Gail Heriot on the Significance of Justice Scalia’s Passing
2016-02-20 · Guest: Gail Heriot (Professor of Law) · 52:33
Legal and political implications of Justice Scalia death
Bob Zadek and Professor Gail Heriot discuss the profound legal and political implications of Justice Antonin Scalia’s death. They analyze pending cases like Friedrichs v. California Teachers Association and Fisher v. University of Texas, the constitutional duties of the President and Senate regarding appointments, and potential structural reforms to the Supreme Court to reduce the concentration of power.
Topics: Supreme Court, Antonin Scalia, Constitutional Law, Judicial Appointments, Friedrichs v. California Teachers Association, Fisher v. University of Texas, Originalism, Textualism, Judicial Deference, Court Packing, Term Limits
Speakers: Bob Zadek, Gail Heriot, Caller (Nancy), Barack Obama (via soundbite)
Introduction and the Passing of a Giant [00:00]
Bob Zadek: Hello everyone, welcome to The Bob Zadek Show every Sunday at 9:00 AM, the only live libertarian talk radio show on the air all weekend. Thanks so much for listening. I am your eponymous host, Bob Zadek. 800-345-5639—I know you already have it on speed dial, but I repeat it for our new listeners: 800-345-5639 to join my conversation at any time. We are proudly the show of ideas, not attitude. Thanks so much for listening.
Momentous week. In this week, we saw the passing of a giant in the world of the US Supreme Court, in the history of the US Supreme Court, with the passing of Justice Antonin Scalia. He has served—he was an appointee of Ronald Reagan. He has served for many, many years on the court, and he was acknowledged to be a leader of originalism, an interpretation in the way the Constitution is interpreted. He was felt by many to be a staunch conservative. He was not necessarily a conservative as that term is commonly used. He was also acknowledged to be a friend of libertarian thought. He was to some degree, but not necessarily.
What does the effect of Justice Scalia’s passing do to the future of our country? How is it impacted by presidential politics? What does it tell us about how the founders envisioned our country operating? Are we about to experience a profound constitutional crisis? What is the duty of the President? What is the duty of Congress? Oh my goodness, so much to cover in so little time.
And while I’m at it, a warning to my listeners: this show will be so chock-full of important information, you don’t dare get up from the radio or from the computer even for a minute, lest you miss something very, very important. I needed, of course, lots of help in sorting out all of these important issues, and I, with great relief, have turned to a very strong professional to help me out. I’m happy to welcome to the show Gail Heriot. Gail is a professor of law. She has clerked for a Supreme Court justice in the state of Illinois. She practiced law in the private sector. She was editor of the University of Chicago Law School Law Review, an honor bestowed upon only very, very few law students. And she has been an associate dean and professor of law at George Mason University School of Law, my favorite university in the country. Gail, we have so much to cover this morning. Thank you so much for helping out.
Gail Heriot: Well, thank you so much, Bob. I think we’re going to have a fun conversation here.
The Impact of a 4-4 Court [01:53]
Bob Zadek: Gail, this is—we have so much to do. The effect of Justice Scalia’s passing will have, and has already had, a profound and almost mind-boggling effect upon so much that affects the lives of all of us. It is almost too much to cover. Let’s try to do this in an organized way as possible.
First of all, we have procedural issues to deal with. We now have a Supreme Court today composed of eight justices, which invites us to conclude that it is likely that many of the important votes which the Supreme Court will be taking until there is—and I’ll say unless and until there is—a ninth justice appointed by the President and confirmed by the Senate. Unless there is, there are likely to be tie votes. Now, just to show us how important this is, summarize, if you will, at least some of the major cases which the Supreme Court now with eight justices will be asked to consider, and how those cases that are presently on the calendar affect life in America.
Gail Heriot: Well, first of all, a 4-4 decision doesn’t mean that the court is stuck. What it means is that the Court of Appeals, whatever they decided below, that is essentially going to be the rule that will apply to that case. They can, in theory, ask for reargument when the new justice is appointed and confirmed, but I suspect that what’s going to happen is that some of these cases are going to be 4-4.
