0:00

And the second president Bush . In his

0:02

administration the motto was

0:04

no more suitors . Republicans

0:07

wanted justices who

0:09

would be reliable . That

0:11

is , adhere to the Republican

0:14

position on the Constitution

0:16

. And the Republican position from

0:18

1980 forward had

0:21

been we should overrule . Roe

0:23

versus Wade we should

0:25

hold . Affirmative action is

0:28

unconstitutional . We

0:30

should not expand any

0:32

rights of criminals . And

0:34

then in this century

0:36

there's been a decided move on

0:38

the Republican side of getting

0:41

more guns and more God out

0:43

in public . And over the

0:45

last two years the

0:47

Roberts Court , as I described

0:50

earlier , has been implementing

0:52

that Republican agenda in

0:54

very rapid succession .

1:02

Welcome to Deep Dive with me , Sh

1:04

C Fetig . If you've been

1:06

paying attention to this podcast and you should

1:08

be you know that I've become particularly

1:11

cynical about the United States Supreme Court

1:14

. The current conservative majority

1:16

is the result of political maneuvering

1:18

on the part of the Republican Party denying

1:20

President Obama the ability to cede justice

1:23

in 2016 following the passing

1:25

of Justice Scalia , and then

1:27

ramming through the confirmation of Amy Coney

1:29

Barrett in record time , just before

1:31

the 2020 election , after the passing

1:34

of Justice Ginsburg . Additionally

1:36

, the way that this current court makes decisions

1:38

seems unnecessarily egregious

1:40

and thin . One needs

1:42

only read the Dobs decision over Turning Roe

1:45

to get the sense that this current Roberts Court

1:47

couldn't care less about the fact that it's

1:49

stripping a fundamental right from

1:51

a majority of people in the country and

1:53

, in doing so , advances a flimsy

1:55

legal theory and , in its writing

1:58

, needlessly offends wide swaths

2:00

of the American public . The court

2:02

is also embroiled in continuing sagas

2:04

related to ethics and impartiality . The

2:07

leak of the Dobs decision underpins how far this

2:09

court has become removed from some of its

2:11

core and basic procedures , and

2:13

the steady flow of reporting related to the lavish

2:16

gifts that both Justices Alito and Thomas

2:18

, have accepted from people with business before the court

2:20

, coupled with the fact that Justice

2:22

Thomas is currently participating in cases

2:24

that arise from a coup attempt against the

2:26

country , that , while still remains unclear

2:28

the extent to which his own wife

2:30

was involved , and in the past month

2:33

, the court fast-tracked a hearing to determine

2:35

Trump's ballot access and strongly suggested

2:38

in oral arguments that they will ensure his name

2:40

remains on the ballot , while simultaneously

2:42

slow-tracking hearing arguments on

2:44

Trump's claim of presidential immunity , potentially

2:47

foreclosing any possibility that he'll

2:49

be going to trial and any of his federal indictments

2:51

before the election . All

2:53

of this has muddied and sullied the view of the court

2:55

, and it's reflected in public opinion

2:57

. In September of 2000

2:59

, gallup reported a 62%

3:01

approval rating for the Supreme Court . In

3:04

September of 2021 , gallup

3:06

reported a 40% approval . Approval

3:09

of the court and the court's legitimacy are

3:11

not merely abstract concepts

3:13

. They are the bedrock upon which public

3:15

trust and the acceptance of his decisions

3:17

rest . When justices are

3:19

perceived to be politicians with robes , the

3:22

very foundation of the judiciary as an impartial

3:25

arbiter is called into question . But

3:27

still , I wonder , is this current robbers court

3:29

that much different from its predecessors ? And

3:32

particularly , I consider a court that I've studied

3:34

and written about , the Warren Court . In

3:37

its time , it was considered transformational , disruptive

3:40

and for many Americans its decisions

3:42

were illegitimate . Is this Robert's

3:44

Court different in any meaningful ways

3:46

? To get at that , today I'm

3:48

talking to Lucas Powe , a former

3:50

law clerk to Supreme Court Justice William Douglas

3:53

and a current professor of government

3:55

at the University of Texas at Austin . Professor

3:58

Powe is a towering figure in legal

4:00

academia and he holds the prestigious

4:02

Anne Green Regent's Chair in law . He's

4:05

written many books , including the Supreme Court

4:07

in the American Elite 1789 to 2020

4:10

, american's Lone Star Constitution

4:12

, how Supreme Court Cases from Texas Shaped

4:15

the Nation and , my personal

4:17

favorite , the Warren Court and American Politics

4:19

. These have all garnered critical acclaim

4:21

and are considered seminal works in the field

4:24

. Powe was also a principal

4:26

commentator on the 2007 four-part

4:28

PBS series , the Supreme Court , which

4:31

, if you haven't seen it , is worth watching , especially

4:33

given how the court has changed since the series

4:36

was made . A few housekeeping

4:38

notes . I'm particularly honored

4:40

to have Lucas on this episode . He's never done

4:42

a podcast before but agreed to this

4:44

conversation because he feels this moment

4:46

for the court is particularly important

4:48

in our nation's history . But because

4:50

he doesn't do podcasts he's not set up for

4:52

podcasting and you'll notice it in his audio

4:55

just letting you know . But it's a minor

4:57

thing and the conversation is well worth it

4:59

. Also , we recorded this on

5:01

January 16th , so we do

5:03

reference some things that happened last week

5:06

that have now actually happened a few weeks ago

5:08

. All right , if you like

5:10

this episode or any episode , please

5:12

give it a like on your favorite podcast platform

5:14

and or subscribe to the podcast on

5:16

YouTube , and if you have any thoughts , questions

5:19

or comments , please feel free to email

5:21

deepdivewithshawn a

5:23

gmail . com . Let's do a deep

5:25

dive . Powe

5:32

Powell , thanks for being here . How are you ?

