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April 23, 2021
Positively Dreadful
A Supreme Threat to Biden's Agenda

In This Episode

This week on Rubicon, Brian Beutler talks to legal scholar Leah Litman about why Democrats and Republicans viewed the fight over the courts so differently for so long, whether Biden’s judicial nominees signal an end to that disparity, and what he and Democrats in Congress can do to protect his agenda from right-wing justices.




Brian Beutler: Hey, everyone, before we start the show, I want to tell you that right now Senate Democrats have the power to stop the wave of voter suppression laws sweeping the country by passing the For the People Act. But first, they have to come together and eliminate the filibuster. To do your part to end the filibuster, head over to votesaveamerica.com/forthepeople, and use our new whip count to find out where your senator stands. If they’re on the fence, give them a call using our call tool. Together, we can un-break the Senate and save democracy. Check out votesaveamerica.com/forthepeople today.


[news clip] Breaking news, Supreme Court Justice Ruth Bader Ginsburg has died. Ginsburg, who was 87—


[voice clip] On this vote, the nomination of Amy Coney Barrett is confirmed. [cheers, applause]


[voice clip] This is certainly a huge victory for President Trump. He has impacted the court for generations.


Brian Beutler: The Trump era played out as a series of body blows to democracy. And the threat Donald Trump’s most loyal allies posed to representative government and the rule of law is ongoing.


[news clip] Nine new election bills were introduced in the state Senate today, all of them coming from Republicans.


[news clip] Those leaders wanting to restrict absentee ballots and curb voter registration, among other things—


[news clip] A raft of new restrictions for voting and elections in the state, including making it a crime to offer food or water to voters waiting in lines.


Brian Beutler: Staving off the immediate crisis will require President Biden and Democrats in Congress to institute the kinds of democracy reforms that have been a focal point of this show: filibuster reform, voting and civil rights, statehood, non-partisan gerrymandering.


[clip of President Biden] What I’m worried about is how un-American this whole initiative is. It’s sick. It’s sick, and it cannot be sustained.


Brian Beutler: But the longer-term damage the Trump presidency did to democracy will be harder to undo. In partnership with Mitch McConnell, President Trump helped Republicans complete a decades-long project to seize control of the federal courts.


[news clip] President Trump has managed to confirm 196 judges on the federal bench. Is that normal for a president?


[voice clip] No, that is not normal at all. In fact, the Senate has confirmed 51 of president’s nominees to the appellate courts. That’s more than any other president at this term in their presidency.


Brian Beutler: With Bush v. Gore, Republican-appointed justices assured that their own court wouldn’t give way to a new liberal majority. The ruling allowed George W. Bush to make a huge imprint on the judiciary after losing the popular vote. President Obama undid some of that damage over eight years, but in his first years, he de-prioritized judicial nominations altogether. And when Republicans took control of the Senate in 2014, they slowed the pace of confirmations dramatically. They famously stole a Supreme Court seat by holding a vacancy open for Obama’s entire last year in office and refusing to give his nominee even a hearing. That allowed Trump to essentially appoint five years’ worth of judges in four, including in the final days of his presidency, Justice Amy Coney Barrett. That’s where the Biden era begins. With Trump-loyal elected officials trying to rig elections in the near term, and Trump-loyal judges engaging in a rearguard defense against the will of the people in the long term. And here’s the biggest problem of all: these two crises intersect. Biden joined the fight over the courts with more urgency than Obama did. He quickly nominated a diverse and progressive roster of judges to the federal bench, including D.C. Circuit nominee Ketanji Brown Jackson, who many court watchers expect will become the first Black female Supreme Court justice after Stephen Breyer retires. Biden also impaneled a commission to propose reforms to the judiciary.


[news clip] One thing currently being discussed is potentially reforming the Supreme Court. The commission is also examining possible term limits instead of lifetime appointments. As a reminder, conservative—


Brian Beutler: And top it all off, Biden nominated a Justice Department leadership team that will change and improve our national posture towards addressing voting and civil rights violations, which he talked about this week after the verdict in the Derek Chauvin trial was announced.


[clip of President Biden] We can and we must do more to reduce the likelihood that a tragedy like this will ever happen and occur again. To ensure the Black and brown people, or anyone, that they don’t have to wake up knowing that they can lose their very life in the course of just living their life. You know, state and local government and law enforcement needs to step up, but so does the federal government. That’s why I’ve appointed the leadership of the Justice Department that I have. I’ve also nominated two key Justice Department nominees: Vanita Gupta and Kristen Clarke—who are eminently qualified, highly-respected lawyers who have spent their entire careers fighting to advance racial equality and justice.


