Demystifying the Supreme Court
2019-04-06 · Guest: David Kaplan (Author and former Newsweek editor) · 51:38
The excessive power of the US Supreme Court
Bob Zadek interviews David Kaplan, author of The Most Dangerous Branch, to discuss the growing and arguably excessive power of the U.S. Supreme Court. They explore how the Court has transitioned from Alexander Hamilton’s “least dangerous branch” to a body that frequently decides major social and political issues, often at the expense of the democratic process and the functionality of Congress.
Topics: Supreme Court, Judicial Activism, Bush v. Gore, Roe v. Wade, Second Amendment, Partisan Gerrymandering, Court Packing, Term Limits, John Roberts, Constitutional Law
Speakers: Bob Zadek: Host David Kaplan: Guest
Introduction [00:18]
Bob Zadek: Hello everyone, and welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. Thanks so much for listening this Sunday morning. We are, this morning and always, the show of ideas, never the show of attitude. It is nice to be back after a one-week hiatus when I was forced to travel out of town and ran an archive show. But it’s sure great to be back with all my friends this Sunday morning.
This morning’s guest is David Kaplan. David is an NYU Law graduate. He is the former legal affairs editor of Newsweek. He covered the Supreme Court, this morning’s topic, for over a decade. David is a bestselling author. He has written three books in addition to the book we are going to discuss this morning. David has written The Silicon Boys, a history of life in Silicon Valley before and leading up to the most recent—not so recent anymore—bust. He has also written The Accidental President, which is an account of the 2000 election, and HBO did a special, I think it was called HBO Recount, based on David’s book. He also has written Mine’s Bigger, which was a biography of one of the biggest sailboats in the world.
This morning, we are going to discuss David’s book, The Most Dangerous Branch. David’s subject is, as I said, the Supreme Court. The Most Dangerous Branch—and of course, his book is a bit of a play on words. During the Revolutionary era, in the Federalist Papers, Alexander Hamilton wrote in Federalist 78—I could be wrong about the number—observing that the Supreme Court was the “least dangerous branch” because it had neither arms nor a purse. All it could do was say what it thought, but it had no power to enforce what it believed to be the law of the land. As David will point out, Alexander Hamilton, who knew a whole lot about a whole lot of things, maybe got his view of the Supreme Court wrong. As David will explain, the Supreme Court has become now, if not dangerous—we can discuss that—certainly far more powerful than the founders ever, ever envisioned. David, welcome to the show this morning.
David Kaplan: Pleasure to be with you. I just want to get one of the ground rules established. You said the show was about ideas, not attitude, and I’m still trying to wrap my arms around the difference. I’m afraid I’m probably guilty of both, but maybe more of the latter than the former, so I have to be careful. I’ve been warned.
Bob Zadek: I’ll answer your question by referring to a letter or an essay that Thomas Jefferson wrote when he was in Paris and having an affair, perhaps, with Maria Cosway. He was having an affair, maybe, certainly an intellectual affair, and he talked about—he knew he shouldn’t be with her—and he talked about passionately the battle between his heart and his mind. This constant battle, the rational part and the emotional part. So I will refer to Jefferson in saying ideas are the head and attitude is the heart, if that answers your question.
David Kaplan: I will try to follow Jefferson’s instructions. Was he a guest on the show?
Bob Zadek: Regretfully not. He would have been, as many have observed, quite an interesting guest to have, although he wouldn’t have spoken loudly enough. He spoke very softly, and I might have had to really pump up the volume.
The Power of a Single Justice [01:59]
Bob Zadek: Now David, your book, I think, had at least part of its genesis on an event that was obviously important to you and important to me, and interestingly for the very same reason. And that was the death of Scalia. When Scalia died, the morning after Scalia’s death—and I really respected the man as a jurist, I just was very fond of him and I loved his writings, his opinions—when he died, I sat around and I was distressed, and I started to think about all of the cases that were at that moment on the Supreme Court docket that now, with Scalia gone, the cases would be decided differently. And these cases collectively affected the lives of almost every living and to-be-born American. And I said to myself, “My goodness, how could it be that one person in our country, which prides itself on competing branches of government being checks and balances, how could it be that the death of one man is likely to change so much of the life of so many people? He’s not a king, he’s a judge.” And David, you found that as your starting point as well.
