Eight-Dimensional Chess
2020-09-24 · Guest: Josh Blackman (Professor of Constitutional Law) · 52:03
Supreme Court vacancy and court packing history
Bob Zadek and Professor Josh Blackman discuss the current state and future of the Supreme Court following the death of Ruth Bader Ginsburg and the nomination of Amy Coney Barrett. They explore the history of court packing, the shift from judicial deference to activism, and the competing philosophies of originalism and the living constitution.
Topics: Supreme Court, Court Packing, Judicial Philosophy, Originalism, Living Constitution, Amy Coney Barrett, Ruth Bader Ginsburg, Free Speech, Second Amendment
Speakers: Bob Zadek, Josh Blackman
Introduction to the Supreme Court Crisis [00:17]
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. This show, this Sunday and always, the show of ideas, never once the show of attitude.
Wow, these are scary times we live in right now with the passing of Ruth Bader Ginsburg, with the nomination, the selection by President Trump of Amy Coney Barrett to be her replacement—perhaps replacement is the wrong word, to fill the seat vacated by Justice Ginsburg’s passing—by the accident of it being right at election time, with the threat of or the possibility, perhaps, of the country after the election having one party control all three branches of government. With the Democrats, if they regain power of all three branches of government—the executive, the judicial, and well, judicial we’ll put that aside, but the executive and both houses of Congress—a lot of mischief and interesting events could follow, including, as we will discuss this morning, the packing of the Supreme Court.
I dare say you will find by the end of this hour that we could be living in a political climate in a few short months that, in my opinion, this country has never experienced in its 231-year history. And all of this, the focus, ground zero, all of our attention will be directed to the Supreme Court, the unelected branch of government. Well, the Supreme Court is this morning’s focus. To help us understand why the Supreme Court, why the composition of the Supreme Court is so supremely important to all Americans, why this is a fight, well, to the death, a political fight in the manner perhaps we have never experienced before, why this is all so important, and most importantly, where 2020, the political experience of 2020 and 2021, where that fits into the 231-year history of our country.
I’m happy to welcome to the show, I’m proud to welcome to the show, I’m thrilled to welcome to the show, Professor Josh Blackman. Josh is a con law professor, constitutional law, at the South Texas College of Law in Houston. He’s an adjunct scholar at Cato and is president of the Harlan Institute. We will hopefully have time to discuss the Harlan Institute before we run out of time this morning. Josh has written Unprecedented: The Constitutional Challenge to Obamacare. Josh has written Unraveled: Obamacare, Religious Liberty, and Executive Power. And most importantly, at least to me, Josh has just written with Professor Randy Barnett, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. That, we will hopefully have time to discuss. The book is a must-read for lawyers, for people who care about how we got here and where we are going. So Josh, with that impressive scholarly resume, thank you so much for joining us this morning.
Josh Blackman: Thank you. And that was such a generous introduction. I’m happy to be here.
Bob Zadek: And well-deserved, Josh. Josh also, I should mention, he is a frequent daily blogger at The Volokh Conspiracy. I do not start my day without reading Eugene Volokh’s blog, which is published every day. It is available without charge. It is published through Reason, the Reason Foundation. It is a must-read. It’s literally more important, I think, to most Americans these days to read a blog such as The Volokh Conspiracy, even though there is nothing else like it. It’s more important than reading the daily newspaper. It gives you more objective insight, deeper insight into what’s going on in our country. So Josh, thank you so much for your daily and more than one blog posting per day, daily postings at The Volokh Conspiracy.
The History of Court Packing [05:18]
Bob Zadek: Now, Josh, let’s get into it. The Supreme Court is now before us. What we have before us, we have President Trump with a highly qualified—I think there’s no dispute as to that—highly qualified nominee for taking the filling the vacant ninth seat on the Supreme Court. She will go through a confirmation process, and the Democrats have threatened—they may not be using the word “threat,” but it is a threat—they have threatened to pack the court. Well, that brings into question, and we must understand, first of all, what does that mean to “pack the court”? And the Supreme Court right now, and has had since the end of the Civil War, nine justices. Tell us about, let’s start with basics so our audience can follow the conversation, how is the number of Supreme Court justices fixed? And what has been the history of the change in that number over time?
Josh Blackman: Sure. There’s nothing special about the number nine. The Constitution says nothing about how many justices there should be. Throughout history, there have been as few as five and as many as ten during a brief period in the Civil War. But at least the last 150 years, the court has settled on nine.