5:34

I'm fine thanks .

5:36

So I'm excited to have you here to talk

5:38

about the court , the evolution

5:41

of the court and , given some context

5:43

, what it all means . Because the

5:45

current Robert's Court is a very

5:47

conservative one , after years of a

5:49

relatively moderate court , and

5:51

it's been transformational in a very

5:54

short period of time . So in about

5:56

the last three years it's dramatically expanded

5:58

our understanding of Second Amendment rights , it's

6:00

eliminated affirmative action In most

6:03

areas , it's shrunk the administrative state

6:05

, it's overturned row embraced originalism

6:07

, and it's difficult not to see

6:09

this through the lens of personnel change

6:12

and politics . But I'm aware

6:14

of and have been involved in conversations with

6:16

folks about , other courts in American

6:18

history that were also very consequential

6:20

. The Warren Court immediately comes to mind , and

6:23

I'm not sure how to equate this current

6:25

court to those of the past . In essence

6:27

, I guess , is this current court truly

6:29

risking its legitimacy and acting

6:31

outside of norms and expectations , or does

6:33

it just feel that way in this moment ? So , to

6:35

your mind , when comparing the Robert's

6:38

Court to previous courts , particularly the Warren

6:40

Court , which is known for its decisions

6:42

on civil rights , criminal justice and

6:44

individual liberties , what key

6:46

differences stand out in terms of things

6:49

like judicial philosophy , decision-making

6:51

, impact on constitutional law ? And

6:53

then do you think this court is doing anything suspect

6:56

or unusual ?

