Can These Courts Be Reformed? | Crooked Media
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August 28, 2023
Strict Scrutiny
Can These Courts Be Reformed?

In This Episode

Melissa, Leah, and Kate invite two guests to zoom out and analyze how the current Supreme Court got to be the way that it is… and what progressives are doing to push back. Michael Waldman, author of The Supermajority: How the Supreme Court Divided America, provides historical context for other times the Supreme Court has challenged the country. And Brian Fallon, co-founder of Demand Justice, reflects on his tenure as Executive Director as the group challenged Democrats to get on board with judicial reform.

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TRANSCRIPT

 

Melissa Murray [AD]

 

Show Intro: Mister Chief Justice. May it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Kate Shaw Hello and welcome to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I’m your lone host for the first part of today’s show, Kate Shaw. We’ve got a great two part episode for you today, both about how the Supreme Court’s current supermajority got to be the way it is, and also progressive efforts to push back. Later in the show, we’re going to talk to Brian Fallon, co-founder of the organization Demand Justice. But first, I’m excited to welcome to the podcast, Michael Waldman, author of the new book The Supermajority. Michael is the president and CEO of the Brennan Center for Justice at NYU. He’s also the author of a number of previous books, including The Fight to Vote, which is a History of the Struggle for Voting Rights and the Second Amendment, a biography, which is one of the best popular books out there on the Second Amendment. Any previous life, Michael served as chief speechwriter to President Bill Clinton, and we may touch on that, but we’re going to start with a discussion of Michael’s latest book, the full title of which is The Supermajority: How the Supreme Court Divided America. Michael Waldman, welcome to the podcast. It’s great to have you.

 

Michael Waldman Kate, it’s great to be with you as an avid listener. It’s so wonderful to be able to have this conversation.

 

Kate Shaw Well, I’m really excited to talk about this great new book with you. So as the title suggests, the book details the rise of the current Supreme Court, which is now under the control of a rock solid supermajority of rock ribbed conservatives. The full six member supermajority has been in place for less than three years since the confirmation of Justice Amy Coney Barrett in October of 2020. But the court has wielded this new controlling power, in your words, Michael, abruptly, energetically and unwisely. Moving at accelerated speed, I think on the podcast we’ve referred to it previously as breakneck speed or warp speed to fundamentally reshape American law and American life more broadly. And I obviously want to talk about all of that, but let’s first take a step back in history. So you start the book with an overview of some earlier eras in which the Supreme Court either became badly out of step with the American public or precipitated reactions from other institutions, or both. Can you start by saying a few words about those other periods and you can talk about those a bit before we get to the current court?

 

Michael Waldman Absolutely. The book starts at the Constitutional Convention in Philadelphia, where they didn’t really give very much thought to the judicial branch at all. And it only takes up about 1/10 the number of words in the original Constitution, for example, as are devoted to Congress and the presidency. And over time, it evolved into having a more significant role. But one of the things that’s noteworthy is when you look at all of American history, pretty much the Supreme Court hugs the middle. It reflects the consensus of whatever the country is at or at least the governing part of the country. And that makes sense because it has the power. It has only because we, the rest of the country, give it that power. We were willing to accept its rulings. We’re willing to accept it as a court, as somehow above politics, beyond politics. But when you look at the country’s history, too, there have been times when the court has overreached and that has been met with a very significant, a fierce and ferocious backlash. And when the court has been unduly activist or partizan or ideologically extreme, it’s been met with organizing, with with a massive response, even with political realignment. And I think that’s happened three times before in the country’s history. I think we may be in the middle of that now. I mean, the first time may be familiar to listeners, but it was the Dred Scott case that was only the second time the Supreme Court struck down a law of Congress. It had not been a major player in the debates about slavery before that, but agitation over slavery, opposition to slavery, abolitionism was on the rise, as we know, in the 1850s, and the Supreme Court thought it would step in and, quote, solve the problem. This is noteworthy because this was, among many other things, the first really significant Supreme Court opinion to leak. It actually leaked not to Politico like the Dobbs case, but to the incoming president elect, James Buchanan. Buchanan had actually been lobbying the justices to go big and they told him what they were doing. And he whispered with Chief Justice Roger Tawney on the inaugural platform. And everybody got very agitated about that. And then Buchanan, in his inaugural address, said, well, the Supreme Court is going to make this big ruling. None of us know what it’s going to say. But let’s just all agree that whatever it says, we’re going to abide by it. And the newspapers the next day said, oh, well, we know what that means. What it meant was the court issued a really radical ruling on slavery. It said that Congress had no power, that the framers didn’t give Congress the power to restrict or ban slavery in territories outside the South. Basically slavery was national. And it also said that black people had no rights, that they were so inferior, they had no rights that should be respected. This was a really big deal. This led to an explosive response. It led to the rise of the Republican Party, led to the election of Abraham Lincoln as president of the United States and ultimately to the Civil War. Lincoln’s whole campaign for the Senate and then for the presidency, too, was a critique of Dred Scott. And when he gave his inaugural address four years later, he actually stood up and said, you know, there are some people who say the Supreme Court should decide what the Constitution means, but really, that doesn’t make sense. What kind of a democracy is that? And then Tony himself had to swear him in, presumably swearing under his breath as he did so. And this is just an example of overreaching by the court and the nature of the backlash. It was seen as emphatically appropriate to be highly critical of the court and its abuse of power. We had the two other times a backlash of that kind. I would say in the country’s history the next time was in the early 20th century, this period of great industrialization, rising inequality, income inequality. And at that point, the Supreme Court justices thought their job was to stop government from regulating, to protect workers and women and public safety and things like that. Lawyers call it the Lochner era because of a particularly notorious case, but it extended all through the early decades, all the way up to the New Deal. And again, in ways I didn’t realize until I researched the book. It was a central political issue. The backlash to the court.

 

Kate Shaw Yeah. And you both talk about the country’s response. So obviously Dred Scott, in the views of many, really accelerates the country’s march to the civil war. The court somehow thinks it’s going to resolve the issue of slavery, and in some ways it just sort of throws fuel onto the fire and I think accelerates the march towards war. And I think you detail really beautifully just how central the Supreme Court as an institution and Dred Scott as a decision is to Lincoln. Both the Lincoln-Douglas debates, right when he’s on the Senate campaign trail and then in the speeches that propel him actually to the White House. So that era is really well rendered in the book. And then, as you say, right, what we refer to just as shorthand as the Lochner era refers to a case out of New York in which the Supreme Court strikes down a law that regulates working conditions in big shops, but the court strikes down. In addition to that law, hundreds of other state and local laws and regulations mostly designed to do some equalization of bargaining power. Right. Shifting some power back to workers around things like wages and working conditions and taking some power from capital and the bosses. And the court is wildly hostile to that project and imposes its vision of kind of optimal economic ordering by striking down all of these laws, invoking what it calls economic substantive due process. There, too, it’s pretty clear that the court precipitates a significant response. So folks like Jeff Shesol and Laura Coleman have these wonderful books about the court packing effort by FDR. It fails in actually expanding the court, but largely succeeds in getting the Supreme Court to back down and change course and start upholding these these laws. But I think, as you say, the court is an enormous issue in the country and presidential campaign issue well before the FDR administration. Right. You talk about the 1912 three way presidential campaign in which the court well, maybe antitrust, but the Supreme Court of antitrust are kind of the two biggest campaign issues. And it feels so remote today in certain respects to have the substantive decisions of the Supreme Court be maybe the leading presidential campaign issue. And I want to come back to this at the end of the conversation, but it feels like that’s something we need to recover.