There was a movement to perhaps expand or pack the court in 1937. President Franklin Roosevelt had become frustrated that a conservative Supreme Court was ruling against progressive laws at both the state and federal level. So he came up with an idea: we need to add more justices. The idea was any justice over the age of 70, you would add another justice to balance them out. You couldn’t force them to retire because they have life tenure, but you just make their workload a little bit easier by adding more justices. Everyone saw through this. It was very cynical. There was no effort to help the old justices; this was purely ideological. And as a result, FDR got burned. His own party bucked him; even Democrats opposed it. As things turned out, Roosevelt would appoint five more justices to the court in a couple years, so it didn’t really matter. He had a majority of the court on his side. But this first effort of court packing in ‘37 thankfully failed.
Bob Zadek: When you say the first effort, I think if you use the phrase “court packing” somewhat broadly to mean where “court” means the federal judiciary as opposed to just the Supreme Court, we can go back to 1801 when then-President John Adams—my favorite founder, I should add—then-President John Adams, having lost the election to his former friend, but not so much so anymore in 1801, he in his last days in office, he was still in power, his party, the Federalist Party, controlled the legislature. He was, of course, the second president after Washington. And he did, somewhat successfully, pack the court. I think that would qualify as court packing as we understand it, that is to say, load up the federal judiciary with the selection of one party to protect that party’s, the outgoing party’s, political philosophy. So I think Adams would qualify, and the reason I mention it is because it shows how far back the tactic of court packing goes. It goes back literally to the first decade after the founding. So I think it’s fair to say that that was also would qualify as an attempt at court packing, wouldn’t you say?
Josh Blackman: Well, sure. I think you’re speaking of the famous election of 1800. This was one of the first major contested presidential elections. And during this election, President Jefferson won the Electoral College; President Adams lost reelection. But on his way out, President Adams made a number of what were called “lame duck” appointments, in that he had lost the election and he filled the courts, both the lower courts and the US Supreme Court, with justices. And this proved very controversial. Perhaps Adams’ most famous appointment was a guy named John Marshall—you may have heard of him—he was the great Chief Justice. And he was confirmed shortly before Jefferson took office. Marshall would serve more than 30 years on the court; it was a stunning tenure. So from the very beginning of the Republic, presidents recognized the importance of federal judges, and they tried to put as many of their people on the court as possible, either before or after the election. So in some regards, nothing’s new under the sun; everything seems to repeat itself over and over again.
Bob Zadek: And the reason I mention that, Josh, is because it is very easy, it is simply human nature, it is how the brain works, to—if you’re involved at all as an observer or as a practitioner in politics—it’s very easy to sit around in 2020 and just imagine that this is the first time this is happening, and it’s the unknown, and how could people, how could politicians be so cynical to play with the number of the Supreme Court, and that is perverting the purposes of the founders and undoing the very fragile, perhaps, structure that the founders gave us. But here we have one of the lions of the founding era, John Adams, had no difficulty, no difficulty whatsoever, packing the Supreme Court. So while there’s lots of rage going on directed, some rage in some quarters going on towards the even the threat of packing the Supreme Court, it does have a history, and the founders, at least one founder and his supporters in 1800, saw nothing especially unconstitutional about that technique. It was sort of built into the constitutional structure, at least by omission, because nothing changed that.
Administrative vs. Political Changes [12:18]
Bob Zadek: So we have had changes, as Josh pointed out, in the number of justices on the Supreme Court. Now, Josh, so as you have explained to us, over time the number of justices has varied from five up until to ten, and now nine. It was each of those numbers along the way. But I think we ought to drill down a little bit and distinguish where the number of justices on the Supreme Court was changed for more benign administrative reasons, that is, workload, new states, new federal judicial districts, which is sort of apolitical increase—it’s administrative—versus where it is changed for political reasons. And you pointed out the New Deal as when President Roosevelt, who had his version of economic life in America and how to get us out of the Great Depression, and it required a change in the thinking, in the application of the Commerce Clause and of federal power in general. The Supreme Court was then protective of economic rights in that era—it almost seems quaint today, but they were—and court packing was the only way for the president to get his economic way. He had the support of the people; he was put into office with great majorities, as was the Democratic Party. But tell us over time other examples, Josh, if you will, the environment and the result of changing the number of justices for political versus administrative reasons, because they’re very different motivations.