6:57

Well , let me say this court was intentionally

7:00

put together . You had President

7:03

Bush nominating John Roberts

7:05

and Samuel Alito and his father

7:08

putting Clarence Thomas on

7:10

the court , and then President Trump getting

7:12

three appointments in just four

7:14

years , with

7:16

guests of Stalia and

7:19

Ginsburg and the encouraged

7:22

retirement of Justice Kennedy

7:24

. So what you have

7:26

with the Robert's Court is one

7:28

that Republicans , presidents

7:31

and senators wanted

7:34

a conservative court , and

7:36

they very intentionally got

7:38

it . What makes it different

7:41

from the Warren Court is that the Warren

7:43

Court came together by accident

7:45

. When Earl Warren is

7:47

nominated as Chief Justice , there

7:50

are only two liberals on the court Hugo

7:53

Black and William L Douglas and

7:56

Warren is nominated as Chief Justice

7:58

by President Eisenhower , both

8:01

because I called Warren a

8:03

favor and I thought that

8:06

Warren's governing California

8:08

was gonna be very much like

8:10

the way Eisenhower tended to govern

8:12

nationally . That put

8:14

a third liberal on the court , although

8:16

it took a couple of years to show that

8:18

. Then , just before the 1956

8:22

election , sherman Minton

8:24

on the court retired and

8:27

Eisenhower , with the election

8:29

in mind , told his attorney general

8:32

come up with a Catholic

8:35

Democrat for the seat , and

8:38

the result was William J Brennan

8:40

was appointed to

8:42

the court , and Brennan

8:44

was another liberal . He

8:46

met the standard that Eisenhower

8:49

laid out of being a Catholic

8:52

and a Democrat . But he surprised

8:54

Warren . And then , when John

8:57

Kennedy becomes president , he

9:00

has Felix Frankfurter

9:02

, the great conservative justice . Kennedy

9:05

has Frankfurter's biographer

9:07

go to Frankfurter

9:09

and put the proposition

9:12

if you retire , you

9:14

will be allowed to select your

9:16

successor , and

9:19

Frankfurter turned that down . And

9:22

then a year later Frankfurter

9:24

suffers a stroke that forces him

9:26

off the court and instead

9:28

of Frankfurter choosing his successor

9:30

, president Kennedy chose

9:32

Arthur Goldberg . He was secretary

9:35

of labor at the time and

9:38

Goldberg turned out to be a liberal . I

9:41

don't think Kennedy cared much one

9:43

way or another what his appointees

9:45

did , but with Goldberg he

9:47

got the fifth vote and

9:49

with five votes the

9:51

Warren court really comes into

9:54

being . And what the Warren

9:56

court is is a

9:58

court that is imposing national

10:01

values on the South

10:03

and on other outliers

10:05

in the United States . In

10:08

1965

10:10

, president Johnson , in

10:12

an interview with the prominent historian

10:14

, stated that never before

10:17

in our history have the three

10:19

branches of government work

10:21

better together . And

10:23

what Johnson was articulating

10:26

was that the president

10:28

and Congress were doing what

10:31

they could do successfully

10:33

to create a great society

10:36

and the court was

10:38

working in areas where the

10:40

political branches couldn't

10:43

work or didn't want to

10:45

work and that comes out

10:47

initially with dealing

10:49

with segregation in the South . But

10:52

it goes beyond . The court

10:54

is demanding that malapportioned

10:57

legislatures reapportion

10:59

themselves on a one-person

11:02

, one-vote basis . The

11:04

court is strikes down school

11:06

prayer , which was a nice

11:08

Protestant exercise that

11:11

violated the separation

11:13

of church and state and

11:15

made Jewish students feel

11:18

unwelcome . In that the

11:20

court liberalized obscenity

11:22

law , moved it out of the

11:24

Victorian era and

11:26

more in tune with mid-century

11:29

America . And finally

11:32

, and most controversially

11:34

, the Warren court entered

11:36

the world of criminal procedure , which

11:38

no one had been willing to touch , and

11:42

made states comply

11:44

with the Fourth Amendment's

11:47

ban on unreasonable searches

11:49

and seizures and saw to

11:51

it that the poor

11:53

criminal defendants , those in poverty

11:56

, both got a lawyer and

11:58

became aware of their rights not

12:00

to incriminate themselves . And

12:03

that was the Warren court

12:05

that I just described was

12:07

the most liberal court in American

12:10

history by far , and

12:13

President Johnson was celebrating

12:15

it . But , as I stated

12:17

at the beginning , it came together

12:19

by accident . Beginning

12:22

with Richard Nixon , there's

12:24

been basically a

12:26

Republican goal Can

12:29

we get our own Warren court

12:31

? And the Republicans

12:33

have missed with their

12:35

appointments . The first , president

12:37

Bush , put David Souter on

12:39

the court and the second

12:41

, president Bush in his administration

12:44

. The motto was no more suitors

12:46

. Republicans

12:48

wanted justices who would be

12:50

reliable . That

12:52

is adhere to the Republican

12:55

position on the Constitution

12:57

. And the Republican position from 1984

13:01

had been we should overrule

13:04

Roe versus Wade . We

13:06

should hold affirmative action

13:08

as unconstitutional . We

13:11

should not expand any

13:13

rights of criminals . And

13:15

then in this century

13:17

there's been a deciding move

13:19

on the Republican side of getting

13:22

more guns and more God out

13:24

in public . And over the

13:26

last two years the

13:28

Roberts court , as I described

13:31

earlier , has been implementing

13:33

that Republican agenda in

13:35

very rapid succession . And

13:39

while what I described with the

13:41

Warren court , both Eisenhower

13:43

and Kennedy had they seen

13:46

everything , probably

13:48

would have been surprised at what was happening

13:50

. But currently , with

13:52

the six Republicans on

13:54

the Supreme Court , I don't think

13:56

Republicans are surprised at all

13:59

at what they're seeing .

14:01

So one of the things that we

14:04

take for granted is this understanding

14:06

that the Supreme Court , one of the things

14:08

that matters in decision

14:11

making , is staratous , ices

14:13

or precedent , and

14:15

to my mind it seems that

14:17

precedent actually acts as a backstop

14:19

, or potentially it's better to

14:22

characterize it as an obstacle

14:24

to the

14:26

conservative experiment with the court

14:28

. And maybe we've taken for

14:30

granted the power of

14:32

precedent because the Roberts Court

14:34

, especially in the overturning of Roe with

14:36

their Dobs decision , has been

14:38

accused of ignoring

14:41

precedent . And I guess

14:43

I'm wondering if you

14:46

think that precedent is under

14:48

attack with this court or if this was a one-off

14:50

. And if it is , what

14:52

does that mean for our structure and understanding

14:55

of how decisions are made by the court

14:57

system ?

14:58

Well , precedent's always been

15:00

a nice thing . Everyone

15:03

agrees , at least verbally

15:05

, that staratous ices should be

15:07

respected . But key to precedent

15:10

is how long do you

15:12

continue a decision that

15:15

you think is wrong and

15:17

very wrong ? I wrote

15:19

an article a decade ago looking

15:22

at just this problem and

15:25

it turns out that the principal

15:27

reason for overruling

15:30

a precedent is the current

15:32

court stating that

15:34

case was wrongly decided the

15:36

day it was handed down

15:39

. And much

15:41

has been made of the fact that

15:43

the current justices all

15:46

stated in their confirmation hearings

15:48

that of course Roe versus

15:50

Wade is settled precedent . Roe

15:53

versus Wade was settled precedent

15:55

right up until it was overruled

15:57

as a descriptive

16:00

matter . They were correct , it was

16:02

settled . The question which

16:04

they wouldn't answer , quite obviously

16:07

, is do you intend to unsettle

16:09

it ? But I don't find what

16:11

the current court is doing to

16:13

be significantly different

16:15

than what the Warren court was doing

16:18

. It's just coming out the other way

16:20

.

16:21

Yeah , I do wonder . I've had this

16:23

thought experiment with myself , which is

16:25

, were I living in

16:27

, cognizant and paying attention

16:29

during the time of the Warren court

16:32

and , being the person that I am , would

16:34

I be just absolutely fine with the outcomes

16:36

, despite the fact that they were

16:38

both chipping away a precedent

16:40

and , in some cases , just outright overturning

16:43

or ignoring precedent ? And

16:45

so , to that end , I have a

16:47

sympathetic and

16:49

only in that context view

16:52

of what the court is doing . But

16:54

I do wonder if it's been so jarring

16:57

that it throws

16:59

into question potentially what

17:02

else the court might have in its sights .