 

Michael Waldman I didn’t realize until doing the work for the book that Teddy Roosevelt’s campaign was heavily a response not just to the overall need for progressive change, but to the Lochner case and cases of that kind. And he had some fairly out there ideas. He thought that you should have the ability to have a ballot initiative, a recall when courts make a constitutional ruling striking down a statute. He said that, well, it was just for state courts, but then he confided to a journalist. Oh, actually, I mean, for the Supreme Court, too. So this was a central public topic people again saw pushing back against the court and not just the bad rulings, but the nature of its power as a proper and appropriate and motivating political issue.

 

Kate Shaw I actually wasn’t aware of that either. So this, again, is the 1912 presidential campaign. But Teddy Roosevelt actually proposes that the public should be able to hold something like a recall vote on unpopular Supreme Court opinion. So think about even if we were just talking about an advisory kind of national referendum, right, that the Supreme the United States Constitution very famously doesn’t have any mechanisms for direct democracy in at the. The way a lot of state constitutions do. So I think it’d be pretty hard to propose and actually pass a law facilitating the, you know, a binding national referendum. But I don’t think there’s anything in the federal constitution that says you couldn’t have an advisory referendum in which the court, the public, actually registers its views and its objections to a Supreme Court ruling. And maybe there would be some power in something like that actually transpiring. So it was fascinating to recover that lost history. And again, one assumes that part of the project here is recovering these kinds of constitutional imagination, Right. Possibilities around pushing back not just rhetorically but substantively, in ways against this Supreme Court that has clearly exceeded the bounds of its authority.

 

Michael Waldman And the lesson can’t just be don’t mess with the Roosevelt boys, because it was two two cousins who took on the Supreme Court.

 

Kate Shaw But that doesn’t mean they’re the only ones who can do so. So those two periods are likely familiar to at least some of our listeners. But one thing I think readers actually might not have expected was the way you describe the Warren Court in somewhat similar terms in the that in your view is another instance of overreach by the court that may have resulted in backlash or that did result in backlash. I mean, I think you say that the court got swept up in the excesses of the era, sort of is announcing broad new constitutional rights and privileges, some of which are not broadly supported by the public. And so that’s not an era we always hear described in the same breath as certainly the Dred Scott Court or the Lochner Court. So why do you include the Warren Court here? What’s the case that that’s a similar example?

 

Michael Waldman Well, of course, I like so many of the rulings of the Warren Court, and I run an organization, the Brennan Center for Justice, named after one of the leaders of the Warren Court. And I think the Warren Court was the only time where the court was activist in this way ahead of the country as opposed to trying to stop progress in the country. But even so, the relentless nature of these rulings by unelected judges created a political backlash. Eventually, not at first, but eventually that we’re still living it. It’s important to note I start out looking at the Warren Court with Brown versus Board of Education. That was really the first big ruling under Earl Warren’s leadership of the court, and he rallied the justices to a unanimous and sure enough to be published in the newspapers ruling saying that separate but equal and school segregation was unconstitutional. And then, interestingly, it wasn’t actually an unpopular ruling outside the white leadership of the South in the rest of the country. It was it was actually a popular ruling. Both the Truman and Eisenhower administrations had argued for it. Now, it also didn’t have the impact that people wanted. Ten years later, only 3% of black children were going to desegregated schools in the South, for example, it wasn’t until the democratically accountable branches passed the Civil Rights Act, passed the Voting Rights Act and responded to the extraordinary creative protest movements of the civil rights era that the real change happened. But you had cases after cases where the court in the Warren Court era felt that it needed to intervene to overcome some kind of political lock up where you just couldn’t get the South to change. Or the other big case of that nature is one person, one vote, where mal apportionment of a breathtaking scope, even more than today’s gerrymandering, was locked in and the political figures were not going to do anything about it, the court stepped in, but by the end you had rulings, including Roe v Wade, that were striking down the laws of many, many states without the basis of public support for it. And people in such as Ruth Bader Ginsburg, for example, were quite critical of it for that reason at the time and later. This is not something where I don’t think that they should have done these things. I think that looking at it from a bit of a distance, seeing the nature of the backlash which started in the 1968 presidential election with Richard Nixon taking on the court in his campaign and seeing things like in the Furman versus Georgia case, where the court basically put a hold on the death penalty and states responded by passing new death penalty laws after it had been in decline for years, that the nature of the backlash wound up outlasting the Warren and Burger courts. Burger, of course, was the justice chief justice after Warren and some of the most significant bits of overreach came, I actually think under the Burger Court, the Buckley versus Vallejo case striking down the campaign finance laws of the time was not under Warren but was under Burger. So this is not a value judgment about either the outcomes or even the rulings necessarily, although some of them really went pretty far, but a recognition that they came so. Fast and so furious and went beyond where the public consensus was. And it’s a bit of a cautionary tale for liberals, I would say, as we envision our utopian future. I don’t think a liberal supermajority of liberal Alito’s is what we ought to be aiming for. I think a better sense of what the court’s role in our democratic system ought to be should be recovered, because in those earlier areas, errors that we discussed, the notion of judicial restraint, the notion that what progressives ought to be pushing for was for, in many instances, the court to let the Democratic branches. Take on, especially economic issues, but other things as well. That’s something that that can to easily get lost. And I think we need to recover that a bit and respect that a bit.

 

Kate Shaw So I think that’s a really nice point. And I also wonder whether there’s a line to be drawn here. And I’m not sure you do this, you do it explicitly, maybe a little bit later when you’re talking about the Roberts and then the current court, which you refer to sometimes as the Trump court. But whether there’s a distinction to be drawn between decisions that are about facilitating the exercise of democracy, which kind of have to be a precondition of the court, sort of letting majoritarian processes run the show most of the time, and decisions on other kinds of questions that maybe you suggest should rightly be left to a functioning democratic process. So, you know, you talk about maybe backlash to things like the court’s brief, essentially abolition of the death penalty and firm in the court, like sort of later essentially restores it as a matter of constitutional law after this brief period. But in the interim, there is a lot of pushback from states that do wish to both retain. And maybe as a result, I’m not quite sure what the causal story there is, but I do seem to be kind of have a renewed appetite for the death penalty after the court’s intervention. But the backlash, I don’t think you tell a backlash story about the apportionment cases, about Baker versus Carr than Reynolds versus Sims. And then there’s a series of cases which the court in sort of increasingly detailed terms, describes this constitutional requirement of population equality and representation that is, you know, a precondition of meaningful democracy, right? There really isn’t a functioning democracy. You know, first, there isn’t a functioning democracy because you actually don’t have real black enfranchisement until the Voting Rights Act of 1965. But you also just don’t have real population representation because you have these legislative districts that cram tons of people into urban districts and give outsized political power to mostly white rural residents. So both of those things sort of have to happen before you can have a meaningful and functioning democracy. And just to come back to what you said about liberals didn’t want six, Alito’s six, you know, liberal versions of Alito, maybe that’s right on substantive questions, but shouldn’t they on voting and representation questions like wouldn’t a restoration wouldn’t six really aggressive pro voting justices who actually restore the conditions of meaningful democracy be a really good thing and something liberals should want?

