'If You Can Keep It': Reforming The Supreme Court, Part 2

0:00For poor people in one of the world's fastest-growing megacities, development means displacement and violence. We're homeless now. No where to stay. No where to sleep. On the Sunday Story, the human cost of building Lagos, Nigeria into the Dubai of Africa. Listen now to the Sunday Story from the Up First podcast on the NPR app.

0:30It's been more than two weeks since the Supreme Court's decision to weaken the last key provision of the Voting Rights Act of 1965, protected minority voters from discrimination in elections. And that ruling invoked a wave of renewed calls to reform the court. We discussed what those reforms might look like from expanding the bench to restricting the shadow docket during the last installment of our weekly politics series, If You Can Keep It. And we heard from so many of you. Regarding the Supreme Court, two things. I do not think they should have lifetime appointments, and I do think they should be expanded.

1:06To answer the question if we have faith in the Supreme Court, answer is absolutely no. What really bothers me is that they seem to abandon even the pretense of nonpartisan objectivity. Numerous Supreme Court justices have lied under oath when they were being questioned about what they were going to do. Should they become Supreme Court justices? and did the exact opposite of what they said they would do. They should be kicked off. Yeah, you all had so many perspectives on whether and how to reform the Supreme Court that we're returning to that conversation today, and the stakes for democracy couldn't be higher.

1:42Last week, the Supreme Court agreed to immediately finalize its opinion on Louisiana v. Calais by passing its typical 32-day waiting period after a ruling. Days later, Louisiana Senate approved a new congressional map that eliminates one of the state's two majority Black and Democratic-leaning districts, giving Republicans an electoral advantage. The court's decision also cleared the way for Alabama to use a map deemed racially discriminatory by a lower court ruling, a ruling the Supreme Court upheld in 2023. Meanwhile, the court has refused to let Virginia use a new congressional map that favors Democrats and was approved by Virginia voters.

2:21The court said lawmakers didn't follow proper procedures when putting that question on the ballot. This all comes as in-person primary voting started in Louisiana over the weekend. Mail-in voting was already underway when Louisiana versus Calais came down and was halted so the state could redraw its map. Alabama is holding its primary tomorrow. I'm Jen White. You're listening to the 1A Podcast. And I'm Todd Zwilling. Today, we ask what happens when the Supreme Court loses credibility among a large swath of Americans? And how can it get it back when partisanship on the bench has become the expectation?

2:56We'll be back with answers to those questions and more after this short break. Stay with us.

3:05This week on Up First, one trend emerging this election season. President Trump actively opposing Republicans he sees as disloyal and endorsing their primary challengers, who've toppled incumbents in multiple states. We're watching key primaries on Tuesday in Kentucky and elsewhere to see if that narrative holds up. and what those races might tell us about November. Listen to Up First every morning on the NPR app or wherever you get your podcasts. Welcome back to the 1A podcast. We're bringing you a follow-up conversation about reforming the Supreme Court, whether we should and what it would take.

3:37And we decided on this show, by the way, because we heard from so many of you during our first conversation that we just had to continue. So let's get into it and meet our guests. Joining us for this discussion is Kate Shaw. She's a professor of law at the University of Pennsylvania. She also co-hosts the Strict Scrutiny podcast. Professor Shaw, welcome back. Thank you so much for having me. Also with us is Alicia Bannon. She's the director of the Judiciary Program at the Brennan Center for Justice. Alicia, great to have you back. Thank you for having me. And Daniel Epps. He's a professor at Washington University School of Law.

4:11He also co-hosts the podcast, Divided Argument. Professor Epps, welcome. Thanks for having me. So, Alicia, before we get into reform, let's talk about the Supreme Court's decision to expedite finalizing its opinion on Calais ahead of Alabama and Louisiana's primary elections. How significant is that move from the court and what are the implications? Well, I think what's so significant about what the court did in fast tracking the implementation of Calais is that it really runs against how it has approached other election cases. So for years, the court has applied what's a doctrine known as the Purcell principle that says that essentially you should avoid, court should avoid making big election changes too close to an election.

