'If You Can Keep It': The Realities Of Supreme Court Reform

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0:38Public trust in the Supreme Court has been at a 30-year low for the last few years. That's according to Pew Research Center. For some, though, this month marked a turning point in the court's legitimacy. Today's decision by this illegitimate Supreme Court majority strikes a blow against the Voting Rights Act and is designed to undermine the ability of communities of color all across this country to elect their candidate of choice. That's Democratic House Minority Leader Haking Jeffries speaking after the Supreme Court decision, Louisiana v. Calais, earlier this month. The ruling undermined a key provision of the Voting Rights Act of 1965, which protected minority voters and sought to prevent racial discrimination in elections.

1:22But the effects weren't just in Louisiana. immediately after the court ruled. Tennessee's GOP-controlled legislature rewrote its congressional map. They dismantled the state's only majority black district and put in a new map that gives Republicans the advantage in all nine districts in that state ahead of the midterms. Other red states across the South, including Alabama, are now scrambling to redraw their congressional maps as well. A review from The Guardian released last week, however, found that a key point from the Supreme Court decision may be flawed. Justice Samuel Alito's claim that black voter turnout exceeded white voter turnout in two of the five recent presidential elections, nationally and in Louisiana, was based on misleading data from the Justice Department.

2:07This 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. But it's not just voting rights. Recent rulings on abortion, environmental law, even presidential immunity, have all helped drive the court's popularity down and calls for reforming the court up. I'm Jen White. And I'm Todd Zwilich. You're listening to the 1A Podcast. For today's installment of our weekly politics series, If You Can Keep It, we explore the arguments for and against reforming the court. Also, what reform could look like, from shorter-term limits to expanding the court to restricting the shadow docket, and what's at stake for our democracy.

2:44We'll get to those questions and more after the break. Stay with us.

3:16their first order. That's K-A-C-H-A-V-A dot com. Code NPR. Why does AI now appear alongside nuclear war as one of humanity's biggest risks? I think it's the scale of it that makes it sound absurd. Episode two of Are We Doomed explores simple steps to get there. And we might all need to hear this. If it's going to happen, it might happen very soon. Are We Doomed? Understand our biggest problems and what we can do. Part of the NPR network. Listen wherever you get your podcasts. Welcome back to the 1A podcast. We're talking about the Supreme Court and increasing calls for reform. Joining us for this conversation is Kate Shaw.

3:56She's a professor of law at the University of Pennsylvania. She also co-hosts the Strict Scrutiny podcast. Professor Shaw, welcome back to the program. Thank you so much for having me. It's good to be here. Also with us is Alicia Bannon. She's the director of the Judiciary Program at the Brennan Center for Justice. Alicia, it's great to have you. Thank you for having me. And Jack Balkin. He's a professor of constitutional law and the First Amendment at Yale Law School. He also served on the Presidential Commission on the Supreme Court. That was a nonpartisan committee established by President Joe Biden to investigate the idea of reforming the Supreme Court.

4:28Professor Balkin, welcome to the program. Thanks for having me. Everybody here, I think, believes the Supreme Court should be reformed in some way. Alicia, let's start with you. Let's start with calls for expanding the court. Walk us through the current debate around increasing the number of justices seated on the court from the nine we're familiar with. What proposals are we seeing for this? What would they do? Well, there's been a number of different proposals oriented around enlarging the court. I think we've seen some, particularly on the left, call for adding usually four seats to the court.

5:04So kind of to have 13 seats, which would shift the ideological majority on the court in a liberal direction. There's also been other forms of reform that have been been suggested that would be more of a nonpartisan expansion. So kind of adding seats over time where each president would have an opportunity to add new seats and you would end up with a much larger court, potentially 20 plus justices on the court. In that circumstance, most likely the court would then hear cases in in panels. There's other versions as well where maybe you might have a lottery system where judges in the appellate courts would periodically be joining the Supreme Court and hearing cases that way.

5:46So there's a number of different kinds of proposals that in one way or another involve changing the size of the court. Well, as Alicia alluded to, Professor Shaw, right now this push is largely from Democrats and those on the left, people disillusioned with the current composition of the Supreme Court. What problem beyond shifting decisions more to the left would a court expansion solve? You know, I think that in some... We're having a little trouble with Kate's line right now. We'll come back to her. Professor Buck, and let's look at the history a bit here. The number of justices serving on the court has changed several times throughout history.

6:21How did we land on nine justices? We landed on nine because the Jacksonians wanted to expand the court from, I think, around six or seven, and they wanted to preserve slavery. So they changed the rules to make sure there was always a majority of people supported slavery on the court. Then during the Civil War, the Republicans came in. They wanted Lincoln to get extra seats. So they gave him the increase of size to 10. Then after Lincoln was assassinated, Andrew Jackson, I'm sorry, Andrew Johnson became president. The Republicans didn't want him to make any appointments. So what they did was they reduced the number of seats.

