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S2: One of the things that we have to realize is that our process, where every time a Supreme Court justice dies, it’s an all hands on deck full on go to the mattresses, fight in a completely ridiculous Senate. The only way to stop that is to put enough justices on the Supreme Court that their replacement becomes a matter of rote as opposed to a desperate political battle.
S1: Hello and welcome to Amicus, this is Slate’s podcast about the courts, the law and the rule of law. I’m Dahlia Lithwick. I cover that stuff for Slate and this week is the inaugural summer show for us here on Amicus through July and August. We like to step out of the courtroom, put down the briefs, take a look around at some of the big books and the films and the themes that might better inform our thinking about the courts in the law. And this week is a big theme that is fixing democracy. Back in May, I hosted a session at the Crosscut Festival with Adam Jentelson and Elie Mystal as my esteemed guests. Adam is former deputy chief of staff to Senator Harry Reid, and he’s the author of Killswitch The Rise of the Modern Senate. Elie is a familiar face and voice to Amicus listeners, and he is the justice correspondent for The Nation. As I mentioned, this discussion was taped in May and in the intervening weeks, it seems to me that the issues we were grappling with there, which is the filibuster court reform voting rights, have actually only become more salient and more urgent with the end of the term Supreme Court decisions regarding voting rights and the lack of progress for big voting rights reform in the Senate. I also wanted to mention that as the filibuster comes up quite a bit in this conversation, inevitably the names Manchin and cinema come up to. So I want to recommend to you one of our sister podcasts here at Slate, a recent episode of What Next? The one titled What’s Kirsten Cinemas deal as a really good companion to the discussion that I had with Elie and Adam at Crosscut. And the discussion that you’re about to hear really concerns what I think can only be described as the existential issues facing democracy, structural barriers to representative government and all the ways in which the courts, the ballot box and government itself are now being weaponized to ensure that democracy is a just a little bit less democratic every single day. So I think I want to start with the twenty twenty election with the caveat that I know we all have PTSD, but I think we’d like to tell this story about all the ways the, quote, system held and this decentralized, broken, archaic machinery of voting held up so well, despite the massive assault on vote by mail on the certification of the Electoral College results on truth itself. And we like to say, hey, this proves it’ll work, worked. There’s, of course, a counter narrative, which is that the system held by the skin of its teeth and but for a handful of court decisions, a couple of really honorable, non-partisan local elections officials, it could have been otherwise. Stanford, MIT, their elections project, described it as, quote, the miracle in the tragedy. Elie, I wonder if we could start with you and you can just tell us how which of those two narratives you subscribe to and how worried you are about how close we might have come to a very serious election meltdown.
S2: I’m completely terrified that we came as close as we did. And I have every confidence that eventually the people, the forces who want to destroy democracy will succeed if things keep on as they are going. One of the list of heroes that you didn’t mention, of course, are just the heroic efforts of voters, especially black voters, to overcome the structural hurdles placed in front of them to vote. It shouldn’t be that hard. And we can’t count on literally heroic efforts on the part of minority voters to save America every two years, every single election cycle. The other thing that I think people kind of miss when they talk about 20, 20 and the way that the courts held during the election is that it is simply one thing to ask a jurist to throw away and discard votes that have already been cast, counted and certified. That is that is a high bar to try to get a judge to throw away votes that are actually already in the system. It takes nothing to get a certain kind of judge to make it harder for those votes to be cast in the first place. And I’m saying that not prescriptively, I am saying that we saw that in twenty twenty. We saw time and again at the state court level or at the Supreme Court level, courts working to make it harder for people to vote during the crisis and during the pandemic. Right. In the context of this kind of global meltdown of health crisis that we saw, we saw a law after law aimed at just making it a little bit safer for, you know, old people to vote, which is something old people like to do. As far as I can tell, we saw courts regularly take down laws designed to make it easier to vote, add new restrictions like notary requirements and that sort. And only in a few situations was the Supreme Court willing to stop the kind of late breaking voter suppression efforts as we ramped up to 20, 20. So, yeah, did certain institutions hold that certain individual, either jurists or politicians, kind of stand up and do the right thing? Yes, at the end. But the the the road to get there was fraught. And the key thing is that I don’t know that that is repeatable.
S1: Adam, I want to ask you maybe a version of the same question, but maybe slightly more forward looking, which is, let’s say the system held and the Senate, OK, some kinkiness on certification day, but now we’re in a weird world looking forward where everything rests on a single vote. In this badly malapportioned Senate, we saw eminently qualified Vanita Gupta barely win DOJ confirmation because a single vote defected to to push her over the line. And I think we don’t even know how to think about what’s wrong with the Senate and how broken it is. And I wonder if just at the risk of asking you to I know, retread ground, you know so well, but can you just help us walk through this confounding, utter brokenness of this malapportioned, Senate and the Senate that now has us in a really strange hostage situation?