17:05

Yeah , I think when I said

17:07

the Warren court was imposing national

17:09

values on the South and

17:12

on outliers . If I look

17:14

at the last few years

17:16

of the Roberts court , it

17:18

looks to me like they're imposing Southern

17:20

and rural values on the

17:22

nation . I think the Warren court

17:25

, at least until

17:27

the criminal procedure decisions

17:30

, had pretty solid

17:32

backing in most of the United

17:35

States , the South excluded . What

17:37

the Roberts court is doing

17:39

does not have that kind of public

17:42

backing , as the backlash against

17:45

overruling row shows . And

17:47

indeed the Roberts court comes

17:50

about via presidents

17:52

who get through

17:54

the presidency by the Electoral College

17:57

while they're losing the majority

17:59

vote , and they're confirmed

18:01

with a Senate that is just

18:04

hopelessly dominated or

18:07

influenced by rural America

18:09

, lacking , again , lacking the

18:11

population of the

18:13

majority of the country , and

18:16

that's , I think those combinations

18:19

make the outcomes of the Roberts

18:21

court quite unsettling

18:23

.

18:24

So one of the arguments that's being

18:26

made about the

18:28

result of the Roberts

18:31

court's current behavior is that

18:33

it is negatively impacting

18:35

the court's legitimacy . One measure that we

18:37

do have is trust in the court . Going

18:40

back some time and it's at its lowest point , lowest

18:42

measured point , since it's being measured

18:44

, suggesting that this court

18:46

, for the first time in its history I believe

18:48

that it's consistently under 50%

18:51

trust in the court . I guess , if we

18:53

compare that to the Warren court

18:55

, do you think that people

18:57

in that era and

18:59

of that time had generally

19:02

more trust in institutions and were willing

19:04

to accept outcomes that they didn't like

19:06

, more so than they do today ? Or

19:08

is the Roberts court potentially putting

19:10

itself into some type of danger zone

19:13

by chipping away its legitimacy ?

19:16

I don't know if the Roberts Court is

19:18

putting itself in a danger zone

19:20

. There's no doubt at all

19:22

about the Gallup polls that

19:25

are showing trust in the court . It

19:27

is at historic lows . But

19:30

what that translates to I'm

19:32

not sure it may be interesting

19:34

. A week ago the Hawaii Supreme

19:37

Court flat out rejected

19:40

one of the Second Amendment

19:42

conclusions of the Roberts

19:44

Court and it's been a long

19:46

time since I've seen courts

19:48

just state you're

19:50

wrong , a lower court

19:52

saying that , and I think a lot

19:54

of Americans may do it . Remember

19:57

, when Bush v Gore

19:59

comes down , al Gore

20:01

within 24 hours concedes

20:03

the election to George Bush , no

20:06

matter what the courts would hold

20:08

in the future . I'm satisfied

20:11

that a number of Republicans would

20:14

not concede to the legitimacy

20:16

of the decisions , and I think a

20:19

number of Democrats are looking

20:21

at what the Roberts Court

20:23

is doing and suggesting

20:26

indeed just as so

20:28

to my , or has strongly

20:30

suggested that the court is undermining

20:33

its legitimacy . I

20:35

think time will tell on that , but

20:38

to the extent the court continues

20:40

to impose

20:42

minority positions on

20:45

the majority of Americans , I

20:47

think there will come a reckoning

20:49

at some point in time .

20:52

This is really interesting to me . I've

20:55

spent some time thinking about this and

20:57

first , let me say , with the Hawaii

20:59

Supreme Court decision , I found that fascinating

21:01

, and tell me if you think that I'm mischaracterizing

21:03

this , but my first thought was so

21:05

the United States Supreme Court is leaning

21:08

heavily into or at least

21:10

the majority of the justices are

21:13

leaning heavily into originalism to

21:15

help them arrive at their outcomes , whether

21:17

or not they already have a personal ideology

21:19

that suggests that's the outcome anyway

21:22

, and originalism is just the excuse

21:24

to get there . I don't know , but

21:26

I felt like , in an interesting

21:29

way , the decision coming out of the Hawaii

21:31

Supreme Court was almost like

21:33

them playing with originalism when

21:36

they said well , this is just

21:38

adhering to the traditional Hawaiian

21:40

spirit .

21:41

Yes , I had the same feeling

21:44

when I was reading the Hawaiian decision

21:46

, that they were showing that

21:48

you thought you were doing . Originalism

21:50

will show you what originalism is

21:53

. What I find strange

21:56

about originalism is the

21:59

amazing coincidence that

22:01

a political party in 2024

22:05

shares the same constitutional

22:07

views as Americans

22:11

held in 1791

22:13

. What are the odds of that happening

22:16

?

22:17

You know ? What else I find fascinating is originalism

22:19

almost assumes that the founders

22:21

are so short-sighted , and

22:24

perhaps stupid , that

22:26

they couldn't even imagine the country would

22:28

change over time .

22:29

Yeah , they don't come across to me

22:31

as stupid , yeah , no

22:33

. And to talk about we , the

22:35

people in the Constitution , when

22:38

we , the people , meant white

22:41

males .