 

Michael Waldman Well, so, first of all, as you know and I mentioned it in this book, but in the book, the right to vote, I go into greater detail. There was a backlash to Baker V, Carr and Reynolds v Sims, Everett Dirksen, who was properly lauded as the Republican leader in the U.S. Senate for his role in passing the Civil Rights Act and the Voting Rights Act led a national effort to get a constitutional convention to overturn the one person, one vote cases. There was a backlash. It just didn’t ultimately succeed. I think that certainly the hope to have courts, especially policing the entrenchment and retrenchment by elected officials in things like redistricting, that’s certainly something I’ve pushed for and that the court did in in the 1960s. It’s important to remember, though, when you look at the totality of American history, that the Supreme Court has rarely been the place where voting rights victories have been won. It’s basically stayed on the sidelines. Those victories have been won at the ballot box, in the legislature, on the streets, sometimes in constitutional amendments, and pretty rarely in big cases where even the most noble justices strike a blow for democracy in recent decades. Unfortunately, the pattern has been including John Roberts. But before John Roberts, too, an activist and aggressive posture of the court in striking down efforts to strengthen democracy. Going back to Buckley v Valeo in 1976, where they basically messed up with campaign finance laws of the United States, and many of them very quickly regretted it. But at the time they were very much in thrall to the First Amendment. And seeing this is a First Amendment issue as opposed to looking at whether or not we could have an equal and functioning democracy and and set us on the path to Citizens United, which struck down and basically deregulated a century of campaign finance law. Shelby County, of course, in 2013 and other cases since then that got the Voting Rights Act. It has been many decades since there’s been any kind of meaningful possibility of a positive ruling from the Supreme Court to advance democracy. What we really need them to do at this moment. But I would say a lot of the other times in our country’s history is to keep their hands off of the efforts to strengthen democracy by the people in their representatives. So it’s an interesting thing because one person, one vote is is very hard to get legislators to. Posing themselves. And the courts did play a very important role. But as you know, they’ve stepped back pretty frantically in recent years from even that.

 

Kate Shaw I mean, I think those are an outlier set of decisions in many ways. I think that’s that’s a great point. I mean, in some ways, the court has precipitated in some of its cases, including in things like narrowly reading the Voting Rights Act, requiring intent requirement precipitates congressional response to actually strengthen voting rights. So in some ways, it has a constructive effect in what it spurs other actors to do. The landscape is so warped at this moment. It is just it is difficult to imagine that the court sort of staying toward I mean, you’re right that this court is only going to make things worse, but I’m not sure I’m ready to give up the dream of a future court that could restore some kind of equilibrium. But you’re right. The history doesn’t give us a ton of reason to be optimistic about any of it. And just to kind of come back to your depiction of the Warren Court, I mean, I think that, you know, it is a useful corrective, that it’s a short discussion, but a really, I think, important one that for many liberals and progressives, I think the Warren Court and its cases operate as kind of a stand in for the entire body of work of the court. And maybe that has meant that liberals haven’t been clear eyed about the court in its full scope over our history. But even in terms of the impact that the decisions of the Warren Court have had. So so I think that all of that is really useful kind of foundation for the story that you then mostly devote the book to, which is this.

 

Michael Waldman Court I do want to make clear what the Warren Court was part of, which was the creation of a set of national rights and the articulation in the privacy based rights around the Loving versus Virginia or the ability to have interracial marriage, ultimately marriage equality. So many of the things that came out of out of that period, the right to contraception, these are extraordinarily important human rights in our country, a significant basis of equality. And I don’t want to minimize that. It is, however, well over half a century since that all happened, and the glow from the Warren Court in some senses has dazzled liberals too much. And in the ensuing decades.

 

Kate Shaw I sort of posited a clean distinction between sort of voting and democracy cases on the one hand, and rights cases on the other hand. And I think there’s a very powerful argument and Melissa murray has made, it is people like Riva Siegal and Doug Nejame and others that actually sort of exercise over one’s childbearing capacity is actually an important precondition to meaningful participation in democracy, that there actually isn’t as stark a divide as my earlier question seemed opposite. So I want to sort of offer a corrective to something I said previously. I don’t think they’re neatly divisible, but I do think it’s possible to kind of lodge different kinds of critiques potentially against different kinds of cases. It’s not maybe necessarily the case that we need to assess all of the decisions of the Warren Court sort of in the same light.

 

Melissa Murray [AD]

 

Kate Shaw So you talk about the Roberts court, which begins in 2005 when John Roberts becomes the chief justice. And that’s a court with a conservative majority, and it has a supermajority appointed by Republican presidents. But, you know, at that point, I think only Justices Breyer and Ginsburg are Democratic appointees. But, of course, that doesn’t mean there are seven conservative justices. That’s a court on which you have John Paul Stevens and David Souter, who are both quite liberal by this point, especially Justice Stevens and Justice Kennedy. And the end is the tail end of Justice O’Connor’s term on the court. And obviously, those were Republican appointees, but voted with the liberal justices in some cases. But you contrast that court sort of the early Roberts court with the current supermajority, which again, you often refer to as the Trump court. What are the key differences between that kind of Roberts conservative court and this court?

 

Michael Waldman I mean, one way you could look at it is a very simple one, 5 to 4 versus 6 to 3. The numbers make a big difference. John Roberts is, I believe, from what we can see, an institutionalist he cares about and understands the importance to his own project of the legitimacy of the court and it being respected enough by enough people as an appropriate decision maker. With the exception of the democracy cases where Roberts has been as aggressive and energetic and activist as any justice in a starched collar in the Lochner era, you know, whether it’s Citizens United or Shelby County or all the other ways he’s taken on this project of, I would argue, attacking some of the fundamentals of American democracy. But beyond that, he was very focused, as we saw in the ACA case and others, on moving the court to the right, but being aware of when there was a potential for backlash and pulling back. I think even in the Obergefell case where Roberts was in the dissent, it’s important to note, I think the justices who led to that extraordinary in landmark opinion also did so in a careful way. They actually held off for a couple of years for public support and consensus to build so that when they made the ruling in Obergefell, the polls showed it was 60% of the country already supported same sex marriage. So the court moved to the right, but it still was aware of was at least rhetorically respectful of the need not to go too far.

 

Kate Shaw There’s also kind of an underrepresentation. So you had Barack Obama, a very popular two term president, who did, of course, win the popular vote twice in eight years, appoints two justices. And Donald Trump, you know, loses the popular vote both times, obviously, by enormous margins the second time, but loses the popular vote and yet appoints three justices. And that, I think, can never be lost in discussions about how we got to where we are. And a critical piece of that story, of course, is Mitch McConnell’s blockade of President Obama’s nomination of Merrick Garland to fill the seat left by the death of Justice Scalia. And I feel like a lot of the kind of Republican Washington establishment sort of wants to say, kind of get over it with Merrick Garland, the way Justice Scalia used to say when anyone ever asked him about Bush versus Gore, get over it. Let’s move on. But I just kind of like I am never, ever, ever getting over it. And I actually think every conversation about this court has to remind people, because political memories can be short, that there actually is a really straightforward reason in certain respects that we are where we are with respect to this court in its mouth, which is that Barack Obama should have had a third Supreme Court nominee, maybe Amy Coney Barrett, in October. I think that’s a little bit dicier, although arguably that should have gone to the winner of the 2020 presidential election, Joe Biden. And if those two appointments had been made the way they should have been, the court looks entirely different. And so I just like I have to pound my fist about that recent history. It’s not that ancient, but it gets lost.

