Arguably, a Supreme Court appointment is the greatest prize in American politics, perhaps more so than the presidency. In consequence, these positions lend themselves to manipulation and tactical moves where possible, in spite of past norms. ABA Law Student Podcast host Meg Steenburgh welcomes Professor Todd Berger to discuss the concept of court packing, its connotations and implications, and how it could actually bring balance to the Supreme Court. They also discuss the report generated by Biden’s Presidential Commission on SCOTUS, and whether their findings offer any clarity on potential reforms in the Court.
Professor Todd A. Berger is a Professor of Law and Director of Advocacy Programs at Syracuse University College of Law.
Special thanks to our
Intro: Welcome to the official ABA Law Student Podcast where we talk about issues that affect law students and recent grads from finals and graduation to the bar exam and finding a job. This show is your trusted resource for the next big step. You’re listening to the Legal Talk Network.
Meghan Steenburgh: Hello and welcome to another edition of the ABA Law Student Podcast. I’m Meg Steenburgh, a 3L at Syracuse University College of Law JDi program. Today, we are honored to have with us, Professor Todd Berger, a professor of law at Syracuse University College of Law also serving as director of advocacy programs. Professor Berger’s scholarship is concentrated in the areas of criminal law and procedure as well as the intersection of trial advocacy and attorney ethics.
Graduating classes continually award Professor Berger with the highest of honors, The college’s Res Ipsa Loquitur Award for Outstanding Faculty Member for Service, Scholarship and Stewardship to the students. Prior to joining Syracuse, Professor Berger was the founding managing attorney of the Federal Prisoner Reentry Project at Rutgers School of Law-Camden. He’s also worked as an assistant public defense attorney with a Defender Association of Philadelphia and supervisor in the municipal court and felony waiver units. Finally, he served as lecturer and law at the University of Pennsylvania School of Law. Professor Berger earned a bachelor’s degree from George Washington University, a Juris doctor from Temple University School of Law, and an LL.M. in trial advocacy from Temple University. Professor, thank you for joining us today.
Todd Berger: Thank you, Meghan. It’s great to be here and looking forward to a great conversation.
Meghan Steenburgh: Today, we’re going to talk about court packing as you know. This conversation comes on the heels of a Capitol Hill press conference in which eight House Democrats called for HR 2584 to move out of committee and that amends Title 28 of the U.S. Code to allow for 12 associate justices of the Supreme Court of the United States. In essence, that really is all it says. Democrats introduced this bill in April of 2021 and now in July of 2022, the Democrats want to resuscitate that bill that has gone nowhere. It remains in committee and this call follows recent Supreme Court decisions concerning not only jobs, which overturned Roe and Casey, but also recent SCOTUS decisions that affect Miranda rights, gun control and religion.
Core packing, the composition of the Supreme Court, it’s a conversation that seems to be happening more frequently now from Capitol Hill to law school corridors. Let’s start with the basics, Professor. How do you define core packing?
Todd Berger: Yes, that’s a great question. I think you can look at it really from the intense political perspective which is the idea that you would add justices to a court that would essentially be more inclined to side with the views of one particular political party. If you think back to sort of the court packing case that most students are probably familiar with, maybe even from high school history. It’s FDR and his court packing plan and it didn’t succeed legislatively, but it may have succeeded historically, created as some historians see it to switching 9 that save time and a justice changed their view and began to sort of not strike down the new deal legislation FDR proposed.
I think when people think of the phrase court packing, there’s this idea that it’s one party attempting to try and accomplish something that serves their political ends. I think there are moves and we can talk about it throughout the podcast, there are ways to think of core packing, not as a (00:03:42) of a way, but a way that the composition of the Court can be changed to rebalance it in a way that ensures less domination of the Court by one particular political party, and maybe more fairness and balance on how the Court’s making its decisions. I wouldn’t really call that later part court packing, although it certainly could involve the adding of justices to expand the Court beyond, its current size of 9.
Meghan Steenburgh: How much of this is just sheer luck combined with strategy and not something, as you say, it may not be malicious necessarily, but just sheer luck with the strategy, the political strategy that goes along with it.