Josh Blackman: There’s only one example where the court size was adjusted for what we might call political reasons. During the Civil War, the Congress actually added a tenth seat for a very, very brief period. And this was to give basically the Republicans in Congress more of a boost because there were a number of Democratic Supreme Court justices. But that’s really about it. Historically, the court was increased or decreased for fairly benign reasons. There were times where vacancies were open for some time.
And Bob, I think we can take a step back and recognize that the Supreme Court simply wasn’t very important until the 20th century. I don’t want to say it was unimportant, but it didn’t have this sort of central place in our Republic that the Supreme Court has today. It was just a court that decided cases that weren’t that central. Only in the 20th century did the court become this critical component of our governance. And I think that’s a bit of a mistake. The reason why these nominations are so contentious is precisely because the court has assumed so much power for itself that it really should not be exercising.
The Rise of Judicial Power [15:30]
Bob Zadek: I’m so glad you mentioned that, because in my notes for this morning’s show, that is actually the very topic I want to have us focus on for some time. How did the Supreme Court become so important? And Josh, I know you have spoken, you have observed the truism that most of the work the Supreme Court does is kind of dreary. It’s kind of boring. It’s wonky. It’s hyper-technical. It doesn’t—not many people other than the litigants are affected by it. The issues are very technical. So, and in the founding era, of course, the Supreme Court had nothing to do. It was not a job people especially wanted. There was a lot of physical stuff riding circuit—we may get into that—but it wasn’t—it might have had some prestige at the time, I don’t know enough to know that, but certainly it wasn’t an especially interesting job.
So all of a sudden, a job that was kind of wonky and hyper-technical and only affected the litigants and didn’t affect Americans as a whole, and they didn’t observe the Supreme Court, no one paid much attention, except all of a sudden, all of a sudden, the Supreme Court has become the body which, as a political body, as one of the three co-equal branches of government, has become so important. So help us understand what exactly happened. What was the—if you can give us a little political and judicial history—what do you think accounts for the incredibly increased importance of the Supreme Court? Nobody made that decision. What in the political history of our country caused that to happen?
Josh Blackman: You know, I don’t think I have a good reason. I think in large part the Supreme Court had sort of stood by idly for decades as segregation and Jim Crow spread. And I think at some point the Warren Court—that is, the court under the leadership of Chief Justice Earl Warren—said enough is enough, we need to assert ourselves. And you know, power is an intoxicating drug; once you get a little taste of it, you want more. And I think that you had a very short glide path from desegregating schools to, you know, prohibiting bans on abortion. I think it was a very short glide path. Once you take yourself out of the mentality of deference, then why shouldn’t the court substitute their wisdom for those of the other branches?
And these were decisions that, you know, didn’t make much pretense about the text and original meaning of the Constitution. This was: we’re living here in the 1950s or 1960s, we’re in a contemporary society, and we can’t have these things anymore. And once you accept that frame, you know, all bets are off. You can achieve just about anything you want with five votes.
The Concept of Judicial Deference [21:30]
Bob Zadek: Now, you mentioned—that was the second time you used a very important word, at least in constitutional law studies, of “deference.” Tell us just—that has a very clear meaning to you, and I’d like to think to me, but tell us just, flesh out a little bit more, when you say “deference,” tell us in constitutional law terms what deference exactly means and how does it fit into the behavior of a justice sitting on the Supreme Court? What do you mean by deference?
Josh Blackman: Oh, I should have defined it. We say that the elected branches are accountable, right? When Congress votes on a bill, if people don’t like the bill, they can be thrown out of office. If the president, you know, vetoes a bill or signs a bill and people don’t like it, they can vote him out of office. The justices of the Supreme Court, however, do not have accountability. They are not elected; they serve for life, they have life tenure. So when we’re discussing decisions that are made, the preference is the elected branches make tough decisions and not the unelected branch.
So historically, the way this was accomplished was by the court deferring, that is, by letting the elected branches make the decisions. And unless Congress really screwed up, or unless the president really screwed up, or unless the state governments really screwed up, then the court would let the state do what they want. That model of deference was very popular during the New Deal, during the 1930s. The idea was we shouldn’t have courts decide these issues. But in the 1950s and 1960s, the court started creating exemptions, exceptions to this rule, where deference would not be warranted, where the court would second-guess the legislature. And this move away from deference really paved the way for the court to assert this broad power over all manner of social legislation. I think that’s really where things started taking a turn, was when you move away from deference towards the other doctrines.
