The Supreme Court Needs an Upgrade

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Mary Harris: I like having Slate’s Mark Joseph Stern on the show because he manages to have a sense of humor about the Supreme Court.

Speaker 2: I laugh so as to not cry. You know, it’s pretty brutal at the court these days.

Mary Harris: Mark laughs, even as he acknowledges that the court’s jurisprudence this term amounted to a bloodbath for progressives. And Mark is a progressive. There was the abortion ruling, of course, but then this long line of other decisions.

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Speaker 2: I mean, how much time do we have here?

Mary Harris: For gun owners? The court established a constitutional right to concealed carry. The justices okayed prayer on a school football field, and they ruled that even if a prisoner has proven their innocence, they may have to stay behind bars anyway. But it’s not just the rulings themselves that upset Mark. It’s the strange split screen between the court and its co-equal branch of government across the street. Congress. These institutions, they’re supposed to balance each other out. But there’s a problem with that.

Speaker 2: As we all know, Congress can barely do anything. A 5050 Senate especially is hampering any major legislation. But the Supreme Court can just act as soon as five justices decide they’re ready to do it. And there’s no check on their authority. I they just get it done in a way that Congress cannot imagine, like Congress could never.

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Mary Harris: For Mark, the last day of this year’s session, it was the hardest to stomach. It started with the court restricting the Environmental Protection Agency’s ability to regulate greenhouse gases. And then it ended with the justices announcing a few of the cases they’re going to hear next year. That includes a case that just might change the way elections are run in this country. And given the makeup of the court. Mark is especially spooked to hear that.

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Speaker 2: It was a reminder to all of us that this court is just getting started. This was kind of the opening act of the conservative revolution, and that the court isn’t just ticking off all of these items from its list that it really wanted to get through. You know, overturning these major progressive precedents and bulldozing separation of church and state, overruling Roe, expanding the Second Amendment. The court wanted to remind us on its way out the door. We’ve got so much more in store for you. Like this is really just the start. You have no idea what’s about to hit you like you think this June was bad.

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Mary Harris: Stay tuned for season two.

Speaker 2: Every June for the rest of your life is going to be like this or worse, and we’re going to get renewed over and over again, baby, because we control the network and there’s nothing you can do about it. And so season two will be bad. Season three will be worse, and I just don’t see where it ends.

Mary Harris: But what if there was a way to change the channel, so to speak, today on the show? There are a lot of ideas for how to reform the courts, especially the Supreme Court. Given this year’s explosive term, why won’t the Biden administration consider them? A mary Harris you’re listening to what next? Stick around.

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Mary Harris: The Supreme Court has haunted the Biden administration since before there was a Biden administration. I say that because in the waning days of the 2020 election, when Ruth Bader Ginsburg died and Amy Coney Barrett was rushed through a confirmation process, it put a spotlight on Biden’s cautious approach to judicial reforms had 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 Justice Barrett’s appointment creating a conservative supermajority, Mark Joseph Stern says Biden knew he couldn’t ignore the court.

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Speaker 2: So he really threaded the needle during the election. He clearly didn’t want to put off progressives who were clamoring for court reform, and then he also didn’t want to alienate moderates or Republican crossovers. So he basically declined to take a position on court expansion or even court reform during the election. He was like, Well, you just have to put me in office and see what I say. And then he floated this idea of the Supreme Court Commission, which was put a bunch of eggheads on a zoom.

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Speaker 3: I’d like to begin by providing a summary.

Speaker 2: And have them create a report that sort of gives pros and cons of each side without coming down in any one place. Reform debates.

Speaker 3: Have always.

Speaker 2: Involved partisan conflict and philosophical.

Speaker 3: Struggle over substantive constitutional values.

Mary Harris: What did you hear when you listen to how this commission talked about like, what can we do here?

Speaker 2: So, you know, the commission functioned decently well. I don’t want to slam the logistics of it. I think that what I heard mostly was honest, thoughtful intellectuals discussing in a very serious and cogent way, like what role the court plays in our society and our law, what role it should play, and what alternate visions would be.

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Speaker 2: 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. But what I mostly did not hear was direct criticisms of the court and the justices, which the commission mostly farmed out to guests who testified at these hearings. Instead of having commissioners say the court is bad, they brought in professors and advocates and lawyers and such and had them explain why the court was bad. And then in its report, they just sort of put those quotes in there and said, Well, reader, you decide it’s up to you and left it at that.

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Mary Harris: Did they even issue any recommendations?

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Speaker 2: No. Their report expressly said these are not recommendations. And I think the closest that it came to any kind of favorable tone was on term limits. But even then, it really declined to endorse it or to say that it would be constitutional for Congress to impose term limits. And I actually think that threw cold water on the the brewing movement for term limits, because this commission came out with a report that wouldn’t even say whether or not this this reform would be lawful and constitutional. And if the commission won’t say that, then it’s hard to convince a majority or a supermajority of Congress to pass that kind of bill.

Mary Harris: You highlighted testimony from people like Christopher Kang in front of the commission, and I thought he was particularly interesting because he’s someone who had been an insider, worked in the Obama administration, and basically came in front of this commission and said. Listen, we need to talk about the fact that the reason we’re not reforming the courts, the reason we’re not doing that. Is because people like us benefit from the status quo from where things are now.

