Ilya Shapiro on the Supreme Court in the Balance
2016-05-14 · Guest: Ilya Shapiro · 34:57
Supreme Court and the 2016 Election
Bob Zadek and Ilya Shapiro discuss the profound impact of the 2016 presidential election on the future of the U.S. Supreme Court. They explore the nuances of judicial philosophy, specifically the tension between judicial deference and judicial engagement, and trace the historical shift toward a “presumption of constitutionality” since the New Deal era.
Topics: Supreme Court, Judicial Philosophy, Judicial Engagement, Judicial Deference, Merrick Garland, 2016 Election, Constitutional Law, New Deal, NFIB v. Sebelius
Speakers: Bob Zadek, Ilya Shapiro, Caller (Raymond)
The Supreme Court and the One-Issue Voter [00:00]
Bob Zadek: Hello everyone, welcome to The Bob Zadek Show, the only live libertarian talk radio show on the air all weekend. Thanks so much for listening. We are proudly and always the show of ideas, not attitude. 800-345-5639 to join my conversation. This morning, I’m happy to welcome to the show Ilya Shapiro. Ilya has been on the show before, and I thank him very much for giving us some time again this morning.
The topic is, of course—well, perhaps not of course, but the topic is this morning the upcoming presidential election, most specifically the effect of the election results on the U.S. Supreme Court. I confess to be of late a pretty much of a one-issue voter. Most voters have one or several issues they consider to be more important than the other. There’s actually no other way to vote because otherwise the issues—you’re all over the map, at least in my opinion. But I am a one-issue voter. I vote for the candidate who will make appointments to the Supreme Court of the highest quality and the most healthy for the future of our country.
This election is particularly important because for sure the next president will be appointing one Supreme Court justice and probably as many as three more. And the Supreme Court is of course important because the influence of the president and the presidential appointments stretches far, far in the future. And as I have pointed out in prior shows, the Supreme Court in today’s American civic life has a profound effect upon Americans. It gives them great importance in our lives, and therefore we care so much about and we are affected so much about who is appointed to the Supreme Court. Now, I invited Ilya to be on the show this morning because as the public debate goes on and it involves the Supreme Court, the debate often is very much on the surface. By that I mean the discussion is: who are the judges we see who are conservative and who are the judges who are progressive? And it’s like “their guys versus our guys” without any inquiry into really what goes on in the Supreme Court and what are the qualities we ought to be looking for in a Supreme Court justice. So we’re going to look beneath the surface of the discussion on the Supreme Court and we will understand with Ilya’s help why we care so much about the Supreme Court and what are the qualities we ought to be looking for in Supreme Court appointments. Ilya, welcome back to the show again this morning.
Ilya Shapiro: Thanks, Bob.
Bob Zadek: Thanks so much for giving us some time this morning. Now Ilya, I presume you will agree—it’s not very controversial—that the Supreme Court is perhaps the big issue in the presidential election because of the influence far into the future and because of the sheer number of judges who the next president is likely to be appointing or nominating, not appointing.
Ilya Shapiro: Absolutely. Those of us who are legal pundits say that every election, judicial appointments—and not just the Supreme Court, I should say; most cases don’t reach the Supreme Court—the president, especially a two-term president, has a tremendous influence going forward decades about the composition of the lower federal courts as well. And so we always pound the table saying, “Look, this should be a huge concern to voters as much as the economy, national security, and whatever else.” But this year, I think especially, this is the case given that the Supreme Court is so evenly balanced on those big culture war issues or issues of government power, these sorts of things. And the next president, or whoever replaces Justice Scalia, will affect the direction of the court. And as you said, there are three justices who are 79 or older, so certainly in the next term and in the next two terms, there’s going to be a lot of turnover at the High Court.