Bob Zadek: Now, when you said the courts would only step in when the legislature or the president “screwed up,” I’d like to use a term or ask you if it’s fair to say “screwed up” in as Josh Blackman uses it means in scholarly terms, “screwed up” means enacted legislation that violates the Constitution. So by “screwed up” doesn’t mean made a bad policy decision; it means it overstepped its constitutional bounds. And the Supreme Court, ever since Marbury v. Madison, the Supreme Court has assumed the responsibility of judicial review, and therefore it is the guardian of the Constitution, and its role is to step in—one of its roles, it’s not its only role—is to step in and protect the country from unconstitutional extension of acts of power by the legislature or the executive. So the Supreme Court had the role of just making sure the other two—or is it fair to say that when you say “screwed up,” you mean as Justice Roberts said during his confirmation hearing, in the role of calling balls and strikes, which means in constitutional terms, obeying the Constitution or passing constitutional legislation, that that was the role of the Supreme Court? Not “you screwed up and made a stupid—passed a stupid law,” but rather “you passed an unconstitutional law.” Is that pretty much what you meant when you said “screwed up,” or is there more to it?
Josh Blackman: You’re right. I was trying to be a little glib. But when I say “screwed up,” the idea was unless there’s a clear violation of the Constitution, the court will simply step out. Now, the Constitution always doesn’t always give you clear guidance, and sometimes judges have to make judgments, they have to use their own discretion. I think that’s an important thing for your listeners to understand, that some things are clear, some things aren’t. So when we talk about deference, very often that will just mean we don’t know the answer, we’re not sure, and that means the elected branches can decide.
Now, I’m not a fan of deference in all contexts. I think there are instances where the court should be a little bit more muscular. But the question you were asking is about how did we get to the point we are now, and once courts start shedding that deference, they become something of a super-legislature. And once they do that, it’s unsurprising that we’re in this position we are now where the nominations are so contentious.
Competing Judicial Philosophies [31:35]
Bob Zadek: And isn’t it fair to say that the nominations—and you mentioned this earlier, but I want to remind our listeners of your point you made earlier in the show because it’s relevant to what you just said—nominations become contentious. Well, nominations and politics in general become contentious, in my opinion, to the extent that the stakes are high. If stakes are not high, nominations are less contentious; people naturally care less if the stakes are lower. And once the Supreme Court, as it started to do, Josh, in the ’50s—and there were earlier examples of it as well, but let’s take the ’50s as a great place to start, the ’50s of the last century—once the court starts to become more muscular, your word, then it starts to affect more people more frequently with its decisions, and therefore the stakes become higher.
And wouldn’t you think, looking at constitutional history and Supreme Court history, that to the extent that the Supreme Court was less—and I’m going to use a word, Josh, which we’re going to discuss in a moment—“activist,” a word that is misunderstood and abused and is confusing, but you’ll help us, I hope, add clarity to that. But where the Supreme Court, starting perhaps with the Warren Court, starts to become active and starts to invite itself to the party on sexual behavior, and invite itself to the party on economic rights and people aren’t necessarily free to contract with one another, there are other considerations—once the Supreme Court on its own initiative assumes a more significant role in everyday life, then the stakes become higher. So isn’t there, wouldn’t you think there’s pretty much a direct relationship between the power assumed by the Supreme Court, either on its own or because of the abdication of other branches—once the Supreme Court makes itself, for the reasons we’ve discussed, more important, isn’t that what causes the stakes to go up? And is the role today that the Supreme Court has in our lives, do you think that was the role envisioned by the founders?
Josh Blackman: Well, you know, we’re a long way from 1787 when the Constitution was written. We’re a long, long way from there. I think what’s—what might be helpful for your listeners is talk about this phrase “judicial activism.” Judicial activism doesn’t really mean anything; it’s sort of just an attack of a decision you don’t like. There are some cases where courts should be active and some cases where they shouldn’t. The challenge is deciding which is which.