David Kaplan: When Scalia was alive, Justice Kennedy in effect ruled the country on so many key political and social questions. It wasn’t that Scalia’s death changed that arithmetic; it just meant that the next justice would arguably shift that balance. And what struck me at that moment back in February 2016, the beginning of a presidential election year, is that you heard Democrats and Republicans, liberals and conservatives, all agree on the idea that “the next justice could well determine American social life for the next quarter century.”
And I think that’s the genesis for the book. Whether you’re liberal or conservative, Democrat or Republican, do you really want a system where a single, unelected, unaccountable government official controls so much policy? And the argument in the book, in addition to being a behind-the-scenes look at who the justices are—and I’m a journalist, I’m not a scholar—the point of the book is to explore how the Court became that way and to challenge the idea that it ought to be that way.
Because now, for example, with conservatives in control of the Court, liberals all attack the Court’s power and triumphalism. But of course, not that long ago, when the liberals were in control, the conservatives attacked the Court’s primacy. And I think that’s hypocrisy. And you hear, for example, many on the right who now look to the Court to achieve victories that the right can’t achieve in the popular branches of government, the democratic (small ‘d’) branches of government, chiefly Congress. So you, for example, see the Trump administration trying to get rid of the Affordable Care Act, Obamacare, because the Trump administration wasn’t able to do that in the first two years of its administration when it controlled Congress. Now, of course, it can’t achieve that legislatively because the Democrats own one of the houses. You see the Trump administration trying to do similarly with immigration and abortion. So I think we’ve all become judicial activists in the sense that we want the justices to step in and solve problems because we no longer are willing to trust or rely on the legislative branch, the popular branches of government. And that’s my criticism.
I don’t argue for an impotent Court. I think there are other areas—we can get into some of them—but there are areas where the Supreme Court ought to be asserting itself, but not to the degree that it does. I also don’t want anyone to think that I’m pleased with where the democracy is these days. I am no fan of Donald Trump, I’m no fan of the current Congress, which I think does a terrible job either of doing a few things or doing nothing. But I think over the long haul, I would rather place my bets with democracy than with unelected, unaccountable justices. I don’t think we need the Court to save us from ourselves in so many areas that left and right both look to the Court.
Democracy vs. Individual Rights [03:59]
Bob Zadek: It’s interesting because I once did a show a couple of years ago, and sort of in my brain, I give my shows a title so I have my own focus. And the title in my brain was “What’s So Special About Majority Rule?” And I really am not a fan of majority rule in many cases because, as was observed, if your rights are going to be taken away from you, or what you believe to be your rights, it doesn’t feel any different if they’re taken away by 51% of the people or taken away by one tyrant. They’re still taken away.
David Kaplan: I think that’s a fair point, but I would cite you, as many others would, Winston Churchill: that democracy is a lousy form of government, but it’s better than all the alternatives. And without getting into deep political theory, I think democracy is the most legitimate form of government. And as a practical matter, I would rather place my bets with majority rule than relying on a monarch.
Now, some might say we ought to have a Supreme Court that protects individual rights against the wishes of the majority, and we do have that. That’s what the First Amendment stands for. We don’t need a First Amendment to protect popular views, because popular views by definition aren’t going to be challenged by a legislature or a president. We need the First Amendment to protect unpopular views, whether those are Nazi views, white supremacist views, communist views, or liberal views. That’s why we have a First Amendment. And we have a Fourth Amendment to protect the rights of criminal defendants who, by definition, are unpopular. So I don’t want democracy to trample all individual rights. It’s a question of degree and, of course, in determining which individual rights or economic rights ought to prevail over majority rule, somebody’s got to make that decision. And we entrust the courts to do so, and at the top of the pile of the courts is the Supreme Court. And that’s been the basis for Supreme Court intervention in so many different areas for a hundred years.