Litmus Tests vs. Judicial Philosophy [04:59]
Bob Zadek: Now, the issue—many voters, I think it’s a mistake, but many voters will, and many politicians will, look for a litmus test. Citizens United v. FEC, how do you feel about that? How do you feel about repealing—if such a thing could be done—Roe v. Wade, as if Roe v. Wade were a statute? And sort of there’s this one case or one issue litmus test that are applied to Supreme Court nominees. But in reality, those of us who really pay attention and care a great deal about the Supreme Court—and I would hope that would include most of our listeners—there’s a more fundamental issue of the relationship between the various branches of government. The phrase that has gotten a lot of use over the years is an “activist” or an “engaged” judiciary. Help us understand that core issue in evaluating Supreme Court justices on the basis of the relationship between the various branches of government and the core checks and balances which the Founders have given us.
Ilya Shapiro: Sure. Well, I mean, the very basics, American Politics 101: the judiciary is one of the three supposedly co-equal branches that is supposed to check the excesses of the others. And judges are supposed to be independent. They have, at the federal level, they have life tenure once they’re confirmed. And indeed, they’re supposed to review cases that are brought before them rather than—they can’t simply reach out and declare some law to be illegal or unconstitutional or kind of change some previous precedent, as you said. It’s not a statute that they can simply repeal. It’s not a bill that the court signs, as Donald Trump referred in earlier this year.
And there’s a lot going on in terms of what kind of judges a president should appoint or how we evaluate them. There’s basic legal theory: what is your approach to the First Amendment? How do you view the power of Congress under the Commerce Clause, the power to regulate interstate commerce? How broad is that power? When should courts limit executive discretion in different areas? So that’s kind of the legal theory and nuts and bolts. It’s very hard to have a litmus test because indeed, if a judge or a candidate says ahead of time, “Oh yes, here is how I would rule on this case,” well, then they would have to be recused if that case actually came up, because then it would be seen that they wouldn’t be going into it with an open mind.
Protecting Against Excesses [08:01]
Bob Zadek: Now Ilya, you said “protect against the excesses” of the executive or the legislative branches of government. Expand upon that, if you would. What does that mean, “protect against the excesses”? What is the test that they use, and what are the tools they have to, quote, “protect against the excesses”? Because this is the core of the issue to me. This is how the Supreme Court stands between us and a somewhat or relatively tyrannical executive or legislative branch. So what does that mean, “protect against the excesses”?
Ilya Shapiro: Well, it depends on the area of law you’re talking about and the type of legal challenge that’s being brought. These things look in different ways. For example, currently there’s a lawsuit at the Supreme Court about President Obama’s executive actions on immigration. There are laws out there, the immigration laws, that give a lot of discretion, prosecutorial or otherwise, to the executive branch to decide who they’re going to seek to deport, what kind of benefits they’re going to grant to certain types of people who are here temporarily, whether legally or not. And the court is examining whether indeed what this president has done, what this executive branch has done, goes beyond that law.
And also, by the way, if it fits within the law, is the law too broad? That is, did Congress give the executive—delegate, in the technical term—too much legislative power to the executive? Congress can’t pass a law saying, for tax policy, the president can set whatever taxes he wants. That would be improper. Congress has to legislate in that way.
And then there are constitutional cases like the first Obamacare case, what ended up being called NFIB v. Sebelius. Does it go beyond Congress’s authority under the Constitution to require people to buy a commercial product, in this case, a health insurance policy? The operative clause there is the federal power under Article I, Section 8, the congressional power to regulate interstate commerce. Well, is it a regulation of interstate commerce to require someone to buy this product?
And so there’s all this doctrine that has developed over the decades and different theories to apply, not just about how you view the law, but also—and this is important with how John Roberts ruled on Obamacare—what is the proper role of a judge? Should you bend over backwards to defer to Congress so as not to strike down a law, or to defer to the executive to find that they’re within their powers, because the judge should be restrained and not, as the opposite of activism, rather than simply apply his or her theory of the law and then we should just debate that theory rather than the judicial role?
