0:10

Welcome to the HMP

0:10

Governance Lab Podcast. I'm

0:13

Professor Scott Greer. And I'm

0:13

here to talk about the courts in

0:16

American politics. Now, I'll

0:16

start with a couple of key

0:19

takeaways. And then I'll talk my

0:19

way through the basics of how

0:24

the courts operate. A little bit

0:24

of a historical story about how

0:27

we came to have the

0:27

understanding of the courts in

0:29

American politics and life that

0:29

we have today. And the

0:34

monumental changes that have

0:34

taken place, essentially, since

0:37

the Trump presidency in the role

0:37

and politics of the Supreme

0:41

Court in American politics and

0:41

public life.

0:45

Now, the key takeaways that I

0:45

really would like you to take

0:48

away is that, first of all,

0:48

everything is political. And

0:51

that includes the law. A Supreme

0:51

Court has a lot of decisions

0:54

that are quite boringly

0:54

technical to most of us, but

0:58

they're contests of political

0:58

interests, between varying

1:02

parties. And if you're not

1:02

interested, it's because you

1:04

don't share the interests of

1:04

those parties. Because

1:08

everything is political, and in

1:08

particular, big hard questions

1:11

like abortion and racism and

1:11

free expression are political.

1:16

That means that the courts are

1:16

political when they're treated

1:20

politically as such. Now they're

1:20

political in a number of ways.

1:24

They're political in the

1:24

ideological sense, we're

1:26

comfortable speaking about

1:26

judicial conservatives and

1:29

judicial liberals. Their

1:29

political also in the partisan

1:33

sense that increasingly knowing

1:33

who appointed a judge is going

1:38

to give you a fairly clear sense

1:38

of where that Judge stands on

1:41

the key issues of the day. One

1:41

of the many ways in which Donald

1:44

Trump was an innovator in

1:44

American politics was his

1:47

explicit declaration during the

1:47

26th campaign, that he was not

1:51

going to nominate any judges who

1:51

were not in his terms, pro life.

1:57

Previously, there had been a

1:57

whole lot of somewhat

2:00

disingenuous hemming and hawing

2:00

among presidents about what

2:03

kinds of Judge they said they

2:03

didn't want to have a litmus

2:05

test. Trump gave his voters what

2:05

we all knew both parties have,

2:09

which is an effective litmus

2:09

test on the federal judiciary.

2:12

There's lots of mechanisms that

2:12

make sure there's a litmus test

2:15

he was just honest about it. So

2:15

in other words, the courts are

2:19

political, their place in

2:19

American politics is politically

2:22

determined. Their decisions

2:22

about the law are political. And

2:26

they're understood as such by

2:26

political players. The best

2:29

simple way to think about the

2:29

United States Federal Supreme

2:31

Court is as an unelected

2:31

legislature, which is

2:34

substantially filled out for

2:34

life terms by a process of

2:38

chance when people die, and

2:38

retirement when people

2:42

strategically choose to retire

2:42

and who's capable of filling

2:45

their seats when they do. Well,

2:45

moving on to the basics. The key

2:50

concept that distinguishes the

2:50

American judicial system in

2:53

politics is that of judicial

2:53

review, the idea that the courts

2:56

can review and possibly overturn

2:56

or stay just about any decision

3:01

made by a branch of government,

3:01

they can stay in executive

3:04

action on the grounds that the

3:04

executive is outstripping the

3:07

authorizing statute. They can

3:07

step status and overturn a

3:11

statute on the grounds that to

3:11

the statute itself and is in

3:15

violation of the Constitution.

3:15

Because the courts have given

3:20

themselves the power and it is

3:20

widely accepted in American life

3:23

that they have this power,

3:23

judiciary, judicially review

3:26

almost everything. They are

3:26

extremely powerful. This power

3:30

applies to the federal court

3:30

system, it also applies to State

3:33

Supreme Courts. Now, how are

3:33

they organized? First, we'll

3:38

start with the federal

3:38

government, which is Article

3:40

Three of the Constitution, which

3:40

doesn't specify a lot about the

3:42

courts. But it does say that

3:42

federal judges have life terms.

3:48

Otherwise, the structures are

3:48

set out in legislation. And

3:51

there's a three tier structure

3:51

of federal courts, the

3:53

beginning, you have district

3:53

courts, which are actually trial

3:56

courts, they're ones that

3:56

ascertain facts. So if you get

4:00

arrested on a federal charge,

4:00

it's going to be a federal

4:03

district judge who is going to

4:03

hear your case. Then you have

4:08

circuit courts, which are one of

4:08

the two tiers of appellate court

4:11

appellate meaning they hear

4:11

appeals. So the circuit courts

4:15

are the ones that are numbered.

4:15

So for example, the Fifth

4:18

Circuit is a very conservative

4:18

circuit based in New Orleans

4:21

that has made the running with a

4:21

lot of very important decisions.

4:26

And they hear appeals they don't

4:26

refined facts. You can't argue

4:30

that the district court made the

4:30

wrong decision simply because it

4:35

misunderstood you. You have to

4:35

argue that there was a point of

4:37

law, the district court messed

4:37

up and that's the basis in which

4:40

you appeal to appellate court.