I mean, for the first hundred or more years of the Supreme Court, the Court was quite quiescent. Sure, it issued a terrible ruling like the Dred Scott ruling, but until the 20th century, the Court was not nearly as powerful or triumphal as it’s become. So you and I, I think, would agree that democracy has problems and that individual rights can be trampled by the majority. It’s just a question of deciding when those individual rights ought to prevail over the wishes of the majority and who gets to make that decision.
The Court’s Role in Legislative Dysfunction [05:11]
Bob Zadek: David, in your book—for our listeners out there, you really wrote two books combined in one. You wrote a wonderful, readable, bestselling-material book giving us great insights, juicy and profound, into the lives of the justices. And in doing so, you do an important service. You remind us that at the end of the day, when you drill right down, they’re human beings with no lesser or greater weaknesses than anybody else has. And if all you did in your book was humanize the Court and take it down from its majesty, from its marble palace as you say, it’s a great service. But then you went beyond that and you examined the function of the Supreme Court as an institution and its role in American life. And you are a bit critical, as I am, of the present dysfunctionality of Congress and perhaps of the presidency. And what you got me thinking about is, you seem to suggest that it was the Court assuming too much power that weakened the other branches. And I can’t tell for myself whether that was a cause or an effect—whether the weakening of the political branches…
David Kaplan: It goes both ways. I mean, why is Congress awful? In part because we elect chuckleheads to Congress. There are a lot of lousy legislators. But part of the problem, I argue in the book, is that the Court helped make it that way. Because so many key issues, the Court intervenes on. And the Court controls its own docket. The Court doesn’t have to hear any case; it chooses which cases it wants to hear. Because the Court decides it’s going to have the last word on voting rights, or the presidential election that was a tie in 2000 between Bush and Gore, or campaign finance—because the Court takes unto itself the role of decision-maker, a lot of folks in Congress say, “Why should we stick our necks out? Why should we take a political risk when ultimately the justices right across the street are going to make the decision?”
Bush v. Gore and the “Laughingstock” Clause [06:45]
David Kaplan: I mean, the best or worst example of that is Bush v. Gore in 2000. And I devote a lot of attention to dredging that up in the book. Not—to a lot of folks, it’s ancient history. It’s not ancient history at the Court. There is no more open wound at the Court than Bush v. Gore. They don’t talk about it daily or weekly or annually, but if you talk to the justices—and I talked to a majority of them; I can’t tell you which ones because that’s the basis of getting the interviews, I could only do it on background, I can’t quote them, I can’t indicate who agreed to talk to me—but that is a festering sore, as well it should be.
Because in that instance, where the Constitution itself as well as a federal statute both explicitly describe what should happen when there’s a disputed presidential election—and the answer is Congress should decide—in that instance, the Supreme Court still chose to get involved after one side appealed to it. And Congress didn’t even raise a peep. They could have filed a brief before the Supreme Court saying, “Excuse us, excuse us, justices, this is our role. It’s up to Congress to resolve this tie. You need to stay out of it.” They pretty much said nothing. And I was astonished by that. I was astonished when I wrote my book The Accidental President 20 years ago, and I still am.
And you know, therein is the problem. And you know, your hero, if you will, Justice Scalia, was the chief offender in my book. 20 years ago, Scalia was in the majority in the 5-4 ruling stopping the recount in Florida and awarding the presidency to George Bush in effect. And Scalia, when he spoke on college campuses or on C-SPAN or gave a rare interview, was asked about Bush v. Gore. And Scalia, as an articulate, funny judge, more than all the others, he would be asked about that ruling. And after smiling or smirking and saying, “Get over it,” he would explain that someone had to step in because we were becoming, quote, “the laughingstock of the world.” And the Florida courts weren’t resolving it, who knows if Congress would have done so in a timely fashion.