S3: Yeah, absolutely. And I definitely subscribe to to Elie view of the current state of play here. But, you know, the role the Senate plays here, I mean, I think, you know, look, I won’t I won’t go through two hundred years of history right here. But I think the way to think about it is that what the framers were trying to do. And also, just to be clear, you know, I’m not an originalist. I doubt I’m speaking to many originalists here. This was a challenge in writing the book. But but I think that, you know, what was interesting in doing the research was to try to look at the system design and and the. Fundamental feature of the system that is being blocked today that was a good feature of the system, was its ability to adapt and change, and it’s that feature and that ability to adapt and change that is being blocked today primarily by the filibuster. And I think the way to think about it is that the framers were trying to create a delicate balance within this system between majority rule and the right of the minority protections of minority rights. And speaking of minority factions in any given situation, and why were they trying to protect minority rights? I mean, there were some pretty bad motives to that. They were mainly concerned that the people were going to rise up and take their property. You know, this was such an elitist impulse and certainly a racist impulse as well. But but, you know, that was the system they designed. But but what’s interesting about their design was that they placed far more emphasis on majority rule than we do today. Even in 1789, they were very clear that within this complicated system of checks and balances, every decision point should be majority rule. The reason they were so focused on that is that they had had just had direct experience with a system that did have a supermajority threshold in it, which was the Articles of Confederation, the first draft of American government, the system that was in place during the Revolutionary War. And they put it in place, that supermajority threshold for all the reasons the defenders of the filibuster defend it today, which is the idea that would promote compromise and consensus. But they quickly saw that the exact opposite happened. It created gridlock and allowed the party out of power, the party in the minority, to throw a monkey wrench in the system and make the majority look bad. And so when they went to write the Constitution, they were very clear in the Federalist Papers and their personal correspondence and the notes of the convention, you know, everywhere, that they didn’t want to repeat that mistake. And so they created a system where you had a bicameral legislature, three branches of government, a judiciary that was designed to to hold this delicate balance, you know, and they wanted the minority to have the ability to have input and to have a say in the process in the Senate was designed more than any other branch to facilitate that minority input. But they were extremely clear that at the end of the day, after the minority had had its say, after there had been extended debate in the Senate, that the issue at hand should come up for a majority vote. So the dysfunction that we see today is that that system over two hundred years and primarily throughout the course of history for the maintenance, the primary, the primary driving factor in this tilt was the maintenance of white supremacy again and again. For two hundred years, that system has become tilted to over empower the minority. And that is what is caused our system to lose this ability to adapt and change because the minority in every situation wields a veto. You know, the Senate is a body that exists independently. It’s at the heart of the legislative process. So by imposing this minority veto, every bill that passed in the law has to go through the Senate. So you’re not just imposing a minority vote on the Senate, you’re imposing it on the entire system. And it’s that tilt towards minority rule that has that has caused the system to be as dysfunctional as it is today.
S1: OK, so we’ve done the diagnostic work in eight minutes. Well, strong work, friends, let’s do a little bit of repair and Elie for what it’s worth, I think you’re exactly right. The courts didn’t completely bring the house down in twenty twenty, but I don’t see any reason to spike the football and say that can be replicated. And I wonder if we can start with this big sort of elephant in the room question about court reform. And I know you and I’ve talked about it a million times, the kinds of things that need to happen and oh by the way need to happen in the next year seem to be unlikely to happen. And I know you’ve had real criticism of the Biden court commission, which is going to think about thinking about some of these solutions for one hundred and eighty days. But I wonder if you could just again, briefly give a sense of what court reform would look like and why it is you’re so discomfited by the idea of thinking about it for a really long time.