Judicial Deference vs. Judicial Engagement [11:10]
Bob Zadek: I’m so glad you mentioned that, Ilya, because the issue of what is called in con-law circles “judicial deference” is very, very important in this whole conversation. And that has a related concept, which is a so-called “activist” or “engaged” judiciary versus a less activist and less engaged judiciary. That is to say, there are various schools of constitutional thought about to what extent should the Supreme Court presume that the government is acting constitutionally and give great deference to the executive and legislative branches and just say, “Well, they probably are doing it right, and we can probably find, if we look hard enough, some constitutional basis, so we have a bias, a presumption to support governmental action and not to strike it down.” And that’s a more passive or less engaged judiciary. On the other hand, there is the alternative thought of the judges should be more engaged and put the government’s feet to the fire and have them prove their action—or have the burden of proving their action is constitutional. So, and this issue of judicial activism or engagement of the judiciary transcends party lines. And at various times, both parties have used that concept, or both progressives and conservatives have used that concept to support their position. So explain that and how that fits into a libertarian point of view.
Ilya Shapiro: Right. So, until the New Deal—1937 is where legal historians trace it to—the court thought that its job was simply to decide cases and not apply a thumb to the scale on either side, whether for the challengers or for the government, but to just decide things based on the text of the Constitution as the justices viewed it. It doesn’t mean they always got it right. Dred Scott v. Sandford, for example, before the Civil War, contributed to leading to the Civil War, or Plessy v. Ferguson, where “separate but equal”—lots of cases in the kind of ancient era.
But then in the late ’30s, the court started to change its mind after striking down certain New Deal legislation, saying that that went beyond the accepted interpretation of the scope of federal power. And they started allowing the federal government under President Roosevelt to impose various types of regulations and national programs in ways that they hadn’t before. And at the same time, the court bifurcated people’s rights, so that certain rights were more fundamental than others, or more equal than others, if you will. And so they were treated differently in terms of when states or the federal government passed certain types of legislation. If it intruded on rights, but if those rights weren’t so-called fundamental, then the legislation might be accepted.
And so for that many years, there was a presumption of constitutionality. That is, courts began to presume that anything that Congress or state legislators passed was constitutional unless so blatantly against the Bill of Rights or beyond enumerated powers that it simply could not stand. And in effect, this presumption of constitutionality meant that between 1937 and 1995, no piece of federal legislation was struck down by the Supreme Court as exceeding the enumerated, the listed powers of the Constitution. And at the same time, states could legislate in all sorts of ways that infringed on people’s rights—certain kinds of rights: property rights, the right to earn a living, occupational licensing, all these sorts of things. As long as it wasn’t speech, or as long as it wasn’t discriminating based on race or certain types of protected things, then courts would allow that to happen.
And conservatives—it wasn’t just kind of a liberal or progressive project—eventually the conservative response to judicial excesses or judicial activism, as they called them, was not to say, “No, that’s wrong legal theory,” it was instead to say, “Why are you unelected judges striking down these laws that the people passed in their legislatures, or that was signed by the governor, by the president, by the people’s elected representatives?” And that’s why you have this kind of faux battle between activism and restraint.
Activism these days really just means that the person who’s criticizing the judge or the decision doesn’t like that judge or decision. Nobody says—for either liberals or conservatives—nobody says that judges should never strike down laws. And yet, when a decision goes a conservative direction, liberals say that that’s activism, and when it goes a liberal direction, conservatives say that that’s activism. Really, as you mentioned, what judges should be doing is being engaged. It’s not a matter of whether they’re restrained or minimalist or activist in some way; it’s that they should be looking and scrutinizing closely what the other branches are doing. And if they think that that goes beyond the statutory text or the constitutional provision, then they should be striking it down. If they don’t, they should be upholding it. And then we can evaluate—legal scholars and politicians can evaluate—that sort of thing. But it shouldn’t be that good judges are restrained and bad judges are activist.