Brian Beutler: These are promising signs, but they likely can’t stand up to the perfect storm bearing down on us. Biden’s Justice Department can fight voter suppression laws in court, but what will it matter if the judges ignore their arguments? Democrats in Congress can pass democracy reforms, but what happens when the same judges strike them down, along with other huge parts of Biden’s agenda? My guest this week is Leah Litman. She’s a constitutional law professor at University of Michigan and co-host of Strict Scrutiny, a podcast about the Supreme Court and the culture of elite law. We spoke Tuesday afternoon before the jury rendered its verdict in the Derek Chauvin trial about how we got to this point, how Biden has responded, and what more it will take to overcome the longer crisis of democracy the country faces. I’m Brian Beutler. Welcome to Rubicon.


Brian Beutler: Thanks for joining us, Leah,


Leah Litman: Thanks so much for having me.


Brian Beutler: So for several decades at least, I think it was safe to say that Republicans and conservatives cared much more about the courts than Democrats and liberals. Is that a fair assessment? And do you think that’s still true?


Leah Litman: I think that that is absolutely historically accurate. Most memorably, in the 2016 presidential election, it appeared like voters who were going to the ballot to select a president to pick a Supreme Court justice picked Donald Trump to do that selection. I don’t think that is currently the case, although it remains to be seen whether this kind of energy and interest on the part of Democrats is going to be sustained.


Brian Beutler: So here’s a story I tell myself about why the gap between Republican and Democratic enthusiasm about the court as an issue, is closing. And I want to run it by someone who actually knows what she’s talking about. So it goes like this. The right’s fixation on the court began as a kind of semi-defensible small ‘d’ democratic reaction to the Warren and Burger Courts, where the Supreme Court was affirming new rights for women and minorities, and conservatives sort of thought: you know, we’re the political majority of the country and who are they to force this stuff down our throats? And so they set about trying to capture the courts. They, by and large, succeeded in that project, but at the same time, they became a political minority. So the fixation changed from sort of opposing the court’s judicial activism, to soliciting conservative judicial activism. On the flip side of this, Democrats assembled a political majority and they, sort of relative to Republicans anyway, de-centered the court. One, because they feared backlash to the kind of jurisprudence that had prevailed before, and also because they’re the political majority so we should make change by legislating, not by having the courts kind of impose what we want on the country. And I think it’s changing now because Republicans through accidents of history and acts of corruption, frankly, have like stacked the courts, and the courts started thwarting popular majorities in really questionable ways. And that brings us to the current day. That’s my story. So what grade would you give my understanding of the last 50 years,


Leah Litman: B+ for using big words and important concepts.


Brian Beutler: [laughs] OK.


Leah Litman: No. I think that that does make sense. You mentioned, kind of generally speaking, that part of the conservative interest and conservative take over in the courts was a reaction to the Warren Court, which, of course, is the court that announced Brown vs. Board of Education, and that court’s recognition of new rights for women and minorities. But if you actually drill down into the details, it looks like some of that opposition and some of that movement got started, in particular as a reaction to Brown vs. Board of Education. And so Sherrilyn Ifill, who’s the President and Legal Director of the NAACP Legal Defense Fund, has talked about how judicial nominations became more polarized, not as a response to Roe vs. Wade—which I think is a common story—but actually as a response to Brown vs. Board of Education, with nominees from both political parties purporting to put up nominees who would either remedy school segregation and require school districts to undertake affirmative steps to integrate or not. Similarly, Calvin TerBeek, who’s a political scientist, has a fascinating new paper that actually describes how the movement around originalism gained a lot of force and took shape in response to Brown vs. Board of Education in particular.


Brian Beutler, narrating: Originalism is a term many conservative legal elites used to describe how they think judges should approach judging. But its meaning has changed over time. It once meant that judges should assure that laws comply with the original intent of the Constitution. Now, most of them say government should be bound by the supposed original meaning of the Constitution. And here’s the key. Both forms of the interpretive methodology have been used as pretext for asserting that laws and rulings conservatives don’t like are unconstitutional. And when that hasn’t worked, conservative judges themselves have happily ignored their supposed originalist convictions in favor of ruling how they see fit to advance conservative goals. As Leah suggests, it’s enough to make you wonder whether conservative judges use legal jargon to cover their true aim: imposing conservative policy preferences from the bench as if the Constitution required it.