Friedrichs v. California Teachers Association [02:38]
Gail Heriot: Maybe the most important is Friedrichs v. California Teachers Association.
Bob Zadek: Gail, let’s just back up for one second. Gail, just for one second. Although the vote will be 4-4, which is basically to affirm the decision of the lower court, it is 4-4 without an opinion. That 4-4 vote doesn’t create any precedent.
Gail Heriot: Right. No precedential value. Right. No precedential value. So if they want to make something that has precedential value, they can wait and order reargument. But, you know, my guess is in most of these cases they won’t.
In Friedrichs, the issue is: should a person who declines to join a labor union nevertheless have to pay union dues on the theory that that person is benefiting from the collective bargaining that the union is doing, or are they protected by the First Amendment here? Is forcing them to pay dues to the union essentially a violation of their First Amendment rights? And at oral argument, everybody seemed to agree that that was going to be a 5-4 decision and that Scalia would be in the majority holding that indeed unions are not entitled to money from people who don’t want to be members of the union.
Bob Zadek: Now, that is a teachers union case. And what will be the effect, assuming we had a 5-4, assuming there was a Scalia, as if there is such a thing, on the bench? And it was 5-4, what would be the effect on life in America?
Gail Heriot: I think the effect would actually be very profound in the sense that, first of all, all those people who are not union members would not be putting money into the union coffers. But also a lot of people who are union members might decide that they don’t really need to be union members after all, that they would rather have the money and not be part of the union.
Bob Zadek: And therefore what?
Gail Heriot: And therefore the unions would have a whole lot less money to be dealing with, less money to affect political issues. They would have less clout generally in the nation.
Bob Zadek: And many rational people believe that that would be the death knell of the power that certainly public service unions have over the political process. So it would be a life-changing event.
Gail Heriot: That is how people are putting it. Yeah, I think it would be very profound. How profound, you know, it’s hard to say. People have been joining unions even though they don’t need to in other situations. But I think a lot of people would be opting out of the union. So this was an extremely important decision for the labor unions. And now it will almost certainly be 4-4.
Fisher v. University of Texas [03:59]
Bob Zadek: I suspect you’re going to now go to the Fisher case.
Gail Heriot: You know, the Fisher case is a very different thing because Justice Elena Kagan is recused from it. Fisher involves the University of Texas. It is about race-preferential college admissions. And what’s probably going to happen now, because both Kagan and Scalia will not be there, it’s essentially a seven-justice court now. So 4-3 can still win the day. So I think the crucial vote is still Justice Kennedy’s, not Justice Scalia’s. And so this case will probably come out more or less the same way it would have come out with Scalia. Scalia might have affected exactly how it was decided, but I think that most likely the Fisher case will be a win for Miss Fisher. And whether it’s a small win or a big win is more up to Justice Kennedy than it would have been to Justice Scalia.
Bob Zadek: And the effect of a, as you call it, a win for Miss Fisher is what?
Gail Heriot: Well, that would mean that it would be more difficult for the University of Texas and other colleges and universities to engage in race-preferential admissions policies. How much more difficult is really hard to say. It’s very unlikely this case would have been something that simply outlawed race-preferential admissions, but it probably would have made it, probably still will make it, somewhat harder for colleges and universities to engage in them.
Right now, we have a situation where schools like the University of Texas can give very, very large preferences based on race to racial minorities in the name of diversity. I think this is having a really profound problem since race preferences are not always—in fact, frequently are not—to the advantage even of their intended beneficiaries. There’s a lot of empirical evidence out there these days that the beneficiaries of racial preferences in admissions are less likely to emerge from college with a science or engineering degree, less likely to go on to graduate school with an eye towards becoming a professor of any kind. There are some real problems with these preferences. They don’t do what people think they do.
The EPA and Little Sisters of the Poor [05:51]
Bob Zadek: Any other big deal cases coming up that Scalia’s death could affect?
