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Ilya Shapiro

5 min read

Ilya Shapiro is an attorney and legal commentator who appeared as a guest on The Bob Zadek Show to discuss the Supreme Court, judicial philosophy and the confirmation process. Bob Zadek introduced him as a returning guest and framed the conversation around the effect of presidential elections on the Court, noting that the next president would likely appoint one justice and possibly as many as three more. Ilya Shapiro on the Supreme Court in the Balance (2016)

On the show

2 appearances, 2016–2017.

Their books discussed on the show

Judicial philosophy and the confirmation process

Shapiro described the judiciary as one of three supposedly co-equal branches meant to check the excesses of the others, with federal judges holding life tenure once confirmed and reviewing only cases brought before them rather than reaching out to declare laws unconstitutional. He said it is hard to apply a litmus test to nominees because a candidate who stated in advance how he would rule on a case would have to be recused if that case arose. Ilya Shapiro on the Supreme Court in the Balance (2016)

Zadek raised the litmus tests voters and politicians apply, citing Citizens United v. FEC and Roe v. Wade, and asked Shapiro to explain the core issue of the relationship between the branches. Shapiro identified basic legal theory questions — approach to the First Amendment, the scope of Congress’s power under the Commerce Clause, and when courts should limit executive discretion — as the proper terms of evaluation. Ilya Shapiro on the Supreme Court in the Balance (2016)

On protecting against excesses, Shapiro pointed to a then-pending Supreme Court lawsuit over President Obama’s executive actions on immigration, asking whether the executive had gone beyond the immigration laws and, if it had not, whether Congress had delegated too much legislative power. He also cited the first Obamacare case, NFIB v. Sebelius, and the question whether requiring people to buy a commercial product — a health insurance policy — exceeded Congress’s authority under Article I, Section 8. Ilya Shapiro on the Supreme Court in the Balance (2016)

Judicial deference versus judicial engagement

Shapiro traced the doctrine of judicial deference to 1937, when legal historians say the court changed course after striking down New Deal legislation. He said the court adopted a presumption of constitutionality, and that between 1937 and 1995 no piece of federal legislation was struck down by the Supreme Court as exceeding the enumerated powers of the Constitution. In the same period, he said, states could legislate in ways that infringed property rights, the right to earn a living and occupational licensing, so long as the legislation did not touch speech or discriminate on protected grounds. Ilya Shapiro on the Supreme Court in the Balance (2016)

He described the conservative response to judicial activism as an argument about unelected judges striking down laws passed by elected representatives, producing what he called a faux battle between activism and restraint. In his account, activism now means only that the critic dislikes the judge or decision, since nobody on either side says judges should never strike down laws. What judges should do, he argued, is be engaged: scrutinize what the other branches have done and strike it down if it goes beyond the statutory text or constitutional provision. Ilya Shapiro on the Supreme Court in the Balance (2016)

Shapiro said it was unfortunate that conservative legal thought had produced judges — including Robert Bork, Antonin Scalia and John Roberts — of a school holding that judges should defer as much as possible, until the breaking point, to Congress or executive agencies. He called this conservative judicial passivism and said neither it nor activism is good. Ilya Shapiro on the Supreme Court in the Balance (2016)

Politicization of confirmations

Shapiro attributed the politicization of the confirmation process to what he called constitutional corruption: the deviation of constitutional law from the actual Constitution since 1937. He said the first confirmation hearings for a Supreme Court justice were in 1916, prompted by anti-Semitism against Louis Brandeis; that the first nominee to testify at his own hearing was Byron White, nominated by President Kennedy in 1962, in a very short hearing; and that the poisoned, politicized process began in the 1980s with Robert Bork, when Ted Kennedy attacked him on the Senate floor. Ilya Shapiro on the Supreme Court in the Balance (2016)

He said he did not blame political actors, who were responding to incentives created by radically different theories of judicial power, and that Democratic appointees hardly ever find the federal government to be going beyond its constitutional authorities. On the Republican side he described a battle between judges who think their job is to “call balls and strikes,” as John Roberts said at his confirmation hearings, and those who think they should be restrained and deferential. Ilya Shapiro on the Supreme Court in the Balance (2016)

Across episodes

Two episodes touch on Shapiro’s views. In the 2016 episode he develops at length the argument that judicial deference since 1937 corrupted constitutional law and the confirmation process. In the 2017 episode, Bob Zadek discusses Neil Gorsuch’s nomination with Shapiro, and the excerpt records only that they explored the court’s growing influence on major political issues and how the vacancy left by Justice Scalia became pivotal in the 2016 election; the episodes show no development between the two treatments. A third episode, on Timothy Sandefur’s libertarian constitution, mentions Shapiro only in passing: Zadek says Shapiro had offered “one and a half or two cheers” for term limits for Supreme Court judges, welcoming the discussion mildly without feeling strongly. Judge Gorsuch on the Hot Seat (2017) Timothy Sandefur on The Libertarian Constitution (2021)

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