Todd Berger: It’s a combination of both. Donald Trump was a one-term president. He had four years. He got three justices on the Court. One of those justices, Neil Gorsuch, you can view as a question of strategy and it wasn’t Donald Trump strategy, but it was Mitch McConnell’s strategy to hold up the nomination process for Merrick Garland and that resulted in you don’t know who’s going to win the elections. I suppose you could say there’s some element of luck in that and who wins in 2016 but that was a strategy that ultimately put the GOP in place to have that particular Supreme Court appointment.
But then there’s just luck. Scalia dies and that opens up a spot on the court and Ruth Bader Ginsburg dies and that opens up a spot on the court. In that sense, you’re just getting the luck of the draw. I mean, Donald Trump got three and he was there for one term. Jimmy Carter was there for one term, and got none. Bill Clinton was there for two terms, eight years, and Bill Clinton got two. A lot of it really is just kind of the luck of the draw, but some of the process can be manipulated through strategy as well.
That’s an aspect of Supreme Court appointment process that didn’t necessarily use to be there. I mean, if you look at kind of who got appointed to the Supreme Court before and the confirmation process, it was really simple. Ruth Bader Ginsburg was almost unanimous in her approval to the Supreme Court. In the ‘50s, there are Supreme Court Justices who had confirmation hearings that lasted a day. Now, it’s arguably a Supreme Court appointment is the greatest prize in American politics. It might be more important than the presidency. And so, it’s lent itself to all kinds of manipulation where possible. And so, the current composition of the court is certainly a question of luck but it’s also a question of strategy sometimes too, and you haven’t seen that in the past.
Meghan Steenburgh: I think one of the first times in modern times that we heard about it was in 2019 specifically when Democrat candidate for president, now Transportation Secretary, Pete Buttigieg, revived the idea and many were calling it radical at that moment during a debate when now President Biden was asked about it. He said, “Well, if I become president, I’ll gather scholars to take a look at it.” He signed an executive order in April of 2021 to examine whether changes need to be made to the Supreme Court and that report was released in December of 2021.
Essentially, it just said, we’re here representing both sides. It takes literally, it says no position on strength or validity of any argument did the commission and this report help clarify anything for you for those in the academic circles and I guess within that too, what did they get right, what did they get wrong?
Todd Berger: It’s a really interesting question. Joe Biden who is an institutionalist, right, he’d been in the Senate most of his adult life. I chaired the Senate Judiciary Committee, has sort of long stated and been on the record against the idea of Supreme Court reform or adding judges or court packing or whatever you want to call it. He, at one point, called it a boneheaded idea, but there was a tremendous amount of pressure that he was facing during the campaign from progressives within his own party to do something about the current construction of the Supreme Court.
That occurred for a couple of reasons. I mean, it occurred because of the Gorsuch appointment the Democrats view as having been stolen from them. Amy Coney Barrett was ultimately sort of appointed to the Court at a time when already millions of Americans had voted into the confirmation hearing that took place was two weeks after the vote and we can talk about it a little bit more later on if you would like, but the expanding use of the shadow docket. The way in which the shadow docket worked with these justices taking cases more and more case from the shadow docket in a much quicker process, much more truncated process than they ever had before and they were significant cases with significant impact that they had been taking. There’s this point where the progressives started demanding change.
What do you do if you’re Joe Biden? On the one hand, you’ve been opposed to the idea of reforming the Court, at the same time, people within your party are irate and you have to do something. And so, what he came up with is the classic Washington solution, which is, let me appoint a blue-ribbon committee to study and that seemed to work for a period of time.
I think what’s really interesting about that committee is unlike other presidential committees, it was specifically tasked not with making concrete recommendations. It was told, evaluate the historic role of the Supreme Court in American history and then evaluate potential Court reforms and say what are the positive aspects of those Court reforms and what are the potential negative aspects of those Court reforms, and never ultimately coming up with a solution. It was structured that way.
If you wanted to structure a committee in a way that would be totally ineffectual, that’s probably a good way to do it. It’s different than all other presidential commissions have been structured and somebody had said about that, they compared it to the kind of the idea that if a tree falls in the woods and no one’s around and doesn’t make a sound, well, if you have a presidential commission and it’s not tasked with making specific recommendations, does anybody care? We know the answer to that. The answer was no, at least, until till Dobbs and some more recent Supreme Court decision. If you want me to have a little bit more about the structure that committee and what it looked like, and then we can kind of get into its proposals?