And it’s unfortunate that over the years, in conservative legal thought, a lot of judges, including Robert Bork, Antonin Scalia, and John Roberts, are of this school that judges should defer as much as possible, until the breaking point, to Congress or to executive agencies if at all possible. That’s what you get, this kind of conservative judicial passivism, if you will, as the opposite of activism, and neither one is good.
Politicization of the Confirmation Process [18:00]
Bob Zadek: And what’s really interesting in sort of a depressing way is the political process that overrides this. You and I, Ilya, it’s fair to say, would much prefer a very engaged judiciary who puts the government’s feet to the fire, whether the government is the executive branch or the legislative branch, and has them prove the case that when they take away our liberties, they are doing so under a standard of strict scrutiny and they are doing so with a strong constitutional basis, rather than presume that it’s correct. However, if a Supreme Court nominee were sitting before the Senate Judiciary Committee and said, “My job is to make sure the Senate and the House do not overstep their bounds,” that’s hardly the kind of philosophy that would get them confirmed. Also, it’s hardly the philosophy that would get them nominated if they say, “Part of my mission is to restrain presidential power.” So the trouble is, like our electoral process, what you have to say to get elected is quite different than the skills you need to govern. So the process itself mitigates against an engaged judiciary, a judge who sees his or her job to restrain the other branches of government.
Ilya Shapiro: Well, I wouldn’t say necessarily that a judge who said that their job was to check Congress and check the president wouldn’t get confirmed. I think the real issue is that over these decades, dating back to 1937 as I said, the notion of constitutional law has deviated so much from the actual Constitution. And therefore, when you have such radically different theories of judicial power, it’s understandable that politicians responding to incentives will treat judicial confirmation battles like they’re undertaking or examining candidates for political office, not for judicial office.
It’s this constitutional corruption that has led to ideological litmus tests and the politicization and the poisoning of the whole process. I mean, it didn’t used to be that every time there was a Supreme Court vacancy, it was a whole national to-do. I mean, the first time that there were confirmation hearings for a Supreme Court justice was 1916, and that’s because the nominee was Jewish—it was anti-Semitism against Louis Brandeis, for example. And there weren’t hearings after that for years. The first time that a Supreme Court nominee testified at his own confirmation hearing was Byron White, nominated by President Kennedy in 1962—very short hearing. What we think of now as this kind of poisoned, very politicized, nasty, brutal, long slog started in the ’80s with Robert Bork, when Ted Kennedy went on the floor of the Senate and attacked Bork, made this big speech how in “Bork’s America,” you know, all the civil rights gains for the last 100 years would be reversed and all the rest of that. And so it’s really only been less than 30 years that what we think of as the nomination and confirmation process as it’s been has gotten to what it was. But I don’t necessarily blame the political actors for doing so. They’re again responding to the constitutional corruption that has led to a state of affairs where Democratic appointees hardly ever find fault or find that Congress or the federal government is going beyond its constitutional authorities. And on the Republican side, it’s a little different. You have, as I said, this battle between people who think it’s their job to “call balls and strikes,” as John Roberts said slightly misleadingly, I think, at his confirmation hearings, and people who think that they should be restrained and trying to defer and trying to extract the court from checks and balances as much as possible.
Roberts and the Garland Nomination [22:21]
Bob Zadek: Now, of course, John Roberts famously said in the NFIB v. Sebelius case that it’s not his job to rethink legislation, and he said something like, “Well, if you don’t like what your legislators are doing, it’s the political process to vote them out. It’s not my job to fix the errors of Congress,” showing once again in one sentence profound judicial deference, despite the fact that he had his own doubts about whether the statute was constitutional. We have, Ilya, you have to leave in a couple of minutes, I believe. We have Judge Garland’s nomination hanging in the balance. He’s not probably going to have hearings, but Judge Garland—there’s a lot sort of wanting in Judge Garland as an appointee. He was considered to be a compromise nominee for the job. But Judge Garland, of course, has demonstrated profound judicial deference. We have about 30 seconds. Judge Garland is one of those judges who does not prefer to have an activist approach, is he not?
