmly answered. It depends a lot on what you think constitutional law is and how it should work. There's just a lot of things there.
Will: [00:44:24] I agree. Although there are times so there seems to be a widespread bipartisan, in my view, deeply mistaken, but bipartisan agreement that the US Supreme Court gets the last word on most constitutional questions, for instance. That's an example that may be good in some ways that we all have managed to reach consensus on that, even if we then find a lot of what the Supreme Court should do. One of the things people said a lot during the commission meetings about the commission, like one of the things this commission might accomplish is show that you can bring together a bunch of people who have different views of the world and show that they can still make some progress or reach some consensus and show that's possible in our deeply polarized world. I guess I wish we'd done more of that. [laughs] [crosstalk]
Dan: [00:45:06] Yeah, I agree with that a lot. I feel that's a motivation for this podcast. I feel we are in a moment in political and legal time where polarization is very high, and it strikes me as extremely threatening, in the sense that in a world where basically all legal questions are just seen as there's Democrat answer and Republican answer, it's very hard to understand how you can have what we call a rule of law in a sense. You just have people picking sides. So, trying to preserve-- and this is something I talked about a little bit in my written testimony. Trying to preserve some area, common ground is really critical even though it's very challenging. Even though there's a lot of reasons why people on the left don't want to preserve common ground, they're very, I think, rightfully unhappy about the political chicanery that led to where we are. Really on both sides, there's a lot of feeling that the other side is acting in bad faith. But we do need to have some core of what we agree on is a correct legal answer to some things, because otherwise, I think everything falls apart.
Will: [00:46:31] I'll say, at the risk of self-aggrandizement, I think we are more successful at [unintelligible [00:46:35] in this podcast than maybe the commission was.
Dan: [00:46:38] Well, there's only two of us.
Will: [00:46:40] Well, that is the question, is if you can do it with two, and you can't necessarily always do it at 34. [chuckles] What's the number, nine? More or less.
Dan: [00:46:50] Yeah, but maybe in some areas, we have views that overlap. I think we have slightly different policy legal views for sure. But we're not hardliners with respect to our own ideologies and legal views. Maybe you're hardline on your legal views, I'm not sure.
Will: [00:47:11] [laughs]
Dan: [00:47:11] [crosstalk] -is on that.
Will: [00:47:13] I don't quite know what that would mean.
Dan: [00:47:15] I don't either. But it also depends on what kind of conversation you're having. If you're having a question about, we know who's on the Supreme Court, we know the legal materials, what's the answer in this case? It's like a prediction versus what is platonically the best answer. That might be a different question.
Will: [00:47:36] It's tough, because I think Congress and the President are often sort of doing both. Obviously, usually you don't want to pass legislation that you can confidently predict will be struck down bythe Supreme Court, although occasionally you might do that to prove a point. But then, also some members of Congress care about the Constitution, some platonic ideal of the Constitution. There might be things that Supreme Court would tell them they could do. They would say, “No, no, no. My understanding of the Constitution doesn't let me do that.” And that'd be different. Can I run a few specific ideas by you that didn't make it into the report just to talk about the merits a little bit?
Dan: [00:48:13] Yep.
Will: [00:48:14] Okay. Here are a few reform puzzles that I've come to think would be good. I'll put them together two as a package. So, I don't think-- Well, I guess, makes me think. On the size of the court, I think at this point, it would be a good idea to have a constitutional amendment fixing the size of the Supreme Court at nine so as to eliminate the fear of each party that the other party will pack the court as soon as they get a chance. Now, obviously, we might later learn nine is the wrong number and need more. But if we ever had like a true bipartisan need for a different number, we could always amend the Constitution to have a different number. At this point, it’d be safe as to just to fix it at nine.
[00:48:49] On confirmation process, I think we should reinstate the supermajority requirement for confirmation by constitutional amendment, not rely on the filibuster. I'm open to what the number should be, but two-thirds or something seems good to me. And thus, that will force presidents to compromise, to pick people who can get-- I mean, you can always try [unintelligible [00:49:05] party just to confirm nobody [unintelligible 00:49:06] you for that but the usual record of shutdowns is that doesn't work very well.