So Scalia, full of hubris, full of arrogance, explained even after the fact, after the heat of the moment, upon reflection, would say, “We had to step in for we were the laughingstock of the world.” And you know, I’ve read my Constitution front to back. I can find no “international laughingstock” clause that allows the Supreme Court to step in when it thinks we’re moving too slowly. The fact is, we were not in a constitutional crisis. The country would have been just fine as Congress looked to get its act together and resolve who would be president and who would be vice president. And it would have taken a day, it would have taken a month. If it took place after January 20th inauguration day, someone else would have been president for the moment. It either would have been the Speaker of the House or the Secretary of the Treasury, or Congress could have appointed an acting president as the 22nd Amendment permits. And I’m pretty sure Bill Clinton would have been happy to stick around for a few extra weeks. So the wheels of the Constitution and democracy had set up a mechanism of what to do, but Justice Scalia and four other justices arrogated unto themselves the role. That’s the problem.
Judicial Activism and Roe v. Wade [08:51]
David Kaplan: And just so listeners don’t think that I’m simply trying to carry water for the left here, my book is equally critical—well, not quite equally—but my book is heavily critical of Roe v. Wade. My own politics are decidedly left of center. As a legislator, I would support extremely liberal, unrestrictive abortion laws. But I don’t think those rights ought to be declared by judges. I don’t think it’s a constitutional matter. Not all intelligent, wise policy derives from the Constitution, and the Court ought not be in the business of determining the winners and the losers.
The Court ought to be more involved in protecting certain rights, like First Amendment rights, like Fourth Amendment rights, for individuals who can’t protect themselves in a democracy, and also for establishing, if you will, guardrails for democracy. So that, for example, the biggest case right now before the Supreme Court, which it will rule on probably in late June, involves partisan gerrymandering.
Partisan Gerrymandering and Democratic Guardrails [10:50]
Bob Zadek: What a hard case. What a hard case that is.
David Kaplan: I don’t know that it is a hard case, because in that area, where the Court has long said for decades that as long as your gerrymandering, your drawing of district lines, isn’t designed on racial grounds, the legislature can do almost anything it wants. If the Democrats control the legislature, they can draw the lines in a way to protect Democrats, and Republicans can do the same thing. I would argue that is precisely the kind of case where the Court ought to get involved, because you can’t expect democracy to regulate itself. The “ins” are always going to try to stay in power and are always going to try to keep out of power the “outs.” So if you want democracy to work, if you want one person, one vote to be real, then you need another branch to come in and set rules. And the rules aren’t to help Democrats or Republicans, because in some states the Democrats rule and in other states the Republicans rule. But therein is the need for this other branch to come in and say, “No, that’s over the line.”
And we don’t know what’s going to happen. The Court ducked these cases a year ago. Justice Kennedy phoned it in; the Court chose not to get involved, just as it had done on prior cases. We have a new justice now; Brett Kavanaugh will be the deciding vote. And you really can’t tell from the oral argument which way he’s going to come out. But if they do come out and regulate partisan gerrymandering, it’s arguably the most important decision from the Court in a generation because it will reshape how we govern elections and, through elections, so many other issues are determined. I don’t have a lot of hope. If you ask me for a prediction, with the caveat that my predictions are invariably wrong, I think the Court will duck the issue again. And that’s the problem of the Court. In precisely the kind of case where it ought to get involved, it won’t. And yet in other areas, like the Voting Rights Act of 1965, or undoing campaign finance regulation that Congress passes, the Court does get involved. The Court gets the balance exactly wrong.
The Loss of Neutral Principles [13:22]
David Kaplan: And you know, I don’t throw around the word “hypocrite” lightly, but when I presented this idea to the justices I talked to, I had one of the liberals, quote-unquote, say to me, and one of the conservatives say to me, the exact same thing, which is: “I half agree with you.” And that’s the problem. They all favor judicial restraint—except when they don’t.