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Speaker 3: If progressives are disproportionately buying the fiction of an independent judiciary, then who is selling it? The answer, quite frankly, is people like those in this meeting legal elites, academics, Supreme Court practitioners who benefit from not criticizing the court and many of the elite.

Speaker 2: I think that what Chris was doing 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. You know, there are certainly more centrist and liberal professors than there are conservative professors. But across the spectrum, these professors are part of this system. They have a vested interest in perpetuating the system.

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Speaker 2: And so from the very beginning of law school, you are taught to just absorb this assumption that the system is good, that it mostly operates the way it was intended to, and 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. And that has created a a system in which most participants, including lawyers, including consultants and advisors who work for Democrats in the Senate and at the White House in picking judges or waging confirmation battles. They all share this basic belief that the system works and is good.

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Speaker 2: What we’re seeing instead is a massive amount of money being poured into training soldiers for the conservative legal movements who are given every advantage in law school and in their careers, because it’s a it’s a relatively small network. There was one study that showed that conservative law students are 11 times more likely to get a federal clerkship than liberal law students.

Mary Harris: And those clerkships are feeders to prestigious jobs and.

Speaker 2: Eventually thing they.

Mary Harris: Judicial roles.

Speaker 2: Every door they open, every door you get. If you’re a Supreme Court clerk, you get a $400,000 bonus when you sign up with the law firm afterwards, if you’re even a clerk for four for a district court or an appeals court. You get so many benefits, the world looks at you differently and 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 like the first day of law school.

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Mary Harris: You said some of the commissioners felt like they’re being taken for a ride a little bit and got a little feisty towards the end. Do you want to say more about that? Like, who were those people? What were they saying?

Speaker 2: So, you know, our friend of Slate, Larry Tribe, famed law professor at Harvard. Yeah, at Harvard. Yeah. Oh, yeah. That little that little school outside of Boston.

Mary Harris: Oh, school by the river.

Speaker 2: He wrote a really great piece with Nancy Gertner, a former federal judge, also friend of Slate, where they said, you know, we entered this this process with lawyer brain more or less, you know, as part of the group of elites who all share the same assumption that the system works and that we’re guardians of it. And we exited it. Disgusted by how corrupt this system is and by how devastating the consequences of our complicity have been. And now.

Mary Harris: So their minds were changed.

Speaker 2: Yes, absolutely. And the same is true of Sherrilyn Ifill, former head of the NAACP Legal Defense Fund, big, big time civil rights lawyer, one of the greats who was on the commission. And she was one of the very few who would actually break into the commission’s own public negotiations and meetings and say, I think this is wrong. Like, I think this centrist pablum that’s being peddled right now is really just absolutely wrong. And when a draft report came out, that was just like materials for the committee when building its final report. But Sherrilyn came out swinging at some of these meetings. She publicly, during one of the meetings, condemned large portions of it and said that it was one sided and then it had a massive bias toward the status quo.

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Mary Harris: Hmm. I think some people would say even if this commission had released recommendations, like I said, okay, we need term limits here or we need more justices on the court to really make things fair. Those reforms might not be actionable. So what’s the point?

Speaker 2: I think it’s because Biden really delegated his opinions to this commission.

Mary Harris: So you think if they would have been fiery, he would have been like, okay, let’s let’s light a match?

Speaker 2: Yes. 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 without making any kind of decisions or recommendations.

Mary Harris: Which is why you want to burn it all down.

Speaker 2: Yeah, you got it. I got my matches.

Mary Harris: We’ll be right back after the break.

Mary Harris: You’ve laid out a pretty good case that the issues that the Supreme Court has, they start before you get to the Supreme Court, they start with judges lower down the spectrum. They start in law school. And so even if we can’t say remake the Supreme Court, I think there’s a bigger issue of courts more generally because Republicans have been so laser focused on appointing judges for a long time. And in the early days of President Biden’s administration, I think there was a feeling that the president was actually kind of rising to the challenge of being aggressive with the courts and judicial appointments. So what happened? Can you explain?

Speaker 2: It went from you’re doing amazing, sweetie. TO Are you even doing anything? The early months of the Biden administration were a heady time for progressive legal people because truly he was plucking out some of the best and brightest people who had worked as public defenders, as civil rights attorney, as plaintiffs side lawyers, and at a rapid clip that was outpacing almost every other president in history and not just slowed down.

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Mary Harris: I mean, I guess we should say that the nominations look fast. If you look at the number of people that Biden’s put out there, like quite fast. But I think 20 odd positions remain unconfirmed. So it seems like things are maybe getting stuck. Why?

Speaker 2: You know, according to Chris King, 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, which.

Mary Harris: Is important because the Senate might flip back to Republican control.

Speaker 2: And if it does, I don’t think that Mitch McConnell will allow Biden to confirm one more judge to a federal appeals court, let alone the Supreme Court. Certainly that’s off the table. And so there is an incredible urgency or there should be a sense of horror about this impending disaster and a desire to stave it off by filling every single seat a.S.A.P. And we’re not seeing that.