Leah Litman: While it’s true that perhaps that movement and this story can be traced to small ‘d’ democratic ideas about wanting to take issues out of the courts and into the political branches, the specific issue that they really wanted to take out of the courts was remedying racial segregation.


Brian Beutler: And that’s why you’ve had decades and decades and decades of conservatives sort of saying that their main concern about anything the court does is that they use a particular methodology, not: we don’t like this particular opinion—because that would place the movement on the side of segregation and thus imperil its political viability.


Leah Litman: Yeah, you know, it’s both a virtue and a vice of legal reasoning and interpretive methodology is that they allow us to talk about issues that are super important and impact real people’s lives in a way that makes them seem less polarizing. So we can talk about, for example, segregation or police violence in terms of federalism, separation of powers, originalism, textualism—and as abstract principles, those aren’t principles that necessarily one political party should agree with and another political party should disagree with. But the problem is they kind of become tropes that are associated and almost stalking horses for particular substantive values. And then that excuses the party for appointing judges who are reaching these results when they do so through language that doesn’t sound like: well they’re reaching the results because they agree with the substantive result or not.


Brian Beutler: Right. “This is not an ideological determination I made, except that my only ideology is originalism and it forced my hand and I had to do this thing.” OK, so I’ll actually take the B+ turn it into a B-, accept your corrective. But I think we agree that the end point of the story is that Democrats and liberals realized that there was no dodging a fight over the the composition of the court. And one manifestation of the left’s renewed interest in judges came in 2019 just as the primary, the Democratic primary, was heating up, when the team at Demand Justice tried to get Democrats to pledge not to nominate more corporate lawyers to the bench if they won the presidency. So just as a starting point, is that a good or feasible goal to work towards?


Leah Litman: I don’t know if I embrace it as an absolute principle. You know, if we said no corporate lawyers on the bench, that would exclude some people who have been really great judges or justices. But what I hope we do get toward is the following. First is, the composition of the federal courts, as it currently is, is way skewed toward corporate lawyers. It would be great if the next batch of nominees included the percentage of corporate lawyers as the percentage of judges who used to be public defenders. So, for example, like the current composition of the federal courts is something like 2 – 3% public defenders. If the Biden administration wants to put forward a slate of nominees, that is 2 – 3% corporate lawyers, you know, no objections from me. Second is, I think another important part of this push is the idea that lawyers should be responsible for the positions that they argue for in practice. And part of the concern with nominating corporate lawyers is that you are going to be nominating people who have, for example, defended corporations in minimum wage violations, or unlawful or abusive employment practices, or who have forced their employees to arbitrate disputes rather than litigating discrimination or harassment claims in the federal courts. And so if the Democratic Party actually wants to be on the side of workers, laborers, and other kinds of civil rights, then they shouldn’t be nominating people who have taken very anti-worker, anti-labor, anti-civil rights positions as practicing lawyers. And so perhaps, you know, part of this push is just asking people to think about the kinds of decisions and practices and positions they take as practicing lawyers.


Brian Beutler: I’m so glad you brought that up before I did, because every now and then, like a Democratic Party-aligned lawyer will represent a terrible client. And people observe this. And defenders of the old norm kind of fall back on this old saw about how we don’t want to stigmatize lawyers representing unsavory clients, sort of as if corporations were no different than like an indigent defendant accused of selling drugs. And I’ve always thought as a non-lawyer that this struck me as like way too cute and convenient for the profession. Right? Like, first of all because the right to counsel isn’t the same thing as an entitlement to make tons of money representing rich bad guys, and then you catch no flack for it. Second, because just as a reporter, I’ve noticed that public interest lawyers and civil rights lawyers, they don’t always get the same kind of deference in the political sphere. Right? Like we see that happening now with Biden’s DOJ nominees. We may see it with some of his judicial nominees. We definitely saw it when Barack Obama nominated Debo Adegbile to lead the civil rights division—suddenly who you represent or who you file an amicus on behalf of, matters, just not if you’re a corporate lawyer. And then the third part of it is like, do we really want to hold ourselves to a view that also requires us to say that there’s nothing wrong with the choices someone like Don McGahn or Pat Cipollone made as Donald Trump’s White House counsel?