You want to try to be principled. And right now, we have, really for the first time in—in—in—I think ever, but certainly in modern times, where you can predict the vote of almost every justice on the key social issues. If you know how they’re going to rule ahead of time on these cases, what’s the point of having the Court? In theory, you want a Supreme Court that is applying different rules than what politicians do. You want them to be ruling on neutral principles. You want them to be ruling based on the law instead of merely expressing partisan preferences. And whether it’s in Bush v. Gore, or the gun control ruling, or the same-sex marriage case, or Citizens United about campaign finance, or Shelby County about gutting the Voting Rights Act of 1965, you kind of knew what the votes were going to be ahead of time.
One of the ironies—I mentioned the partisan gerrymandering cases before the Court now, they were argued in late March—if Brett Kavanaugh comes out on the other side, if Kavanaugh voted with the liberals—and he’s the only vote we really don’t know how it’s going to come out because the other eight a year ago expressed their views on this—Kavanaugh could be a hero to many critics. I don’t think that’s going to happen. But it’s under the heading of: you never know exactly what justice you’re going to get. But that wouldn’t be where I’d bet my money. And I think Brett Kavanaugh is going to turn out about the way that the president who appointed him and the senators who voted for him want and expect.
Bob Zadek: This is Bob Zadek. I’m spending a wonderful morning speaking with David Kaplan. David has written The Most Dangerous Branch, referring of course to the Supreme Court. We’ll discuss the principles that David referred to, by which in David’s opinion the Supreme Court should take and decide cases when we come back. Principles are far more important than case-by-case results. Lots more to follow. We’ll also discuss more about gerrymandering when we come back in 30 short seconds. I can’t wait.
[Music Break]
Bob Zadek: Welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. This morning we are spending a wonderful hour talking with David Kaplan. David’s fourth, I believe fourth book, is The Most Dangerous Branch, writing of course about the Supreme Court and all of the perhaps unintended power that has dropped down to or elevated up to the Supreme Court at the expense of, A, the other branches of government, and B, at the expense of the voting public, the small ‘d’ democracy. David, welcome back to the show.
Heller and the Second Amendment [15:49]
Bob Zadek: Before we went to break, you mentioned gerrymandering, a really important decision which the Supreme Court will render in June. They just had oral argument on it. And I observed before—right before we went to break—that it was a really hard question. And the reason it’s a really hard question is because I can’t begin to tell how the framers of the Constitution would have felt about the issue. After all, what’s interesting as an interesting side light, the very word “gerrymander” comes from—is a play on the name Elbridge Gerry, who was a founder who actually was at the Constitutional Convention but did not agree with the Constitution and would not sign it. He was one of the few framers who would not sign the Constitution. And he, as governor, was asked to approve an election district that looked like some observed a salamander, and thus the phrase “gerrymander.” And the point is, going back to the earliest days of our country, that practice existed, and the founders knew of it but didn’t see fit to express an opinion about it. That’s simply why I found it to be a hard issue, because I can’t go back to what the founders might have thought in drafting the Constitution to find an answer. That’s what I meant by it being a tough answer.
David Kaplan: I don’t much care what the founders might have thought about partisan gerrymandering. The founders created a document that was relatively short and quite general. It includes phrases like “due process of law,” “equal protection of the laws.” When you write a document with those kind of broad phrases, instead of spelling out a list of particulars the way some countries do with their constitutions, you necessarily, I think, are inviting future generations to interpret what those phrases mean. And of course, there’s no clause in the Constitution that says “thou shalt interpret me based on what the people who wrote me thought in 1787.” The very idea that Scalia and others have propagated, or by my lights foisted upon the public, that you should interpret the Constitution based on what those who wrote it intended at the time they wrote it—that itself is an act of interpretation. Some think it’s a better way of interpreting; I don’t.