Ilya Shapiro: Yeah, he doesn’t go out of his way to make a name for himself. He’s not writing big, bold, kind of radical opinions, but he does defer to the government as much as possible, whether you’re talking Environmental Protection Agency, law enforcement, the National Labor Relations Board. He really does defer in that way. And in that sense, him being a so-called moderate might be worse than a so-called progressive radical who at least maybe on criminal justice issues or others where it’s the left and the right against the pragmatic middle. So it’s a complicated situation. It looks like he won’t get a hearing or a vote until after the election. I think the Republicans are justified in taking that position because the direction of the court is in balance with this vacancy.
Bob Zadek: Ilya, thank you very much for giving us a half hour of your time this morning. We know you’re quite busy. Ilya is a senior fellow in constitutional studies at the Cato Institute, editor-in-chief at the Cato Supreme Court Review, has written many books and testified often before Congress. Ilya, thanks again for giving us your time this morning. This is Bob Zadek. I’ll be back in one short minute to continue our conversation on the Supreme Court.
The Burden of the Democratic Voter [24:50]
Bob Zadek: Welcome back to The Bob Zadek Show, the only live libertarian talk radio show on the air all weekend, the show of ideas, not attitude. Thanks so much for staying tuned. 800-345-5639. We’ll open up the phone lines now if you have any questions or topics to discuss on my conversation with Ilya Shapiro on the Supreme Court and the importance of the Supreme Court in the upcoming election.
It is to me the single most important issue. The Supreme Court—they have a profound amount of power over our everyday lives. They are unelected. The Supreme Court justices, like all federal judges, serve for life. They cannot be removed from office except for extreme misbehavior. So they have profound power, and yet they are not directly answerable to anybody. Therefore, appointment to the Supreme Court gives the president the power to extend his or her influence far into the future, long after the president has left office.
And what’s—what comes to mind in a discussion such as the discussion that we have just had with Ilya is: voting is hard. The issues are complex. It is almost, from a standpoint of studying democracy, it’s almost unfair to expect that voters, who after all have lives where one vote doesn’t matter very much at all, to expect voters to be able to simply spend the time and indeed have the inclination to study an issue such as the operation of the Supreme Court merely so you can vote intelligently in a presidential election. It’s kind of a waste of your time. The benefit to you as a voter is nonexistent compared to the time you would have to spend to really study the issues. And yet that’s what’s expected of voters in a democracy. So voters, in my opinion, should not be criticized and should not punish themselves for not understanding at the depth necessary the operation of the Supreme Court and the interaction between the Supreme Court and everyday life. It’s too much to ask of a voter. And the Supreme Court is only one issue. There are complex economic issues, complex social issues, complex medical issues. And yet we expect voters to vote intelligently. You would have to be a full-time political science student just to make a stab at voting intelligently, and yet that’s what’s expected of us. Little hard to understand how democracy can survive when the requirement for it to survive is that voters spend so much time studying the issues. Well, as not surprisingly, we have a caller from San Francisco, Raymond. Line one, please.
Caller Segment: The Garland Boycott [28:47]
Bob Zadek: Good morning, welcome to the show.
Caller (Raymond): Hi. Your guest had a list of—
Bob Zadek: Ilya Shapiro. Ilya Shapiro.
Caller (Raymond): Yeah, from the Cato Institute. That’s right. He thought Bork, who didn’t make it to the Supreme Court, Roberts, and Scalia were restrained, that they were not activist, they would defer to the government. And I know Bork would have been on the side that Scalia was on in Citizens United and probably Bush v. Gore and the voting rights case two years ago, which is very activist, which Scalia led in dismissing the part of the 50-year-old act that made it presumably illegal to change your voting laws in the South mostly.