S2: It is it is insane that the people currently in power, which happens to be for this brief moment in time, a Democratic administration and a bare, thinnest possible majority in the Democratic Senate. It is ridiculous to me that these people are thinking about these problems in terms of legislative action when the courts, not just the Supreme Court, literally any two bit just at a law school. Thirty five year old judge that was put on the court specifically because of their blogging experience that any one of them can frustrate for the entire country, anything the Congress does, any single bill that gets through that difficult house and. Great point about the completely minority rule Senate, even if you get something through those two bodies, one district judge can put a temporary injunction and stop the whole thing. Liberals should know this. That’s why there is no wall. OK, we should know the power of a district court judge in our system. And so for us not to be willing to even seriously consider expanding the courts, both at the Supreme Court and the lower court level, is just political malpractice. Anything that the Democrats want, anything that liberals want, anything that voting rights activists want will be frustrated by the Republican courts. Now, there are great reform reasons for expanding in the courts far beyond the political tit for tat. If we look at the lower courts, we are long overdue for an expansion of lower courts. We used to know a couple of judges here, a couple of judges there on the various circuits. About once every ten years we created whole new circuits. We haven’t done that since 1990. The Judicial Conference, which is an independent, nonpartisan body of retired federal judges and big thinkers, says that we need at least seventy five judges, just seventy five district court judges like now today. Now, let’s go just to handle the load. We are we are litigious people. And as we get there, more of us, there are just more cases to handle. So at the bare minimum, we should be talking about expanding the lower courts just to just to lighten the load, the burden on the judicial system. And then obviously at the Supreme Court, look, I can make all of the revenge arguments about the hypocrisy between Merrick Garland and Amy CONI Barrett. I have all the revenge arguments like, you know, as clear as day. But again, when we talk about reform, one of the things that we have to realize is that our process, where every time a Supreme Court justice dies, it’s an all hands on deck full on, go to the mattresses, fight in again, the completely ridiculous Senate that the only way to stop that, the only way to stop that is to put enough justices on the Supreme Court that their replacement becomes a matter of rote as opposed to a desperate political battle. If you had 19 justices, if you had twenty nine justices, and if you think that’s too much, that’s exactly how much the 9th Circuit, the covers California and most of the West has. If we had twenty nine justices, then every time one of these octogenarians dies, which is not something that should be that surprising, that 80 year old people die every time one of these octogenarians dies, it wouldn’t be an all hands on deck political fight. So we should expand the court for those reasons as well. Now, last thing, to the extent that the current Democratic administration might get to choose a bare majority of those new justices, well, that’s just that’s just part of the bargain.
S1: Adam, I want to give you a chance to defend the completely ridiculous Senate, but I also want to ask a version of this question, which is, what do you do about filibuster reform when Joe Manchin and Krysten Sinema just say no, how do we do the kind of big structural fixes when the institution declines to be fixed?
S3: Well, yeah. I mean, I’m not going to defend the Senate. It would be much healthier for the Senate if it would confront its own shortcomings. I think that part of its great weakness is its ability and its eagerness to wrap itself in its own myths and and sort of get high on its own supply about how great it is in the mind of senators. Everything it does is wise. If if they if they take too long to pass a bill that’s wise. The fact that it took eighty seven years after the end of reconstruction for them to pass a civil rights bill that was considered the cooling saucer effect. And that self-delusion hides the fact that the American people were ready for civil rights decades before the Senate was was willing to pass them. This is something that we don’t learn much about. But as early as eighteen ninety one, there was majority support in the House and Senate and a president willing to sign a bill to eliminate poll taxes in the South. In the nineteen twenties, the House of Representatives started passing bills to end lynching that by overwhelming margins. They came over to the Senate where they had majority support, but they were blocked by the filibuster. There were bills to end poll taxes. There were bills to end workplace discrimination in the 1930s and 40s. And the key here is that they also had extremely broad public support. Gallup polled federal anti lynching laws in nineteen thirty seven and found seventy two percent of the American people in support of federal anti lynching laws in the nineteen forties. He pulled a federal state tax laws and found upwards of 60 percent of the American people in support. So the Senate is deeply broken in that the dysfunction that it imposed on civil rights in the Jim Crow era is now what it imposes on every other issue. So how do we fix that to the point about what do we do if it won’t if it won’t fix itself? You know, I’m actually encouraged by the fact that we are so close to having 50 votes for for filibuster reform. You know, I was there in 2013 when we did a version of filibuster reform for most judicial nominees. And at this point of 2013, we certainly weren’t as close to having the votes to do that kind of reform, as close as we are today to doing a broader filibuster reform. All this focus on mentioning cinema, you know, I read the stories every day, but but I have a different reaction, which is, oh, we only have two votes to get. That’s that’s not bad. So, look, you know, there’s there’s no there’s no downplaying how vehement they’ve been in their opposition. And they’re going to feel pressure not just from the left or from the grassroots, although they will. And that is very important that they do. They’re also going to feel pressure from their peers in the Senate. They’re going to feel pressure from other Democratic senators who are up for reelection. In twenty twenty two senators cinemas. Fellow Arizonan Senator Mark Kelly is up for re-election again, even though he just got elected because his election was a special election where he has to run again in 2012. To Mark Kelly wants to be able to go to voters in twenty twenty two with a robust array of accomplishments to make the case for his own re-election. And so I think that what’s going to happen at the end of this summer, in the coming weeks and months is that the question that Manchin Cinema are facing is going to be extremely acute and the pressure is going to build probably in a way that neither of them has ever experienced in their entire careers. So, you know, the last two votes are always the hardest to get and they certainly are presenting a challenge. But the fact that we’re this close to me is a positive sign.