And so whatever it is they thought about legislating weirdly shaped districts to me is as unimportant as what they thought about the rights of African Americans, or women, or unpopular views, or libel, or a dozen other areas. They’re not—I don’t dismiss them. But in so many cases, you’re going to have to interpret based in other areas. You know, the Court in 2008 declared for the first time, notwithstanding what they had written before in other cases, that there was a limited right under the Second Amendment to own a handgun in your home for self-defense—the Heller decision. And if you read that 5-4 decision—a terrible decision in my view—you see that Scalia for the majority sets out, and he has said subsequently he thought his best articulation of the Originalism concept, he explains why he thought the Court had to rule that way based on what the founders thought. The problem is, if you read the dissent in that case by John Paul Stevens, the now-retired 99-year-old justice, he sets out at worst an equally good articulation of what the founders thought. So how do you come out? I think Stevens’ history and articulation is better than Scalia’s. It’s a 5-4 ruling. The case is going to turn on something else, on other principles.
The idea that the words themselves or the historical record gives you the answer is poppycock. I mean, for my money, Heller is a terrible decision because it’s another example where the Court steps in and substitutes its views for what a duly elected legislature decided—in this case, the D.C. City Council. If the D.C. City Council saw fit to outlaw handguns, it seems to me the people ought to get what their legislature chose. And if you don’t like what the legislature chose, then pick new city council members and undo the law the next year. You don’t hear gun control proponents arguing that the Constitution ought to outlaw guns; they are willing to fight it out in legislatures. It’s the same argument I would use. So the view I just expressed, of course, will infuriate gun rights proponents, those who think there’s a constitutional right to own a handgun. But I like to think I’m an equal opportunity offender, because I would use that same argument, the same logic, with respect to abortion.
The Radicalization of the Parties [17:49]
David Kaplan: If you think in the tragic choice between the rights of the mother and the rights of the fetus—if you think there are any such rights—fight it out in the legislature, which has the advantage of maintaining, if you will, a steam valve on strong views. If you lose in a legislature this year, tomorrow’s another day; win an election next year. The problem with abortion, as with gun rights, is that when the Court steps in and constitutionalizes an issue, it removes the issue from the give-and-take of democracy, the give-and-take of legislatures. And I would argue, as I did in the book, that the radicalization of the Republican Party that we saw in the 1970s that led to the election of Ronald Reagan in 1980 can be directly tied to Roe v. Wade in 1973. There were moderating forces in the Republican Party for years—Eisenhower as president, whatever else you think of him, Nixon was a moderate Republican—and moderate Republicans are a thing of the past. Maybe John McCain was the last of the moderate Republicans, but I think that party radicalized chiefly over Roe v. Wade. And that’s a bad thing, whatever else you think about abortion, as well as whatever you think about gun control. I, as I said at the top of the program, I would rather trust democracy. And I don’t think you can have it both ways.
Bob Zadek: And David, here’s my comment. First of all, you observed there’s no more moderate Republicans. Of course, as you also have observed, there are no more moderate Democrats either. You attribute—you blame, and maybe “blame” is a subjective word, it’s a value judgment—you attribute a lot of the radicalization of the left to, of all things, Roe v. Wade, because it created a political fight that you felt the Democrats were on the wrong side of from a political standpoint, not from a moral standpoint.
David Kaplan: I would disagree with you that Roe v. Wade radicalized the left. It radicalized the right; the left won. I would agree with you a bit that in the last year or two, the Democratic Party has shifted heavily to the left. But I don’t think it’s equal and opposite. The Republican Party of the 1980s and of now, there’s no resemblance to the Republican Party of the ’60s and the ’70s. And I don’t think you can claim over the long haul that’s true with Democrats. Joe Biden, such as he is and such are his current problems, is a moderate Democrat. And you and I could list 20 Democrats over the last 20 years who were clearly left of center but are not of the Bernie Sanders, Elizabeth Warren ilk. I just don’t—I think there’s—that’s a false equivalency.
Structural Changes: Term Limits and Court Packing [19:30]
Bob Zadek: Now, you referred before the break to principles. What should be the principles which dictate which cases the Supreme Court should take and how should they decide? Because to me, conclusions are important, but less important in a conversation than how you got there. So you are critical of Roe v. Wade—I completely agree with you that process ought to dictate as best as you can separate out what you want the results to be.