4:40

Then there's the Supreme Court,

4:45

which is the next appellate

4:45

court, and it's the most

4:47

important one in the country,

4:47

and it's generally taken as

4:50

deciding what law is. The

4:50

Supreme Court controls its

4:54

docket. So it gets to decide

4:54

which of the 1000s of cases that

4:59

are appealed to It actually

4:59

hears and the Supreme Court has

5:02

been hearing steadily fewer

5:02

cases over a number of years.

5:04

We're not totally sure what the

5:04

impact of that is.

5:09

So you have a three tiered

5:09

structure federal trial courts

5:12

initially hearing cases, for

5:12

example, people saying that they

5:16

believe that the new Mississippi

5:16

statute is unconstitutional. The

5:20

circuit courts then decide if

5:20

the district court was correct

5:25

in an appeals process. And if

5:25

there's still competition and

5:27

goes up to the Supreme Court,

5:27

Supreme Court is made up of nine

5:32

people like everything else,

5:32

this is set in statute, Congress

5:35

can in theory, change it. So

5:35

people talk about court

5:37

expansion or court packing, it's

5:37

perfectly possible to do that.

5:42

Now, the federal court system

5:42

has a lot of really high profile

5:46

constitutional cases, it's sort

5:46

of a lot of the history of the

5:50

politics of an issue like

5:50

abortion or racial desegregation

5:53

is wound up in the behavior of

5:53

the federal courts, but don't

5:56

sleep on state courts, as in a

5:56

lot of things the states have

5:59

become more and more important

5:59

in American life, in recent

6:03

decades, moving to the center of

6:03

a lot of our national political

6:05

debates, and state courts are

6:05

absolutely a case of that. Now,

6:10

states do most of the criminal

6:10

justice and civil justice that

6:14

you see, so your average person

6:14

who is caught on a drug or

6:19

traffic violation is handled by

6:19

the state courts, a lot of

6:22

things that appear to be local,

6:22

are actually local courts of the

6:26

state of wherever you are. So

6:26

Washington County does not have

6:29

an independent judicial system.

6:29

Michigan has a judicial system,

6:33

which includes judges and courts

6:33

in Washtenaw County. In other

6:38

words, the state's do most of

6:38

the practical law. And there are

6:41

50, big and fleshed out judicial

6:41

and civil and criminal justice

6:46

systems. Furthermore, states

6:46

have their own constitutions,

6:49

and they have their own

6:49

constitutional law, which is

6:52

interpreted by their own Supreme

6:52

Courts. Now, how these courts

6:57

are selected varies widely,

6:57

there's a lot of, let's say,

7:03

creativity, shown by the states

7:03

in how they choose their Supreme

7:08

Court judges, and what kinds of

7:08

oversight they're subjected to.

7:11

But the key thing is that the

7:11

judges are frequently much more

7:15

connected to the political

7:15

process much more likely to be

7:18

term limited than you see at the

7:18

federal level. So for example,

7:22

in Michigan, the judges on the

7:22

state Supreme Court go up for

7:25

election and re election,

7:25

they're on fairly long terms,

7:28

they rotate, so you can't vote

7:28

out the entire Supreme Court in

7:31

one election. And in order to

7:31

preserve a mirage of judicial

7:36

impartiality, the parties can

7:36

nominate judges, so judges

7:39

clearly have Team Red and Team

7:39

blue jerseys on, but that's not

7:43

printed on the ballot. So when

7:43

you go into vote, all you see

7:46

are the names of these people.

7:46

And you have to, I guess hope

7:49

that you know, or the candidates

7:49

certainly hope that you know,

7:52

the partisan affiliation of the

7:52

judges in question, because

7:55

unlike essentially every other

7:55

job, University of Michigan

7:58

region, Governor, you're not

7:58

told the party even though the

8:02

parties clearly endorse and work

8:02

with judicial candidates. So at

8:06

the moment, Michigan has a

8:06

political court with party

8:10

affiliations, except that's

8:10

deliberately obscured from

8:12

voters in a way that drives down

8:12

participation in the election of

8:16

the Michigan Supreme Court. Now, what this means is that

8:19

you've had a number of stitch in

8:23

time saves nine events in which

8:23

the political coloration of a

8:27

state Supreme Court has

8:27

essentially decided that state's

8:29

politics. So for example,

8:29

Michigan has had for a couple of

8:33

years now a Democratic majority

8:33

on the state Supreme Court,

8:36

which has done a lot to change

8:36

the direction of judicial

8:42

conservatism. That is, for

8:42

example, still continuing in

8:44

Wisconsin, which has been left

8:44

by the state Supreme Court with

8:47

effectively a system run by a

8:47

Republican legislature a

8:50

rewriting of the state

8:50

constitution, to disempower the

8:53

governor. Now, what are your

8:53

takeaways? First of all, courts

8:57

are political, because the questions that are most important that they decide are

8:59

political, and even the

9:01

unimportant questions are

9:01

typically political to the

9:03

people who matter to them. It's

9:03

about a conflict of interests.

9:07

So while they're bound, and

9:07

they're legitimated by

9:09

understanding the law, they also

9:09

can frequently make the law and

9:13

they also can do it and

9:13

explicitly do it with policy

9:16

goals in mind. Do not let

9:16

anybody tell you that the

9:19

Supreme Court calls balls and

9:19

strikes like an umpire because

9:23

unlike an umpire the Supreme

9:23

Court is capable of deciding the

9:26

rules of the game and who wins.