S1: So so this is a really interesting through line. I think Elie and I probably have done a hundred conversations and podcasts in the last seven, eight years where we would just start by setting ourselves on fire because nobody cared about court reform and nobody cared about courts at all, at least on the progressive side. And we’ve seen a huge, huge, I think, interest, a sense of salience, a public reckoning with the fact that probably should have voted in 2016 around the courts when there was one empty seat and three octogenarians and we didn’t show up. So I think that that the needle is moved. Right. And I think there’s a real dispute about whether it’s moved fast enough and hard enough to talk about serious structural reform. But it’s moving. And Adam, you’re making the same point about filibuster reform, which is the things were unthinkable 10, 15 years ago are on the table and people understand it. It’s salient. It’s resonant. And I think H.R. one makes all of democracy reform salient in a way. And yet I have this sense that there’s this like big roadrunner, coyote doomsday clock that’s just ticking down faster than public enthusiasm, public concern. These are all such wonky process questions. And people care about their pocketbooks and they care about covid. And these are third order issues. And so I guess in light of this footrace between, say, the twenty twenty two, twenty twenty four, the sense that Georgia, Texas, New Hampshire passing voter suppression bills right now, Mitch McConnell pledging to obstruct anything that comes his way. Is this all kind of like good eleventh hour participation, folks, but it’s too late to do anything? Or can people still be moved to send Adam the kind of urgency that you’re describing?
S3: I think we’ll know whether it was 11th hour on Election Day. Twenty twenty two. You know, I mean, I absolutely agree that this is a race against the clock. I think that, in my view, filibuster reform has to happen or at least start to happen. It may be sort of an iterative process before they arrive at a sort of reform regime that works. That process has to start in the summer. I think, you know, I live in fear as a as a former congressional staffer of August recess, you know, this five week break that the Congress always takes and what lies on the other side of that, often you come back after that, that five weeks in the world looks completely different. That’s what happened in 2009 when Democrats went home. That was the rise of the Tea Party, basically happened in August of 2009. And they came back facing a vastly different political landscape than than when they left. So I completely agree that it’s possible that we will get to November. Twenty twenty two Democrats might lose their majorities and that could be it. That could be the window closing. The optimistic view is that we have between now and then to try to get all this stuff done. And we have a try and Democrats have a trifecta. You know, I would love for Republicans to join in this effort to I don’t think. It’s completely out of the question, but I’m certainly not holding my breath, but but that’s that’s the upside is that for the first time in several years, Democrats actually have the power to do the things that we want to do. It’s going to take aggressive leadership from President Biden and Leader Schumer in the Senate. There’s no way this happens without them putting this on their backs and driving it home. But they have every incentive to do that. And I think the encouraging signs we’ve seen from President Biden are that he is coming around to a different way of doing politics than he basically did his entire career. You know, but that’s understandable. He’s he’s the guy. It’s it’s his. His what on the line right now. He’s got to deliver. And so I think under those circumstances, the prospect of or the incentive to produce results becomes very, very strong. And so, you know, this is a race against the clock, but we’ve still got a long ways to go or at least a decent ways to go. And I think that there’s there is still a very good chance that we’re able to get this done in the time that we have or at least do enough to sort of keep our democracy going and give ourselves more bites of the apple down the road.
S1: And Elie, I want to ask the same question with a slightly different frame. If the conventional wisdom that I keep hearing about the same problem Adam is described on democracy reform is that the American people need to read the sentence. Roe versus Wade is overturned before they get on the you know, the float in the parade that says, oops, structural reform is a good idea. So, again, we’re not going to see that this term. We’re not going to see it next term. What what is your answer to the same question I asked Adam, which is how do you sort of foment a sense that these are exigent questions? We don’t have time to think about it for three years.