David Kaplan: Greater minds than mine have made that argument. You know, my favorite constitutional scholar, now dead, was John Hart Ely, a former dean of Stanford Law School. And the principles that he and others articulated would be the following: Sometimes there is an explicit constitutional command you have to follow. You have to be 35 to be President of the United States. That means 34 isn’t okay. But I think fundamentally, the Court ought to be getting involved to protect the rights of what John Hart Ely and others argued were “discrete and insular minorities.” And that doesn’t mean African Americans or Hispanics; it means those individuals or classes of people who can’t protect themselves.
For example, the minority party in a state that needs to redistrict. The minority party, if there are no constitutional principles in place, if there’s not an overseeing court, runs the risk of always being screwed by partisan gerrymandering by the party in control. And there are other explicit constitutional commands like the First Amendment, like the Sixth Amendment right to a fair trial, where the Court ought to get involved. But it ought to be far less involved in picking substantive winners and losers, whether it’s on gun control, campaign finance, abortion, and a dozen other areas that you and I might agree on, as well as establishing—maintaining the lines of separation between legislative power, for example, and executive power. So I would try to apply those principles if I were on the Court deciding which cases to get involved in, not saying, “Well gee, it’s a presidential election, Bush v. Gore, we need to get involved,” or “Everybody’s debating abortion, we need to get involved.” Or for that matter, I think probably the travel ban. I differed from my liberal friends; I got voted off the island temporarily. I think Trump’s travel ban was probably constitutional given that Congress had ceded that power to the president. I’m not sure, because I think the religious discrimination inherent in the travel ban as explained by the president himself, I think made it a tougher case. But I probably come out in saying if Congress thought the president ought to be able to control the borders, then for better and for worse—and in my money for worse—he has that power.
Bob Zadek: You have observed, and I heartily agree, the Supreme Court has profoundly more power than anybody could have intended. They are an unelected branch, we agree on that. Is there a structural change you would fantasize about if things could be different? Is there a change in the process of selecting a judge? What could or should Americans look to to fix the problem, to readjust the balance of power so we have three co-equal, not one more equal than the other branch?
David Kaplan: Well, leading aside better presidents and better senators in the selection process—let’s put that aside—what I and others would support is term limits for justices. The idea that they should serve for life, I think, is outdated. It was one thing to appoint them for life in the late 18th century where life expectancy was barely 65, but now the idea that we appoint 50-year-olds to serve for life and will be on the Court for 30 more years, I think, makes the stakes even higher than they already are. So I would support an 18-year term limit. It would take a constitutional amendment, and it will never happen because the party quote-unquote “in power” will never agree to it. And passing a constitutional amendment is really hard.
I’ve come around to the position tentatively—and I didn’t come to it in the book—I’ve come around to the position that the hard left’s position, the view of a lot of the Democratic candidates, that we ought to pack the Court is probably right. Now, court packing died a quick death in 1937 after FDR proposed it; liberals and Republicans both criticized it. It became unimportant because the Supreme Court on its own started upholding New Deal laws in a way that it hadn’t in the early and mid-1930s. The Court maybe got the hint that its opinions were too out there.
The Merrick Garland Precedent [21:13]
Bob Zadek: David, David, I have to just interrupt for a second. The Court didn’t happen to decide. A switch in time saved nine. The Court wanted to save the institution. They were intimidated by the threat.
David Kaplan: There’s a lot of evidence—there’s not a lot of evidence on why the Court changed, and many scholars disagree that the Court changed because of FDR’s court-packing threat. But be that as it may, I think that in the short term, in order—court packing means adding seats to the Court. And you only need an act of Congress to do so. So if the Democrats took the White House next year and retained the House and took the Senate, all they would have to do is pass a law increasing the size of the Supreme Court. And if they increased the size of the Court from nine to 11, they could quote-unquote “take back” the Supreme Court, appoint two liberals, they’d be in control 6-5, they would undo the Gorsuch and Kavanaugh appointments.