9:26

Secondly, a vast amount of the

9:31

actual justice that you see is

9:31

in state and local courts, and

9:35

you want to pay a lot of

9:35

attention to them despite the

9:37

allure and the national focus of

9:37

the constitutional debate at the

9:40

federal level. And don't put

9:40

them on a pedestal is my third

9:44

point. They're political actors.

9:44

They're really no more

9:47

interesting than legislators.

9:47

Their senior judges are no more

9:51

interesting or thoughtful by and

9:51

large than your average senator.

9:56

The difference is that your

9:56

senators do not have a

9:58

surrounding apparat Have law

9:58

schools and legal commentary to

10:02

justify and give credence to

10:02

their decisions. If the senator

10:07

says something, people are more

10:07

or less expected in large

10:10

numbers to say that's a stupid

10:10

thing to say, whereas if the

10:12

Supreme Court says it

10:12

traditionally, it's been law

10:15

invalidated as such. So, next

10:15

part, the story, the story of

10:23

American legislation, and the

10:23

court system is really important

10:27

and interesting, because the

10:27

courts have been traditionally

10:30

very, very important in all

10:30

aspects of American public

10:34

administration of life. Up to

10:34

the 1960s, the law was a kind of

10:39

glue. The whole American

10:39

political system, in many ways

10:44

was held together by lawyers,

10:44

and not just any old lawyers,

10:48

very homogeneous bunch of

10:48

essentially white Anglo Saxon

10:51

Protestant lawyers all the way

10:51

up through the 1960s. So women,

10:58

black people, Catholics, people

10:58

of Polish, or Irish descent

11:02

largely frozen out. This meant

11:02

that the political and judicial

11:06

elite of the country had sort of

11:06

a much higher level of basic

11:09

understanding of each other than

11:09

you might otherwise anticipate.

11:13

This broke up in the 1960s in a

11:13

very dramatic way, even if the

11:17

demographics of the legal

11:17

profession took far longer to

11:20

start to shift. You saw a shift

11:20

away from the courts being an

11:24

essentially small c conservative

11:24

glue for the country to being

11:29

recognized as one more very

11:29

intense and autonomous political

11:33

arena. That was how it came to

11:33

be, for example, that under the

11:37

Warren Court, one of the rare

11:37

Supreme Courts of the liberal

11:40

majority in American history,

11:40

you saw decisions like Brown

11:43

versus Board of Education

11:43

desegregating the schools, which

11:46

nobody took as a decision that

11:46

was outside politics, or 1973.

11:51

Roe versus Wade, which

11:51

recognized abortion, and in many

11:54

ways, was the progression of a

11:54

whole line of jurisprudence that

11:58

the court had been developing

11:58

for about 15 years surrounding

12:00

the right to privacy. Starting

12:00

with the decision Griswold

12:04

versus Connecticut, which was

12:04

what said, there's a right for

12:06

married couples to use

12:06

contraception in their homes

12:09

against law from 1879 in

12:09

Connecticut.

12:14

After the 1960s, something very

12:14

interesting happened. Liberals

12:18

and Conservatives agreed that

12:18

the Supreme Court and the

12:20

federal judicial system had

12:20

become much more hospitable to

12:23

liberals and their views.

12:23

Liberals became increasingly

12:26

entrenched in law schools where

12:26

to this day, you see a very

12:29

significant liberal but a

12:29

liberal preponderance among the

12:33

students and among the faculty.

12:33

And a lot of that liberalism

12:37

was, in a sense, what you would

12:37

expect, which was it was very

12:39

social liberalism, it was not so

12:39

much focused on for example,

12:42

union rights as it was on for

12:42

example, privacy rights.

12:47

Conservatives recognize this big

12:47

business recognized it people

12:51

who were interested in opposing

12:51

racial desegregation or abortion

12:55

rights recognized it. And they

12:55

began to try and come up with

12:58

some sort of a counter offensive

12:58

to the rights focused liberalism

13:02

that they saw as permeating the

13:02

judicial system to the detriment

13:06

of their interests and goals.