7:01And so that leads us to this other term, Alicia, court packing. People may have heard it in the news. What is that and how is it different from court expansion? Well, I think many people use court packing to be synonymous to court expansion, that it's a way of adding seats to the court. It's a reference to the, I think people often think back to the Roosevelt's, sorry, people often think back to President Roosevelt's efforts to expand the court as kind of an example of court packing. There's different kinds of expansion, some of which, as I said, are more or less kind of have more or less of a kind of predictable ideological impact on the court.

7:48So I think sometimes people might refer to some forms of court expansion as not a form of packing, or rather it's just sort of increasing the court gradually over time. I think sometimes people have also used court packing to refer to not actual increases in the size of the court, but some of the gamesmanship around the judicial nominations process. So, for example, when Judge when when President Obama nominated Judge Garland to a seat on the Supreme Court and then that was held up, he wasn't giving a hearing. And then later, President Trump had the opportunity to to put a justice on the court.

8:28Then under similar circumstances, when Justice Ginsburg passed away, you had the opposite happen, where there was that fast-track confirmation of Justice Barrett on the court. So, Professor Shaw, we've got you back now, and I just want to give you a chance to answer that previous question about what issue, beyond shifting the ideological makeup of the Supreme Court, would court expansion solve? Sure. And I'm sorry if I'm going to repeat anything because I missed a couple of minutes. But I think that there's a lot of these reform efforts, I think, are both symbolic and practical in kind of their goal.

9:05I mean, symbolic because the court, I think, in our popular imagination is in many ways untouchable. And so the very idea of an active, robust debate in the public and in Congress about the size of the court and about many of these other reform efforts, I think, can have the sort of productive impact of reminding everyone that the court is part of our democratic process. It's a democratically accountable in many ways institution. And nothing about it is set in stone, including its size. And so I think that's part of it. And then I also there are the kind of potentially ideological dimensions that Alicia was just alluding to.

9:36But also it may be that our Supreme Court is actually too small, that nine justices actually isn't the right size. It's been set that way for well over a century. But lots of other Supreme Courts in other kind of comparable nations, India has a Supreme Court. I think of over 30 justices, the European Court of Justices, close to 40, although there's different kinds of jurists in different roles. And so, you know, it's not a magic number. And I think that it would be good for it to be something that we are more actively debating. Well, Professor Balkan, I know that you're skeptical of the idea of expanding the court.

10:06Kate Shaw, I think you were skeptical of it and you've come around a little bit. Just briefly, can you explain why you now think this court expansion, court packing, call it what you want, you think it's now a good idea? You know, I think that I still find myself pulled in multiple directions, but I am increasingly of the view that, again, at least a robust dialogue about the possibility and maybe actually pursuing it legislatively, even if you weren't successful, right, to go back to the Roosevelt court packing effort. In many ways, the effort to threaten court packing had its intended effect of stopping the Supreme Court from invalidating democratically elected law after chosen law after law or democratically implemented law after law.

10:45And so I think that the effect of the discourse can be constructive. But I also do think that the court in the last few years in many ways has thrown the separation of powers so badly out of whack that some important countermeasure is now required. I don't think that was the case 10 or 20 years ago, but today I actually do. Professor Balkin, what do you think? I know that you're skeptical. Kate Shaw thinks – I'm putting words in her mouth – that sort of a madman theory might be useful here. Just the threat might reform the court. Oh, yeah. I mean, obviously, the Supreme Court responds to incentives.

11:20But if you're asking the question of whether it's a good idea in order to achieve a different ideological balance to increase the size of the court, well, that's going to face any number of logistical problems. You probably need four people to add to the court. You're going to have very limited time to do that. And the Senate is going to throw roadblocks in the way. And so what you might get is a situation where you're able to appoint one or two, but then there's another election, change of parties, and then it turns out you get completely different justices from the other party. So your entire point in increasing the size of the court is undermined.

11:59We have to take a quick break, but before we go, we got this message from one of you. To answer the question if we have faith in the Supreme Court, answer is absolutely no. None whatsoever. However, past decisions have really done the damage for us, especially as a parent to girls. I have zero faith in Supreme Court. Coming up, we talk term limits on Supreme Court justices and reforming the shadow docket. That's just ahead.

12:34This message comes from Kachava. It can be tough to stick to your wellness routine, especially when you're on the go. Cachava's new travel packs make it easier. Just one packet provides nutrition ready for wherever life takes you with protein, fiber, greens, probiotics, electrolytes, and more. Take your daily ritual with you. Go to cachava.com and use code NPR. New customers get 15 % off their first order. That's K-A-C-H-A-V-A dot com. Code NPR. Let's get back into our conversation about reforming the Supreme Court, whether that's a good idea and what it takes to do it. We're here with Kate Shaw.

