How the President Could Counter a Rogue Supreme Court

The Supreme Court was really on one this term. It established a constitutional right to concealed carry for gun owners. Native Americans lost some important sovereignty rights. The justices OK’d prayer on a school football field. They ruled that even if a prisoner has proved their innocence, they may have to stay behind bars anyway. And on the final day of the term, the court restricted the Environmental Protection Agency’s ability to regulate greenhouse gases—and the justices then announced a few of the cases they’ll hear next year, including one that just might change the way elections are run in this country. If you thought all this was bad enough, Slate senior writer Mark Joseph Stern is here to tell you it’s only beginning: “Every June for the rest of your life is going to be like this or worse.” On Wednesday’s episode of What Next, I spoke with Stern about the ideas being suggested for how to reform the Supreme Court, and why the Biden administration hasn’t yet considered them, even given this year’s explosive term. Our conversation has been edited and condensed for clarity.

Mary Harris: The Supreme Court has haunted the Biden administration since before there was a Biden administration. In the waning days of the 2020 election, when Ruth Bader Ginsberg died and Amy Coney Barrett was rushed through a confirmation process, it put a spotlight on Biden’s cautious approach to judicial reforms. He’d never been a fan of ideas like adding additional justices or instituting term limits. In fact, he’d been speaking out against those kinds of things for decades, calling expanding the court in particular a “boneheaded” idea. But with Barrett’s appointment creating a conservative supermajority, Biden knew he couldn’t ignore the court.

Mark Joseph Stern: Biden really threaded the needle during the election. He clearly didn’t want to put off progressives who were clamoring for court reform. He also didn’t want to alienate moderates or Republican crossovers. So he basically declined to take a position on court expansion or even reform during the election. After he won, he floated this idea of a Supreme Court commission, which put a bunch of eggheads on a Zoom and had them create a report that gives pros and cons of either side without coming down in any one place.

What did you hear when you listened to how this commission talked about what can be done here?

The commission functioned decently well. I don’t want to slam the logistics of it. What I heard mostly was honest, thoughtful intellectuals discussing, in a very serious and cogent way, what role the court plays in our society and our law, what role it should play, and what alternate visions would be. What I didn’t hear from the commissioners themselves until the very end—when some of them got angry and felt like they were being taken for a ride—was direct criticisms of the courts and the justices, which the commission mostly farmed out to guests who testified at these hearings. Instead of commissioners saying the court is bad, they brought in professors and advocates and lawyers and had them explain why the court was bad. Then, in the report, the commissioners put those quotes in there and basically said, Reader, you decide, it’s up to you, and left it at that.

Did they even issue any recommendations?

No. Their report expressly said these are not recommendations.

You highlighted testimony from people like Christopher Kang in front of the commission. I thought he was particularly interesting because he’s someone who’d worked in the Obama administration and now coming in front of this commission to say, We need to talk about the fact that the reason we’re not reforming the courts is because people like us benefit from the status quo, from where things are now.

Kang was putting lawyer brain on blast, and rightly so. Law school is not just education—it is indoctrination, whether or not professors even want to do it. There are certainly more centrist and liberal professors than there are conservative ones. But across the spectrum, these professors are part of the system. They have a vested interest in perpetuating the system. From the very beginning of law school, you are taught to absorb this assumption that the system is good, that it mostly operates the way it was intended to, that you are joining a rank of elites who can be trusted to guard the constitutional order, and that the riff-raff who question your authority don’t know what they’re talking about. That has created a system in which most participants—including lawyers, consultants, advisers who worked for Democrats in the Senate and the White House in picking judges or waging confirmation battles—all share this basic belief that the system works and is good.

What we’re also seeing is a massive amount of money being poured into training soldiers for the conservative legal movement, who are given every advantage in law school and in their careers because it’s a relatively small network. There was one study that showed conservative law students are 11 times more likely to get federal clerkships than liberal law students. Well, yeah, because there’s less competition. And, if you’re a Supreme Court clerk, you get a $400,000 bonus when you sign up with a law firm afterwards. If you’re even a clerk for a district court or an appeals court, you get so many benefits. The world looks at you differently. It’s becoming so much easier for conservatives to enter that world and much, much more difficult for liberals to be a part of it, starting from the first day of law school.

You said some of the commissioners felt like they were being taken for a ride and got a little feisty towards the end. Do you want to say more about that?

Larry Tribe, a famed law professor at Harvard, wrote a great piece with Nancy Gertner, a former federal judge, where they more or less said, We entered this process with lawyer brain, as part of this group of elites who all share the same assumption that the system works and we’re guardians of it. We exited it disgusted by how corrupt this system is and how devastating the consequences of our complicity have been.

So, minds were changed?