22:44

So what I wanted to follow up with , as

22:46

it relates to originalism

22:49

and the court taking positions

22:51

that clearly run against majority

22:54

opinion or majority support and this perhaps

22:56

generating some not

22:59

just tension , but outright disobedience

23:02

, maybe is the right word on the part of democratic

23:05

states , maybe democratic cities and

23:07

I am both sympathetic to that and concerned

23:10

about it , because we definitely

23:12

saw some nullification in

23:14

the South during the period of the Warren

23:16

Court , and yet at the time there was

23:18

generally a strong sense

23:20

that you adhere to the court

23:23

even if you don't like the outcome . And

23:25

now I think , with liberals being on the other side

23:27

, I'm sympathetic both to the

23:29

court . If it stands for anything is that when

23:31

it makes these decisions , we all

23:34

essentially live with them , and on the flip side

23:36

, I'm also extremely sympathetic to the impact

23:38

that these decisions have on certain

23:40

people and in certain regions of the country . That

23:42

just run vastly counter to popular

23:44

opinion , and it makes me concerned

23:47

, even when I agree with

23:49

perhaps blue states or blue cities finding

23:51

ways around decisions not necessarily outright

23:54

nullification but what do you think the impact

23:56

of something like that would be ? Are we talking about a constitutional

23:59

crisis ?

24:00

It could be . I'm concerned

24:03

about the possibilities of nullification

24:06

because I think , in

24:08

general , the Supreme Court has served

24:10

the country well . We live

24:12

in 50 states . There needs

24:14

to be some unifying aspects

24:17

, as well as the diversity

24:19

that one gets from the fact

24:21

that there are 50 local governments

24:23

operating . It would be

24:26

, I think , a shame

24:28

and a crisis

24:30

if a number of localities

24:33

just deem that what the

24:35

Supreme Court is doing is illegitimate

24:38

and start to ignore

24:40

it . On the other hand , I should note

24:42

that when Justice

24:45

Barrett gave a talk

24:47

to state that the

24:50

court's legitimacy was intact

24:52

, she went to the Mitch McConnell

24:55

Institute at the University

24:57

of Louisville with Mitch McConnell

24:59

there , and it was almost

25:01

, as one person observed

25:03

, it was almost like McConnell

25:05

showing off a bass that he just

25:07

reeled in from the river . I

25:10

would have thought that any

25:12

other venue would have been a far

25:14

superior choice than going

25:17

to McConnell . Who's the

25:19

reason you're on the court

25:21

?

25:22

What do you think is happening there

25:25

? This is a good point . I think that

25:27

maybe Kagan and

25:29

Sotomayor I don't have

25:32

a read on Jackson as

25:34

well , but I feel like

25:36

they do a bit of the same where they're

25:38

in more friendly venues , but

25:40

I don't think they're as overtly liberal

25:43

as Alito , especially

25:46

, but also Barrett , as you just mentioned are choosing

25:48

these very friendly , very conservative

25:50

venues . How does that stack against

25:53

history and what do you think is going

25:55

through their minds ? Because they're relatively smart

25:57

people , so they must consider

26:00

the impact or the visual that

26:03

this provides to the public when they do this .

26:05

This is a newer phenomena

26:08

. In the 1960s

26:11

both Hugo Black and William

26:13

O Douglas did television

26:16

interviews . That was precedent

26:18

breaking . Justices

26:21

basically stay silent and

26:23

let their opinions speak for themselves

26:25

. Harry Blackman

26:27

followed up . He

26:29

certainly enjoyed the press quite

26:32

a bit because liberal

26:34

press was liking his role versus

26:36

Wade's opinion . You

26:38

now have Supreme

26:40

Court justices seeking

26:43

out much more publicity . I

26:46

think that Alito and

26:48

Barrett they clearly

26:50

are choosing very friendly

26:52

venues . I don't have the feeling

26:55

that Kagan is doing

26:57

the same . I think she'd be more

26:59

neutral . But I would prefer

27:02

if the justices , if

27:04

they've got to get out and public and say

27:07

things , would look for more neutral

27:09

venues to do so .

27:11

So we've talked a little bit about how justices make

27:13

decisions . We talked about originalism

27:16

and their justice , interpretation of the Constitution

27:18

, et cetera , but there are three other areas

27:21

that potentially influence how

27:23

justices make decisions , so I want to talk about them

27:25

, maybe in turn , and I'm hoping we

27:27

can talk about them in the context of how

27:29

do you think past courts have

27:31

been influenced by these things versus the

27:34

current Roberts Court ? And the three things

27:36

that I'm talking about here are their own

27:38

personal philosophies , politics

27:40

and political events and situations , and then

27:42

the third is public opinion . So

27:45

let's start with political events , politics

27:47

et cetera . So how influential

27:49

do you think political dynamics and

27:51

polarization in the country has been

27:54

on the Supreme Court in past , and

27:56

do you think it's any different now

27:58

on the current Roberts Court ?