13:14She's a professor of law at the University of Pennsylvania. She also co-hosts the Strict Scrutiny podcast. Also with us is Alicia Bannon. She's the director of the Judiciary Program at the Brennan Center for Justice and Jack Balkin. He's a professor of constitutional law and the First Amendment at Yale Law School. He also served in the Presidential Commission on the Supreme Court, a nonpartisan committee established by President Joe Biden to investigate the idea of reforming the Supreme Court. And we've been hearing from you as well. I'm a recently retired attorney, and I just want to say I do not trust the current Supreme Court.

13:47There's the rampant conflicts of interest, especially with Walter Thomas and Alito, but even with Justice Roberts. There's the consistent refusal of the justices to accuse themselves when they are faced with a flagrant conflict. They have the use of a shadow docket. But I think what really bothers me is that they seem to abandon even the pretense of nonpartisan objectivity. I would suggest re-reforms. First, I would impose age limits on justices. Secondly, I'd implement a binding and enforceable code of ethics or professional responsibilities. And then finally, I would require that all decisions are written decisions, even the shadow document.

14:29Thanks for that message, Renee. We also heard from Gretchen, who emails, court packing is always presented as a reform whenever one political side seeks an advantage over the other. There's nothing high-minded about it. It's a bad faith ploy as cynical and embarrassing as gerrymandering. Well, we want to hear from you. Do you trust the Supreme Court? Tell us why or why not. Do you think the court needs to be reformed? If you could reform the court, how would you do it? Email us at 1a at wamu.org. Well, Kaysha, why do you think trust in the Supreme Court is so low right now. Roughly half of Americans have an unfavorable view of the court.

15:04The numbers remain largely stable over the last few years, but it is, as Jen mentioned earlier, a 30-year low. Republicans are much more likely to have a favorable view of this court, 71 percent holding a positive view. Democrats, much, much lower. And now we've seen a court, as Jen mentioned, in Calais dropping vital decisions right in the middle of an election year. I mean, Louisiana is suspending a primary election. And to many, that looks like a partisan action because the midterms are already happening. I give you a lot there, but why is trust in the court so low now? Well, I mean, I think one background condition is that just faith in institutions is at a sort of all-time low across institutions.

15:46So I do think we are kind of in a low trust moment, not just about the Supreme Court. But I also think that the court has done itself no favors in the kind public's estimation through a lot of its recent interventions. Now, some of those decisions are decisions that some of the electorate really likes and some of the electorate really dislikes. So Dobbs, which overruled Roe versus Wade and deconstitutionalized a right to choose abortion, was extremely unpopular with a large swath of the electorate that supports robust abortion rights, but obviously popular with parts of the electorate that were very critical of Roe versus Wade and thought the court should never have announced a right to abortion.

16:22So that's, I think, one kind a category of cases that will be divisive and have a pretty strong ideological, although not always partisan, valence. But then I think there are the court's interventions in some of these kind of democracy-related cases. And I do think that Dobbs actually isn't a democracy case, but cases about the kind of actual conduct of elections, the drawing of legislative districts, about the kind of architecture and infrastructure of democracy. And I think when people look around and think that the system isn't really working that well, the court bears a great deal of responsibility for that.

16:54And I don't know that everybody fully appreciates that, but I think that as they increasingly do, I think that trust accordingly drops. So you mentioned Calais, which follows on two previous decisions that really eroded the 1965 Voting Rights Act and in some ways, I think sort of deals at its death blow in the Calais decision. That's essentially how Elena Kagan in her dissent characterized it. And as you mentioned, you know, we saw states immediately race to begin redrawing district lines to essentially box black voters out of meaningful political power. And you have cases like Citizens United, in which the Supreme Court sort of, you know, opened the floodgates to spending in elections and sort of allowed the ultra-wealthy to have this outsized influence in our political process.

17:34So I think that those cases have a lot to do with the reason that the public is right now holding the court in such a kind of a dim view. Professor Botkin, I'd like to hear your thoughts on that 71 percent approval rate or positive opinion that Republicans have of the court. How notable is that ideological divide around trust for you? Because that 71 % might argue that calls to reform the court are just a response to decisions that align with conservative viewpoints. 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, depending on the last term's cases.

18:16They 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, they're smart lawyers, they know what they're doing, and I trust them. And 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. So that almost the only support the Supreme Court gets is for people who happen to like the particular decisions that it's deciding.