Absolutely. The same is true of Sherrilyn Ifill, former head of the NAACP Legal Defense Fund, a big-time civil rights lawyer, one of the greats. She was one of the very few who would, during the commission’s own public negotiations and meetings say, I think this centrist pablum that’s being peddled right now is just wrong. When a draft report came out, she publicly condemned large portions of it, saying it was one-sided and had a massive bias toward the status quo.

I think some people would say that even if this commission had released recommendations like term limits here or more justices on the court, those reforms might not be actionable.

I think that’s because Biden delegated his opinions to this commission. The mandate from the White House was not to light a match. It was not to come up with an aggressive playbook for court reform. It was to assess these ideas. But even then, the commission did not have to do it in these cold clinical tones without making any kind of decisions or recommendations.

You’ve laid out a pretty good case that the issues with the Supreme Court start before you get to the court—they start with judges lower down the spectrum, and they start in law school. Even if we can’t remake the Supreme Court, there’s a bigger issue of courts more generally, because Republicans have been so laser-focused on appointing judges for a long time. In the early days of Biden’s administration, I think there was a feeling the president was actually being aggressive with the courts and judicial appointments.

The early months of the Biden administration were a heady time for progressive legal people because he was plucking out some of the best and brightest lawyers who had worked as public defenders, as civil rights attorneys, and at a rapid clip outpacing almost every other president in history, and that just slowed down. According to Chris Kang, who wrote a piece on this for Slate, Democrats are on track to leave more than 60 judicial vacancies open at the end of this year.

This is important because the Senate might flip back to Republican control.

If it does, I don’t think Mitch McConnell will allow Biden to confirm one more judge to a federal appeals court, let alone the Supreme Court. There should be a sense of horror about this impending disaster and a desire to stave it off by filling every single seat ASAP. And we’re not seeing that.

Plus, early reports indicate that the president has agreed to let a controversial Republican fill an open district judge seat in Kentucky, McConnell’s home state, and he didn’t even ask local Democrats to weigh in. This potential judge has toeed the GOP line in all kinds of controversial ways, including arguing against abortion access when he worked for a Republican governor.

And yet the Biden administration was set to announce this guy’s nomination the day the Supreme Court overturned Roe v. Wade.

Why would it do that?

Because the administration cut a deal with McConnell when a current conservative judge on this court decided she would take senior status. At the time, that was still secret, the deal was that McConnell would get to name her replacement, and in exchange, he would stop blocking Biden’s preferred U.S. attorneys to Kentucky—which is a terrible deal because U.S. attorneys only serve under the president who appointed them. The next president fires them by tradition. Meanwhile, judges last for life.

Biden has nominated shockingly few abortion rights attorneys to the federal courts. He has nominated so many people from every other part of the progressive legal movement. But on reproductive rights, he has really left lawyers out in the cold.

Biden used to head up the Judiciary Committee in the Senate. He clearly has a lot of experience in thinking about the courts, about nominations. Why do you think he’s so reticent to halt the rightward drift of the courts?

Because he is still a senator at heart. When he served on the Senate Judiciary Committee, he was a compromiser. He got a lot of conservatives through that committee because he wanted to be the deal-maker. I think, at heart, Biden still feels that way. He’s always looking for these compromises in bipartisan agreements.

I want to talk about this case the Supreme Court just agreed to hear next term, Moore v. Harper.

In 2021, North Carolina’s Republican-controlled legislature passed gerrymandered congressional maps that once again gave Republicans a disproportionate and outsize advantage in House races. That map was challenged under the state constitution, which broader guarantees of individual rights than the federal constitution, including for free and fair elections and free association. The North Carolina Supreme Court, which is controlled by Democrats, struck down that gerrymandered map. The question in this case is whether the North Carolina Supreme Court has the authority to enforce the state constitution against the legislature and strike down its congressional map, or whether the legislature has total and complete authority to gerrymander its heart out with the state courts powerless to stop it.

The legislatures are incredibly undemocratic in purple and red states, almost exclusively the product of extreme partisan gerrymandering that used incredibly sophisticated software to divvy up voters by race and political affiliation. So, handing over the keys for federal elections to state legislatures is just a recipe to allow these very undemocratic and extreme bodies to rig the rules of the game, ensure their guys stay in power perpetually, and never give the minority party even a chance.

Could reforming the courts prevent a bad outcome here, or is too late?

Well, if you expanded the Supreme Court tomorrow, you would definitely have a majority to reject this theory, if Congress is willing to play ball. The number nine, as you know, is not written in the Constitution. There have been many different configurations of the Supreme Court, from six up to ten. Lincoln added a justice to dilute the influence of Southerners on the bench, and Biden could do it with a one-page bill. If Congress just passed a bill that says we’re adding four seats, Biden could sign it and then fill those seats. And that would be that.