4:53And repeatedly, the court has applied that principle. So for example, courts have found maps to be discriminatory. And the court has said, well, wait, we can't make a change because it's too close to the election. And so therefore, an election should proceed with a discriminatory map. And here we're seeing the court break with how it's approached those cases coming out of Calais, doing so in a context where we're seeing real chaos now in states across the country that are moving very quickly to change maps, sometimes while elections are actually even ongoing. Professor Epps, that's the Purcell principle that Alicia Bannon is referring to.

5:31Is the 32-day customary waiting period separate from that? Why usually is there a 32-day waiting period before rulings are finalized? And why was it bypassed here? So typically there is this delay so that one of the parties could come back to the court and say, hey, you really screwed something up. You need to – you forgot some important thing or some argument wasn't raised, and you need to reconsider the ruling. In this instance, the court decided based on a filing that nobody's going to come back and there's nothing wrong with this opinion and we should just go ahead and do it because waiting longer will cause even more chaos.

6:12And that's separate from the Purcell principle, which is sort of a rule of discretion. It's sort of this idea that courts should exercise a lot of caution, avoid really introducing a lot of chaos into elections. And that's something that the court has seemed to kind of cast to the wayside by being – at least creating the perception that it's eager to let lawmakers go ahead and completely upend their maps as we head into the election and indeed as the election in these states are already ongoing. Well, several Democrats are speaking out against the Supreme Court's decision in Calais, including Illinois Representative Sean Kasten.

6:49Now, Chief Justice Roberts has said that we now live in a colorblind society to which I would ask you all, does your answer to those questions depend on whether their robe is white or black? Because make absolutely no mistake, the agenda of this Supreme Court and the agenda of the Klan are far too similar. Strong statement there from Rep. Kasten. Professor Shaw, Alabama is now moving ahead with a congressional map again. A lower court ruled it was racially discriminatory, a decision the Supreme Court upheld in 2023, arguing it violated Section 2 of the Voting Rights Act. And this is the section that was greatly weakened by the court's decision in Calais in April.

7:26The court didn't offer an explanation for why Alabama's map is now constitutional. So how should we understand the court's behavior here? Yeah, I think the Alabama sequence of events is in some ways the hardest to understand on principled terms. I mean, it really does just look like the court putting its thumb on the scale in favor of redrawing the Alabama map in a way that is necessarily going to hurt, injure black voters and advantage the institutional interests of the Republican Party that's redrawing the map in Alabama. So basically, as you already mentioned, three years ago, the court actually affirmed a lower court opinion that had found Alabama's congressional map illegal.

8:02And Calais, the Louisiana case, didn't overturn that earlier Alabama case. It said it sort of raised some different issues, but it wasn't actually touching it. And then actually post-2023, so after the Alabama case in the Supreme Court, there had been additional litigation in Alabama, finding that the Alabama map was intentionally discriminatory against black voters. And intention was an important element of the Calais ruling. Right, which would seem right under Calais to still be something unlawful, intentional racial discrimination. And the Supreme Court didn't even bother to tell us why it was allowing Alabama lawmakers to move forward with a map that had been deemed intentionally discriminatory.

8:42And so it's hard to know, did Calais mean what it said, that intentional discrimination is still unlawful, or is that now okay too? And because the Alabama order was issued on the shadow docket without explanation, we don't know. And so I do think it leaves a very negative impression of the court sort of rushing to allow these maximalist implementations of Calais without any explanation. So without any explanation and then negative impressions, let's talk about that. I mean, Alicia Bannon, the court hasn't offered any explanation, as Kate Shaw says. How does that leave room for speculation about its motivations?

9:15We heard this statement from a congressman on the color of the robes. I mean, it couldn't be more incendiary, but that's giving voice to a perception based on the court's actions. I do think that we're seeing real concerns being raised that it is hard to explain some of the activities of the court without putting some kind of a partisan lens on it. So I do think the fact that there's no explanations being given is certainly contributing to a perception of illegitimacy in how the court is approaching these cases. As Kate was observing, in Alabama, you had a lower court finding of intentional discrimination.