13:06

They came up with a number of

13:08

schemes. One of them was law and

13:08

economics whose influence you

13:12

see, for example, in antitrust

13:12

law, and antitrust law right

13:16

now, one of the key areas where

13:16

its power and potential change

13:20

is being tested, is in health

13:20

care provider mergers, so pay

13:24

attention. Lon economics is

13:24

essentially the idea that the

13:27

method that courts should apply

13:27

should be drawn from economics,

13:32

not economics, necessarily in

13:32

the sense of clever, inferential

13:35

empirical strategies, but

13:35

economics in the sense of a

13:38

great deal of faith in markets,

13:38

a focus on and goals of focus on

13:42

choosing the most efficient,

13:42

underline the word efficient way

13:46

to achieve something. So it's no

13:46

surprise that, for example, one

13:49

of the Paragons of the law and

13:49

economics Movement said that

13:52

adoption should be run through a

13:52

price mechanism. So you pay to

13:54

adopt children. And he made

13:54

arguments for that. That was

13:57

Richard Posner, the most cited

13:57

legal academic in history. In

14:01

other words, line economics was

14:01

a very it turned out business

14:04

friendly way to, for example,

14:04

argue that there shouldn't be a

14:07

right to clean water. But that

14:07

clean water involves trade offs,

14:10

and we should decide what price

14:10

certain people should be made to

14:13

pay for having access to clean

14:13

water. And except possibly that

14:17

some people aren't going to get

14:17

clean water because the price is

14:20

going to be too high. And then

14:20

that there's a whole set of

14:23

allocation or decisions about

14:23

who should pay for that clean

14:26

water. You can imagine, of

14:26

course, how this could very

14:29

easily be hijacked into

14:29

concluding, for example, that

14:32

environmental racism is just

14:32

fine because the people who have

14:35

to pay for it are ones who are

14:35

politically powerful. Another

14:39

stance is originalism. Now

14:39

originalism is the thesis that

14:42

you should read the Constitution

14:42

as the founders would have

14:45

intended it. It's difficult to

14:45

present originalism fairly

14:52

because it's so transparently

14:52

political. First of all, it

14:57

encodes the belief that the

14:57

things that In the heads of the

15:00

founders who, for example, did

15:00

not conceive of political

15:04

parties should be used to drive

15:04

politics in 2022. It implicitly

15:08

says that amendments should be

15:08

viewed in the time of that they

15:13

were passed. So for example, the

15:13

dobs decision that put an end to

15:16

Roe versus Wade in the United

15:16

States pretty explicitly says

15:19

that the Reconstruction

15:19

amendments which substantially

15:22

reshaped the American state

15:22

after the Civil War, don't

15:25

include any rights such as a

15:25

right to abortion that were

15:27

unknown or unattractive to the

15:27

people who pass to that it's

15:31

explicit in the Alito

15:31

controlling decision of the

15:33

Supreme Court in Dobbs, that you

15:33

should go with the original

15:36

attempt, as the Court

15:36

understands it of the mid 1860s.

15:40

There's two problems here, first

15:40

of all, is the normative one,

15:42

that it's not clear why you

15:42

should privilege what people

15:45

thought in the 1860s and 1870s,

15:45

as a guide for policy in the

15:49

2020s. And the second is the

15:49

empirical one, that there's

15:54

really no basis on which to say

15:54

that you can ever divine the

15:58

original intent, go back to the

15:58

kind of founding problem of the

16:02

Constitution, which is that they

16:02

didn't anticipate or want

16:04

political parties. And then most

16:04

of the people who signed the

16:07

Constitution went and founded

16:07

political parties. So it was the

16:10

intent of the founders, that

16:10

there be political parties, you

16:13

have to ask the founders in when

16:13

they signed the Constitution

16:16

versus in 1801, when they were

16:16

having an absolute bloodbath of

16:19

a political contest. Now, those are ideological

16:22

responses law and economics and

16:25

originalism and they're both

16:25

very powerful although

16:27

originalism increasingly shows

16:27

the extent to which is

16:30

essentially just a conservative

16:30

project. Now, the Federal

16:34

society is a very, very

16:34

effective mechanism to turn all

16:38

these ideological ideas which

16:38

would remain entrenched in law

16:41

journals into some actual

16:41

effective political action. The

16:45

Federalist Society comes off as

16:45

sort of a debating society and

16:49

lots and lots of people have

16:49

participated in high quality

16:51

well catered Federalist Society

16:51

events. It also effectively

16:55

constitutes the farm team, for

16:55

conservative in particular

16:59

federal judicial promotions.

16:59

When Donald Trump made his

17:03

breakthrough and was honest

17:03

about judicial appointments at

17:05

the federal level, one of the

17:05

things he said is he had a list

17:08

of judges from the Federalist

17:08

Society whom he would approve.