Leah Litman: I have a lot of sympathy for your dissident view—lawyers should actually be responsible for the positions they choose to take even as government lawyers. So, for example, the Trump administration lawyers who were arguing for covering up the call between the President and the Ukrainian President, you know, in which he was trying to extract political favors and extort him, you know, those lawyers should actually be responsible for those decisions. And I don’t think that that is, would be working some great harm to the legal profession to actually say: no, there is a distinction between representing someone who is facing a capital crime or life in prison and doesn’t have the money to pay for a lawyer versus being a hired gun for a corporation who is, you know, trying to prevent their workers from engaging in union building.


Brian Beutler: So how do you crack that egg in practice? Right? Like, if a blanket blacklisting of corporate lawyers won’t work because, you know, you don’t want to basically paint with too broad a brush, how do you inject scrutiny of corporate representation in the appointment process so that it’s not like it used to be where both parties regard being a partner in a big corporate law firm as sort of like a neutral credential?


Leah Litman: I think you do so just by asking people, well, what are the big cases you have litigated? Who are the clients you’ve represented? And then asking whether those cases and clients have undermined major interests of the Democratic Party and Democratic coalition. Again, if you are a big corporate lawyer who has spent your entire career defending corporations engaged in union busting, I mean, why are you calling yourself a Democrat? If you have spent your lifetime defending corporations’ ability to deny employees health care benefits or pensions? I mean, I don’t understand the point of saying you’re a Democrat. It can’t be that Democrats can’t consider the litigating positions of people they are putting up for lifetime appointments when it’s so clear that Republicans have been doing so for years. You know, this is one big difference to me in the kinds of nominees we see from different administrations. For the last four years. We saw the Trump administration, and really the previous Republican administrations, selecting people who had been on the forefront of advocating for causes associated with the Republican Party: restricting voting rights, chipping away at LGBTQ equality, undermining the Deferred Action for Childhood Arrivals program—those are the people that the Trump administration was selecting for federal judgeships. And why can’t we as Democrats nominate the people who are on the forefront litigating and pioneering civil rights claims and other Democratic causes for federal judgeships, rather than just nominating someone who’s given some money to the Democratic Party but spent their life engaged in, you know, pro corporate work? That just strikes me as very asymmetrical and not good for the composition of the federal courts.


Brian Beutler: Yeah, I think what you’re saying kind of gets to the absurdity of the last thing we were talking about, this idea that you should never judge a lawyer by their clients. Like when when Amy Coney Barrett was confirmed, it was sort of popular to observe that three of the nine justices worked on Bush v. Gore on the Republican side. And you would get pushback from defenders of John Roberts, Brett Kavanaugh and Amy Coney Barrett that, you know, they were just doing their jobs is up and coming lawyers in conservative politics.


Leah Litman: It’s particularly absurd when you are talking about lawyers like John Roberts, Brett Kavanaugh, Amy Coney Barrett, who clerked on the Supreme Court, graduated at the top of their classes from various law schools, could have gone on to work for any elite law firm, and essentially have any job they wanted. Like you choose what to spend your time on and you choose what causes to fight for. Of course, we should evaluate someone’s candidacy based on the kind of work that they’ve done. And it’s completely relevant that three of the justices chose to spend their time trying to get a Republican president elected by stopping the counting of votes.


Brian Beutler: OK, so back to Joe Biden. I don’t think he took the Demand Justice pledge, but we do have some indication of how he views the nominees question in the form of his first 11 federal judicial nominees. So what’s your impression of these nominees? How closely do they conform to the ‘no corporate lawyers’ demand? And to what extent do they represent a departure from the Obama paradigm?


Leah Litman: I think it’s helpful here to disaggregate two groups within the nominees. The first are the Court of Appeals nominees and the second are the district court nominees. The Court of Appeals nominees are nominees who will serve on the Court of Appeals, the appellate courts within the federal system, and those nominees are primarily selected by the administration and the White House Counsel’s Office. The District Court nominees, the nominees who sit on the trial courts within the federal system, are primarily selected by home-state Democratic senators, who recommend names to the White House Counsel’s Office, who then will make a selection. And sometimes they might just recommend one name rather than several. I think based on that categorization, it’s clear that the Biden administration and the White House Counsel’s Office is really prioritizing professional diversity. Two of the three first Court of Appeals nominees were former public defenders. Whereas the district court nominees, their background was much more traditional. Many of them had formerly been prosecutors, U.S. attorneys, many of them had some background in corporate law. So there, while the District Court nominees were demographically diverse—you know, we would have the first Muslim American judge—the professional diversity was not quite as great. So the first batch of nominees looks pretty different. It’s unclear whether Democratic senators are going to kind of get the message and get on board with this new understanding about what might make a good nominee. But at least the Court of Appeals nominees look pretty exciting, at least from my perspective when thinking about professional diversity.