9:58That was not at issue in Calais. And at the very least, the court owed the public an explanation as to why it was weighing in now so that we can be confident that it's actually treating like cases alike. We got this email from Stephen who says it's interesting that SCOTA has changed Section 2 of the voting rights law, making gerrymandering worse by diluting the power of minorities, but upholds the Virginia Supreme Court's decision to knock down a recent vote to further gerrymander the state based on political affiliation. Now, last Friday, the Supreme Court said that Virginia could not use a new congressional map.

10:31It favored Democrats the same week it cleared the way for Alabama's congressional map that favors Republicans. Professor Epps, how is the court explaining that move? So I think the Virginia case is a little bit more complicated because it was a decision of the Virginia Supreme Court that had said this doesn't comply with Virginia state constitution. And there was an attempt to get that to the Supreme Court, and there is some precedent for the idea that under extreme circumstances, the U.S. Supreme Court could come in and say, hey, state Supreme Court, the way you've interpreted your own constitution is so out of whack that you've taken away the power of your state legislature to draw election district boundaries.

11:13And that was actually an argument that had been being pushed in recent years by Republican lawmakers to try to push back on their own state Supreme Courts, which were trying to rein in gerrymandering a little bit. And here the valence of that was flipped. And, you know, perhaps, you know, unsurprisingly, given what we think about the court right now, the court had absolutely zero interest in that argument. One line denial, no explanation, no separate writing, no one noting any dissent. Chief Justice John Roberts recently defended the Supreme Court, saying justices are not, quote, political actors.

11:45But support for the court largely breaks down along party lines. So coming up, we discuss partisanship on the court and what it means for the institution's integrity. Jay writes, when Donald Trump ran for president in 2016 in a bid to get black voters, he asked them, how much worse could it be for you if you were elected? With the Supreme Court appointees and urging Republicans to redistrict, the Voting Rights Act has been eviscerated and black Americans now see how worse it can get for them. The possibility that Republicans would support reforming the Supreme Court is as likely as the Pope converting to Islam.

12:16However, we must keep trying to push for Supreme Court reform in order to save our democracy. We have to take a quick break, but more to come. Stay with us.

12:27We flush a lot of things down the toilet. You know, the obvious ones. But drugs like cocaine are also going down the drain and into our waterways. That's changing the animals that live in it. It's definitely present in most ecosystems on Earth now, unfortunately. We're only sort of really starting to scratch the surface into understanding the potential consequences of that. Forget Cocaine Bear. Learn about Cocaine Salmon on Shortwave, in the NPR app, or wherever you get your podcasts. Welcome back. Let's get back into our conversation about reforming the Supreme Court. Again, we're doing a second discussion about reforming the court this week for If You Can Keep It, because we heard from so many of you.

13:04We got this from Jim, who writes, We need a complete overhaul of our federal judiciary. The court should have at least 21 members diluting the power any one person has when serving. One member from every circuit and appeals court, members of SCOTUS should rotate into the court from the circuits and appeals court so there are no appointments directly to the court. The justices should also be ethically accountable just as other federal justices are. Lastly, all administrative judges across the federal government should be centralized into the federal judiciary, making them completely independent of the executive, and all legal decisions that are issued at the federal level should be issued from the judicial arm of the government.

13:45So Jim did a lot of thinking about this. He just thought it through. That's a long list of recommended reforms. Let's talk about some of them. We talked about expanding the court during the last installment of If You Can Keep It last week. You can find that conversation on our website at the1a.org. And of course, we want to hear from you. So many of you have been writing in. It's why we decided to revisit this for a second week because of you. If you could reform the Supreme Court, how would you do it? Email us, 1a at wamu.org. We got this question from Stephen, who asks, I've read that Justice Samuel Alito relied on misleading data to support his case gutting the Voting Rights Act.