17:12

Now remember what I said about

17:12

how law schools are

17:15

disproportionately liberal and

17:15

elite law students are

17:17

disproportionately liberal. And

17:17

that matters because of the

17:20

ridiculous dominance of Harvard

17:20

and Yale, in the Federal

17:24

Judicial hierarchy. What you see

17:24

when you actually study judicial

17:28

careers, is that conservatism

17:28

doesn't predict career success

17:34

until you get to very high

17:34

levels of politics. So when you

17:37

get into things like federal

17:37

appellate judges, having been a

17:40

conservative, very, very much

17:40

helps you so you see affirmative

17:44

action from conservatives coming

17:44

from the political system as a

17:47

quite explicit counterweight to

17:47

the perceived liberal dominance

17:51

of elite law overall, this is

17:51

the political structure of the

17:56

conservative counter offensive

17:56

against the liberal courts that

18:00

we're changing America in the

18:00

1950s. In the 1960s. It took a

18:03

while to gel, but it worked

18:03

extremely well and gave us the

18:06

Trump court. So what this sums

18:06

up to is that you had an

18:11

explosion in law in the 1960s,

18:11

when a number of things such as

18:14

a liberal Supreme Court, and

18:14

changes in broader American

18:18

society, such as the admission

18:18

of women, for example, which is

18:21

a thing a number of Supreme

18:21

Court judges actually sitting on

18:24

the court today opposed at their

18:24

universities. And in response to

18:30

this liberal power, an explicit

18:30

well organized multi decade well

18:35

funded, conservative set of

18:35

responses, which included an

18:38

effort to introduce economic

18:38

reasoning in order to prevent

18:42

essentially rights based

18:42

regulatory policies getting out

18:45

of control, and also

18:45

originalism, which combines the

18:48

empirical proposition that you

18:48

can figure out what the Founders

18:51

intended with a normative

18:51

proposition that the guiding

18:54

principle of racial politics or

18:54

sexual politics in the 2020s

18:59

ought to be the intention of

18:59

people when they passed an

19:03

amendment to the Constitution in

19:03

the late 18th century or the mid

19:07

19th century or whatever. Now,

19:07

all of this is made possible by

19:12

the fact that Republican voters

19:12

fundamentally have cared about

19:14

the courts. We have had decades

19:14

and decades of public opinion,

19:18

asking voters what matters to

19:18

them, inferring in political

19:22

science research, what voters

19:22

care about, and we found that

19:24

Republican voters really cared

19:24

about the courts and in

19:27

particular, conservative white

19:27

evangelical voters really cared

19:30

about the courts. Democrats, not

19:30

so much. There are a number of

19:36

reasons for this, but Democrats

19:36

routinely would say that their

19:39

favorite branch of the federal

19:39

government was the court and

19:41

give much higher scores for

19:41

popularity and credibility and

19:45

respect to conservative judges

19:45

such as Chief Chief Justice

19:48

Roberts, then to many Democratic

19:48

politicians. A lot of this has

19:52

to do with the fact that the

19:52

Republicans are generally more

19:54

coherent and ideological party

19:54

and the Democrats are much more

19:57

a coalition of people seeking

19:57

individual policies. Now here

20:03

next part we come up to today

20:03

because what I just described a

20:09

successful conservative counter

20:09

offensive against an entrenched

20:12

kind of law school liberalism,

20:12

which was working increasingly

20:16

well and fueled by the

20:16

organizational mechanisms of the

20:19

Federalist Society and the deep

20:19

interest of the Republican

20:23

electorate as well as

20:23

politicians and conservative

20:25

judges. That brings us up to the

20:25

Trump courts. story begins in

20:30

2016. When Antonin Scalia, one

20:30

of the courts notable

20:32

conservatives and a really

20:32

excellent writer died.

20:36

Typically, the President would

20:36

nominate his replacement Barack

20:40

Obama. Barack Obama nominated

20:40

Merrick Garland, who later

20:44

become Joe became Joe Biden's

20:44

Attorney General garden's

20:47

nomination was held up. The

20:47

Senate simply refused under a

20:53

Republican Leader Mitch

20:53

McConnell simply refused to

20:55

entertain it with the argument

20:55

that you shouldn't appoint a

20:57

judge too close to the election

20:57

because something something the

21:00

real reason was that McConnell

21:00

figured that there might be a

21:02

Republican victory in the 2016

21:02

presidential election and he

21:05

wanted to give this case C to a

21:05

Republican. Then Justice Anthony

21:10

Kennedy strategically retired as

21:10

a Republican while there was a

21:13

Republican president, and he was

21:13

replaced by a Republican. And

21:18

then finally, Ruth Bader

21:18

Ginsburg died, at which point it

21:20

became clear that judicial

21:20

priorities of the liberals were

21:24

pretty much doomed. Although I

21:24

was one of the many people

21:28

saying in 2016, that this was

21:28

the end of Roe versus Wade, it

21:31

just takes a while to come.

21:31

After Ruth Bader Ginsburg died,

21:35

they immediately rushed through

21:35

me Coney Barrett, conservative

21:38

law professor from Notre Dame a

21:38

month before the election, while

21:42

people were actually voting

21:42

don't bother with the hypocrisy

21:45

that Mitch McConnell showed

21:45

because he got what he wanted.