Gail Heriot: Well, there are lots of them. And there are also a few that his death probably won’t affect as much as people thought originally. One case that was in the news just recently involved the EPA. The Supreme Court issued a stay on a rule that the EPA had adopted—its Clean Power Plan, I think they call it. And this is a rule affecting utilities that is connected with the Obama administration’s strategy on global warming. And much to everyone’s surprise, the court had issued a stay on that rule. But that has now gone down to a lower court, and it will be a while before it comes back up to the Supreme Court. By then, there may be a new appointee. And then it’s just a question of who that appointee is. If it’s someone appointed by President Obama, I suspect this Scalia’s death will be crucial there. If it’s someone appointed by some future Republican president, maybe it won’t have quite so much of an effect. But it looks like a big one.
Then there are cases like the Little Sisters of the Poor case. It looks like that one is one where Scalia’s death is likely to have a profound effect. That involves contraceptive mandate under Obamacare.
Bob Zadek: Right, exactly.
Gail Heriot: And this is a case where most scholars of law and religion have said that Scalia’s death is going to be crucial there—that the Little Sisters are unlikely to win their case. There are some other scholars of law and religion who are not quite so pessimistic. They’re hoping that the court’s going to be able to pull a rabbit out of a hat. But I think it looks a lot less optimistic for the Little Sisters than it originally did.
The Concentration of Judicial Power [07:56]
Bob Zadek: What strikes me, Gail, as you summarize just—and I’ll say only—three cases, what strikes me is how each of these three cases are not obscure issues of antitrust law or highly technical stuff. These are issues that affect the lives of everybody in the country, and in some cases profoundly. And when Scalia died, the first thought that occurred to me is: oh my goodness, how can the death of one person, which therefore means the life of one person, which therefore means the power of one person, have so much effect on so many people?
As I understood constitutional history, the founders had one word they feared and they tried to draft away more than any other word, and that word was “power.” Everything the founders did in drafting the Constitution was to diffuse and dilute power. That’s what checks and balances are about. And now here we are with one person, now a vacant seat on the US Supreme Court. That justice who is selected could have, as Scalia had, as Kennedy does now, profound power. And it’s astonishing to me that when the founders paid so much attention to denying power to an individual, here we are, 2016, and the death of one person could be a game-changer for half a century in America.
Gail Heriot: Exactly. And you know, you’d have been able to knock the founders over with a feather on that one. They thought the Supreme Court was going to be the least dangerous branch. That’s what they called it—the least dangerous branch. And here it is, we’ve got a situation where Justice Scalia has so much influence here that you can hardly call the Supreme Court not a player. They’re a very big player here, and an individual justice is a very big player.
And this particular individual justice, his whole career was all about reducing the power of the Supreme Court and making sure that the political branches—the legislature, Congress, and the executive, the President—that they have the power because they are politically accountable. And that’s the basic theme that I believe he devoted his life to. And here it is, looking at it, the whole world changes as a result of his death.
The Politics of Appointment and Confirmation [10:04]
Bob Zadek: This is Bob Zadek. I’m spending a very enlightening and illuminating hour speaking with Professor Gail Heriot. Gail is a professor of law, is a student of the Constitution. She was a member of the Federalist Society. She spent time in two wonderful universities, University of Chicago and George Mason University. And we are, of course, discussing the death of—the unfortunate and untimely death of Justice Scalia and what it means to life in America. 800-345-5639 to join my conversation with Gail at any time.
Now, Gail, there’s been a lot already spoken and written about the politics of the situation. And the politics in a nutshell—and I’ll ask you to expand upon this—is that the issue is: the Republicans, no surprise, are insisting that it is President Obama’s duty, or lack of power or whatever, not to appoint another justice because—and this is sort of a tenuous reason, but the alleged reason is—because he is a lame duck and in the last year of his administration, and for that reason and that reason alone, Obama should not exercise the power he is given by the Constitution.
There is also a conversation in Congress, in the Senate, where the senators are saying, or at least some of them are saying, “Well, Obama, if you want to appoint somebody, have at it, but there’s no way that person you appoint will have a hearing and there’s no way they’re going to have a vote. So do whatever you want, but we are not going to advise and consent, and without our consent, your act is empty, and we will have eight justices until the new term.”