14:23Are there any checks and balances in place to revisit this and force the court to rethink their decision? Now, Stephen's likely referring to a recent review from The Guardian. It found that Justice Alito's claim that black voter turnout exceeded white voter turnout in two of the five recent presidential elections nationally and in Louisiana, that it was based on misleading data from the Justice Department. And this was a crucial data point in Alito's argument that the kind of discrimination the Voting Rights Act was designed to prevent no longer exists. Professor Aps, your thoughts? So, you know, I think one way to deal with something like that is a party could come back and say, hey, in your opinion, Justice, you relied on this fact and this was wrong.

15:04That happens sometimes. And I think basically always the result is maybe they edit the opinion at best and they say, well, we still reached the same result. And that was just a side point. And I think that goes to the fact that a lot of people think that Supreme Court opinions are often just a way to justify an outcome they're going to reach anyways. And I think that certainly would be the case here. I don't think, you know, fly specking, something like that is going to cause the court to reconsider its view. Well, we were talking about the timing before the break, the court sort of abandoning its Purcell norm and its 32-day norm to drop this decision onto Louisiana and Alabama.

15:45There's an additional part of the timing here I just want to get to very quickly. Yes, a Voting Rights Act decision that nullified votes in Louisiana came right before Alabama's primary, but it's more than that, Kate Shaw, that the country is also in the middle of a separate partisan war over gerrymandering, quite separate from the VRA, Voting Rights Act issues. And the court also decided to do all this in the middle of a partisan war and jumble all of the redistricting together. They decided to do that. Absolutely. And so a couple of points on the timing. One, So Calais decided at the end of April, and in many ways, that was the worst possible time to do it.

16:29So this case was argued last fall. It had actually been previously argued. It was re-argued in the fall. And the parties asked the court to move quickly, which I think everyone thought meant end of December or January, so that states really knew what the legal framework they were working within looked like, and they could draw their districts accordingly. So if that had happened early, I think the decision still, to my mind anyway, would have been deeply wrong. but it would have given states the time to responsibly, or irresponsibly as the case may be, but to redraw their districts so everyone knew where they were voting and for whom in a timely fashion if they'd waited until...

17:03Yeah, go ahead. And just even beyond drawing the districts, we're talking about ballots. We're talking about people knowing who they can legally vote for as well. And that takes time and money for the people who manage our election systems to actually prepare. Absolutely. And so, and if they'd waited until late June, the districts would have been drawn and the ballots would have been ready and people would have again known where and where they were voting and what their choices were. I think late April was kind of a maximally chaotic time to do this. So as we've been saying, Louisiana, tens of thousands of voters had already cast their ballots, ballots that have now been thrown out because new maps have been drawn.

17:39Alabama was on the eve of this election and other states have moved very quickly to change their maps fundamentally. And so it did feel like kind of a chaos maximizing moment to drop this decision. And as you said, it's happening in an already chaotic landscape in which states are moving to redraw their districts to maximize partisan advantage because the Supreme Court has unshackled legislatures to do that in its decision separate from this Calais decision, this decision called Rucho, that said that the Supreme Court and federal courts in general couldn't adjudicate challenges to partisan gerrymandering.

18:12Those were what are known as non-justiciable political questions. So political partisan gerrymandering may be problematic. It may be undemocratic, but it's not something federal courts can remedy. And then in Calais, the two sort of come together because Calais really elevated this kind of prerogative to engage in partisan gerrymandering to almost a constitutional entitlement on the part of state legislatures and sort of said, the VRA interferes with the ability of state legislatures to maximize their partisan advantage by drawing districts that help their party. And so I think that we are in essentially uncharted waters in terms of both kind of allowing legislatures to entrench themselves in power by, you know, maximizing the sort of advantages of the maps they draw to their political parties.