And as it stands now in our Republic, some judges are active in certain cases and other judges are active in other cases. Perhaps a more liberal judge would be very eager to rule in an abortion case against the state, and other judges might be very eager to rule in a gun case against the state. I think what matters is judicial philosophy, right? How do you decide which sorts of rights are worth protecting and which rights are not? And here I think you have philosophies: you can look to the original meaning of the Constitution, or you can look to some sort of evolving standard of decency where we can look, you know, look at what other countries in the world are doing and say, “Ha, that’s really important.” I think the biggest distinction between these sort of liberal and conservative judges is what sort of principles they look to to decide these sorts of difficult questions.
Bob Zadek: I’d ask you to expand on that a little bit more because it is such an extremely important issue. I often say on my show and in conversations with my friends and others when we discuss these issues, I care much less about what you think, but I care infinitely more about why you think that way. Because I will not learn anything from your opinion, but I will learn from how you got there. And that’s always the proof, just like when you take a bar exam or any other exam, the answer is never important; it’s the reasoning by which you get graded. It’s how your brain operates that is important to the grader of the exam, not the answer you got.
So when Josh, when you talk about judicial philosophy, there are kind of—it’s kind of binary, although there are subsets. So help us understand, because it is so important in today’s conversation. We have heard the phrase “living constitution,” and the audience, I dare say, doesn’t really understand what exactly that means. And we’ve heard the phrase, perhaps the opposite of one can think that way, of “originalism,” “original intent.” Help us understand, because this will be so much in the news. The Supreme Court will be so much in the news. One almost can’t participate in political life in this country without understanding the operation of what has become, I dare say, the most important branch of our government, even though they’re all supposed to be co-equal. So Josh, help us understand, because it really can be explained quite simply, those contrasting judicial philosophies, because that tells you a lot about how the Supreme Court operates.
Josh Blackman: We start with the text of the Constitution; we always do. And the text of the Constitution will answer some questions and it may not answer others. So what do we do as judges when the meaning runs out? Right? What do we look to? What are our boundaries and constraints? I think all the justices will at least say they start as textualists and originalists, but they can quickly deviate from those rules.
And I think there’s a couple different ways of approaching it. One might be the model of judicial restraint. And perhaps the most eloquent modern advocate of this position was Robert Bork, who was nominated to the Supreme Court but wasn’t able to get a seat. And Robert Bork argued that in wide fields of life, the elected branch should be able to do whatever they want, and he was quite candid about that.
The more modern approach, though, is not so much about simply deferring reflexively, but trying to decide whether the government’s stated rationale is actually the reason why they’re acting. You know, maybe the government gives one reason, but they’re acting based on another reason. And I think that both conservatives and liberals have seized upon this. So for example, conservatives may say that, you know—I’ll give you an example from a court case this year—the city of Philadelphia told a Catholic adoption agency that they have to let gay parents adopt children, and the agency said we’re not going to. Now, the city said we need to enforce our non-discrimination policy. But there’s some evidence that the city was actually hostile to Catholicism; they said, “Well, you know, why can’t you be like Pope Francis and be more welcoming of gays?” Right? So there’s this sensation that this is not really about enforcing their policy but about hostility towards religion.
And I think even conservatives can get behind this. So this sort of trying to peel behind the surface and look at what the government’s actually trying to do, you know, what their true motivations are, I think is a thread in all modern Supreme Court jurisprudence. So you don’t really have a—I don’t think you have this sort of method of restraint that you might have had 30 years ago. I think both parties are willing to flex their muscles. And now that there’s going to be, I think, a six-member conservative majority, you may see a lot more flexing.
Originalism vs. Living Constitution [37:21]
Bob Zadek: I wonder if—of course the media always refers to the court in terms of conservative and progressive. But of course, as you explain judicial philosophy, originalism, which is interpreting the Constitution according to the common meaning of the words at the time it was passed—which requires virtually to get out your Samuel Johnson dictionary written in 1723 and see what these words meant then, and that’s what they mean now, with the approach being, well, if you don’t think it should mean that, then the legislature should change it or the states should change it by changing the Constitution. But the lodestar is what did those words mean when the act was made? As opposed to a living constitution, which gives the court—Josh, I think it’s fair to say—the philosophy of a living constitution, which is the meaning changes over time, that in effect has the effect of giving the judges a lot more latitude to do their own interpretation of what these words mean now, even if it means doing havoc with the original meaning. So I think help us understand how the—if this is the right dichotomy, a living constitution versus originalism, if we can divide it up that way—how that results in a very different judicial approach at the Supreme Court, and why the progressives seem to favor—what is there about the progressive point of view where they seem to favor a living constitution, and what is there about the originalist conservative, if you will, that causes them to favor originalism? Is there something—is it random? Is there something inherent? So what is there about the political philosophy of progressivism that draws them to the concept of a living constitution versus originalism?