Brian Beutler: Can you widen the lens a bit to include Biden’s, some of his executive branch nominees and hires that are sort of judicial-adjacent? Like how much does it matter to have an administration taking more aggressive positions on things like voting rights and antitrust enforcement, given how unwelcoming the judiciary he’s sort of inheriting is?


Leah Litman: Yeah, so I was super stoked to hear that he was selecting Vanita Gupta and Kristen Clarke to lead sections of the Department of Justice. They would be in charge of civil rights as well as voting rights within the Department of Justice. And I was excited about that for a few reasons. One is, I think those are just critical issues facing the country. Second is, those two individuals in particular had been on the forefront about being outspoken regarding the various threats facing our democracy for the last four years. And so all of a sudden, we were living in a world in which the Biden administration was willing to select people who had been willing to go to bat for small ‘d’ democratic principles, and big ‘D’ Democratic principles, publicly. And in the past, that’s not really who Democratic administrations selected for high ranking posts. They were previously selecting people who maintain some studious form of neutrality and just not engaged in politics whatsoever. You know, again, the neutral prosecutor or the corporate lawyer who was viewed as neutral. But that’s not Vanita Gupta and that’s not Kristen Clarke. And so seeing them in the batch of nominees for the Department of Justice was really exciting. I don’t think that model really represents the kinds of people that the administration has selected as judges thus far. That is, we’re not seeing them nominate people who have been leading sections of the ACLU, or people who have been on the forefront of voting rights litigation for the Southern Poverty Law Center or the NAACP LDF—not yet, at least. I hope we’re going to get some of those nominees, but they’re not selecting cause litigators, at least not yet. And I think they should, in part because Republicans have been doing this for a long time. It would give more professional diversity to the federal courts, you know, so on and so forth. But the limitations of the judiciary- adjacent nominees at the Department of Justice are the reality that it’s great to have people at the Department of Justice who are committed to voting rights, but there’s only so much you can do given the composition of the federal courts and the Supreme Court in particular.


Brian Beutler, narrating: Here’s what Lee is getting at. Vanita Gupta and Kristen Clarke are excellent lawyers and a credit to the Biden administration. But the separation of powers means judges don’t actually have to listen to them, even if their arguments are airtight. That’s why Republicans have been so keen on capturing the courts. Judges can stop policymakers in their tracks. And when the Supreme Court rules however it wants to rule, its decision is final. When you have that kind of power, winning elections with popular majorities becomes kind of superfluous.


Leah Litman: So even if you have a super great Department of Justice who wants to litigate these cases and is out there collecting evidence and defending plaintiffs who are bringing these Voting Rights Act suits, there’s just a limit to what they can do in the absence of additional legislation expanding voting rights, or courts that will enforce the legislation that we actually have. So I hope that the Biden administration will take a page out of who they are selecting for the DOJ positions, and nominate some of those people to the federal courts as well.


Brian Beutler: Right. It’s not like the, you know, the Obama administration attorneys in 2009, ’10, you know, basically through a whole term, were deficient advocates on these issues. It’s just that the Supreme Court, as it was constituted at the time, was intent on doing what it did. And there’s only so much being a brilliant lawyer arguing against that view can do to dissuade them, right?


Leah Litman: Yeah. Like everyone was shouting at the Supreme Court, you know: the ground on which you are thinking about striking down the Voting Rights Act is insane. It has no basis in the text of the Constitution, history, your prior cases—so on and so forth. Like you can scream until you’re blue in the face at them, and that’s just not going to make any difference. And so that’s part of why, you know, you actually need to do a lot of these judicial nominations as well if you want to give DOJ some power to actually enforce the laws that we have.


Brian Beutler, narrating: Coming up: how worried should we be that federal judges will undo the progress the Biden administration and the Democratic Congress have already made? When we return.