Now, in the short term, I think that would be terrible for the Court. It would make the Court seem even more brazenly political than much of the public already thinks. And of course, when the Republicans then gain power at some point, they might add two seats to take back power and have a 13-member court. And at some point, in addition to needing a bigger building and an unwieldy court in terms of size, then you’ve completely politicized the institution. And that’s a terrible thing, and the critics of court packing also say that and I agree. The place we differ is I think over the long haul—and I don’t know if that’s 10 years or 50—I would hope that both political parties and both ideologies would eventually disarm. They would come to agree that we need to lower the temperature and we need to appoint justices differently. But when the Republicans stonewalled Merrick Garland, which though legal was an outrageous violation of norms, as so much conduct from Senate Republicans and this administration have been in destroying norms, it seems to me that the Democrats have to fight fire with fire. You can’t bring a knife to a gunfight. So I think in the short term, court packing is probably, regrettably, a good idea. And my hope would be that eventually we come back to our senses. Beyond that, I have no great solutions for you. It is not a pretty picture for the Court, and it’s not a pretty picture for the country.
Chief Justice John Roberts [22:30]
Bob Zadek: In your book and in your appearances, you commented that the Supreme Court should not be our greatest or our only hope. You wrote that—I heard you say or write that phrase—and I must confess, that got to me because I have always found, believing what I do, that the Supreme Court is my only hope. I am so unhopeful about the political branches coming around to my point of view. I find—and you’re right, I shouldn’t be, I shouldn’t be looking to an unelected branch to save me, in my view save the country. So you were speaking directly to me when you said the Supreme Court should not be, although for me it is, the last great hope that I have in the book.
David Kaplan: That’s the problem. You know, I’m a political liberal, and I was thrilled when the Court 20 years ago, 30 years ago in my youth, ruled quote-unquote “the correct way.” It was easy to be thrilled. But with conservatives gaining more power and now clearly being in control, it’s not so easy taking that position. And I am bemused at seeing conservatives who spent their career attacking the liberal Supreme Court for intervening in any number of areas now rushing to the Supreme Court and supporting its intervention in areas like the Affordable Care Act. I mean, Obamacare clearly is constitutional. And those who argue that it’s not, I think barely present plausible arguments.
So I mean, it’s hard to be principled. And as Justice Brennan, the great liberal lion of the Court from the ’50s to 1990, would say in explaining how the Court operated—he did it to me once, but to many others—he would hold up his hand and then slowly count out five fingers. And he would say, “With five votes, you can do anything.” That’s the problem. The fact that the Court has the power and the fact that the public accepts by and large that the Court has the power ought not to be a basis for the Court to continually intervene.
But by the way, you asked me what hope is there for the Court, and I mentioned court packing. The other hope for the Court—and I don’t have—it’s not a big hope on my part—but I argue it in the epilogue to my book, is the Chief Justice. John Roberts showed in the Obamacare ruling, the first Obamacare ruling in 2012, that he knew what judicial restraint correctly applied looked like. And he has not been restrained in his vote in any number of areas—striking down campaign finance regulation, gutting the Voting Rights Act of 1965. He is a true conservative; don’t mistake him for being a middle-of-the-roader. But I think this Chief Justice, who now constitutes what passes for the middle of the Court, the swing justice after Justice Kennedy retired, I think this Chief Justice more than the other conservatives understands that the Court’s prestige and therein its power is more important than any particular vote in a particular case. David, David, we have only a couple of seconds left. I think this Chief will put the needs of the Court above his own particular interests.
Bob Zadek: David’s book, The Most Dangerous Branch, is a must-read. It is not written for lawyers, although all lawyers, I speak for myself, would learn and love from reading it. It is a delicious book. It helps you understand the inner workings of the Supreme Court. A must-read. David, thank you so much for spending an hour with us. Thanks to my friends out there for allowing us into your homes. I’ll be back again next Sunday. Have a good Sunday.