Now, Gail, tell us what the Constitution tells us about the right of the President to appoint, the duty of the Senate to give their timely advice and consent. What’s going to happen, and what are the rules under which all of this hyperbole has been spoken?
Gail Heriot: I think I have a sense of what Justice Scalia would say here, looking at the text of the Constitution. It does say that the President “shall nominate.” It uses the word “shall.” So the President has a duty to make a nomination. But the Senate has no duty to consent. So I think that Obama certainly has not just the right, but the duty to make a nomination. The Senate, however, can exercise its discretion in any way it wants. It does not have to consent. And there’s no reason that the Senate should be required to act or is required to act by the Constitution. This is an issue for the political branches. The President can nominate. The people of the United States can elect a Republican Congress, and that Congress, or that Senate in this case, can say that they are not going to entertain the nomination. And the Constitution allows them to do so.
Bob Zadek: And this issue was left by the founders to be sorted out politically. That is, there is no “shall,” there is no higher order of things, there is no moral obligation, at least none found in American constitutional and political history. There is no moral obligation on the part of the Senate to hold hearings, to give their advice and consent. The Constitution says the President shall appoint with the advice and consent of the Senate. It doesn’t say the Senate shall advise and consent, nor does it say the Senate shall promptly advise and consent. The Senate can do what it darn well please. So all of this hyperbole about who has the high ground—politics is always the lowest of the low ground. And in this regard, neither side has the high ground if you want to apply some kind of a political “should.” There is no “should,” and people should not be allowed to seize to wrap themselves in the Constitution and talk about what either branch should do. Is that a fair summary, Gail?
Gail Heriot: That’s a fair summary. I would add, however, that there’s no “should” for the voters either. If the voters get mad at what the Senate does, they can vote those senators out if they please. They get to choose what they want when it comes to election time. And the framers were wise enough not to require things that were unnecessary to require. There are lots of reasons the Senate could choose not to act on a nomination. And the framers didn’t believe they could foresee all those contingencies, didn’t think it was wise to make any decision about what the Senate shall do. It’s in the concept of consent. It can’t be that consent is mandatory. If it is, then it’s not really consent.
Obama’s Evolving View on Senate Advice and Consent [12:59]
Bob Zadek: And in this regard, as to what the political process dictates the Senate should do, I would like to play two soundbites of a constitutional scholar for guidance on what the Senate should do politically. Soundbite number one from our constitutional scholar.
Barack Obama (Soundbite): There are some who believe that the President, having won the election, should have complete authority to appoint his nominee, and the Senate should only examine whether or not the justice is intellectually capable and an all-around good guy. That once you get beyond intellect and personal character, there should be no further questions as to whether the judge should be confirmed. I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record.
Bob Zadek: Ah, thank you very much from my constitutional scholar, an adjunct, not a professor, but an adjunct teacher of constitutional law. That was, of course, President Obama. Now, to hear a totally different view, I’d like to resort to another constitutional scholar. Soundbite number two.
Barack Obama (Soundbite): There’s no doubt that he was a giant on the Supreme Court, helped to shape the legal landscape. He was, by all accounts, a good friend and loved his family dearly. And so, you know, it’s important before we rush into all the politics of this to take stock of somebody who made enormous contributions to the United States, and we are grateful not only for his service but for his family’s service.
The Constitution is pretty clear about what is supposed to happen now. When there is a vacancy on the Supreme Court, the President of the United States is to nominate someone. The Senate is to consider that nomination and either they disapprove of that nomination or that nominee is elevated to the Supreme Court. Historically, this has not been viewed as a question. There’s no unwritten law that says that it can only be done on off-years. That’s not in the constitutional text. I’m amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it a whole series of provisions that are not there. There is more than enough time for the Senate to consider in a thoughtful way the record of a nominee that I present and to make a decision.