[ad break]


Brian Beutler, narrating: Welcome back to Rubicon. My guest this week is legal scholar Leah Litman. We’re talking about how the Biden administration can reform and rebalance the courts after years of Republican court packing.


Brian Beutler: Let’s imagine an optimistic scenario: the Senate confirms all of these new nominees, the White House continues filling vacancies as they arise with judges in the same mold, Justice Breyer retires in a timely fashion, Biden replaces him with Ketanji Brown Jackson or someone similarly distinguished. Add it all up. The courts remain extremely skewed. So how big a threat is this judiciary to Biden’s agenda, overall?


Leah Litman: It is a huge threat to Biden’s agenda on several fronts. First, let’s think about some of the policies or priorities the administration might have, such as climate change. A lot of climate change will be addressed through administrative agencies like the EPA, for example. This court has five justices on it who have said: we actually want to peel back administrative agencies’ authority back to the time predating the New Deal, before the 1930s, before administrative agencies were actually regulating most facets of our lives. If this court actually did that and revived what’s known as the “non-delegation doctrine” which prohibits Congress from giving authority to agencies to actually make rules that impose requirements on private parties, I mean, there goes the EPA’s ability to actually address most of climate change. So, you know, that’s one big thing that is on the chopping block. I think immigration is something else. Let’s think about, for example, the Biden administration reversing the Trump administration’s decision not to grant temporary protected status to immigrants from many different countries. Let’s think about the Biden administration’s decision to retain the Deferred Action for Childhood Arrivals program. There is nothing stopping some courts, some Trump judges on the lower courts, and then the Supreme Court, from invalidating those grants of discretionary relief to groups of immigrants. There are current challenges right now to the Center for Disease Control’s moratorium on evictions. The CDC prevented or prohibited evictions because of the coronavirus. Several Trump-appointed judges to the district courts invalidated that prohibition on the grounds that it was unconstitutional or violated various statutes prescribing the CDC’s authority. So basically, anything the Biden administration might try to do through the executive branch is at risk of being invalidated by the increasingly conservative federal courts and this Supreme Court. Now, let’s imagine that the Biden administration does away with the filibuster and passes some legislation through the Democratic House and Democratic Senate. That legislation, too, is going to be vulnerable to the courts. So, for example, let’s imagine that they passed the John Lewis restoration of the Voting Rights Act. Nothing is stopping the Supreme Court from saying this is Shelby County vs. Holder part two. Like, we said: you couldn’t actually subject these states to preclearance and we meant that, you can’t do it under this revised Voting Rights Act either. There are also previous opinions that hint at maybe Congress can’t actually prohibit partisan gerrymandering in the states by creating independent districting commissions and drawing districts within the states, rather than allowing state politicians to do so and engage in partisan gerrymandering. So let’s imagine again, Congress passes this legislation prohibiting various forms of interfering with voting rights. Nothing is stopping this Supreme Court or any of the lower federal courts from invalidating that legislation.


Brian Beutler: We’ve gotten a lot of questions. We do a mailbag segment at the end of every episode, and the last couple have been about this basic thing. And I’m actually kind of heartened to hear I basically told our listeners what you just said. I am very worried about democracy and voting rights reform and about his whole regulatory agenda. And beyond the like, you know, whatever specific arguments these judges or the justices use to to throw those things out or take a hatchet to them, I’m worried that, you know, one of the perks of having lifetime appointment is that you can kind of wait out the political alignment of the moment. And, you know, it’s hard to imagine in a 50-50 Senate, even under a terrible set of circumstances where they pass the John Lewis Voting Rights Act or the For the People Act and the Supreme Court guts it, it’s even now hard to imagine this Senate saying: all right, well the penalty for that is we’re going to expand the courts. But you could at least imagine it. Like that would be a huge affront to this Congress. But they could just wait, right? Like they could just wait until there’s no longer a governing trifecta and then the window to do anything about how unrepresentative the court is of America’s political majority will be closed.


Leah Litman: No, I think that that’s absolutely right. So I think it would be a mistake to draw any long-term conclusions about what this Supreme Court is going to do based on how it is acting right now during what is, I think, the high watermark of Democratic interest in Supreme Court reform and restructuring, in their professional lifetimes.


Brian Beutler: Yeah, so there’s a range of views on the left about how to address the risk, the skew of the court. Biden’s move was to empanel a court reform commission. The one way to interpret that is basically as a dodge, just a way to avoid a politically-fraught debate and kind of like white knuckle it, and hope doomsayers like me and maybe you are wrong. And another is to say this just keeps the iron in the fire. You know, maybe just the existence of the commission, the fact that this is kind of in the air, creates pressure on this court not to get too over its skis. If that’s the debate, which side you come down on.