 

Michael Waldman It gets lost and it is. And there’s an effort to kind of fuzz it up. And I was on the presidential commission on the Supreme Court that President Biden appointed. One of my main goals was to make sure that as much as possible, the extraordinary and unprecedented nature of what was done with the Garland seat was in there and was front and center with sort of mixed success, I would say. But there’s there’s this notion of, oh, yeah, this kind of thing happens all the time. No, it doesn’t. It had not happened in well over a century, and it was early enough to make the nomination. The fact that the other party controlled the Senate is irrelevant. That happened all the time. This was, many Democrats argue, a stolen seat. And I think he can make a pretty strong case. I’m talking about the Garland seat and Barrett being chosen days before the presidential election. Remember, with early voting, Trump had already lost the election. He’d already lost the number of votes he needed to get reelected, although we didn’t know that at the time. It was, if not quite as egregious, a breach of norms as the Garland nomination. It was it was a close second. And so it’s also the case and you and your listeners certainly know this, that it’s not just that. These are six now conservative justices, but these are six justices, highly predictable, who were put in place by a very well-oiled and very disciplined political machine. A faction of a faction has now captured the Supreme Court with lifetime appointments. And we’ve never had that, at least in a long time, certainly not in a century or so in the country’s history. You mentioned that. Well, you know, somebody like Justice Souter was appointed by a Republican, but was unpredictable. That happened all the time. That doesn’t happen anymore. And so the effort behind getting these six people on the court, we’re only now learning how vast and well organized and well-funded it was. The book is not principally focused on the Federalist Society, but I always used to look as the head of the Brennan Center. I would look at the Federalist Society and say, Wow, they do a really effective job given how little money they have. Well, it turns out that someone had given Leonard Leo, the leader of the Federalist Society, 1.6 billion with a B dollars a few years ago secretly to run his political operation. And that includes everything from running ads and massive amounts of advertising spending in all these nomination fights, the vetting of these nominees and giving Trump the names for them, which they all proudly. This is not a secret. This is this is a way Trump wooed the conservatives in the Republican Party to then filing briefs, creating groups out of thin air, to file briefs in the big cases. And so, again, I don’t think that we as a country have seen something like this. Again, relating not to the democratically elected branches, but to this branch where there’s not a ton of recourse, where it’s lifetime appointments and we’re expected to take the rulings they make and just at face value because they’re judicial rulings. So in that very first full term, which ended in June 2022, that’s what the book focuses on. They really went to town. They really, in the last three days of their term, made major rulings, not only far reaching in their impact, but radical in the way they made the arguments of what they were doing. And these were rulings that reflected, you know, they cram decades of social policy into three days. The rulings that I focus on are the Bruin case first, which is the by far the most radical Second Amendment ruling in the country’s history. As you as an expert on this know so well. The next day, of course, was Dubs, which struck down the right to reproductive freedom for four women for half a century and put at risk all the other privacy rights. And whatever criticism people might have of Roe v Wade or whatever, it’s been the way it is for half a century. And the third ruling, the next ruling in the last one of the term was West Virginia versus EPA, which really signaled an assault by this court on the ability of government and regulatory agencies to protect the environment and to protect workers and other things we want government to do. All in three days. And if you think about it, these topics guns and abortion and the interests of the fossil fuel industry, that sounds like an RNC caucus meeting. It was a very political first set of rulings on key topics, two key political constituencies.

 

Kate Shaw Just in terms of real impact, like you have this one week period in which the court has fundamentally reshaped the legal framework regarding whether we can be forced to have children, whether those children can live in conditions in which government can try to regulate to facilitate safety, whether they will inherit an inhabitable planet. I mean, that sounds like a little dramatic, but I actually think it’s just stating the stakes of each of these cases. And I obviously lived through it, and a lot of our listeners did too. And I felt a little PTSD sort of revisiting, just kind of like how insane it was that the court did that much that quickly.

 

Michael Waldman And also the Bruin opinion. It’s worth unpacking it a little bit because it’s yeah, it’s just so crazy. I mean, one of the things that was significant about this new moment is that the court now for the first time ever, said, Oh, the only legitimate way for us to be making big constitutional rulings is originalism. Is the idea that the only way to do this is to ask what the provisions meant to the people at the time when they ratified it, which in practice means seven. Most of the time 1787 or 1791. What did the property owning white men of 1791 fake And this is really new in terms of the governing of a country and it’s not a good way to run a railroad. Other countries do not. In Britain, when they talk about gun laws, they don’t say, oh, you know, that’s an interesting proposal. What did King George the third, think? They understood the countries evolve and that there are broad principles that the Constitution is supposed to have a broad implication. But the idea that you. Need to go back in time and look, as this case did, have specific laws from that period, and only if they had them then can we do them now. Before last June, there were only, I would say, two other major originalist opinions in the country’s history. One was Dred Scott Scott, which discredited for ever for a long time, because that was sort of soon after the founding generation had died. And Tawney said, Oh, I’m going to go back and look at what they meant. And Lincoln’s response was a form of just like, say, Justice Stevens’s dissent in the Heller case was looking at the same set of facts and pointing out what the real history was.

 

Kate Shaw What else sort of how should institutions, political actors and the people generally respond? I mean, we talked a little bit about the president. I’d love to hear you say more about what President Biden should be doing and saying about the Supreme Court and what other actors should be doing and saying about the Supreme Court.

 

Michael Waldman So as as you mentioned, I was chief speechwriter to President Clinton who didn’t face something like this from the Supreme Court. So I can’t say what he would have done. But President Biden has been notably muted in his taking on the court and all it is doing as a public and political matter. You know, I knew Theodore Roosevelt. Theodore Roosevelt was a friend of mine, Joe Biden, you know, Theodore Roosevelt, you know, and there’s many, many reasons, personal institutional temperament or whatever, why that might be. But this is something where his voice and the institutional voice of the Democrats generally needs to be much more powerful and much more clear. We’ve started to see people in Congress take on the Supreme Court and understand that it is a political institution and appropriate to to hold it to account. I think we need to do more to talk about U.S. ethics. Nobody is so wise as to be the judge in their own case. And so a binding ethics code is a necessity for the Supreme Court. As you know, they’re the only court in the country that doesn’t have one. I also think term limits is an idea whose time has come an 18 year term with regular appointments for the Supreme Court. That reflects the insight that nobody should hold too much public power, this much public power for too long. Instead, it goes back to George Washington’s original insight of stepping away from power after two terms. The Supreme Court of the United States, again is the only constitute the state Supreme Courts all have term limits or retirement ages, but constitutional courts of other countries all do. And it’s broadly popular in ways I think people don’t realize across left and right. I mentioned that was on the Supreme Court Commission. As you know, these commissions, they’re kind of set up very often to do nothing to deflect an issue. And we were actually instructed, publicly instructed not to reach conclusions. And we you know, and we didn’t. And so this was finally a government agency that works, you know, as intended. But something interesting happened. We had dozens of public witnesses from left and right, and they had some said we want to have court expansion. Others said we oppose it. Some said we want an ethics code, others oppose it. Over and over again, they said, oh, but I support term limits. Of course, there is a national consensus on this. So it certainly can happen by constitutional amendment, though that’s hard. I think it could be done by statute as well. There’s a lot to discuss there. But but the focus on reform of the court itself, it should be a public issue in campaigns and other things going forward. Also, voters and donors and activists should be asking candidates, what are you going to do about the court? What are you going to do, Lift it up? What are you going to do with appointments? It’s been the case in recent decades since the Warren Court. The conservatives have been very energized about this, and liberals have very often lost the muscle memory of how to organize about this. One of the reasons I think it was hard for people to get people as worked up about the risk to Roe v Wade is they just couldn’t believe it would happen because it had been threatened for so many years without actually happening. Now we need to rediscover the way to make constitutional arguments to the public, not just the courts. And liberals need to fall out of love with the Supreme Court in some very fundamental and basic ways as part of our thinking, as part of our political strategy.