Bob Zadek: That was the same constitutional scholar, President Obama, reaching two very different positions. No surprise, his views seem to have changed a bit between those two periods. So adjunct professor of law Barack Obama in one soundbite agreed with you, and in the other soundbite sort of found a duty on the part of the Senate to promptly advise and consent. And as you mentioned before the break, there is no such duty. If there is a duty, the duty is found in the political process, but not in the law or in the Constitution.
Gail Heriot: Right.
High Stakes and the Size of Government [15:46]
Gail Heriot: You know, one thing I would add here is, you know, the reason we have such contentious Supreme Court confirmation processes these days is that government is so very big. You know, in the framers’ time, the federal government was a very, very small part of anybody’s life. But now things are so big, so much rides on it, that we get very contentious confirmation processes.
Bob Zadek: The stakes go up tremendously. You’re exactly right, Gail. Spoken like a true participant in the activities of the Federalist Society, I might add. But you’re of course exactly right. To the extent that there isn’t so much power in Washington, then the stakes go way, way down.
Caller: The Religious Composition of the Court [16:42]
Bob Zadek: Now, Gail, no surprise, I knew I’d have a lot of activity from our audience out there. We have a caller, Nancy, calling from Marin County. Nancy, good morning and welcome to the show.
Caller (Nancy): Good morning. Thank you. I have a question that’s slightly askew of what you’ve been discussing, and that is: what has been the impact of essentially purging Protestants from the Supreme Court, given that Protestants essentially have a worldview that the master is the servant—servant-master versus what I see as a view coming from the other justices of group rights, acknowledging that Scalia was a Catholic? And I’ll take my answer off the air.
Bob Zadek: Wow, that’s a hard question, Gail. Want to take a shot?
Gail Heriot: Well, I don’t think there’s been any effort to purge Protestants from the court. I will add that I’m a Protestant myself. There are a number of things that go into, you know, how you pick people for an important position, and a lot has to be considered. Out of nine people, they are not going to be a perfect demographic reflection of the American people.
Bob Zadek: Hardly. They all come from Harvard and Yale. Well, of course, they are hardly a demographic picture of the United States. They all come from elite universities, most of them from the East. So they are hardly—nor are they intended to be—a mirror. It’s not like the House of Representatives, perhaps. They are not supposed to be any reflective of the population as a whole. That never was the theory. And I should also mention, interestingly enough, in order to qualify as a justice on the Supreme Court, you do not have to be a lawyer.
Gail Heriot: No, there’s nothing in the Constitution. But you can bet that it’s very unlikely that a president would nominate or a Senate would confirm a non-lawyer. Sometimes people like to talk about that because it’s kind of popular politically to say, “Hey, I may nominate someone who’s not a lawyer.” That gets a lot of cheers from some crowds, but I actually think it would not be a great idea.
Structural Fixes: Increasing the Number of Justices [18:51]
Bob Zadek: Gail, if we had a two-hour show instead of a one-hour show, I would ask you to speculate on what happens if President Obama appoints Donald Trump to the Supreme Court right now. But that’s for another show. Think about that and send me an email about what your conclusion is, but we’re not going to discuss it on the air now. It’s a little mind-boggling.
Now, Gail, we have a situation, as I said in my introduction to today’s topic, where we have found ourselves in an environment that the founders never could have contemplated, where there is this concentration of power in the Supreme Court and, because of the present composition, in one seat on the Supreme Court. Now, historically, the Supreme Court, as you pointed out looking at constitutional history, was the least powerful branch of government. I think it was Alexander Hamilton writing in the Federalist who said the Supreme Court is powerless. They have no money except that which is given to them, and they have no way to enforce their rulings. They have no army. So they were felt to be—
Gail Heriot: Neither the power of the purse nor the sword.
Bob Zadek: Exactly right. Thank you for that wonderful quote. They have neither the power of the purse nor the sword. Thank you so much, Gail, for that wonderful quote. I think it was from Hamilton, but I’m not certain of that.
Gail Heriot: Yes, I think you’re right.