18:52And that's really bad for an institution. An institution needs a lot of diffuse support in order to be legitimate over long periods of time. And Alicia, more broadly speaking, because this conversation is focused on our democracy, what do you think are the consequences for our democracy when the Supreme Court lacks that diffuse support from the American people? Well, we need a strong and well-functioning Supreme Court in our systems of checks and balances. I think something that sometimes gets lost here is that I think when people are calling for court reform, it's not because they're trying to get the Supreme Court.

19:30It's because they recognize the critical importance of the Supreme Court in our systems of checks and balances. And And I think part of why we're seeing the lack of diffuse support for the Supreme Court right now is a real sense that the court isn't performing that job. It's not treating like cases alike. There was a recent there's a recent set of leaked memos in The New York Times looking at the how the court has been engaging with cases and their emergency docket. And I think those memos are making really clear that how the court has considered challenges to Obama administration policies, for example, very different than how they've been considering challenges to Trump administration policies.

20:12It seems pretty clear that they're applying different standards. In the chaos that we're seeing right now coming out of Calais, we're also seeing different standards, where in the past the court has allowed discriminatory maps that courts had found to be discriminatory to still be used in elections out of concern that if you had changes too close to an election, that that would be an inappropriate kind of judicial intervention. Now we're seeing the court give the go-ahead to maps being drawn while elections are actually even ongoing. and just sort of pressing pause and letting maps be redrawn.

20:44So I think there's a real sense that the court is not behaving in an accountable way and is unmoored from the role that it was intended to play in our constitutional system. Well, several Democratic lawmakers are calling for reforms to the Supreme Court in light of that Calais ruling, including New Jersey Senator Cory Booker. Most Americans agree that Supreme Court justices shouldn't sit on those benches until they're so ailing, just hoping they can hold on. Well past perhaps even senility until their president lines up with their jurisprudence philosophies and they can leave the bench. That's why term limits are a good thing as well.

21:23And lots of you agree. Regarding the Supreme Court, two things. I do not think they should have lifetime appointments. That is a mistake. And I do think they should be expanded, an option for expansion and curtailment of lifetime appointments. Eileen, thank you so much for that message. Alicia, setting term limits for the Supreme Court justices is one of the reforms I think you're most excited about. Why? Why do you think it's a good idea? Well, I think Supreme Court term limits would be a transformational reform. I think it captures a very basic principle that no one should have so much public power for life.

22:04Justices today hold their offices for about twice as long as they did in prior centuries due to lots of reasons, both increased life expectancy and also that these jobs are so powerful, like people don't want to step down from them. And the U.S. Supreme Court is an aberration both if you compare with states. So Rhode Island is the only state in the country that has life tenure without any kind of age limit for its state Supreme Court. And globally, the U.S. is the only major constitutional democracy that has life tenure. So I think this would align us with best practices globally and I think allow for a more accountable court that can gradually change as public values evolve over time.

22:46Another critical. What kind of support is there among Americans for term limits? There is broad and bipartisan support for term limits. So a majority of Republicans actually support term limits for Supreme Court justices, as does a majority of Democrats and independents. And I think it's exactly because it's a common sense reform that we don't want any individual person to be in that kind of an elite bubble for such a long time. That doesn't it's not a healthy way for a democracy to work? Well, Jason writes two words, term limits. I see no reason to have lifetime appointments in our government.

23:19I would like to see terms at least a decade, but no more than two, and they shouldn't coincide with any federal elections, especially presidential. Ananya emails, I would limit the justice's term to 20 to 25 years, but not more, and a mandatory retirement at 60. I say that as a healthy, cognizant 75-year-old. There should be tighter ethics rules than any other office. And finally, the national public should be able to vote them out. Professor Shaw, how did this norm of justices serving lifetime appointments come to be? Well, the Constitution says that the judges of the Supreme Court and the lower federal courts, when Congress makes them, hold their offices during good behavior.

23:57So it actually doesn't say the phrase life tenure, but that during good behavior has always been understood to mean unless they step down or unless they're impeached. So that is right now. We can't vote them out, as the last caller suggested. The president can't fire them. Neither can Congress. Those things, I think, are to the good. So impeachment is the only way to remove a Supreme Court justice or a lower federal judge under current understandings of the Constitution. I guess there are occasionally academic proposals to rethink what the during good behavior means in a way that would open up the possibilities for ousting Supreme Court justices or lower court judges.

24:32But I don't think any of those are likely to get any traction. So the real kind of reform routes would be one, trying just by statute in a creative way to impose term limits. You know, 18 years is I think the most commonly proposed or defended term. But as your caller suggested, it could be a bit shorter. It could be a bit longer. Or maybe a constitutional amendment. So because the Constitution has been understood to create life tenure, there are those who think that a statute cannot override this constitutional rule. You have to amend the Constitution, which is an arduous process. But, you know, I think that there are arguments, I think very non-frivolous arguments in both directions.