Josh Blackman: My answer will be a little bit crass. I think historically liberals said that we can’t get what we want from history, so let’s ignore it. They said if we look at the history of the Constitution, it doesn’t support progressive goals, so they ignored it. I think there’s actually been a modern trend among progressives to try to ground their arguments in originalism. They recognize that there’s a majority of the court who’s inclined to look to text and history, so they’re trying to say, “Well, the founders were not so conservative, that there actually may be arguments based on founding history that supports a right to federal power, that supports the right to administrative state.” Not everything; they haven’t tried that for abortion or gay rights yet, but for a lot of sort of power issues, they’ve said that the federal Constitution isn’t so restrictive.
And it’s sort of this strange world where liberals and conservatives are now fighting on the same battlefield. Perhaps the greatest example of this dynamic is in the context of the Second Amendment. We had a case in 2008 called District of Columbia v. Heller. You have a majority opinion by Justice Scalia, which found that the Second Amendment protects an individual right to keep and bear arms. And you had a dissenting opinion by Justice Stevens that was thoroughly based in history. He looked at the founding era statements, the drafting history of the Second Amendment, other statutes passed in the 1800s, and he tried to figure out that the Second Amendment was not about individual rights. So you actually have liberals and conservatives fighting on the same battlefield. And I think that was significant. I think it was actually a victory for Scalia and a victory for originalism.
The Threat of Court Packing [41:30]
Bob Zadek: You have written, and I have spoken with great looking to the future, the immediate future, of Democrats getting control of both the Senate and the House and the presidency, and then court packing. And you—I’m going to use my word, not yours, and you can correct me—it frightened you, as it frightens me a great deal. Tell us—now, those are abstract concepts, packing the Supreme Court. What is there about that real possibility that frightens you? Because it sure frightens me, so I share your reaction; I have the same reaction, maybe perhaps even more intense, but it doesn’t matter. So what is there about the abstraction of packing the Supreme Court that scares you? And when you answer, Josh, refer to an important concept that I don’t want to let the hour go by without discussing, which is the importance of the “legitimacy” of the Supreme Court, what that means and why that’s important. So what is there about the possibility of court packing that frightens you so much? It’s after all just a political gesture, and you said nine is not magical, twelve is as magical as nine. So why is it so frightening to you, and tell us about the concept of court legitimacy?
Josh Blackman: Well, I don’t think nine’s a magical number, right? And there’s nothing saying you have to have nine. But once you move beyond our current settlement that we’ve had for over 150 years, it’s a race to the bottom. Why not eleven? Why not thirteen? Why not fifteen? Why not seventeen? And you know, every time you have a single party that has all three branches, they’ll just add more seats. And at that point, the decisions of the court are not going to be viewed, I think, in the same way. That if there’s a decision you dislike, that the way to get around it is just to add two more justices.
But I’ll take a step back. I mean, I think at that point the court will be weakened. I don’t know that’s a bad thing. Maybe the court is exercising too much power. And you know, maybe the only way to save the court is to destroy it. I know that sounds awful, but I think at some point when the court starts having such an oversized role in our polity, is it worth preserving what we have? In other words, are we trying to cling to this sort of sanitized image of the court? Are we just delaying the inevitable? So I oppose court packing; I think it’s a terrible idea. But if, not when, if, when it happens—I think it will sooner or later— when it happens, I think it will just accelerate the end of the court as we know it.
And maybe that’s the byproduct of the court’s own conduct. And maybe this is a process that did not begin with John Roberts, did not begin with William Rehnquist; I think it began with Earl Warren in the 1950s and ’60s. So maybe, as the saying goes, the chickens finally come home to roost. I hope it doesn’t happen, I hope it takes a while, but I think this is in the court’s future. I wrote a piece for Politico saying that this was the last New Roberts Court; I think it’s the last time we have a ninth justice that’s normal, because I think we’re going to have new justices added left and right—literally left and right.