 

Kate Shaw All right. I think that’s a great place to leave it. Michael Waldman, thank you so much for taking the time to join me today. The new book is The Supermajority How the Supreme Court Divided America. Pick up your copy. And Michael, thanks again for taking the time to join me today.

 

Michael Waldman Thank you, Kate.

 

Kate Shaw We’re going to take another quick break. When we come back, Melissa and Leah will join me to talk to one of the people responsible for making progressives care about the court.

 

Melissa Murray [AD]

 

Kate Shaw Welcome back to the second half of this episode of Strict Scrutiny. I’m Kate Shaw. Leah and Melissa are with me now. And we’re going to zoom out at this point and talk about the current moment in and around the federal judiciary and the culture that surrounds it.

 

Melissa Murray And in particular, we’re going to be talking about the recent uptick and progressive engagement with the courts. And with us to do that is one of the people who helped spark this uptick. Brian Fallon, the co-founder and executive director of Demand Justice.

 

Leah Litman Brian worked as the director of public affairs for the Department of Justice during the Obama administration, and before that, he worked in the office of Senator Chuck Schumer. He also served as the national press secretary for Hillary Clinton’s presidential campaign in 2016. Brian, welcome to the show.

 

Brian Fallon Thanks so much for having me.

 

Kate Shaw So, Brian, this episode is kind of a swan song for you since you recently announced that you will be stepping down as the executive director of Demand Justice later this year. But I think you’re planning to remain on the board and engaged as you’re making that transition. We thought that this would be a good moment to talk to you about the origins and the work of demand justice and also what remains to be done, including with the lay of the land on Supreme Court reform looks like. So let’s start with your origin story. When did you start demand Justice and how did it come about?

 

Brian Fallon It came about in late 2017, in the aftermath of the 2016 election, obviously. But then also the confirmation of Neil Gorsuch to the seat that Merrick Garland had been deprived of even having a hearing to be considered for. And there was a group of. Folks, including funders from foundations, as well as folks that had worked in and out of the Senate and the White House when Democrats were last in power, thought that the whole episode involving Merrick Garland, not so much of what in terms of what Mitch McConnell did, but the sort of lack of any galvanizing effect among the public, that that was sort of an existential problem that needed to be addressed and that potentially the new entrance of a new group could help sort of build some infrastructure to help try to speed along the process of getting progressive voters and independents more concerned about the state of the federal judiciary. And so that’s how it began. And I was roped into those conversations by John Podesta, who I had worked under. He was the chair of Hillary Clinton’s campaign in 2016, had served as chief of staff for Bill Clinton in the nineties. He’s back in the White House now as sort of a climate czar for President Biden. And I began having some conversations with with these concerned folks. And Chris Kang was also part of those conversations. And Chris and I had overlapped in terms of working in the Senate together. He he for Senator Durbin as his as his floor counsel and and I for Chuck Schumer as Chuck Schumer’s communications director. So we knew each other from that. But in more recent years, Chris had worked for President Obama in the White House counsel’s office directly handling judicial nominations. So he brought a lot of issue expertise to the founding of Demand Justice. And so we launched in publicly in the spring of 2018. And again, at that time, our goal was not to advance any particular court reform measure. It was a more general goal of just trying to provoke the public to be more concerned about the state of the judiciary in general and what Trump and McConnell were doing with their pipeline project in particular.

 

Melissa Murray So you’ve been wildly successful in one pressing Democratic legislators to be more strategic and thinking about the federal judiciary and about courts more generally, and also getting the Democratic base to be more engaged about the judges and the judiciary in the state of the judiciary. But I want to know about the next phase of that. So, Brian, when is demand justice going to get into the billionaire matchmaking business? Like, when are we going to start matching up Democratic justices with preferred Democratic billionaires? When is that going to happen?

 

Brian Fallon Yeah, the recent reporting by ProPublica has sort of spotlighted how we’re doing a completely wrong and that we haven’t would any of these mega-donors on the Democratic side to sponsor big junkets for.

 

Leah Litman They’re laying it all out for you. It’s right there.

 

Melissa Murray There’s room for innovation. I mean, I think we could probably do an app like Tinder where you just kind of swipe right for your preferred billionaire and you could do the matching that way. So you could just automate this entirely, get an app and really blow them out of the water.

 

Brian Fallon That’s amazing suggestion. When I first I have to admit, when I first read the story about the Supreme Court Historical Society, I thought like in an evil genius sort of way, it was very it was very effective and brilliant to use that as a as a venue to sort of bring these justices into contact with the donors and cultivate them. And the idea that that’s just been allowed to happen out in the open for so many years is sort of a a good reflection of how opaque the Supreme Court’s activities have been to the public. So everything that’s happening now is very healthy in terms of the sunlight that’s being brought to this situation.

 

Melissa Murray But to be very clear for our listeners, you would not do this, right?

 

Brian Fallon No, In fact, no. In fact, we’re being we’re being sarcastic.

 

Melissa Murray Yes. This is snark.

 

Brian Fallon One thing that hasn’t changed over the last five years is our side is completely outgunned from a resource standpoint. You know, we’ve brought some additional resources to the table compared to what existed prior to our arrival in 2018. But we’re still, you know, behind by an order of magnitude in terms of the resources that groups like the Federalist Society and Judicial Crisis Network are able to tap. And one of the projects that I’m going to be involved in post my hand off to the next executive director is to build up our PAC operation. We do have a political action committee that’s still in development. Most of our funding right now is into a C3 and C4 style organizations that are very limited in political spending and you’re sort of hamstrung in these fights if you don’t have a lot of political dollars at your disposal.

 

Leah Litman It’s worth underscoring that despite the kind of projection that has been directed towards demand justice from the right, you all have yet to say secure a half a billion dollar, I don’t know, sale of a corporation to fund all of your activities. And at least from what I have seen, do not yet have access to an entire fleet of personal jets and super yachts to be providing access to all of these politicians and political officials in order to get what you would like to see done. Done. And what do you think remains to be done, either big picture or small when it comes to progressives and the courts? Is it, you know, partially just a they need to put their money where their mouths is and like figure out whether there is like a funding source to actually implement and effectuate this increase progressive interest in the courts or what else is there?

 

Brian Fallon Oh, there’s so much we could consume the whole rest of the episode talking about what still remains to be done. And one thing that’s been promising has been the upsurge in willingness of small dollar donors to at a grassroots level, contribute to court aligned causes. So the I mentioned our PAC or PAC is powered by grassroots donations entirely. And we have seen a huge surge in contributions at a grassroots level to to the judicial issue space in general. In our organization, specifically in the last couple of years, as people have become more outraged by what they’re seeing in terms of the decisions post ops. But what we have not seen is a corresponding upswing in donor interest from people that can write big checks. So those donors tend to still gravitate towards giving towards candidates and the party committees. And then there’s other things. You know, I think there’s still some learning that needs to happen among our policymakers. There’s still a stubborn reluctance to do away with the blue slip, for instance, and that is hamstringing right now Joe Biden’s ability to nominate judges in red states. So there’s still some old habits that need to be unlearned among our policy makers. We’re working on that. But the evolution is not happening quickly enough, in my view.