Bob Zadek: But in any event, the Supreme Court has now become—and they’re of course needless to say unelected, obviously—the Supreme Court has now assumed profound control over life in America. And is there a lesson? Does this invite a conversation about how we fix this, if indeed there are those out there—I include myself—who think this cannot be? We cannot have this concentration of power. And it is interesting to wonder whether or not there is a fairly convenient fix. And this is the interesting, to me, the interesting part of conversations such as this.
One thought that came to mind, Gail, was that the number of justices on the Supreme Court can be changed by an act of Congress and has often been changed by an act of Congress. Right now, we have nine justices on the Supreme Court, and Americans tend to think, “Well, that’s the way it is, and that’s the way it always is, and that’s the way it’s supposed to be.” But in point of fact, the original number was five, set by Congress, not by the Constitution, in 1801. It was quickly raised by Congress from five to seven, and then from seven to nine. It has been as much as ten. It has been as low as eight. It has fluctuated quite a bit. There was an attempt, as we remember, in the court-packing years of the New Deal to raise it to fifteen, but that failed politically.
Gail Heriot: Yeah, that’s an interesting thing there, the court-packing scheme. I understand that, like you know, the notion of raising the number of Supreme Court justices—I think fifteen was what you were thinking of. That would cut down on these 5-4 decisions. You’d get some 7-8 decisions, but you know, you’re less likely to get a decision where one justice is the big deal. If you were to do that, doing it you’d have to stagger them very slowly so that no president would get the benefit of the expansion. You wouldn’t want President Obama to appoint like another eight.
But the court-packing scheme of FDR’s is really worth talking about here because you’d need to make sure that your proposal or your idea here doesn’t just become a way for presidents to wield more power. And FDR’s proposal was really quite outrageous. I mean, he was losing cases in the Supreme Court on New Deal legislation, and he had the notion of adding a Supreme Court justice for every justice who was age 70 and a half or more. I don’t know where he got the 70 and a half. But it was a bald power grab, one to get him more appointments to the court. And it was meant to intimidate. It probably did intimidate. One of the judges, Justice Roberts, changed his vote on New Deal legislation.
Bob Zadek: That was known as a “switch in time that saved nine.”
Gail Heriot: Exactly. Exactly. So although I think that this proposal has merit, to have more than nine justices in order to avoid the one justice who can be the swing vote—and it wouldn’t completely eliminate that danger—on the other hand, you know, you’ve got to make sure that it doesn’t become a political power play, that it doesn’t give one president many appointments.
Bob Zadek: Under the Zadek Plan, you’re exactly right. And under the Bob Zadek Supreme Court Plan, for the next successive presidential terms, each president during a four or eight-year term would only be allowed—you would increase the number of justices by two. Or by one, I don’t care. But by two is better. You would increase the number of justices by two until you got to fifteen. The effect would be a broader range of opinions on the court and the greatly diminished effect that the death or retirement of one judge would have—that effect would be diminished. And the beauty of that approach is it can be done solely by an act of Congress, and it’s a non-political act. Therefore, it doesn’t favor one branch of government and it doesn’t favor one political party over the other. It is simply the two branches, the executive and the legislative, getting together and fixing a problem in the Supreme Court. And to me, when you have problems, whether it’s in your personal life or your public life or your business life or your political life, problems are teachers, and you say to yourself, “Okay, if I have a problem, that means something is wrong. So how do we fix the problem?” And this solution, increasing the number of justices to fifteen, is an easy, an easy political fix.
Gail Heriot: That’s true. And like when I think about it, you know, Justice Scalia was my constitutional law teacher at the University of Chicago where I was a law student. This was before he was appointed by President Reagan to the DC Circuit and then went on to become a Supreme Court justice. And it was he, I can remember it as if it were yesterday, asking the class how many justices is the Supreme Court required to have? And like we were looking at the Constitution and weren’t quite getting it. And the answer was, of course, it only requires one, because the only justice mentioned in the Constitution itself is the Chief. And so that Chief Justice is required, but the number of justices generally is set by Congress.