[00:49:12] We should make constitutional amendments easier, because a huge amount of the-- like you can't solve the Supreme Court problem without solving the problem of the stakes of the Supreme Court. One of the reasons we all care so much about the Supreme Court's constitutional decisions is because we think amendments are de facto impossible. And so, we should just make the amendment process much easier. We do those three things together, we'd have a much better system.
Dan: [00:49:33] Okay, super interesting. Let me tackle those one by one. Fixing the court at nine, if that's the only thing we're going to do, I don't love that. I think your view of that depends a little bit on your view on how much do we trust courts versus want to have democratic political input on the system. I do think that having the cudgel of court packing is useful for keeping the court maybe a little bit more majoritarian. I do not love the idea of just saying we have nine, and even if got those nine in a way that seems deeply problematic, we're just stuck with them and there's nothing the democratic process can do about that. I don't know, I think having some of these tools, even if they're never used, probably better if they're never used just in the background like we're packing, like jurisdiction stripping as potential threats is good. I don't love that. I don’t love that one. I could see pairing it with the term limits amendment, I could see that [crosstalk] to the case.
Will: [00:50:43] I think term limits amendments almost all have to also include the number because otherwise the term limits don't--
Dan: [00:50:49] Yeah. I mean depends on what kind of term limits proposal. If you have a statutory term limits proposal, you don’t have to fix it--[crosstalk]
Will: [00:50:55] But constitutional amendments setting up 18-year terms, the assumption is that because there are nine justices every two years.
Dan: [00:51:00] Yeah. I just don't love that, because I can imagine, what if four justices die in a plane crash, and Trump puts four crazy people on? There's just a lot of scenarios you can come up with. I just don't like the idea. Part of my objection to the current state of affairs is this is a really small group of people and they exercise a huge amount of power for a really long period of time. And their membership is semi-random and only kind of bears a partial connection to the results of elections. And I think that makes it worse to me.
Will: [00:51:36] [unintelligible [00:51:36] impeachment should be as off the table as it is, by the way. [crosstalk] but that wouldn't solve all the problems. [crosstalk]
Dan: [00:51:43] Yeah. I mean you can't really change the--
Will: [00:51:45] We can't impeach actual bad people now, so--
Dan: [00:51:47] -rules there. Supermajority. Very interesting. It may be almost confuses symptom for disease, in the sense that the problem with the current-- Supreme Court nominations have gotten increasingly polarized and contentious. We eliminate the filibuster, and now it's a pretty line. But I don't think that's happening because we've eliminated supermajority requirements. I think that's happening because our politics is more polarized and our legal culture is more polarized, a lot of our nomination battles or proxy fights about other things, proxy fights about abortion. In a world where we increasingly have these two, just totally, totally opposed schools of constitutional interpretation and stakes are so high, I don't know, does anybody get-- who gets 60 votes? Maybe Congress cooperates about other things, but maybe you just have much longer periods where no one can be confirmed. I think that having a supermajority requirement for other things in the Senate has not obviously been a great thing, from my perspective. I don't know, would that be better? Maybe there's a lot of like-- I don't know [crosstalk] types that you could-- [crosstalk]
Will: [00:53:06] Yeah, exactly. The big question is there are a set of nominees who we think of as unconfirmable, who would be great. Maybe they are conservatives, who are very differential on like-- they're in conservatives, like Frank Easterbrook, maybe they're just really old. Maybe they're incredibly well respected intellectually, but a little bit unpredictable politically, like former Judge Richard Posner, think about in that space who those people might be. And you're right, it might be that at this point, what we’d actually get is nine empty seats. Although Sam Moyn and some other witnesses for the commission might I think that was an improvement too.