 

Kate Shaw We basically have a year left of President Biden’s first term. How would you say he has done as president with respect to judicial nominations? And by that we mean both pace and pace of both nominations and confirmation, recognizing, obviously, that the Senate is a huge piece of confirmation, but that the White House has a role to play, too. But also the identity of the nominee is that the White House has put forth.

 

Brian Fallon A-plus, I would give them. We have not been shy about being critical about this White House when when we feel it’s necessary, but it’s impossible to not give a sterling grade to them on judicial nominations. I think and I base that on the two categories that you that you raised, both the pace and the prioritization has been excellent and also the shift in the paradigm in terms of who’s viewed as a viable judicial candidate to nominate. They have shifted that quite impressively faster than I would have predicted during the 2020 presidential primary. I’ve said before that during the primary, you know, somebody like Elizabeth Warren had emerged. I would have guessed that we would have seen this sort of focus on professional diversity. But I would not have necessarily predicted that we would have seen it from Joe Biden. But it has caught on, by and large, throughout the Democratic caucus. And Chuck Schumer has been really good about with his New York picks that he’s recommended to the White House, emphasizing professional diversity and put some.

 

Leah Litman Dale Ho Judge Dale Ho.

 

Brian Fallon Exactly. At both the district and the appellate level. And so Schumer has set a good example. And Joe Biden isn’t all the right signals. And as a result, more than half of the nominees, you know, that have been confirmed to date have been what we would term professionally diverse. And I think that the credit for this goes to the president himself, of course. But but also at the staff level, you know, personnel is policy and and the driver’s seat on this project, you had Ron Klain, who, you know, has never needed any prodding or jostling to be convinced to pay attention to this issue. Ron and then Paige Herwig in the White House counsel’s office have been the sort of stewards of this project, and they did a masterful job. And so I give him an A-plus.

 

Kate Shaw Can I ask one question about something you said earlier, Brian, When these Senate delegations have basically refused to get with the program and are continuing to send up the like the same kinds of candidates that have historically been viewed as viable for federal judgeships? Like, what is the White House response has been like? How much hardball has the White House played with the Senate?

 

Brian Fallon Their approach has been very situational, but in a lot of cases they have played hardball to their credit, and it all happens behind the scenes. In some cases, we have tried to be the bad cop for the White House where we sort of go out and do some of the public shaming of the senators that haven’t gotten with the program that we know that the White House can never engage in. But I don’t think that they’ve been unhappy in the instances where we’ve sort of played that role. So we’ve you know, we’ve criticized publicly certain Democratic senators for the recommendations that they made, because sometimes they do make them publicly, as Chuck Schumer famously likes to put out a press release and get a story. And The New York Daily News every time he recommends somebody. And so there’s often more.

 

Leah Litman Because he makes great recommendations.

 

Brian Fallon He does.

 

Leah Litman Like Judge Perez. I mean, come on, I want a presser, too.

 

Brian Fallon Yeah. So oftentimes these senators will have public processes where they encourage people to apply formally and then they’ll sort of do an announcement about who they’re recommending to the White House and. And then we jump in often and we’ll criticize them publicly. And we do that sort of knowing that we’re sort of serving the White House’s goals, even if they can’t dirty their hands directly.

 

Kate Shaw Just a follow up on pace. Are you worried about the fact that just this month, a recording in August for the first time, I think, or at least the most significant time President Biden has fallen behind where Donald Trump was at this point in year three of his presidency. And the Senate went on recess for a bunch of August. And they’re just you know, the numbers have dropped and the White House did not put a ton of names up before the recess started falling behind.

 

Brian Fallon Yeah. So the pace has slipped. And a major contributor to that phenomenon is there’s I think there’s a little over 50 vacancies right now that don’t have a nominee. And in more than 30 of those cases, it’s vacancies where in states that have two Republican senators. And the issue that’s holding up, it’s frustrating. The White House’s ability to nominate anybody is they’re trying to negotiate with Republicans over somebody that’s acceptable to them. And the reason they have to negotiate with the Republicans is because of the blue slip custom that enables their the Republicans to sort of unilaterally veto anybody from being considered by the Judiciary Committee if they don’t preemptively agree to them. So that’s why groups like ours have been agitating to do away with the blue slip or to if not get rid of it altogether to, you know, reduce any individual senators ability to unilaterally veto somebody under interestingly or ironically, I guess, in the 1980s when Joe Biden was the chairman of the Senate Judiciary Committee, the blue slip didn’t function in the way it does today. The blue slip was considered advisory. It gave a home state senator an opportunity to weigh in positively or negatively, but it wasn’t a de facto veto. And in fact, Joe Biden famously confirmed a judicial nominee from California over the objection of then Democratic Senator Alan Cranston. So he bypassed even his own, you know, fellow Democrats objection to a home state nominee. And so what we’ve said to Dick Durbin, who’s now the chair of the Judiciary Committee, is you keep you can keep the blue slip alive as a thing, but restore the Biden version of the blue slip and just consider it advisory. And that will allow Joe Biden to fill a lot more seats more quickly.

 

Leah Litman I think Ted Cruz is a better fit for advisory roles. Personally.

 

Melissa Murray Brian, you gave the administration an A-plus. And I had a Jamaican mother, and whenever I brought home an A-plus, she always had some notes. Who got a higher grade? What could you have done better? And so even though this administration has been really fantastic on the judiciary and advancing nominees, Kate’s already alluded to some slippages in the pace. Are there other things that you think the administration could have done better? I mean, is there a way to get this A-plus to an A-plus plus and really satisfy your Jamaican mother constituency?

 

Brian Fallon So, yes, if we broaden it beyond just nominations, I sort of bifurcate my assessment into into sort of two categories. One is nominations in that area. I give them the A-plus. And then there’s the whole issue of contributing to the conversation and the education campaign that needs to happen with the public about the state of the judiciary and the Supreme Court specifically. And there I think the Biden administration has been too reticent. And I mean this as a constructive criticism.

 

Melissa Murray It’s always constructive. Your Jamaican mom.

 

Brian Fallon Yeah, But I think, for instance, that they hamstrung the Supreme Court Reform Commission right out of the gate and that they wanted that to be a dead letter from the start. And that’s what it became. And that was by design. And I think that was a missed opportunity. It frustrated, actually, a lot of the commissioners that felt that they weren’t empowered to actually ratify any formal recommendations. I think that a lot of them felt during the drafting process of the report that they ultimately issued, that there was a little effort to direct it in a way that didn’t necessarily reflect their actual views. And so I think that that was approached as sort of a way to keep the issue away from the president and to sort of deaden the momentum for the reform conversation that emerged after Ruth Bader Ginsburg’s death in the fall of 2020 when people were really exercised. And I don’t think that we should have tried to, you know, dissipate that outrage. I think that we should have tried to cultivate it and channel it into something productive. And I think that other outside entities and other voices in the dialog, including you all have helped cultivate that conversation. But I think that the White House has sort of steered clear of it in its entirety. And I wish that that weren’t the case. I don’t think that the president needed to sort of embrace whole hog the idea of, you know, calling the Supreme Court illegitimate or, you know, getting into territory that would sort of sacrifice his moral high ground as the defender of democratic institutions. But I think he could go a little bit beyond the approach that they’ve taken to date, which is mostly confined to criticizing individual decisions and not they haven’t said anything to to this day about any of the ethics scandals that have emerged from. The court and like that seems like a freebie. That seems like low hanging fruit and it would totally be within the White House’s right to to weigh in on that and to maybe endorse the White House ethics bill that the Senate Judiciary Committee marked up. So they’ve been very reluctant to even dip a toe into the water on the whole ethics reform court legitimacy conversation. And I think that’s a missed opportunity.