Leah Litman: So I think given its membership and given its stated purpose, it’s certainly a dodge. There is zero chance that given who is on this commission and what the commission was tasked with doing, that they are going to recommend or endorse any kind of reform that would be aimed at addressing the Republican takeover of the courts. It wasn’t designed to kind of create a platform for, let’s say, informing more people about, you know, the conservative takeover of the courts or the litany of solutions that might be on the table to responding to that. But I don’t really think that it’s true that we can know whether the doomsayers are right within the lifetime of the Biden administration. I think we might have like, some indications about that in the next three years, but we’re not going to see what the Supreme Court is really going to do, let’s say, over the next decade, necessarily in the next three years.


Brian Beutler: I wrote a piece for The New Republic in I think 2014 or 2015 about the movement on the libertarian right to revive Lochner era jurisprudence. And I read back on the piece before we did this interview, and I think I didn’t fully appreciate at the time I wrote it, the extent to which we were already kind of living in that world.


Brian Beutler, narrating: Let me give you a quick primer on Lochner era jurisprudence. Lochner is shorthand for the 1905 decision in Lochner vs. New York, which along with earlier rulings upholding slavery and segregation, is widely regarded within the legal academy as among the most erroneous and unjust decisions the Supreme Court has ever made. The case itself was particular to a law that capped working hours in bakeries, but its ramifications were profound. It held in essence, that workplace regulations like a minimum wage, were unconstitutional because they violated the inherent individual right to enter into contracts, to agree to work for poverty wages or in unsafe working conditions, a right which isn’t actually enumerated in the Constitution. The Lochner era describes the ensuing decades when the court stepped in to throw out all kinds of progressive state and federal laws, including parts of the New Deal. And it only came to an end after FDR threatened to pack the court.


Brian Beutler: Thirty years from now, we’re going to look back on the Roberts court as sort of like the second coming of the Lochner era. Then we’ve already been here for over a decade. How does this disconnect between the courts and the governed get resolved, other than just like waiting 30 years and letting nature take its course?


Leah Litman: If I had an answer to that, I would already have proposed it, because I do think this is kind of like the major conflict that we are facing. Even if, let’s say, the Supreme Court doesn’t invalidate or take a big chunk out of every major Biden initiative, they are still going to be advancing conservative causes through various cases, you know, state-level abortion cases, state-level LGBTQ equality cases, state-level cases involving religious exemptions—you know, the Supreme Court has been extremely active in striking down public health measures designed to reduce the transmission of the coronavirus on religious liberty grounds.


[news clip] Last night, the Supreme Court, and it basically barred the state of New York from enforcing strict attendance limits at houses of worship due to COVID. We should point out that this ruling also highlights the impact of newly-sworn Justice Amy Coney Barrett. She sided with her conservative colleagues in this dispute. So that really is what what this means.


Leah Litman: So, you know, we talk about what this court might do, and, you know, in my view, they’ve already been pretty active in signaling and making big changes to the law. As far as, you know, what there is to do to minimize this gap, I think the solutions come in a few different forms. One is just neutralizing the power of the courts in general. So you can imagine a body of solutions that say: well, the Supreme Court just can’t invalidate federal statutes, or they can’t invalidate federal statutes on the ground that they violate the First Amendment or the 10th Amendment, and living with that regime through Democratic administrations, Republican administrations, even in 30 years from now when there might be a Democratically, you know, a majority of justices appointed by Democratic presidents. So one potential bucket of solutions is just neutralize the power of the Supreme Court and the federal courts in general. Another bucket of solutions is selectively reduce the power of the federal courts. So you pass the John Lewis restoration of the Voting Rights Act and you say: no federal court will have the power to invalidate this act on the grounds that it exceeds Congress’s powers. And so you limit the power of the federal courts to do certain kinds of rulings in a certain set of cases. Alternatively, you expand the lower courts, you expand the Supreme Court, you do both. Any of those things, perhaps in combination with one another, would address the threat that the federal courts pose to like small ‘d’ democratic initiatives. I think going forward, you know, another bucket of solutions is like trying to think about things that would reduce the kind of like partisanship or like polarization of appointments. Some of the solutions are, well you create a 10-member Supreme Court and a partisan balance requirement: five of the justices have to be appointed by Republican presidents, five of the justices have to be appointed by Democratic presidents. That court can’t do too many insane things. Or you create a system that has life tenure. You give every president two Supreme Court appointments and potentially have a court that fluctuates in size. You know, there are any number of solutions you can imagine. You know, perhaps we revisit Senate apportionment, perhaps we revisit the Electoral College. You know, that too would go a long way to addressing the kind of skewed composition of the Supreme Court and the fact that a majority of the justices were appointed by presidents who didn’t necessarily get a majority of the popular vote, and also confirmed by senators who represented less people than or fewer people than the senators who oppose them. So you can do any of these things. You can do some of them. You can do none of them. But I think it would be a mistake just to kind of sit back, keep your fingers crossed and hope for the best.