Structural Fixes: Term Limits for Justices [21:24]
Bob Zadek: So my solution is easy to accomplish. It just requires a statute. Now, there’s another solution. I have another solution—are you listening, members of Congress? I’m about to solve your problem. Another solution, which requires, unfortunately, I believe a constitutional amendment, would be to limit the term of all federal justices—or you can say just the Supreme Court, but I prefer all federal justices and judges—limit the term instead of serving for life, they serve for only ten years, subject to reappointment and reconfirmation. That would prevent a president from reaching thirty years into the future with the effect of a Supreme Court or federal district court or appellate court judge.
And the reason judges serve for life in the eyes of the founders is to remove them from the politics of the day. But if you look at the judiciary, the appointment of judges—look at what we’re talking about today—the appointment of judges is highly politicized already. So that horse is out of the barn already.
Gail Heriot: Well, hold on here. Let me make a counter-proposal. You know, there was an article in the Harvard Journal of Law and Public Policy a few years back by two Northwestern University law professors, Jim Lindgren and Steven Calabresi. And they were suggesting, I believe, 18-year terms that were not subject to reappointment. I like that a little better than the ten years subject to reappointment, because the last thing you want in a Supreme Court justice is for them to play to Congress in order to get reappointed. You know, that’s just the opposite of what we want in Supreme Court independence.
So I prefer the 18-year solution. Again, you’d want to have staggered terms so that each president, you know, may get one or two appointments. But I like that a lot better than ten years subject to one renewal. There are some downsides to it. You know, Supreme Court justices tend to be really capable people with a lot of talent. And if they’re told that at age, say, 68 or age 70 or even 75, that that’s going to be the end of their careers, many of them would still be looking to have a job, something like university president. I don’t want a situation where Supreme Court justices are playing to the persons they think are likely to be their future employers, like major universities. So that part of it’s a downside. On the other hand, I think it may net out positively. I think it’s basically a sound idea.
One good thing about having Supreme Court justices know that they don’t get to live forever—that they won’t be able to be there as long as they can live—they have to worry about, “Well, who’s going to come next? Who’s going to be in my seat after I’m here when I’m still alive to watch?” And they may be a bit more careful, therefore, to create laws that are not simply questions of the discretion of the justices. They may be more likely to do what Scalia tried to do, and that is limit the power of the court, knowing that they won’t always be in charge.
Structural Fixes: State Nullification [23:50]
Bob Zadek: My third suggestion to diminish the power of the Supreme Court and the power of Congress is to increase the principle or the power of federalism and allow a majority of the states—whether the majority is simply 26 states or whether it’s a majority by population, I don’t have an opinion on that, I’ll just say a majority of the states and let it go at that—but a majority of the states by vote could nullify any federal statute. Any federal statute. And therefore it puts power back in the states, power that was taken away by the 17th Amendment, which provided for the direct election of senators. And so what do you envision that political life in America would be like if the states could nullify—I go back to Thomas Jefferson and the Kentucky Resolves where he supported state nullification—have the states nullify any federal statute, which simply means a statute, even though it’s constitutional, if most of the states don’t like it, it becomes null and void.
Gail Heriot: You’re sounding very much like John Calhoun. And you know, doing that would put a lot more power in the hands of state governments and of state politicians.
Bob Zadek: Is that good or bad?
Gail Heriot: That’s an interesting proposal. It’s not a limit on the power of the Supreme Court, so you’re kind of going in a somewhat different direction here rather than solving the problem of too much power in the hands of one single justice on the Supreme Court. Would they be able to then veto a decision of the Supreme Court?
Bob Zadek: The point is well taken, and I agree with you. It just evidences my recoiling at any accumulation of power, in this case in Washington.
Scalia as a Friend of Democracy [25:44]
Bob Zadek: Gail, you have written an article, at least one article, where you discussed that—I think you wrote for the Boston Globe—Justice Scalia, quote, “was a friend of democracy.” A friend of democracy. Now, I couldn’t really tell whether that was good or bad. Explain the premise of your thoughtful piece in the Boston Globe, and what did you mean by a friend of democracy?