28:00

I don't know how much politics plays

28:03

. There's one decision

28:05

that I can point to that I

28:08

think is perfectly political , and

28:10

that was the Supreme Court's decision in

28:12

Bush v Gore , where I

28:15

would bet everything that

28:17

the five justices in the majority

28:19

had , in November , voted

28:22

for George Bush and the four

28:24

justices dissenting had

28:26

not . What I would hit with

28:28

Bush v Gore is if

28:30

everything had been reversed , if

28:33

a Republican

28:35

Florida Supreme Court had

28:38

stated keep counting the votes

28:40

because Gore was showing a victory

28:42

and George Bush was needing more votes

28:44

, I find it impossible

28:47

to believe that the same five

28:49

would have reached the same conclusion

28:51

. So that is a perfectly

28:54

political case influenced

28:56

by politics . I don't

28:58

think others are

29:00

, because I think

29:02

the justices , at least

29:04

the recent ones , are coming to

29:06

the court as pretty firmly fully

29:09

philosophy intact

29:12

and they're just applying

29:14

the beliefs that they have had for

29:17

any long period of time to

29:19

the problems that come before the court

29:21

. So I don't think politics

29:24

as such does play

29:26

a role , and I don't

29:28

think it played that much of a role

29:30

in the Warren Court . I

29:32

think the court might have liked

29:35

, or would have liked very much

29:37

, to see Congress

29:39

and the president much more supportive

29:42

of their desegregation decisions

29:44

under Eisenhower and Kennedy

29:47

. They were hoping for a

29:49

Lyndon Johnson in a Congress

29:51

that would pass the Civil Rights Act

29:53

and the Voting Rights Act . That

29:55

certainly helps , but I do

29:57

believe that for

30:00

at least the current justices

30:02

, I think they have come to the court with

30:05

a pretty fully formed philosophy

30:07

, and I think that is

30:09

less so the

30:12

farther back we go in time .

30:15

You know , it strikes me and this is tell me

30:17

if you disagree with me here , but

30:19

I'm thinking , as you're speaking

30:21

, about the current environment and I

30:23

could absolutely be constrained by my

30:26

limited time and experience on the planet

30:28

but that as

30:30

our sphere of political

30:33

influence has increased and increasingly

30:35

creeped into every aspect of our lives

30:37

, it's perhaps easy to

30:40

see the court making a decision on almost

30:42

anything as being a politicized

30:44

court , when in actuality we have maybe

30:46

expanded the sphere of politics

30:49

or we've politicized so much in our

30:51

lives that the court itself couldn't possibly

30:53

make a decision on anything these days

30:55

without it somehow being political

30:57

.

30:58

I think that's a very astute observation

31:01

. We really have , especially

31:03

with the culture wars , just

31:05

turned everything into a political

31:08

donning group .

31:10

I want to ask you you mentioned Bush v Gore

31:12

. I wonder . I don't want

31:14

to . I don't know what . I don't

31:16

want to do . I don't want to sound histrionic

31:18

, but do you think that Bush

31:20

v Gore was a turning point or

31:22

a critical moment in the Supreme Court history

31:25

, and do you think it's done damage ?

31:27

I don't think it was a turning point and

31:30

I don't think it did . It did

31:33

damage . There was a Gallup

31:35

poll taken in September

31:38

of 2000 , and it

31:40

showed that 62%

31:42

of Americans had confidence

31:45

in the Supreme Court . There was

31:47

a second Gallup poll taken in May

31:49

of 2001 , and

31:51

it showed that 62%

31:54

of Americans had confidence in

31:56

the Supreme Court . So at

31:58

least within the timeframe

32:00

of Bush v Gore , it

32:02

didn't change public

32:04

perceptions . What

32:07

might change public perceptions

32:09

? Note that Bush v Gore is

32:11

followed up with , a decade

32:14

later , with Citizens United

32:16

striking down campaign

32:18

finance regulations . The

32:21

Republicans like that , the Democrats

32:23

didn't . And then , a decade

32:25

ago , the Supreme Court

32:27

gutted the key provision of the

32:29

Voting Rights Act , section 5

32:32

, which was covered

32:34

jurisdictions . Those

32:36

are decisions that really

32:39

do affect politics as

32:41

it goes . On the other hand

32:43

, chief Justice Roberts , as

32:45

near as I can tell , switched his

32:48

vote in the Obamacare

32:50

case from striking

32:52

down Obamacare to

32:54

upholding it at

32:56

a time that Obamacare was not particularly

32:58

popular . And

33:00

I think one can commend Chief

33:03

Justice Roberts for that vote

33:05

, which may have been influenced

33:08

by politics , in the sense

33:10

that if you have Bush

33:12

v Gore striking down campaign

33:14

finance , gutting the Voting Rights Act

33:17

, it would be quite something to take

33:19

the singular Democratic achievement

33:21

of the past 20 years

33:23

and strike that down .

33:26

So you mentioned that we are living in

33:28

a time when Supreme Court justices

33:31

are confirmed , with their

33:33

ideologies pretty much baked

33:35

in . We know what we're for the most part we know what

33:37

we're getting , which leads me to a

33:40

question about how much those ideologies

33:43

are influencing the decisions that they make

33:45

, because it sounds obvious

33:48

, right , that somebody's personal beliefs

33:50

, their experience , their ideology

33:52

, their partisanship are going to influence the way

33:54

that they think about things . I think that

33:56

we have this vaunted idea that

33:58

the Supreme Court , or the courts generally , are

34:01

applying maybe complex but

34:04

law and legal history

34:06

legal tenets to their decision-making

34:08

process , but yet they're

34:10

confirmed , with us knowing

34:13

quite a bit about their ideologies . So

34:15

I do wonder about their personal

34:17

philosophies and their backgrounds , their experience and their ideology

34:20

and how that influences , or

34:22

the extent to which it influences , the

34:24

decisions that they make and

34:26

the opinions that they write . And I immediately think about

34:28

Alito's decision in Dobs , which the

34:30

decision itself reads as very personal

34:32

to him and his

34:35

beliefs , but also seemed written to personally

34:38

speak to both supporters and opponents

34:40

of abortion , as opposed to taking a

34:42

very constitutional legal approach

34:44

that seemed really rooted in some type of

34:46

legal tenets .