18:54And also, as we've seen states across the South, race to maximize partisan advantage and to eliminate historically majority black districts. We are seeing, I think, the sort of real profound dilution of the voting power of black voters across the South. And so I think the consequences are incredibly significant. And those two sort of gerrymandering trends are kind of converging in the Calais opinion and its implementation. Well, at a recent conference for judges and lawyers in Pennsylvania, Chief Justice John Roberts said, quote, I think people view us as purely political actors, which I don't think is an accurate understanding of what we do, end quote.

19:30But last month, Justice Ketanji Brown-Jackson criticized her conservative colleagues' use emergency orders to advance President Trump's policies on immigration, federal funding cuts, and much more, saying, quote, there is value in avoiding having the court continually touching the third rail of every divisive policy issue in American life, end quote. As we said earlier, the court's decision to let Alabama use a congressional map that originally deemed racially discriminatory began with Alabama officials requesting an emergency ruling. And during our last discussion last week on reforming the Supreme Court, we talked to Professor Jack Balkin, a professor of constitutional law at Yale.

20:09He also served on the Presidential Commission on the Supreme Court. And he talked about the kind of public support that's lacking when it comes to the court and why that's dangerous. The Supreme Court's legitimacy depends a great deal not on the views of partisans because those go up and down like a yo-yo. They really depend on what's called diffuse support. Diffuse support is people who basically say, I don't know, I'm not a lawyer, I don't know what the cases say, I don't read them, but I generally think that the Supreme Court is doing the best they can. Essentially, over the last couple of decades, the Supreme Court has moved from a situation with very high diffuse support to a situation where diffuse support is essentially cratered.

20:53Professor Epps, do you have a view on how the Supreme Court's contradictory actions around Alabama's congressional map, Virginia, Alabama, Louisiana, the timing that Kate Shaw talked about is feeding into what he just referred to there as the diffuse support for the court, just the generalized idea that they're politicians, not judges? Yeah, I think that's absolutely right. I mean, I think that, you know, the Supreme Court's legitimacy is really premised on kind of a common understanding across all ideological spectra of our society that it's worth it to have a court, that we want to have an institution that maybe we're not going to agree with them all the time, but we can bring our most important disputes there and they can resolve them in a way everyone can live with.

21:40And I think part of that depends on people just looking at the court and thinking it's not consistently advancing the agenda of one political party. And, you know, for a long time that was true. I mean, you had a court that, you know, had a certain ideology but would do unpredictable things. You know, you had a somewhat conservative court but that would rule in favor of same-sex marriage. And now as people step back, and maybe they're not reading all the filings in these shadow docket cases, but they see case after case after case after case after case that seems to favor the interests of the Republican Party.

22:12It's really hard for people to believe that this is an institution that's doing something different than politics, even if the justices themselves believe they're doing something different than politics. You know, Alicia, we refer to justices as being liberal and conservative, but their decisions, as Professor Epps just said, are not meant to be influenced by politics. But they are appointed by presidents who do belong to political parties. And the justices don't always rule along ideological lines. We've even seen that with this court. But what does it mean that we've come to anticipate a level of partisanship from the Supreme Court?

22:48What are the stakes for our democracy? Well, one way that this court is different than previous iterations of the Supreme Court is that if you look at the membership of the court, the ideological composition is perfectly predicted by the president who appointed each justice. So that didn't always used to be the case. So liberal justices like Justice Stevens, Justice Souter were appointed by Republican presidents. Now we've seen a real kind of sharpening of the relationship between kind of ideology and party in a way that I think has contributed to perceptions of the court's politicization. I mean, stepping back, I think the court is obviously tied up in politics.

23:31The judiciary is a branch of government. I think what we're seeing now is something different, which is the court kind of reaching to inject itself into the greatest political controversies we're facing as a country, injecting itself into politics in this very direct way, and often going against precedent, going against procedural norms that were intended to constrain the court's power. And so I think it's that combination that's really contributing to this perception of a court that isn't really acting like a court right now. We're talking to Alicia Bannon from the Brennan Center for Justice and law professors Kate Shaw and Daniel Epps.