Dan: [00:53:46] Yeah. Well, let me tell you what I do like about that, though. I do like the motivation underlying it, like, “Let's try to find this center.” And that is one of the features of the balanced bench proposal that Pete picked up, was you've got these two groups of partisan justices who are slotted to political party, which is actually not as crazy as it sounds. That's how there's informal arrangements like that and constitutional courts in other countries. But then, you would pick five more justices as by designation, they would sit with the court the way that Court of Appeals judges do with district judges, but they would have to unanimously approve the slate. The idea there was something similar, it's like maybe there are these moderate types, like you suggested, I don't know if Posner's the right call because he's just so wacky, but people that are respected, but are not seen as true partisans. The counterargument, and maybe this applies more to your suggestion than mine, is that what it ends up selecting for is the Kagan-Roberts type, who are both great, but who both very studiously avoided taking positions publicly and it was like really hard to know what they thought. Which I get, but I don't love. I actually have a lot more respect for people that are willing to say what they think. That's what I've always done in my career, and certainly what seems to be what you do. I don't love a process that seems to select for people that lack that kind of civic courage.
Will: [00:55:13] Yeah. I'm not sure I accuse either Justice Kagan or any other Chief Justices of lacking civic courage. But I agree that neither you nor I would be likely to be confirmed under this kind of regime. But that might be-- I mean, yeah-- [crosstalk]
Dan: [00:55:26] Or possibly any other.
Will: [00:55:26] [chuckles] Fair enough. My favorite justices would not succeed under this regime. I don't think-- [crosstalk]
Dan: [00:55:33] I [crosstalk] got like almost unanimous approval.
Will: [00:55:37] That's true.
Dan: [00:55:38] That was a different time. Third one, make constitutional amendments easier. Yeah, that's super interesting. Again, I don't know if that's good or bad in a world of polarization. One thing is, as a Democrat, I'm not going to love that, because the way voters are distributed, Republicans have a big advantage and control of state governments, typically.
Will: [00:56:04] We could do it lots of ways. We could do a national referendum 65% voting roll or something.
Dan: [00:56:08] Yeah, I like that. I'm generally more in favor of stuff like that. It has led to good results in my home state. There's stuff that the legislature won't put through, but it's actually broadly popular. I don't know how it would work out. I think that it could mean we get really big improvements to law. It could mean that we get stuff that's crazy. But I do think something like that, I think would be potentially good.
Will: [00:56:35] I guess the question is, would it succeed and taking some pressure off? Presumably, we get good and bad stuff, who knows? [chuckles] Probably, lot of really bad, from my point of view. But would it succeed in taking the pressure off trying to get the same bad stuff in a worse way?
Dan: [00:56:50] Yeah, I guess it depends. It depends on the breakdown. There's things in which society is really closely divided, like 51-49 or something. The court can either make those things happen or freeze them in their tracks. The fact that a supermajority of people could change the result doesn't necessarily mean anything if society's really closely divided, and so the stakes of the court are still very high.
Will: [00:57:21] Maybe it also changes the way some of the justices think about it.
Dan: [00:57:25] Yeah. It would be interesting.
Will: [00:57:29] [laughs]
Dan: [00:57:29] I'll say that. Maybe a lot depends on the specifics of what it would look like. But in general, I share the inclination that right now, part of the problem is that we're asking them to do much, we expect them to do too much, the justices, and figuring out some way to make them less significant, and make the stakes of what they're doing less significant would be healthy, be healthy for democracy and be healthy for the political process. Not bad. But again, none of those are going to happen, because [chuckles] it's so hard to amend the Constitution.
Will: [00:58:14] I mean who knows what'll happen? I guess maybe this is the version of your original point. It's usually a mistake to write off even constitutional amends, because a lot of the constitutional amends that happen to the Constitution were repeatedly proposed and shot down over and over again, until suddenly they weren't. [crosstalk] -the Senate, everybody always said, “The Senate will never agree to direct elections. Direct elections will never happen, so we have to go through the Senate, and why would they agree to that?" And indeed, they shot it down, like 171 times or something, and then eventually didn't.
Dan: [00:58:47] No, that's fair. Well, I'll say this, which is that I cannot imagine these kinds of amendments passing until we are in a different political moment that is not polarized in the same way as we are right now. And if we are in that different political moment, it is harder for me to know whether we need these reforms or different ones.