34:48

Yeah , they've got their

34:50

personal philosophies , and their

34:52

personal philosophies tie

34:54

in with their views of the

34:56

Constitution . And

34:59

Alito's view of the Constitution

35:02

is that it says

35:04

nothing about abortion

35:07

, and textually it certainly

35:09

doesn't . And if

35:11

we apply the common

35:14

idea of the Republicans

35:16

and originalist Constitution

35:18

, he looks back and says well , abortion

35:21

wasn't protected in 1868

35:23

. There though , it's not protected

35:25

now , while another

35:27

side of the centers , even if they

35:29

didn't want to say

35:31

sorry to Cises , could state

35:33

at this time in our

35:36

American history , the

35:38

idea that a woman's

35:40

autonomy could

35:42

be controlled by legislatures

35:44

is just contrary to the American

35:47

spirit that a woman needs

35:49

to be able to control

35:51

her reproductive life in

35:53

order to control all other aspects

35:56

of her life and achieve full citizenship

35:59

.

36:00

We talked a little bit about public

36:02

opinion and historically

36:04

, public opinion perhaps

36:06

that ran counter to war and

36:09

court decisions were primarily region-based

36:12

, which is probably true to

36:14

the current court as well , in that

36:16

primarily blue states

36:18

and cities . Popular opinion runs

36:20

counter to a lot of the decisions that the

36:23

court is making and it would suggest that

36:25

the Roberts court , it seems anyway , is

36:27

not necessarily taking into consideration

36:30

public opinion in a way that we maybe would

36:33

want them to . But what role do you

36:35

think public opinion has played on the

36:37

Supreme Court in the past , how

36:39

it plays on the Supreme Court now , and

36:41

do we want the court to be considering public opinion

36:44

?

36:45

For the most part I don't think the court does

36:47

consider public opinion . I

36:49

think the justices are

36:52

deciding cases as they

36:54

believe are correct and just

36:56

and the public will have

36:58

to adjust to that decision

37:01

. Now it's nice when

37:03

you can align with public

37:05

opinion , as the court more

37:08

or less did in desegregation

37:10

, certainly did with

37:13

its reapportionment cases but

37:15

was out of step the war

37:17

and court was out of step with the criminal procedure

37:20

cases . And here

37:22

Dobbs is certainly out of line

37:24

with public opinion . But it appears

37:27

that the Harvard , north Carolina cases

37:29

striking down affirmative action

37:32

lines up pretty well with public

37:34

opinion In the case of

37:36

public opinion and guns . That

37:39

is such a rural

37:41

urban divide on that

37:43

where , as I was mentioning

37:46

, the Roberts court seems very

37:48

sympathetic to southern and

37:50

rural values and

37:53

much less sympathetic to

37:55

urban national values

37:57

.

37:58

So something else that's being part of

38:00

our political discourse as it relates

38:02

to the court in the past handful of

38:04

years is a lot of talk

38:07

about constraining the court via

38:09

maybe expanding the court , imposing term

38:11

limits , maybe age limits or limits on

38:13

the types of cases that the court can hear , et

38:15

cetera , and I think it would be easy

38:17

to say that liberals or Democrats

38:20

are all in on constraining

38:22

the court right now and conservatives are not , but

38:24

I haven't found that to be true . I have found

38:27

there to be quite a bit of deference on both sides

38:29

of the aisle to the court , although

38:31

the rhetoric about constraining the

38:33

court has definitely ratcheted up

38:35

a bit . Where do you come down on this , and

38:37

are there any reforms or safeguards that

38:39

you would propose to ensure the

38:42

effectiveness and impartiality of the court moving

38:44

forward ?

38:45

I'm on the record for the past 30 years

38:48

as favoring term limits for

38:50

Supreme Court justices . I've

38:52

taken the position that life tenure

38:54

should be limited to college professors

38:56

, and I would very much

38:58

like to see term limits where

39:01

each president during his

39:03

four-year term would get two

39:05

appointments . A justice can

39:07

stay on the court for 18 years

39:10

. I think a result of

39:12

that would be we'd probably

39:14

see the appointment of slightly

39:16

older justices men

39:19

and women who've got

39:21

more experience and more wisdom

39:23

rather than seeing how young

39:25

we can go so that we can

39:27

have this person for 30 to

39:29

40 years . Congress

39:31

also has the power to

39:34

shape the jurisdiction

39:36

of the court and has done so

39:38

periodically . I'm

39:40

more skeptical about doing that

39:43

. I would prefer to see the

39:45

justices limit themselves rather

39:48

than Congress do it , with the exception

39:50

of term limits , which I really , as

39:52

I state , I've been on the record for 30

39:54

years about that and I

39:56

believe strongly that that would

39:59

make a more representative and

40:01

probably a more legitimate

40:03

Supreme Court .