Gail Heriot: What I meant by that is that Scalia was very intent on limiting the power of the judiciary relative to the political branches, which he perceived to be, I think correctly, more politically accountable than the courts. Because a judge cannot be removed except on bad behavior, he wanted to make sure that to the extent possible that constitutional issues not trump the democratic process unless that’s what the Constitution in fact says.
I think the fact that he was a very strong textualist—he believed firmly that you look at the language of the statute, you read what it says, and that’s what the statute means, rather than resorting to legislative histories which are generally jumbled with all sorts of stuff. Start out with that text. Read it the way an ordinary person understanding the English language would have read it. That doesn’t mean read it literally, because some things in our ordinary interpretation of language we don’t necessarily read every word absolutely positively literally. It means interpret the language of the statute first, rather than thinking about what Congress really intended even though they didn’t say it, or what they would have intended if they’d known everything that the judge knows. It’s just read that statute according to its text. That’s meant to empower Congress. It’s a message to them that, “Look, you’re in the driver’s seat here. You tell us what you want, and if you tell us that carefully, that’s what we’re going to do.”
The same with his originalism with the Constitution. It’s a textually driven method of analysis. Let’s look at what the framers actually said. He’s trying to reduce the power of the judiciary. And he had some success at that.
Judicial Deference and Economic Liberty [27:39]
Bob Zadek: Now, I’m now going to ask your opinion. In your opinion, is the fact that Justice Scalia favored what is called judicial deference—deference to the legislative branch rather than have the judiciary interject their opinion on what statute should be—deference? Do you find that to be a strength or a weakness in terms of your personal views of the operation of the two branches of government, the judicial and the legislative?
Gail Heriot: That’s a really hard question because certainly in some contexts, deference is appropriate. Where I have the most disagreement with Scalia was actually with his deference to administrative agencies. I thought that at times the Chevron case, which began the era of deference to the judgment of administrative agencies, I tend to think that the Supreme Court, including Scalia, have gone too far in the direction of deference to administrative agencies, which are not nearly as politically accountable as the legislature and the President are.
Now, in theory at least, these administrative agencies are part of the executive branch and they are subject to the power of the President. But not entirely. And my read of the Administrative Procedure Act, which lays out the procedure for administrative agencies to act and lays out a structure for how the courts are to treat administrative agency action, I believe that it required the courts to give less deference than Justice Scalia was inclined to do. But I understand where he’s coming from. Back in the 1970s, when he was developing his views in this area, there were an awful lot of courts that were clearly going way over the top in changing perfectly appropriate regulations. And I understand if he thought that needed to be brought under control, and it did. However, the level of deference that we see sometimes to administrative agencies, such as a recent case in which the Supreme Court essentially said that it would defer to the administrative agency in the interpretation of what their jurisdiction is—and that I think is wrong. We cannot defer to a government agency in deciding how much power it has. That’s a mistake.
Bob Zadek: Justice Scalia, it should be pointed out—we haven’t got time to expand this theory, explore it—but Justice Scalia was no friend to libertarians on the subject of economic rights, regretfully. That was, in my opinion, his greatest weakness as a jurist. Economic rights include the right to earn an honest living, the right to not require the government’s permission to get a job, minimum wage legislation, and the like. In that regard, Justice Scalia really denigrated economic liberty, something which would upset constitutional scholars such as Randy Barnett.
Gail Heriot: Yeah, I think what his position was, he couldn’t find those rights in the text of the Constitution.
Bob Zadek: Well, okay, and we have the unenumerated rights, which is a whole other conversation. The summary, if I may, the summary is that this untimely passing of Justice Scalia points out, in my opinion, a weakness in the core structure of American political life, one that really has to be changed. It’ll be an exciting year to see what happens. Gail, thank you so much for shedding so much light on this issue. This is Bob Zadek. Unfortunately, the music is coming, so I must go. I’ll say goodbye for now. I’ll be back next Sunday. Thanks so much for listening.