S2: Yeah, I mean, look, the problem is, is that there hasn’t been the aggressive leadership on these critical issues. And I fear my worry is that it is actually Joe Biden that needs to see Roe v. Wade is overturned before he gets it. And if that’s what we’re waiting for, for Joe Biden himself to get it, it’s already too late. We’re even talking. And I hate to be the guy to always bring this up, but like we’re talking as if the clock strikes midnight, you know, midterm elections. Twenty, twenty two, man, the clock strikes midnight. If Pat Leahy gets hit by a bus, that’s when the clock strikes midnight. Right. We aren’t the Democratic majority is so thin that any one of these senators, many of whom are themselves quite old, if any one of them should pass away living in a state where they can be replaced by a Republican governor. That’s it. It’s over. Goodbye. End of this discussion about the filibuster, end of this discussion about expanding the Supreme Court, end of this discussion about Stephen Breyer retiring and being replaced by anybody that doesn’t happen. So like when we’re talking about the timeline here, we’re already late. And it’s not clear to me that the people in charge get that we’re already late. And here’s why. Here’s the last mean thing I’ll say, I guess, about this topic. But the reason why these people don’t get that they’re already late is that they do not get that they cannot win an election with just white people. There are entirely too many Democratic senators and establishment folks who do not see the existential threat to their own jobs. If these voter suppression laws are allowed to stand, they think they can still convince that middle of the road white person that has left the party during the Reagan years and they never come back, but they’re still trying to go get that Reagan Reagan Democrats, they’re pretty sure that we’re just one more big piece of legislation that Reagan Democrat is going to come back. They don’t understand that the base of their party are these black and brown people who turn out for them. They don’t understand that they cannot win screw nationally. They cannot win statewide if they do not have overwhelming turnout from black and brown communities and win those when those communities eight to two, if it’s talking about black people and six to four if we’re talking about brown people, they can’t win without those numbers and they don’t understand that. And so they don’t realize that these voting suppression laws are an existential threat to their own positions. And the legislation is so slow. I mean, the the the current voting rights, voter protection, John Lewis voter protection law doesn’t even have strong protections for mail in voting because mail in voting was not a huge thing when they wrote the thing in twenty eighteen. Right. Mail. And that was that’s a new thing. The only way to protect the voting rights is by this thing called the 15th Amendment, 15th Amendment, which has been stuffed in a locker for most. That’s life, except for the Voting Rights Act, which John Roberts eviscerated in 2013. That’s it. If you don’t have people willing to protect the Fifth Amendment, then you don’t have voting rights. It’s as simple as that. And I can’t get Democratic legislators especially to understand that.
S1: So so that actually is a great Segway to this other kind of big framing question that I’ve been struggling with, which is how much attention do we pay to the big lie? Right. And there is a long and I think meaningful set of reckoning that needs to be devoted to what happened on January 6th and the role that was played by many, many, many people who still have their seats and who have suffered no consequences. And in fact, the folks we know who have stood up to that are suffering consequences as we speak. We can devote a lot of backward facing attention to the big lie. I think that there is an argument to be made that because of the exigency that you’re both describing, that is not time well spent. And the problem is, of course, the big lie is being used in order to suppress the vote in Georgia and Florida and Texas and wherever it’s being passed. So I feel like this is a really sort of. Existential question, but I still would love to hear you both think about how much sort of backward looking we need to do in order to do the forward looking, urgent repair. And maybe we’ll start with you, Adam, just because I know that the big lie is really, really playing out in the Senate right now.
S3: Yeah, I mean, if I were a Democrat, I would in elected office, I would pay a lot of attention to the big lie because I would I would think about it. And I would I would marinate on it. And I would say, does a party that embraces this big lie, is that party likely to continue to work with me on any legislation going forward? Or is this party likely to do everything they can to obstruct everything that we try to do? You know, I talk about this in the book, but it’s like, you know, Joe Manchin is out there calling for the return of a new era of bipartisanship. And, you know, look, I wish him luck. I hope he’s able to find it and cause it to come about. However, I think he’s probably going to fail. And the reason for that is not that I’m super cynical, it’s that if you look at the structural incentives that are facing Republican senators, they are overwhelmingly pulling them towards obstruction. There is not a single senator who is likely to defy those structural incentives in any major or consistent way, and certainly not 10 of them, which is the number you would need to come across to pass anything major. Mitch McConnell in 2009 sort of made a strategic gamble, which was that by implementing a regime of nonstop obstruction, that he would be able to avoid the blame, that the blame would be diffused in the public mind, that the public would ultimately blame the party in power for failing to deliver results, that the public would not be interested in. Democrats trying to explain that it was Republicans fault. They didn’t deliver the things they said they were going to do. And he proved correct. I mean, that was that I’m not that’s not a value judgment. It’s simply an analysis that from a political perspective, McConnell’s strategic gamble came up. Big Democrats got creamed in the 2010 midterms. They lost sixty three seats in the House and seven in the Senate. So there is no rational political reason for Republicans to do anything other than repeat that playbook. So and then you throw the big lie into the into the mix and you say is a party that is that is kicking Liz Cheney out of leadership because she had the temerity to states to say that President Biden won the election fair and square. Is this party likely to
S3: those structured incentives that are already pushing them towards obstruction? I think the answer is has to be no
S1: Elie same question.