21:47

And he won. What he won was a

21:47

six, three courts, six, three

21:52

conservative dump majority on

21:52

the Supreme Court. Now,

21:57

especially as we approach the

21:57

end of the first term, or only

22:02

term of the Joe Biden presidency

22:02

is much more even at the lower

22:04

court level. Biden, unlike his

22:04

predecessor, predecessor, Obama,

22:07

on the Democratic side has been

22:07

very, very interested in getting

22:11

judges confirmed. So at the

22:11

lower levels, the district and

22:15

the circuit levels, you see a

22:15

much more even partisan balance,

22:19

but at the top, you have a six

22:19

three Supreme Court. The

22:22

implication of a six three

22:22

Supreme Court is that you can

22:25

have a conservative judge on any

22:25

given issue, be a bit of a

22:29

squish and not quite agree with

22:29

his or her colleagues, and still

22:33

have a five four conservative

22:33

decision. You see this over and

22:37

over again. In Dobbs, for

22:37

example, the Chief Justice ended

22:41

up on his own writing an

22:41

opinion, arguing that they

22:44

shouldn't be so radical as to

22:44

say, as the majority did that

22:48

Roe versus Wade had been wrongly

22:48

decided. And instead, they

22:51

should do what he had been

22:51

advocating in a variety of

22:53

areas, which is a much more

22:53

gradualist approach of

22:55

permitting, and lessly more

22:55

difficult restrictions on

22:59

abortion providers. Well, fine

22:59

in a five four court, that would

23:03

matter. It was his vote, for

23:03

example, that saved the

23:06

Affordable Care Act in NFIB

23:06

versus Sebelius. But even if he

23:10

defected, there's still a five

23:10

vote majority to overturn Roe

23:13

versus Wade. And that is exactly

23:13

what happened in the dobs

23:16

decision. So for the foreseeable

23:16

future, given the ideological

23:20

steadiness observed over decades

23:20

by the Federalist Society,

23:25

because this matters too much to

23:25

leave it to amateurs, the

23:30

relative youth and health of the

23:30

judges and the likelihood of

23:34

Republican presidents in the

23:34

future, you can expect a pretty

23:37

consistent conservative majority

23:37

barring some sort of a change in

23:41

the basic composition, meaning,

23:41

for example, the size of the

23:46

Supreme Court, you can't put

23:46

life limits on without amending

23:50

the Constitution. But there's a

23:50

lot that potentially could

23:52

happen. And I'll come back to

23:52

that. In the meantime, what are

23:56

the constraints that the Supreme

23:56

Court majority faces because on

24:01

the face of it, they look pretty

24:01

good. They're there for life.

24:04

They're not really accountable

24:04

to anybody, and they finally

24:06

have an ideological chance to

24:06

repair the damage Alito makes it

24:10

very clear in the Dobbs

24:10

decision, that decades of

24:13

liberalism and conservative

24:13

weakness have allowed to happen

24:15

to American society. Well, the first constraint is

24:18

simply legitimacy. And this has

24:23

been the point that Chief

24:23

Justice Roberts likes to make,

24:26

which is that the court in

24:26

Hamilton's words is the one of

24:30

the weakest branches because it

24:30

has to rely on decisions being

24:34

brought to it and then it has no

24:34

independent enforcement power of

24:36

its own, and it can't claim to

24:36

represent the people. So Roberts

24:41

is constantly saying that the

24:41

court should get away with as

24:44

much as it can, and it's

24:44

preferred ideological direction.

24:46

He doesn't describe it that way.

24:46

Without getting any kind of a

24:51

public blowback in public

24:51

opinion or in legislative

24:54

activity or in opposition to the

24:54

courts. And this is an argument

24:58

that courts do seem to take

24:58

Seriously that plummeting

25:01

legitimacy for the courts they

25:01

do regard as a problem is the

25:05

popularity of the court actually

25:05

a significant constraint? Well,

25:11

in a sense, so long as you have

25:11

a Senate, that is a very, very

25:15

difficult place to make liberal

25:15

legislation, and a Democratic

25:20

Party that tends to focus on

25:20

concrete policies like say,

25:23

Medicaid, instead of procedural

25:23

change, like, say, changing the

25:27

size of the Supreme Court, it's

25:27

not really clear that the

25:31

Supreme Court has got all that

25:31

much to worry about. And this is

25:34

an argument that conservatives

25:34

in the majority on the Supreme

25:36

Court have been known to make,

25:36

which is that the axis of the

25:40

Senate and a conservative

25:40

Supreme Court is actually while

25:43

it might not give conservatives

25:43

everything that they want, that

25:46

might be a very solid base on

25:46

which to govern the United

25:49

States for most of the

25:49

foreseeable future. Now, what

25:53

does this mean? A number of

25:53

things. First of all, it means

25:56

the public health powers are

25:56

likely to be limited and looked

26:00

upon with disfavor by the

26:00

conservative Supreme Court, even

26:04

if you might find a more mixed

26:04

bag at the state. And the lower

26:08

federal court levels. It means

26:08

something very important, which

26:14

is that there's an increasing

26:14

General Hostility to regulation.

26:17

And this is what people are

26:17

talking about when they talk

26:20

about things like Chevron

26:20

deference and the non delegation

26:23

doctrine, namely that the

26:23

current structure of the

26:28

administrative state going back

26:28

a very long time. And this is

26:31

the whole underpinning of things

26:31

like the American Administrative

26:34

Procedures Act depends on

26:34

agencies being authorized by

26:39

statute to make regulations. So

26:39

for example, the EPA is

26:42

authorized to regulate against

26:42

new chemicals that constitute a

26:46

problem. And the legislation is

26:46

explicit that the EPA should

26:52

have the autonomy to identify

26:52

new problems. So if a chemical

26:54

that wasn't a problem decades

26:54

ago, when they pass the law

26:57

comes to be seen as a problem,

26:57

then the EPA should be able to

27:00

follow the science and the developing state of the environment. Now, this is not a

27:02

conservative goal, because it

27:05

empowers agencies to develop new

27:05

regulations. What you would

27:09

prefer, as a conservative is something called the non delegation doctrine, which is to