 

Leah Litman I’m glad you mentioned toes and bifurcating the grades because it feels like the pace on judicial nominations compared to previous Democratic administrations has just been leaps and bounds and lightspeed. Whereas it feels like on the pace of talking about the court, educating the public about the court, engaging the Democratic base, about the court there, it’s just been tip toeing kind of a little bit forward, but mostly around the issue. So I mean, there has been like some small progress. No, you mentioned them actually making statements about particular court decisions, and that’s not really something previous Democratic administrations were ready to do and willing to do. Whereas at least this past term, you know, you had the president, vice president ready with statements about the court decisions on the day they were released. We also had Biden say on the day the court released the affirmative action decision.

 

Clip This is not a normal court.

 

Leah Litman Former president Obama has been saying more about the court, including tweeting about the Voting Rights act, an independent state legislature, decisions. And, you know, when he announced Justice Jackson’s nomination, Joe Biden said the court is just as important as the presidency or Congress here.

 

Clip And I’ve always had a deep respect for the Supreme Court and Judiciary as a co-equal branch of the government. I mean, the court is equally as important as the presidency or the Congress. It’s co-equal.

 

Leah Litman But like it absolutely feels like they could be doing more or, you know, things are getting better, but it feels like they are being dragged kicking and screaming toward engaging with the court in a more like public dialogic kind of way.

 

Brian Fallon Mm hmm.

 

Kate Shaw We think both from the perspective of the health of our constitutional democracy, but also just as a matter of political expediency, like it is crazy to imagine Biden not centering the Supreme Court in the real act like it justice. Crazy does. Right. So we’ve been talking a good amount about the White House and we have alluded a bit to various aspects of the Senate. So maybe we could talk also globally for an assessment of the Senate. And you said, so we have this blue slip issue. This is a Senate practice by which even after the president has nominated someone, a home state senator can unilaterally block the progress forward of that nominee using withholding this blue slip. And as you mentioned, it has not been deployed in the same way across history. And maybe there’s a way, maybe we completely jettison the blue slips. Maybe we reform the blue slips. So feel free to take another beat on blue slips. But in terms of other Senate issues, how floor time is allocated, how would you assess that? And then maybe to connect up to the kind of discussion of rhetoric we were having, Presidential rhetoric is one important tool. What about the way the Senate is talking about the court, Your former boss, Chris Kang’s former boss, Dick Durbin, like are people are are the kind of Senate leaders striking the right notes and spending enough time talking to the public about the Supreme Court?

 

Brian Fallon Great question. So on the blue slip, it’s a hundred year old custom, give or take. It’s usage really spiked around the middle part of the 20th century. A Southern Democrat who used to run the Judiciary Committee, Senator Eastland, was an infamous, notorious sort of implementer utilizer of the blue slip. It was really a way for Southern senators to sort of block pro-integration judges from sitting on the bench post, you know, the Warren Court rulings in the 1950s. And it remains in the same way that the filibuster sort of remained for years and years when its history is rather sordid. You know, we’ve gotten with the program on the filibuster and we’ve come to grips with its racist history, but we’re still not there yet on the blue slip. So that’s something that needs to change. Senator Durbin is somebody that I think that there’s room for improvement in terms of his rhetoric and in terms of the approach that he takes to the job as chairman. It’s been somewhat frustrating as each of these ProPublica stories comes out, that, you know, Dick Durbin’s reaction is pretty much the same each time, which is to continue to call on John Roberts to voluntarily do something. And, of course, you know.

 

Leah Litman Please, sir, please, sir, be ethical, please.

 

Brian Fallon That’s that’s that’s little more than wish casting at this point. And so I would love to see them be a little bit more aggressive, you know, issue subpoenas to to justices, issue subpoenas to other figures in the Harlan Crow saga. You know, even if they won’t show up, make a whole make a whole controversy out of that. And that will help further spotlight this issue in terms of people that are doing well rhetorically in the Senate, in terms of framing the issue, I do think, you know, we talked about how Joe Biden could improve his approach to talking about the court. I think Chuck Schumer is there. He refers to it as a MAGA court, and I think that’s exactly the right framing. And he goes beyond criticizing the individual decisions and has criticized the court as a captured court. And I think that that’s like rhetoric, that it would be nice to see the rest of the caucus adopt.

 

Melissa Murray So let’s switch gears slight. Brian, you mentioned at the earlier part of the episode that Demand Justice is also interested in the work of state courts. And, you know, we certainly applaud that. We’ve seen so much activity shift to state courts in the wake of Dobbs And with all of these discussions around voting rights, state constitutionalism is becoming more important than ever. Can you tell us a little bit about the work that demand justice is doing on state courts, especially since, as we’ve learned from the Brennan Center, state courts are notoriously unrepresentative in terms of their composition and the representation of people of color and women.

 

Brian Fallon 100% that’s the case. And so what we’ve done is in the last two years, we introduced a program that’s now operating in five states. And over time we’d love to scale it, but right now we’re in five states and we have a program where for racially and gender diverse lawyers that are also professionally diverse that come from those underrepresented professional backgrounds, we offer a sort of program for them that brings them into contact and allows them to meet a lot of the people that are gatekeepers in the judicial community and in their home state. So folks that are either sitting or retired state level judges, folks that have worked in the governor’s office handling judicial appointments, folks that have worked for the state bar associations, folks that have worked as academics and law schools in their state and done sort of nonpartizan trainings about, you know, this is how you go about approaching, you know, seeking an appointment opportunity. This is how you go about maybe thinking about running a campaign for an elected judicial position. And then what happens is when those appointment opportunities arise, because these gatekeeper type figures have gotten to know these judicial aspirants, they can often go to bat for them and put in a good word for them with the folks that are making the decisions around appointments. A lot of times, even with appointment opportunities, what we find is governors offices want to see that the person that they might appoint to a position is going to be a viable candidate to run in a retention election. So they want to see that the person is going to have considerable political support when their name is actually on the ballot to run to defend that seat that they’re going to be appointed to. And they want to see viability in the terms of their ability to fundraise. And so that’s where our PAC will hopefully come in in terms of seeding their campaigns with resources that can make them seem more viable to governor’s offices that are considering them for appointments. And so there’s a lot of work to be done there. And again, we’re only active in five states, but it’s a start.

 

Leah Litman So this is a big question. I apologize. We’re just going to put it to you. But Supreme Court reform, you know, what kinds of reforms has your organization been trying to educate people about just to kind of make them aware of some like different possibilities for our democratic system?

 

Brian Fallon So we have basically supported everything there. I don’t think that there’s I don’t think that there’s a.

 

Leah Litman Everything Bagels are the best. Everybody knows that.