S2: Joe Manchin is letting the terrorists win, and that’s exactly what they are and exactly what he’s doing. He has said that the insurrection of January six made him think that it was really time for more bipartisanship. Well, that’s pretty much like saying, you know, after 9/11, we should never build anything that tall. That just makes people angry. No, that’s not how you act, but that’s how Joe Manchin is acting. So him in terms of looking backwards, prosecute everybody, prosecute them all, starting with Donald Trump and his corrupt family, because they committed a crime, not for political retribution, not because it’s just something that we can do with it because they committed a crime. I know Trump committed a crime because I read the mole report, not the bill bar version of the Mole report, but the actual mole report, which laid out 10 instances of obstruction of justice, prosecute him for that, prosecute his daughter for his for her various Hatch Act violations, which she did on camera the entire time, prosecute the boys for I mean, their boys. I don’t know. I like to infantilize the Trump kids. I’m not sure if that was coloring book. Oh, there’s also the tax fraud that those guys committed. So prosecute them for prosecute Trump and his family and everybody involved in his corrupt administration, then prosecute the people who attacked the capital, starting with all eight hundred. I don’t want to hear anything about like, oh, we don’t want all eight hundred people who crossed the line and got into the capital are guilty at least of disorderly conduct at least. So just prosecute them for them, prosecute them for that, and then see if any of these vegan I need my special meal. People want to flip and tell stories about other people in their various white supremacist organizations that help them out, prosecute everybody. You have to prosecute everybody you can. That is all Merrick Garland should be doing. I don’t see why there’s any problem with letting Merrick Garland and the US attorneys go off and prosecute all people we need to prosecute. While the Senate continues on its bipartisan roll road of fixing democracy. You can do you can walk and chew gum and deliver deliver covid vaccines at the same time. That’s what being a Democrat is. We’re we’re supposed to be. The party of competence, dobe, competent.
S1: So I want to get to a couple of the audience questions, because there’s a bunch and the first one actually is for you, Elie, and it’s just in the bucket of structural reforms that are being floated. Just straight up term limits for Supreme Court justices. Does that get us part of the way there?
S2: I love term limits. I think they’re a great idea. Unfortunately, they’re unconstitutional. That’s not me saying that. That’s probably from my read eight Supreme Court justices saying that I do not think that you can pass term limits legislation and get this Supreme Court already stacked as it is, six to three with conservatives to agree that the whatever hokey plan you do for term limits passes muster under argument Article three of the Constitution. I wish they thought differently, but I think that’s how they think. In fact, I honestly think that only Stephen Breyer, of all people, is the one that has been out forward in favor of being interested in term limits. I don’t think the rest of them think that that’s constitutional law. It probably isn’t. So if you want term limits and again, I want term limits, I think they’re a good idea. I’d like many of the plans that I’ve seen out there. If you want term limits, I’ll tell you how to get them. Expand the court. Add 10 justices who think term limits are constitutional and then pass your term limits legislation and then let those 10 justices overrule the nine justices who maybe don’t think they’re constitutional. Boom, we’ve got term limits. But like, I’ll just quickly the thing about court expansion, that that kind of blows people’s mind. It’s the easiest thing to do. It’s actually the constitutional solution to the problem of a Supreme Court that is out of step with its people. It’s actually the constitutionally preferred solution. So that’s kind of why we it’s that’s kind of why we have to do it. It’s really the only tool that the Constitution gives the legislative bodies to to handle the courts.
S1: Adam, I have a question that I feel like could be a question about everything we have talked about tonight and everything we could talk about for the next six hours, which is just the tit for tat question. So somebody is essentially saying, right, so we ditch the filibuster and then what happens when the Republicans win back control of Congress and the presidency? And by the way, we could have that conversation about court reform. We could have it about almost any sort of democracy reform we’ve talked about. What’s your what’s your kind of back of the envelope answer for tit for tat or spiral to the bottom?