Will: [00:59:05] Yeah, fair enough. Ideally, what you'd like are proposals that can serve as a focal point for trying to organize us in getting out of our polarization. I think this is the one thing I'd ever written about court reform before this, is this I feel about term limits. I think term limits are probably a bad idea for the Supreme Court, but probably mostly harmless, but if they have any consequences, they're probably bad. But a term limits constitutional amendment, I could imagine being salutary because I can imagine a world where that becomes the political conversation that helps us get to a better place, that becomes the thing that a way to think about getting us all to agree on what we want from the court in another way.
Dan: [00:59:48] It produces some common ground. I get it. I totally share-- I don't know if I agree with you about the criticisms of term limits or whether doing that would produce that kind of benefit but I definitely I agree with that motivation. I think part of the problem is how do we even agree on what the things are we should agree on. Ganesh and I have an exchange with friend the show, Steve Sacks. He wrote a response to our original piece, and then we have a follow-up where we respond to him. His argument is, look, the problem is the court is that we see this court as a super weapon that can do whatever it wants. And of course, in that world, people are going to fight tooth and nail over controlling it if court has this magic power. I think that's right. The question is what's the solution? Steve says, “The solution, it's converge on the legal materials and real consensus.” But then, our view is like, “Well, that just ends up looking like you're just saying originalism is the solution.” That's for people on the left who don't buy into that, that's not the solution. That's just surrender. I don't know how to do it. I do agree that it is trying to do that is important.
[01:01:06] The other thing that's hard is you also want to be able to call out stuff that you see as bad or that makes you angry, and you don't want to just be like, “Okay, well, everything this court is doing is great and totally, totally fine.” If you really, really fundamentally disagree with the whole project, you disagree with the way in which the court's majority was obtained. I don't know, it's a real challenge for me to think about the right way to do that.
Will: [01:01:32] So, to tie into where we started the show, I think Roe v. Wade also casts a huge and complicated gravitational shadow over these debates. There are a lot of people whose general message on the court and to the commission was the Supreme Court [unintelligible [01:01:49] bad. On the whole, the Supreme Court has done more mischief than good in the constitutional arena. They could be in favor of a different kind of de-escalation, like strong [unintelligible 01:02:00], strong deference to legislatures. Except for Roe, which very few people on the left are willing to openly give up on. Some of them may say that privately. It'll be interesting to see, this is not the most important thing consider for Roe v. Wade overruled. But I do think one of the conversations, will that then free up the space for a more just forthrightly anti-judicial review progressive wing? Then that'll be like we used to be keeping the court around for this one thing, and now they're not even doing the one thing, we can move on? Or will it do the opposite? Will the fight to recover Roe sort of destroy judicial deference forever.
Dan: [01:02:34] Yeah. I tend to think maybe it's going to be the second thing more than the first, but I'm not sure. I'll say that I am someone who is like-- you can be more worried about courts doing bad stuff, or you can be more worried about them not doing good stuff. I'm sort of the I'm worried about them doing bad stuff, like striking down stuff, I think that is good rather than not striking down stuff, I think that's bad. Obviously, most people want the court to do a mix of those things. Most people have one thing, this is the thing they're really worried about. I'm worried about-- I want the court to be majoritarian, striking down things, or I want the court to not stand in the way of democracy. I am more in the second group.
Will: [01:03:16] Me too.
Dan: [01:03:17] Good, but--
Will: [01:03:19] Not for the same reasons, I think, but--
Dan: [01:03:21] I'm sure not. I'm sure it's because originalism commands that or something, I don't know.
Will: [01:03:26] He who asserts must prove.
Dan: [01:03:28] Flesh that out for me?
Will: [01:03:29] I think for the Supreme Court to take the step of disregarding a statute, is to make a stronger assertion than merely applying a statute. Then, the burden of proof falls on them. That's just a core-- a fundamental way to understand the institutions place in the world, is that you need a justification to change the status quo.
Dan: [01:03:51] Yeah, although that doesn't answer the question of whether you think that could be that you think that there are really good justifications in some cases, and it's really bad for the court not to find those. That doesn't answer this question, right?