Bob Zadek: And the act that Rand Paul had reservations about in the early stages of his failed run for the presidency. Rand Paul was criticized for taking issue with the Civil Rights Act of the 1960s. But go ahead, please.
Caller (Raymond): Oh, I remember Rachel Maddow doing that on his first day in the Senate, she took him apart. Anyway, this guy, your guest, says that things changed in 1937, but he ends up saying Merrick Garland should wait for the next administration. Pretty much all that he thinks went wrong started in 1937, and that was when Roosevelt was starting on what would have been four terms and getting the balance of the power on the court. And pretty much that’s his idea of what went wrong. Well, if the 22nd Amendment or whatever it was that limited presidential terms should at least be honored because part of why it was important was so you wouldn’t pack the court over 16 years. So that couldn’t happen. But the corollary is you’ve got to let some president who actually is there when a justice dies or resigns get the nominee the chance of having it. You can’t just boycott him. And you know, we ought to have a boycott of the Trump presidency for four years because there’s two years without a justice that these guys in Congress are creating. So what’s the difference if there’s four years that when we boycott them? We’ll take some heat, but let’s—in the end, it’ll probably be seen as pretty fair. And I relate it back to the amendment where you limited presidential terms. So I know it would kill Scalia to die in a Democrat’s term, but it just is what you need to honor because it’s only fair.
Bob Zadek: Is the core of your comment that Judge Garland—that the political process, or the Republicans in control of the Senate, are making a mistake by not giving Garland a hearing in the Senate? Is that the thrust of your comment?
Caller (Raymond): If Trump wins, it’s not a mistake. It’s an obscenity that they’ll get away with. If Trump wins, there’ll be a lot of obscenities and no one will remember this. But you know, they’re thinking he could win, and there’s nobody digging in against him.
Bob Zadek: My question is, the Garland—giving Judge Garland hearings, there’s a political tactical component and there is a constitutional “should” component. Are you speaking that it’s—are you suggesting that it’s bad politics not to give Garland a hearing, or that somehow it violates the words or the intent of the Constitution?
Caller (Raymond): There were no hearings until 1916, Brandeis, like your guest said, and then after that ‘62. So I don’t know if there’s any constitutional requirement. It is bad form. You need to take a vote on the guy, put him down, and let the president nominate somebody else if that’s what you’re going to do. I don’t think these guys have the balls to actually vote against this person. They can just stall it, and then it won’t look quite as bad, and they can get away with it. You know, it’s just like the shutdowns in 2011, 2013. No one’s done that to presidents until now.
Bob Zadek: What’s interesting is, I don’t know if it’s bad politics. What—Judge Garland is clearly going to be denied a hearing, and that issue has so left the public discourse. The public, with a very short attention span, doesn’t seem to care. That will not be an issue that will affect how people vote in the upcoming Senate elections. Nobody’s going to care about Judge Garland. So it may be short-term—whether or not we’ll end up with a worse justice than Garland remains to be seen. Hillary gets elected and she appoints a worse justice—remains to be seen. I can’t speculate. And it’s impossible to predict the kind of—
Caller (Raymond): They wouldn’t do this boycott if it weren’t for a better justice in their thinking, Republicans.
Bob Zadek: Probably, probably. It’s hard stuff because it requires us to predict the future. But I sure do appreciate your calling and your comments. Thanks so much for calling this morning.
Caller (Raymond): Thank you.
Bob Zadek: Thanks for listening.
So, as I—the issues that we are required to understand and to base our voting upon are not easy. They’re easy if you say, “I’m voting against abortion,” or “I don’t like money in politics.” That kind of is—if that’s an issue, that’s kind of easy. But that merely scratches the surface of the issues we have to understand. There’s another issue that I’d like to spend some time on this morning, which demonstrates sort of this battle between the heart and the mind in voting. It’s often said that progressives—