Bob Zadek: So it’s interesting that what you have just said made me, in a strange way, less frightened. My fear was, and strangely you mitigated it a bit, my fear is that once we lose the Supreme Court, we bring in an era that cherished rights, such as the free speech rights in the First Amendment and the right to bear arms in the Second Amendment, and others as we can just go down the list, that all of a sudden because of popular will, because of the polling, which is 62% of Americans or 62% of college students—I forget which one it is—favor some limitations on free speech. That scares the heck out of me. And I say to myself, “Thank heaven for the Supreme Court.” And then, Josh, you say, “Well, court packing will start an arms race”—my word, not yours—“which will result in diminished importance of the Supreme Court.” Then I say, “Who’s going to protect my natural rights? Who’s going to protect my rights in the Bill of Rights if popular will wishes there to be no protection?” And all of a sudden, I jump to a real fear of a kind of anarchy, the mob, the majority, the 51%—and I say “mob,” I don’t necessarily mean violent, but I mean the 51% treading on the rights of the 49%. So in what you said, Josh—and I’m really looking to you for help—on the one hand, you say correctly, perhaps the diminished prestige and legitimacy of the Supreme Court is a good thing, but you also say it’s the inevitable result of court packing. Well, then who’s going to look after our rights, Josh?
Josh Blackman: You know, I think we’ve reached an important point in this discussion. I say this with complete candor: if our society gets to the point where rights are being ignored, the court’s not there to stop it. If you think of a train, right? The court is not the locomotive pulling it; the court is the caboose rounding it back. Right? By the time we get to the point where the court stops protecting rights, that means our society doesn’t want to cherish those rights anymore. And it’s too late; the court will not be out of step with society, whether it’s in its current form or with a million members.
So the way to protect rights is to persuade people of protecting them. But I’m not confident that that can be done if the people stop respecting it. And if you look at, I think, free speech is one you mentioned, free speech is on the wane. For the longest time, I think we had a consensus on the court that free speech was important. I think that’s starting to fragment. Harassment, hate speech, all these other doctrines are just designed to shut people up, shut people up for unpopular thoughts. I think they’re well-motivated, but they have clear censorship behind them. And I think at some point the court will shift if it goes to the left.
It’s perverse that libertarians—and I mean this sincerely—have to look to a President Trump to appoint judges who can preserve cherished rights. I know that’s an—it’s a very unsettling feeling; I know it’s not pleasant. But the types of people Joe Biden would appoint are going to be much less protective of free speech. They’ll be more amenable to hate speech laws, to these sorts of cancellations we’re seeing as just, you know, part of the purging of our sins. So there’s a perverse aspect that in our polity, the party that’s more closer to protecting natural rights is that of the conservatives, which has never how it’s been before. It’s just this bizarre reversal of where we find ourselves.
Court Legitimacy and Closing [49:47]
Bob Zadek: Now, the last subject—we’re running out of time regretfully—but I’d like you to speak for a few moments, if you will, on the importance or unimportance of the Supreme Court having legitimacy. Right now, polling indicates the Supreme Court is the most respected—we have about a minute left, Josh—the Supreme Court is the most respected of the three branches of government right now. In your opinion—I’m asking kind of an easy question, I think—is there a danger that the Supreme Court loses its legitimacy as it gets packed? And what is the adverse effect upon society? Josh, regretfully we have about a minute.
Josh Blackman: Well, I’ll give you an easy answer. I think the word “legitimacy” is meaningless; I think it has no meaning. You know, the Supreme Court is popular when it’s out of the headlines, and when they’re in headlines, their popularity drops. So to the extent they do anything that people dislike, they sort of fall out. Most people can’t name a justice; they don’t know who anyone is. Now that Justice Ginsburg’s gone, I doubt anyone can name any justice. So I think for the most part, anytime the court issues decisions that are unpopular, they’ll become more unpopular. And then legitimacy is just going to be in the eye of the beholder.
Bob Zadek: Josh, this is Bob Zadek speaking with Josh Blackman. Josh is a constitutional law professor at South Texas College of Law. His book, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know, is a must-read. Also check out Josh’s Harlan Institute, which teaches con law to high school students, and also FantasySCOTUS, Josh’s fantasy football for Supreme Court followers. Josh, thank you so much for your time this morning and for your insight.
Josh Blackman: Thank you much.
Bob Zadek: Bob Zadek saying so long for now. I’ll be back again next Sunday, sure as anything. Have a good rest of the weekend.