27:11

say that these agencies are too

27:14

powerful and that decisions

27:14

should be made by legislatures

27:17

because as we all know, American

27:17

legislatures are both very

27:20

political and often much more in

27:20

tune with conservative

27:23

objectives than an agency being

27:23

told to follow science on an

27:26

issue like exposure analysis. So

27:26

what you're seeing is a very,

27:30

very strong, very popular with

27:30

business push, the regulation

27:35

should become something that has

27:35

to be mandated by the

27:37

legislature and is not something

27:37

that you can delegate to the

27:40

executive or in particular to

27:40

agencies. There's a lot on

27:44

religious freedom. Now,

27:44

religious freedom and privacy

27:47

are kind of bound up together

27:47

here. But religious freedom

27:51

refers to the extent to which

27:51

you can say that because you're

27:53

doing something in accordance

27:53

with your religion, you are not

27:57

bound by the civil law that

27:57

would otherwise affect

27:59

everybody. And this is, for

27:59

example, the Hobby Lobby case

28:02

and a number of associated cases

28:02

on the Affordable Care Act,

28:06

where religious freedom has been

28:06

the basis for court decisions

28:11

that maintain that even filling

28:11

out a form saying that you as an

28:17

employer do not plan to provide

28:17

health insurance is an

28:21

imposition on their religious

28:21

freedom to not provide health

28:24

insurance. So the ACA contains

28:24

work arounds to create insurance

28:27

policies that will cover

28:27

abortion, but they can't even

28:31

ask the employer to fill out a

28:31

form saying that they don't want

28:33

to cover abortion because

28:33

religious freedom says they

28:35

don't have two religious freedom

28:35

cases are ones that you

28:38

constantly find, for example,

28:38

and whether or not you can send

28:41

public religious freedom

28:41

arguments are ones that you find

28:44

in for example, questions about

28:44

whether you can give public

28:47

money to religious schools, or

28:47

whether these kinds of endless

28:51

cases that you see about whether

28:51

or not a company, which can

28:55

decide that it doesn't want to

28:55

serve customers, for example,

28:58

the famous Indiana case of

28:58

whether a baker has to make a

29:02

cake for anybody who wants to

29:02

come even if they're personally

29:05

opposed to gay marriage and

29:05

don't want to make a cake for

29:07

two guys wedding. Now, privacy. Next one, this

29:10

goes back to Griswold versus

29:13

Connecticut, which was the

29:13

holding that married couples

29:15

should have access to

29:15

contraception. And that was the

29:18

first case that nominated a

29:18

right to privacy as part of the

29:20

constitutional rights,

29:20

especially the Reconstruction

29:24

Amendments of the 1860s. Now

29:24

dabbs in many ways puts that

29:31

whole privacy law jurisprudence

29:31

into question because there's a

29:37

empirical originalist question

29:37

as to whether they understood

29:39

privacy in the 80s and 60s and

29:39

1870s, which is why dobs is full

29:43

of historical annexes about

29:43

state laws. But if we don't have

29:47

Griswold if we don't have the

29:47

right to privacy doctrine,

29:50

holding in the Supreme Court, a

29:50

whole lot of other things fall,

29:53

same sex marriage Obergefell is

29:53

a decision that would fall

29:56

Loving versus Virginia, which

29:56

overrode state bans on it.

30:00

racial marriages would fall, you

30:00

would find a whole lot of areas

30:04

of American constitutional

30:04

jurisprudence where we would

30:06

dial back to the 1850s. And in

30:06

terms of the age of some of

30:09

these statutes, actually the

30:09

1870s. So finally, politics,

30:16

arguably, while John Roberts has

30:16

been comparatively cautious and

30:20

institutionalist, on a lot of

30:20

things, he has been the leader

30:23

for pretty much his entire

30:23

career along with Brett

30:25

Kavanaugh and a number of other

30:25

senior people on the court of a

30:30

movement that is skeptical of

30:30

efforts to increase access to

30:34

the ballot and specifically of

30:34

efforts to increase black

30:39

representation in politics. So

30:39

we've got a couple of decisions

30:43

Shelby County versus Virginia

30:43

ratio versus Common Cause, which

30:47

have basically opened the way

30:47

for state legislatures to

30:49

interfere dramatically with

30:49

election rules and election

30:53

results in order to produce

30:53

their desired outcomes. Now, all

30:57

of these put together put liberals in a trap, right, because for example, the jobs

30:59

decision says the state

31:01

legislature should get to decide

31:01

abortion rights. But Rocio

31:04

versus Common Cause, Citizens

31:04

United essentially make it much

31:08

harder for citizens in states to

31:08

actually affect those states

31:13

politics. So they're suspicious

31:13

of states becoming more

31:17

democratic, and in particular,

31:17

they're suspicious of things to

31:20

do with changing the balance of

31:20

racial representation in

31:25

American politics. So that's

31:25

what we are, what goes into the

31:29

future. Remember, I said

31:29

Democratic voters haven't been

31:33

that interested in courts and

31:33

Republican voters have been

31:35

interested in courts since

31:35

Dobbs, that appears to have been

31:39

changing. Democrats have very

31:39

substantially swung over the

31:44

course of 2022. From believing

31:44

that the courts were something

31:48

like the umpires in a ball game

31:48

to believing that the courts are

31:52

an instrumental policy focused

31:52

agency of the Republican Party.

31:55

The extent to which you have

31:55

seen a collapse in Democratic

31:58

support for the Supreme Court

31:58

has been dramatic, less so among

32:00

independents. Furthermore,

32:00

you're seeing a lot of

32:04

Democratic politicians

32:04

discovering something that isn't

32:06

their natural register their

32:06

natural registers to talk about

32:09

prescription drug prices, which

32:09

is to start to say that the

32:12

courts are getting out of line.