 

Brian Fallon Exactly. So there’s so many things wrong with the state of the federal judiciary that you need multiple proposals to address various things. So sometimes people pit the proposals against each other and I think they’re all complementary and would hopefully someday come together in sort of an omnibus judicial reform package. But, you know, we need term limits to regularize the the pace of, you know, vacancies arising on the court and to hopefully take some of the suspense and the political theater out of the confirmation process. If, you know, we guarantee and lock in that every president is going to get two picks in a four year window that would help, you know, solve that issue. We need an ethics, a code of ethics to solve the problems that are coming to light via all the ProPublica reporting we need, I think, you know, cameras in the courtroom to bring more transparency to the workings of the Supreme Court and to demystify it for the public. You know, we need to eliminate forum shopping so that people can keep going to certain district courts in Texas because they know they’re going to get a guaranteed outcome. I think we need expansion of the courts to solve for the fact that the court has become so unbalanced based on, you know, Republicans hijacking the court and through the confirmation process the last five years. And so all these things to me go together. We’ve supported all of them and tried to cultivate a conversation around all of them. And then, you know, long term, rather than just rebalancing the court, we’d like to shrink the court’s power overall compared to the other branches of government. So, you know, we’ve also sponsored forums and and other activities to try to cultivate a conversation around jurisdiction stripping and a fast track legislative override proposal to give Congress an opportunity to quickly respond to court rulings that are striking down acts of Congress. So things that sort of prop up the elected branches of government vis a vis the judiciary, I think are also good and healthy. We’ve tried to support them all because, again, we didn’t found the group to advance, you know, any particular reform proposal. We’re trying to enliven and boost the public engagement around the courts generally. And so we see the structural reform conversation as good and in terms of the outcome that it might produce, but also good for its own sake, because it promotes sort of more candidate engagement, more lawmaker engagement, more more citizen engagement. In the fact that the court has broken all of these proposals treat as a premise that the court is broken, and that’s something that we need to seep in a little bit more with the public.

 

Leah Litman So because some people have raised questions about whether Congress has the authority to regulate the Supreme Court in these ways, and by some people, I mean Samuel Alito in The Wall Street Journal, we wanted to highlight some counter commentary by Justice Kagan, actually on ethics. And she made these comments at a judicial conference in Portland.

 

Clip It just can’t be that the court is think the only institution that somehow is not subject to any checks and balances from anybody else. I mean, we’re not imperial and we too, are a part of a checking and balancing system in various ways. So can Congress do various things to regulate the Supreme Court? I think the answer is yes.

 

Leah Litman Now, when she said this, she insisted she wasn’t responding to Justice Alito. Insert Kathryn Hahn winking face here. But you should note that Justice Kagan actually isn’t the first federal judge to and she didn’t really come out in favor here of, you know, reforms, but she wouldn’t be the first federal judge to come out in favor of some reforms. You know, Judge Diane Wood, the very well-respected judge on the Seventh Circuit, was previously on a body that recommended term limits, you know, by the Commission on the Practice of Democratic Citizenship, which was sponsored by the American Academy of Arts and Sciences. So perhaps one of the best testaments to your success is how badly you seemed to have gotten under the skin of the Republican members of the Senate Judiciary Committee. So as a kind of sendoff, we’re going to play some clips of them saying some things of demand justice, but then we’ll give you the final word. So here come whatever it is you should call the Republican members of the Senate Judiciary Committee. The Kens, the Ken-surrection.

 

Melissa Murray Legal Strike force.

 

Leah Litman The elite legal strike force. Of course.

 

Clip Dark money groups like Demand Justice have paid millions of dollars to promote, promote court packing. And so public distrust in the legitimacy of the Supreme Court. Went out to demand justice. They have a specific plan. Step one for seats on the Supreme Court. We must add four seats on the Supreme Court to restore balance, which by their opinion, is a majority with their view and their judicial philosophy. The co-founder of the Demand Justice played an important role in Judge Jackson’s nomination to the Sentencing Commission and the District court. The Demand Justice co-founder even interviewed Judge Jackson about the nomination to the Sentencing Commission. A lot of special interest groups have come out in support of your nomination. One of those is Demand Justice, and they are a progressive, dark money group that has launched $1,000,000 and buy to push for your confirmation.

 

Leah Litman Brian, I guess how does it feel to have created an organization that is public enemy number one or at least number two for the GOP and the SJC?

 

Brian Fallon Well, it’s always good for us for for grassroots donations to come in and for publicity sake, when the Republicans in focus at these hearings, I have to say, if I’m being honest, that they they somewhat deliberately enlarge our and exaggerate our influence, because what they’re trying to what they’re frequently trying to do is act like there is parity. And it’s an apples to apples in terms of. Yes, both the scale of resources that exist in the advocacy world on the left and the right around judicial issues, and also the sort of sordid ness of the tactics that goes on on the left compared to the right. And so, you know, I’m always sort of laughing when Cruz invokes us as sort of the, you know, analog to the Federalist Society because we know how much our we’re vastly outmatched by what Leonard Leo’s built over there. But again, it does it does help us. It boosts our Twitter mentions and we get followers from it and we get upticks in our donations on those days. So we always welcome it.

 

Melissa Murray Well, Brian, we hope that one day you like Leonard Leo will get a house in Maine and that your mortgage payments will be timed curiously to coincide with particular decisions.

 

Leah Litman We don’t hope that to be clear.

 

Melissa Murray Again, snark, just snark. But, Brian, thank you so much for joining us today on Strict Scrutiny. Congratulations on your great tenure at Demand Justice and all the great work that you all have managed to do and will continue to do.

 

Brian Fallon Thank you for having me and thank you for founding this podcast. I really mean this. I say this behind your backs too. So this is not just idle flattery, but I think that what you have done here in terms of building this podcast and also the the way that you’ve approached the podcast in terms of the demystifying of the court has been hugely helpful. And one of the things that I think hamstrung Democrats and progressives on the courts for decades was, you know, the public was sometimes sort of would would be skeptical of rulings and actions and the machinations that would be happening in the Supreme Court. But they distrusted themselves to be sort of effective judges of whether what was happening at the court was on the level or not. They sort of assumed that, you know, otherwise unpopular decisions might have been required by originalism or whatnot. So having, you know, legal people that have been at the top of the legal profession in academia and have clerked, having you folks come out and say this is not on the level, like take it from us. Like we can break it down here and and explain to you why this is all complete B.S. that that I think has given permission to lay people out in the public to trust their own instincts, that the court is broken and that something needs to happen. So thank you for the way you shifted the conversation.

 

Melissa Murray Oh, I feel so seen.

 

Kate Shaw Thank you so much, Brian.

 

Melissa Murray That’s a new T-shirt required by originalism. We’re going to be making.

 

Kate Shaw Your suspicions of the court is not on the level, in fact, correct. We’re here to confirm.

 

Brian Fallon But people, non-experts in health care have opinions on health care because health care so personal. But unlike matters of constitutional jurisprudence, people don’t trust themselves to sort of have an informed opinion. And so they look to people like you all. They look to the people that are the legal pundits on cable and everything to sort of tell them, like, was this required? Was this a do you know? And they’re further confused sometimes because, oh, the liberal justices, two of the liberal justices joined the decision and they don’t understand that that was like a strategic thing to stave off a worse ruling. And so it all contributes to like a fuzziness. And and it’s dulled, I think, what would otherwise have been a more expedited uprising by the public over the last few years. But now we have so many people pulling back the curtain like you all that. I think it’s that’s what’s contributed to the increased salience.

 

Kate Shaw Just trying to do our part. All right. Well, thank you so much again, Brian.

 

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Kate Shaw Strict Scrutiny as a Crooked media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw, produced and edited by Melody Rowell. Ashley Mizuho is our associate producer. Audio Engineering by Kyle Seglin. Music by Eddie Cooper, Production support from Michael Martinez and Ari Schwartz and digital support from Amelia Montooth.

 

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