Will: [01:04:02] That means from the baseline, err on the side of caution. The first do no evil is that. I'm not sure the Supreme Court’s worst decisions ever are all ones invalidating statutes rather than failing to find rights, but I think the fundamental principle of judicial power is that he who asserts must prove.
Dan: [01:04:23] Yeah. What's in the so called anticanon? Some of those are cases that really court failed to protect right. Plessy v. Ferguson, they--
Will: [01:04:29] It's two and two. Lochner, Plessy, Korematsu, Dred Scott.
Dan: [01:04:32] Okay. Yeah, Dred Scott, they do exercise the power of judicial review. Lochner, same. Korematsu, they refuse to find-- in Japanese [unintelligible [01:04:41] unconstitutional, so that's-- [crosstalk]
Will: [01:04:43] Yeah. I assume-- yeah, it's a tidy feature of the anticanon that it's two on each side. So, it's not.
Dan: [01:04:51] It is an accurate, this is-- Jamal Greene’sarticle, The First Place, that really comes up with this. I feel like the assignment of the cases is correct. That seems correct to me.
Will: [01:05:03] Yeah. At the time he wrote the article, Korematsu had not been officially overruled by the court history. So, there's Korematsu was this awkward one.
Dan: [01:05:13] Don't get me-- [crosstalk]
Will: [01:05:14] And Lochner is awkward in different way in that it's the least clear exactly why Lochner is wrong even if everybody agrees it's wrong and it's also maybe not wrong.
Dan: [01:05:24] Lochner is coming back, right?
Will: [01:05:26] I might be becoming pro-Lochner, which makes me really uncomfortable.
Dan: [01:05:34] Do you have privileges or immunities?
Will: [01:05:38] I started a paper on the original meaning of the privileges or immunities clause, and I'm not done yet, but Lochner is plausible.
Dan: [01:05:45] I could see it. Lochner bothers me less than some other stuff. There's a lot of crazy economic protectionism that wouldn't be the end of the world to have the court take a closer look at. But other stuff, the idea that the court is going to strike down healthcare and stuff like that tricks me. I'm more worried about stuff like that. But yeah, it is interesting to see how the anti-judicial review set of ideas, how much that currency that will pick up on the left. It's already picked up some steam compared to where we were a decade ago, five years ago, but is that going to continue? Or is the debate all going to be around, how do we get more democratic-appointed justices on the court so they can bring Roe back?
Will: [01:06:35] This is [crosstalk] restriction. Powerful about the nuclear weapons analogy. We may disagree on what the path to nuclear disarmament looks like, but I think it's good to try to find one, before we blow each other up.
Dan: [01:06:50] Yes, I agree. Another view you can have is it's good for people to just blow the court up, because it's not necessarily good for the court to be super, super legitimate, be able to do whatever it want. Maybe if the court has less legitimacy, we just have more democratic self-government. The interesting thing about--
Will: [01:07:11] [crosstalk]
Dan: [01:07:11] Sorry, I'm interrupting you. But the interesting thing about the argument in Dobbs is some of the Democratic justices are talking really openly about, like, “This is going to look really bad for us. This is going to have a stench on it if we are seen as being persuaded by politics.” One response to that is the court looking good is not the most important thing here. Maybe that shouldn't even be a consideration. I don't know.
Will: [01:07:35] Well, I kind of agree. The nuclear weapons analogy, the radiation damage is not limited to the Supreme Court. [laughs]
Dan: [01:07:43] Yes. That’s--
Will: [01:07:45] Supreme Court is the nuclear weapon and [chuckles] we are the victims.
Dan: [01:07:48] Yeah, that's fair. I do in-- how to say the Supreme Court first piece on this, we do make an argument about Supreme Court legitimacy in our claim is that if the Supreme Court loses legitimacy, that may delegitimize law more generally, that I'm more worried about. Okay, so we've talked a lot about this. Do you have any takeaways? Are you glad you did this? How much time did this take?