40:06

I often wonder what

40:08

it is about the court that we venerate

40:10

so much , and I don't mean the authority

40:12

or power that it has , and I don't mean the

40:15

fact that it is the final arbiter of

40:17

adjudication in the United States

40:19

. What I'm talking about is , across

40:21

not just the globe , but the United States itself

40:24

. We have numerous constructs

40:27

to adjudicate cases . We

40:29

have courts that have a lone judge

40:31

making a decision . We have juries of different

40:33

sizes making decisions . We have benches

40:35

of courts in different situations making

40:37

decisions , and over the course

40:40

of the Supreme Court's history , it's

40:42

evolved . The number of justices has

40:44

changed over time . They've sat in different

40:46

places , they've had different responsibilities . They

40:48

don't ride the circuit in the same way that they used to . So

40:51

it's not as if this current

40:53

configuration and

40:56

the job duties associated with it , and even

40:58

the jurisdiction of the court

41:00

, has just been set for time

41:02

immemorial . It has been something

41:04

that's evolved . So why do you think that we

41:06

are so ? We venerate the current

41:09

composition and structure of the

41:11

court so much that it

41:13

is unsettling to us to

41:15

consider changing that

41:17

.

41:18

Brown versus Board of Education . If

41:21

it weren't for the Supreme Court , the

41:24

South would still be a segregated

41:26

area of the country , with

41:28

their African-American citizens

41:30

being discriminated against in all

41:32

facets of their life , and

41:34

I think what the court

41:37

has managed to do in

41:39

the area of civil rights in

41:42

the 50s and the 60s

41:44

just gave an incredibly

41:47

strong legitimacy

41:49

to the Supreme Court . The

41:51

current court can bask in that

41:54

reflection , because what the court

41:56

did in the case of

41:58

desegregation was so

42:01

correct , so just

42:03

and overdue that

42:05

the court that's where I think

42:07

the warmest feelings about the court

42:09

come from .

42:11

Okay , lucas . Final question Are you ready for it ? Sure

42:14

, what's something interesting you've been

42:16

reading , watching , listening to or doing lately

42:18

.

42:20

A really good book that I asked

42:22

for as a Christmas present and

42:25

then read over the

42:27

Christmas break was Tim

42:29

Alberta's the Kingdom , the Power

42:31

and the Glory . Tim Alberta

42:33

grew up as an evangelical

42:36

Christian and remains an evangelical

42:39

to this day , but

42:41

he's writing about what

42:43

has happened with evangelicalism

42:45

over the past decade and

42:47

I thought the book was just excellent

42:50

and compelling and scary

42:52

right . Yes .

42:54

Yeah , very scary .

42:55

A belief that , a belief

42:57

in one man , more so than

42:59

the tenants of the 10

43:02

Commandments or the Sermon

43:04

on the Mount .

43:06

Speaking of really good books , I don't wanna

43:08

let you go without telling

43:10

you that I recently finished the Warren

43:12

Court in American Politics , which is why I

43:14

kept referring back and asking your

43:16

opinion about this current court to

43:19

the Warren Court . I just wanna let you know that I

43:21

loved that book . It was so well

43:23

written , it was so informative

43:25

, so well researched . So I

43:28

don't know if I'm thanking you for writing the book , but I just wanna

43:30

let you know that it was a great read .

43:32

Well , thank you , it was a labor of

43:35

love by me . It's my favorite book

43:37

.

43:37

Lucas Powe , I appreciate your time

43:40

. I appreciate your thoughts and the conversation . I've enjoyed

43:42

it . Thanks for stopping by Sure

43:44

.

43:45

you're welcome .

43:51

The judiciary's role as the guardian

43:53

of the rule of law and protector of individual

43:55

rights cannot be overstated . It

43:57

is the judiciary's independence and its impartiality

44:00

that ensure decisions are made based

44:02

on law , in fact , not swayed by

44:04

the winds of political change or the pressures

44:06

of the moment . In a hyperpolarized

44:09

, in many ways radicalized America , the

44:12

question of whether our courts can avoid politicization

44:14

and maintain independence and impartiality

44:17

is more pressing than ever . The

44:20

judiciary's role in a democracy is

44:22

not for the personal benefit of judicial officers

44:24

or one segment of the public or

44:26

political party , but to ensure that

44:28

all individuals have access to fair and impartial

44:30

justice . Protecting the

44:33

independence and impartiality of our courts is

44:35

essential to maintaining the public's trust in

44:37

the judiciary as a fair arbiter of disputes

44:39

and a defender of the Constitution and

44:41

the rights it guarantees . So

44:44

, as we head into a critical election that has incredible

44:46

implications for the future of American democracy

44:49

, it is crucial for all stakeholders

44:51

, including the judiciary , legal professionals

44:53

and the public us to

44:56

engage in efforts to preserve judicial

44:58

independence and impartiality by

45:00

understanding the challenges facing the judiciary

45:03

and advocating for measures that protect its

45:05

ability to function without undue influence

45:07

. By electing good civil servants

45:09

, dedicated to the promise of democracy over

45:11

party , we can help ensure that our

45:13

democracy survives and , hopefully , thrives

45:16

. The judiciary's independence

45:18

and its impartiality are not just legal

45:20

principles , but a promise of justice

45:22

and fairness for all . All

45:25

. Right , check back soon for another episode

45:27

of Deep Dive Chat . Soon

45:29

, folks , we will

45:33

see you

45:37

in

45:41

the

45:43

next

45:48

one .