32:12

Historically, when this happens,

32:16

the courts tend to sort of rein

32:16

in a little bit because they

32:19

realize on some level that their

32:19

legitimacy is being challenged.

32:22

If Democrats actually are in

32:22

control of Congress and the

32:26

Senate and the White House and

32:26

want to do something about it,

32:28

there's tons of things they can

32:28

do, they can legislate, to say

32:30

that the courts don't have

32:30

judicial oversight at this

32:33

point. They can legislate on the

32:33

courts themselves, they can

32:36

expand the Supreme Court and

32:36

appoint a bunch of new judges,

32:40

or less radically, they can use

32:40

proposals like that to pressure

32:43

the judges into thinking they're

32:43

politically exposed and might

32:45

want to get a little bit less

32:45

extreme and pay more attention

32:49

to conservative

32:49

institutionalist. John

32:51

Robertson, less attention to the

32:51

firebrand is like Samuel Alito,

32:55

and Clarence Thomas, who have

32:55

some very, very conservative

32:58

views and don't see why a 5463

32:58

conservative majority should

33:02

stop them from pushing it. So that's where we are a

33:05

somewhat unsettled moment, a

33:07

very empowered conservative

33:07

Supreme Court that could very

33:11

well go all the way back to

33:11

Griswold we really don't know

33:15

whether we're going to see them

33:15

trying to accept cases that

33:19

would undermine gay marriage or

33:19

interracial marriage or access

33:24

to contraception or things to do

33:24

with transgender care. We really

33:28

don't know. They're not

33:28

supportive of efforts to expand

33:32

access to the ballot and better

33:32

representation in American

33:36

politics. They're very

33:36

supportive of claims the normal

33:39

American civil law infringes on

33:39

religious liberty, they have a

33:43

very strong and coherent

33:43

worldview, which has been built

33:45

over decades. Democrats, in many

33:45

ways didn't pay attention to

33:50

these issues, and the courts

33:50

outside very narrow sort of

33:53

reproductive rights areas, which

33:53

were just one small segment of

33:56

the broader Democratic

33:56

coalition. What we have yet to

33:59

see and where we have, frankly,

33:59

remarkably little historical

34:02

evidence to go on, particularly

34:02

on the federal level, is what

34:06

the effect is of Democratic

34:06

voters coming to identify, in

34:09

particular the federal judiciary

34:09

as part of the Republican Party

34:13

and showing the negative

34:13

partisanship that by and large,

34:17

Democrats and Republicans show

34:17

towards anything dominated by

34:19

the other political party. The

34:19

other point is that state courts

34:22

are becoming increasingly

34:22

important states are once again

34:25

moving to the center of our

34:25

nationalized political stage. So

34:28

for example, the state of

34:28

abortion rights in the state of

34:31

Michigan doesn't just depend on

34:31

federal legislation and federal

34:36

courts. It also depends on

34:36

elections to and decisions by

34:40

the Michigan Supreme Court.

34:40

Enforcement then depends on

34:43

state attorneys general and

34:43

local prosecutors, which is how

34:47

you end up with this very

34:47

strange long interregnum after

34:50

the Dobbs decision was initially

34:50

leaked, in which abortion was

34:54

legal in all sorts of different

34:54

ways, while simultaneously being

34:57

visibly under threat and That's

34:57

how you still saw these long

35:01

periods of time while court

35:01

cases and injunctions and State

35:04

Supreme Court cases interacted

35:04

with federal and state

35:07

legislators in order to shape

35:07

abortion access. So state courts

35:12

are becoming increasingly important in state constitutional law, state

35:14

enforcement, meaning things like

35:18

your county prosecutor are

35:18

important not just in

35:21

reproductive rights, but in, for

35:21

example, anything to do with

35:23

changes in the structure of

35:23

policing. The Federal Supreme

35:27

Court is extremely conservative,

35:27

and for the first time in

35:30

essentially recorded history of

35:30

public opinion, being perceived

35:34

correctly, might I add, as a

35:34

partisan instrument by partisans

35:39

of the opposing party, which

35:39

could lead to more political

35:43

pressure on the court now on

35:43

paper, putting political

35:45

pressure on the court doesn't

35:45

matter so long as there's the

35:47

Senate to protect them. But

35:47

nonetheless, that's an area to

35:51

watch the space because we

35:51

really don't know how much

35:54

pressure the court with its

35:54

current occupants is willing to

35:57

take from politicians. So this

35:57

is arguably one of the most

36:02

complex and important areas but

36:02

it affects every dimension of

36:05

people's lives. And I think if

36:05

there's anything to celebrate

36:09

over the last few years of

36:09

American judicial politics, it

36:12

is the extent to which it has

36:12

stripped away a lot of the old

36:16

rhetoric about impartiality and

36:16

the idea that Judiciary's are

36:20

above politics. They're not

36:20

they're appointed by politicians

36:23

to solve political questions

36:23

served up by politicians, and

36:27

whatever else you say about

36:27

them. Democratic judge, liberal

36:30

judge, conservative judge,

36:30

Republican judge, they're

36:32

certainly doing that.

36:43

This has been an

36:43

HMP Governance Lab podcast. If

36:46

you're interested in learning

36:46

more about our research can find

36:49

us at www dot governance lab.org

36:49

or follow us on Twitter at HMP.

36:55

Gov