Mary Harris: One example, Marks’s, of the Biden administration moving not just too slowly, but against its own interests when it comes to the courts, involves the appointment of a district judge. In Kentucky, Mitch McConnell’s stomping grounds. Early reports indicate that the president has agreed to let a controversial Republican fill an open seat there, and he didn’t even ask local Democrats to weigh in. This potential judge has towed the GOP line in all kinds of controversial ways, including arguing against abortion access when he worked for a Republican governor.

Speaker 2: And yet the Biden administration was set to announce this guy’s nomination to a federal district court in Kentucky the day that the Supreme Court overturned Roe v Wade.

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Mary Harris: Well, why would they do that?

Speaker 2: Because the Biden administration cut a deal with Mitch McConnell when a current conservative judge on this court decided she would take senior status. At the time, that was still secret. And 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 and judges lust for life.

Mary Harris: Yeah, I was going to ask like, is this a good deal? And did Biden have to make it? It sounds like you’re saying no and no.

Speaker 2: No terrible deal, because there is an incredible asymmetry here between the two parties on judges and reproductive rights. 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.

Mary Harris: Here’s something you don’t get President Biden. He used to head up the Judiciary Committee in the Senate. He clearly has a lot of experience in thinking about the courts, thinking about nominations like these. Why do you think he’s so reticent to do more to shift the right word drift of the courts?

Speaker 2: Because I think he is still a senator at heart. And while he served on the Senate Judiciary Committee, he was a compromiser. I mean, everyone remembers him overseeing the Clarence Thomas hearings. And on the right, he’s a villain because he allowed Anita Hill to testify. But at the end of the day, he let the committee hear that nomination and hold a vote and send him to the floor, which is not a courtesy that Republicans did for Merrick Garland in 2016.

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Speaker 2: Joe Biden got a lot of conservatives through that committee because he wanted to be the dealmaker. And I think at heart, he still feels that way. He is kind of running the White House, as you might expect, a longtime senator to do. He’s always looking for these compromises and bipartisan agreements. And so I think to him, to the extent he was personally involved with this deal on Chad Meredith and I think the jury is out there, he probably thought, hey, this is a win. I got, you know, some of my people confirmed and this guy gets on. But what’s another conservative judge in Kentucky? They’ve already got plenty of them. One more won’t hurt.

Mary Harris: I want to end by setting the stakes for court reform in this country. And I want to do that by talking about this case that the Supreme Court just agreed to hear next term. More v harper. I’m wondering if you can explain the case as simply as possible, because I think it’s a little bit complicated to understand.

Speaker 2: So North Carolina has a Republican controlled legislature and a Democratic controlled judiciary. That’s the first thing you need to know to understand this case. In 2018, 2021, the Republican controlled legislature passed gerrymandered congressional maps once again that gave Republicans a disproportionate and outsized advantage in House races and screwed over Democrats. And that map was challenged under the state constitution, which has much broader guarantees of individual rights than the federal constitution, including guarantees of free and fair elections, broader guarantees of free association. And the North Carolina Supreme Court, which is controlled by Democrats, struck down that gerrymandered map.

Speaker 2: And 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. And the state courts are powerless to stop it.

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Mary Harris: I think this case. The reason it might be confusing is that, you know, the assumption is that the conservative Supreme Court. May weigh in here and basically say the legislature has more power than the state courts, which on its face, you look at that and you think, okay, well, the legislature, they’re elected. Like, why is that bad?

Speaker 2: And the answer is because the legislatures are incredibly undemocratic. And 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. And so handing over the keys to federal elections to state legislatures is just a recipe for allowing these very undemocratic and extreme bodies to rig the rules of the game and to ensure that their guys stay in power perpetually and that the minority party never even gets a chance.

Mary Harris: Could reforming the courts prevent a bad outcome here or is it kind of too late?

Speaker 2: Well, if you expanded the Supreme Court tomorrow, then you would definitely have the majority to reject this theory.

Mary Harris: Could President Biden do that?

Speaker 2: Well, if Congress is willing to play ball. I mean, look, 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 of of Southerners on the bench. And Biden could do it with with a one page bill. If Congress just passed a bill that says we’re adding four seats. Biden would sign it and then fill those seats. And that would be that.

Mary Harris: Easier said than done.

Speaker 2: But so easy to say.

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Mary Harris: Mark Joseph Stern, thank you so much for joining me.

Speaker 2: Thanks for having me on, Mary. I’m sorry I’m such a downer. Next time you have me on, we just have to talk about fun things.

Mary Harris: Like our.

Speaker 2: Dogs. Like our dogs.

Mary Harris: Mark Joseph Stern covers the Supreme Court for Slate. And that’s our show. What next is produced by Mary Wilson, Elaina Schwartz, Carmel Delshad and Madeline Ducharme. We are getting a ton of support these days from Anna Rubanova and from Jared Downing. We are led by Joann Levine and Alicia montgomery. And I’m Mary Harris. Go tracked me down on Twitter. Say hi. See pictures of my dog. I’m at Mary’s desk. All right. Thanks for listening. Catch you back here tomorrow.