Brian Beutler: I’m kind of curious what your views will be on my two preferred courses of action. first one: add 1,000 seats to the Supreme Court.


Leah Litman: So I think, honestly, that would kind of effectively be asking the Supreme Court to disengage from, like most major questions. So it would be kind of like eliminating the court’s jurisdiction in important set of cases, since you can’t possibly imagine, like a body of 1,000 people issuing a reasoned set of decisions in, you know, however, number of cases, you know, they’re hearing or, you know, the big-ticket cases


Brian Beutler: That was super sporting of you. And I kind of believe this. It’s mostly like my hot take for the general question of how do you diffuse this threat that the Supreme Court poses to democracy. You just make a mockery of it. But the other idea I had just kind of idly, and I’m curious what you think of it is: you know, we got a question about whether, sort of, as you said, Congress could write in a provision saying that these bills are exempt from judicial review. And just in kind of asking other constitutional scholars about it, the response I got was basically they’re going to say that that in and of itself is unconstitutional, like judicial review is our divine right from the Constitution, and so you can’t just write provisions exempting specific laws from them. But what if you what if you created some sort of kind of, I don’t know if kill switch is the right word, or a self-executing provision that said, if any provision of this bill is deemed unconstitutional by the Supreme Court, it triggers a provision that automatically expands the court.


Leah Litman: So I think that if you truly think that this Supreme Court would invalidate a provision in a statute that says: you know, the Supreme Court doesn’t have jurisdiction to hear a constitutional challenge to this case—there is precisely no chance that the Supreme Court wouldn’t say the same for, let’s call it like the ‘poison pill’ approach, in which Congress enacts ‘in the alternative’ a Supreme Court expansion bill that takes effect in the event that the court invalidates the John Lewis restoration of the Voting Rights Act. So like I agree with you and like the scholars who are saying that. But I think there basically isn’t anything outside of just expanding the number of justices on the Supreme Court that wouldn’t be vulnerable to constitutional challenge, given that, again, like the Supreme Court could just say: you’re interfering in our power of judicial review. And that, I think, hasn’t really been grappled with by people who are thinking about Supreme Court reform. You know, everyone thinks that they can come up with, like, the one solution that is perfectly constitutional, that the Roberts court is never going to invalidate. And that’s just not how this works.


Brian Beutler: Yeah, that that’s mostly been my sense of things. We said on the show and elsewhere, that the only bulletproof way to protect the John Lewis Act and the For the People Act would be to include a provision within them, or prior to passing them, expanding the courts. OK, I’ll leave it there. But everyone, even non-lawyers, listen to Leah and Melissa Murray and Kate Shaw on the Strict Scrutiny podcast. You’ll learn a lot about what your government is doing and why it matters. Leah, thanks so much for joining us.


Leah Litman: Thanks so much for having me.


Brian Beutler: The final episode of this season of Rubicon will run Friday, April 30th, on Joe Biden’s one 100th day in office. We have another great guest lined up for you to answer all my silly questions, but we’ll also take a look back, recap for you the highs and lows of the first 100 days and talk about how things look for the next 1,000 and beyond. There’s a lot to cover and I won’t be able to revisit everything that happened, but if there’s anything in particular you’d like me to address about how these first days have gone or what the future may hold, email me one last time at Rubicon@crooked.com.


Brian Beutler: Rubicon is written and hosted by me Brian Beutler. It’s produced by Andrea Gardner-Bernstein. Veronica Simonetti is our audio engineer. Production support from Olivia Martinez. Thanks for listening. We’ll be back next week.