S3: Well, there’s sort of a brass tacks, political argument, and then there’s that there’s a broader argument. And that the brass tacks argument is that if you don’t get rid of it now and pass the stuff that we want to pass, Republicans will just get rid of it when they’re in power and pass the stuff they want to pass anyway. And I think that’s a pretty solid bet that they’ll do that. You know, you look at it from a sort of strategic analysis by leaving it in place right now, we are guaranteeing that we will not pass things like voting rights, H.R. one, gun control legislation, a whole raft of immediate urgent priorities. So you’re incurring a huge cost up front to yourself and to our democracy. You’re probably also making it easier for Republicans to get back in power faster by not passing voting rights and democracy reform. So you’re accelerating the doomsday scenario where they are in power and so you’re incurring that cost and you’re doing it in order to maintain this defensive tactic that you hope will come in handy for us when the other side’s in power. So what happens when you incur that massive cost to yourself up front? Then the other side gets in power and with a flick of his wrist, Mitch McConnell just gets rid of that defensive tactic that you incurred that cost in order to keep. So, you know, I think it’s a bad idea to incur that cost up front and sort of cross your fingers and hope that Mitch McConnell doesn’t yank that away from you when he wants to, because I think the overwhelming odds are that he will. So that’s that’s the sort of the brass tacks answer is that we have power now. Democrats do. So they should they should do as much as they can with it, because Republicans will probably just do all the bad stuff anyway when they’re back in power. The more philosophical answer is just that. It actually on balance, the filibuster is a tool that benefits the conservative side of ideological spectrum far more than the progressive side. So on net, it is something that it overwhelmingly benefits progressives to get rid of. It is a tool that makes it harder to pass things. Progressives are the party that wants to pass big change. Conservatives are the party that want to stand athwart history yelling stop. And William F. Buckley, the famous phrase you look at and then historically progressive benefits and expansions of rights have proven extremely hard to undo legislatively. They’re easy to do through the courts to roll back, but legislatively they’re extremely difficult to undo. You look at Obamacare, which after it passed, was extremely unpopular with the public. Republicans campaigned for seven years on repealing it. As soon as they got back in power, they tried to repeal it through that process called reconciliation, which means they only needed a majority to repeal it. So the filibuster was no help to Democrats in stopping the effort to repeal the Affordable Care Act. But Republicans couldn’t muster a majority to repeal it because what happened, it got popular when they tried to take it away. When you try to take progressive benefits away from people, it becomes very hard because people realize they like it. So I think when you when you take the brass tacks analysis and you take the sort of larger strategic analysis together, the only conclusion you can really come to is that this is something that while it does pose some risk in getting rid of, it overwhelmingly benefits Republicans more than Democrats. So Democrats should get rid of it, pass the things they want to pass, because that is the on balance, the best by far the best thing for them to do.
S2: Elie, I just want to add that the same arguments, the same argument basically works when you talk about court expansion. So you put four justices on the court and then the Republicans get in and they put eight justices on the court. Well, where does it end? Why is it have dead? Who cares again? And step one, if you put four justices on the court that are going to protect the Fifth Amendment, then it makes it much more unlikely that the Republicans ever take back all of government again, which is what they would need to repak the court a b, how is it worse if they respect the court? We’re already down if something happens. And now in six or eight years, the Republicans are back on top. That’s no worse than it is right now. And then see, as I said, there are great reasons to have more justices on the court that go beyond partisan politics. And so even if you are talking about a court that is 50 people, 80 people like, that’s actually still better than what we have now. People forget our Supreme Court is unique in the Western industrialized world and that it is a so small but be so powerful. No other Western industrialized Supreme Court can just declare an act of the popularly elected legislator unconstitutional because five dudes say so. Are you kidding me? That’s not a power. Most other places have the power that we have. So changing the bar to five dudes think that’s unconstitutional. So I don’t know, 40. How was that bad, so like as Adam saying, with with the filibuster reform, yes, there are doomsday scenarios where Republicans grab all the power and use it to do awful things. But those things are awful. And a lot of times they’re unpopular. So do the things that you can do right now to do popular things and make it harder for them ever to win back power again. And if they do and they decide to do awful things, you’re in no worse position than you are than you are before.