Will: [01:08:12] [exhales] I don't know. I learned a lot in doing this although mostly, I think, unintentional lessons. So, I suppose I'm glad I did it. But if I were asked to serve on another presidential commission in the future, I'd probably want to have some more-- I'd have more pointed questions to ask about what exactly we're doing. I do worry a little bit. The thing I feel worst about is you, Dan. I worry about all of the law professors who we got to put on suits and spend weeks of their summer vacation writing us incredibly insightful and well-researched things under the impression that we were going to do something other than what we did.
Dan: [01:08:50] [laughs]
Will: [01:08:50] And if I try to count up the total number of legal genius man hours spent producing this report, I think it's pretty hard to justify.
Dan: [01:08:59] Okay. Well, in fairness, I wasn't really under any illusions about what the commission was going to do. I think I saw it clearly.
Will: [01:09:07] So, why did you do it? [crosstalk]
Dan: [01:09:08] I don't know. Well, first of all, if I don't do it, it looks like I'm mad that I'm not on the commission. It's insulting to people or it makes me look dumb. It looks good to do it, and I don't mind doing it. I've got stuff to say, it gave me an opportunity to crystallize some stuff. I probably spent a week reading my testimony, maybe less than a week.
Will: [01:09:32] Think of all the movies you could have watched.
Dan: [01:09:33] Yeah, but now I'm going to turn it into a short symposium article. So, it's all going to work out.
Will: [01:09:39] Good. I'm glad you're on that, at least about that.
Dan: [01:09:43] I would feel differently about the whole commission if it had come out with this, guns blazing report, just casting doubt on a bunch of stuff and reaching a bunch of conclusions that I disagreed with, but--
Will: [01:09:57] Me too. I will say, I thought it's really important that the commission did not come out with a report with guns blazing the other direction either, endorsing the view that the Supreme Court needs to be burned down and all this stuff.
Dan: [01:10:12] It was never going to do that, given like-- you would have resigned, right?
Will: [01:10:16] Well--
Dan: [01:10:16] You would have resigned.
Will: [01:10:17] If my presence on the commission helped that not happen, then I am glad I did.
Dan: [01:10:23] Yeah. Okay, well, that's the commission. That's the report. [crosstalk]
Will: [01:10:28] Yeah. Not going to be available at any bookstore, as far as I understand. I believe we only had the budget to print 200 copies.
Dan: [01:10:35] Is this going to be sold on eBay? How many you got?
Will: [01:10:38] I got one.
Dan: [01:10:39] You got one? With 200 copies, there's only 34 commissioners, where are the rest of them going?
Will: [01:10:44] Congress and the White House.
Dan: [01:10:46] Okay, can I buy one?
Will: [01:10:48] No.
Dan: [01:10:49] They won't print on demand? Come on, this is 21st century.
Will: [01:10:52] I believe there are GSA regulations for that.
Dan: [01:10:56] [laughs]
Will: [01:10:56] Now, PDF is not copyrightable. Actually, I do think somebody could set up an Amazon shop where you could print it on demand. We could do it and put it in the Divided Argument store, I guess.
Dan: [01:11:07] Law firm style, I'd put it in a binder. A good binder.
Will: [01:11:10] [laughs]
Dan: [01:11:12] But, yeah, wouldn't mind having a bound edition on my shelf for future reference although I'd probably just end up using the PDF anyways. Wow, greatest country in the world, we can only print 200 copies of this lengthy report. All right. Well, should we wrap it up?
Will: [01:11:28] Yeah.
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Dan: [01:11:34] Thanks very much for listening. And if you haven't yet, please rate and review on the Apple Podcast Store and anywhere else you listen to your podcasts. Send the podcast to your friends. Get some merchandise at our website, dividedargument.com, and buy some stickers or t-shirts so everyone knows what you're listening to, and thanks.
Will: [01:11:56] Thanks to the Constitutional Law Institute for sponsoring our endeavors, and thanks as always to Dan for putting up with me.
Dan: [01:12:02] And if we don't come out with a new episode soon, it will be because the President has forbidden us to speak about things.
Will: [01:12:11] [laughs]
Dan: [01:12:13] And so, like every time, we just come up with an excuse like that.
Will: [01:12:15] Yeah, that's good.
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