S3: And if I could just add one point to it, to what Elie saying, I think he’s making I agree with everything he’s saying. I think the powerful points and the thing about the filibuster is that by making the legislative branch of government dysfunctional, it is shifting power to the executive branch and to the judiciary. And so if progressives the thing the progressives want to pass are by and large very popular, the things Republicans want to pass are, by and large, unpopular. The easier way to do unpopular things is to have them be done through the executive branch and through the judiciary so that elected officials in Congress don’t have to vote for them. So by jamming up the legislative branch and dispersing more power to the other branches of government, you are making it easier for Republicans and conservatives to achieve the unpopular things that they want to do. You know, legislative change is hard to do, and members are very responsive to public opinion. So if you are the side that has the more popular agenda items and the other side has the less popular agenda items, you want that fight to happen in the legislative branch because that is where people are most responsive to public opinion. That’s why Republicans couldn’t get 50 votes to repeal Obamacare because it became extremely unpopular. So it is in our interest to sort of herd the action back to where it should be, which is the legislative branch, because that’s where public opinion, which is on our side, has the most impact.
S1: So talk about big roadrunner clocks were ticking down out of time. But I want to ask you each as briefly as you can, only because the hook is coming to just gives folks a sense of if you care about democracy reform, if you care about voting rights, if you can put effort into one thing or another, what should and I know Elie is going to say, why can chew gum like all of it, all of it right now. But I think, like, people really, I think are overwhelmed by the sort of enormity of the structural challenges. What are you telling people to do as a sort of ask is an action item, Adam?
S3: Well, look, if you if you live in West Virginia or Arizona, I would say call your Senators Sinema and Manchin immediately, because I think that elevating this issue to filibuster reform is a wheaty Senate issue that I think a lot of lawmakers don’t think is grabs the public attention, but they listen to the calls to come into their office. So so calling them, meeting with them, you know, demonstrating public support is important. But I also think it’s not just sentiment. Manchin, there’s a lot of Democratic senators out there that that that need to hear from people. So and if they’re on the right side, call them up and thank them because that firms up their support. So make those phone calls, make those meetings. If we’re emerging and people are vaccinated and you can do in-person things again and it’s safe to do all that in a safe and covid compliant way. But that is critically important because this is an issue that even a few years ago was so far in the weeds that nobody was talking about. I think we’ve come a long way. It’s more funds that are now than it has been in a long time. But we need to keep the pressure on and we need to keep telling senators that we’re watching them, that we’re thanking them for doing the right thing. But if they’re not, that we are demanding that that they do the right thing, that those calls, those meetings, those text, those those emails really do matter. Having been on the inside, having seen how much senators pay attention to to the feedback they get from their constituents, it really does matter.
S2: Elie I’ll go with obviously all of the above, but I’ll I’ll pick up where Adam said about what they’re actually afraid of. Right. This summer, they’re coming home and we probably will not have filibuster reform or expansion or anything like that by the time we hit the summer. So I would say show up, show up loudly. They’re coming home, get your two shots, put on a mask and go out and show out and show these people what you think about these issues, because Adam’s exactly right. They come this first break, this this summer break before which is the kickoff to their mid-term reelection campaign. They care about this break more than anything else. And if you yell at them, if you confront them, if you are in their face and say, where is my reform? I voted for you, where is my reform like that will matter to them. That’s how people forget how. Why did it why didn’t Republicans have enough votes to kill Obamacare after after running on it for four, four, seven years? Because people rose up. Because people rose up. Why did. Derek, Shervin, get arrested and charged and convicted because people rose up like at some point, it does become an issue of us, the people ourselves standing up, masking up and going out into the streets and demanding better from our elected officials.
S1: So I just want to say, you know, because I started fatuously saying these are kind of dorky, wonky, weedy process problems. But the two of you really, with your work and your thinking in your passion, really prove why these have become salient issues that we can talk about for hours. And I just want to thank both of you for the tip of the iceberg conversation, but such an important conversation about structural democracy reform and how much it’s imperiled. So I cannot thank you enough.
S3: Thank you. You’re right. When you hear footsteps Dahlia, you’ve been explaining these wonky things to people for a long time. So it’s it’s
S2: kind of explaining the wonky things to the people.
S1: What my kids come. Thank you both so much. Elie Mystal is justice correspondent for The Nation, and Adam Jentelson is former deputy chief of staff to Senator Harry Reid and the author of Killswitch The Rise of the Modern Senate. That conversation was recorded as part of the Crosscut Festival in May. And that’s a wrap for this episode of Amicus, thank you so much for listening in and thank you so much for your letters and your questions and your feedback. You can always keep in touch at Amicus, at Slate, Dotcom, or you can find us at Facebook dot com slash Amicus podcast. And if you can read us and leave a review on whatever platform you are listening on. Today’s show was produced by Sara Burningham. We had research help from Daniel Maloof. Gabriel Roth is editorial director. Alicia Montgomery is executive producer, and June Thomas is senior managing producer of Slate podcasts. We’ll be back with another summer blockbuster episode of Amicus in two short weeks.