Meghan Steenburgh: Yes.
Todd Berger: It had 36 people on it. It had some practitioners, some appellate advocates. It was mostly comprised of law professors, mostly from or associated with uber elite institutions. It’s something like 80% of the committee had some affiliation with Harvard or Yale, either because they currently teach there or because they went there. A commentator had said that the commission was essentially a bunch of eggheads on Zoom. And so, that was basically its structure.
They did hold public hearings. They had six public hearings where people provided testimony, including former attorney general Eric Holder and some other sort of leading lights and the legal community provided testimony and then ended up evaluating a bunch of different proposals as far as what sort of potential core performs might look like.
The first thing it addressed was our sort of classic definition of court packing, the idea that you add more judges to the court. One of the arguments for court packing really has to do with what the confirmation process has become to turn to our earlier discussion about strategy. The way that Mitch McConnell has blocked the appointment of Merrick Garland to the Court was something like 9 or 10 months before the election was seen as somewhat norm shattering, nothing like that kind of ever happened before.
Then, the way in which just after Americans had already voted in an election year, Amy Coney Barrett was appointed was seen as sort of a further shattering of the norm that you would see in nominating Supreme Court Justices and there’s a tremendous amount of confirmation hardball that gets played in the confirmation process of Supreme Court justice as well as federal judges.
One of the pros, one of the idea of court pack was just add justices, was the idea that well, this other side has sort of shattered the norms. And so, let’s shatter the norms. Nine has been the norm for a long period of time. And so, if the other side has sort of departed from the norms that we use to appoint Supreme Court justices, we should as well. Then, there’s an argument that if Republicans noted Democrats have this other thing in their back pocket in the future, if they’re not afraid to reform the court moving forward, that Republicans will be less inclined sort of play this sort of hardball in the future.
That was one of the pros in the sense. It can kind of keep everybody somewhat more honest, but there are absolutely cons to the idea of court packing. The big discussions taking place now is about the legitimacy of the Court. It is a super conservative majority and one of the questions is, does it function as a court that objectively evaluates the law or does it function basically as an adjunct of the Republican Party.
If Joe Biden just goes ahead and appoints a bunch of people who align with Joe Biden views and it functions like an adjunct of the Democratic party and it would appear to further erode the legitimacy of the Court, which is sort of one of those issues.
Sort of another issue that comes up is that if you look at other countries, manipulation of the judiciary frequently assign of Democratic backsliding, whether that be in Venezuela or that being Poland, and it’s a bit of a concern that if the Democrats will do that, or at any point in time, somebody were to pack the Court to align more of their political views, it seems like the kind of thing that happens in countries where democracy is on the ropes. And so, I think that there are the pros and the cons to it but this is kind of what the committee discussed as far as what court packing looks like.
Meghan Steenburgh: We are speaking with Professor Todd Berger, professor of law at Syracuse University College of Law. We’ll be right back.
Male: If you’re a law student getting ready for the next big step, why not check out the Young Lawyer Rising Podcast from the ABA Young Lawyers Division. Young Lawyer Rising covers issues pertinent to newly minted attorneys as well as lawyers with 10 plus years of experience and beyond, from dealing with that daily grind in career management, to focusing on social issues, financial worries and more. Don’t be an outsider. Tune in and check us out. Young Lawyer Rising now on Apple Podcast, Google Podcast, Spotify, Amazon Music or best yet, your favorite podcasting app.
Meghan Steenburgh: We are back now with Todd Berger, professor of law at Syracuse University College of Law. Another subject area the commission addressed concerns term limits and suggesting term limits for Supreme Court justices especially because the amount of time they serve as a justice has expanded, at least another decade beyond what they used to serve. What do you think, pros and cons of term limits?
Todd Berger: Sure. The committee noted that there was significant bipartisan support for a term limit of 18 years for appointed Supreme Court justices and appointed federal judges. In fact, that aligns in a lot of ways with most western democracies. It was every western democracy has a court that has term limits, or if they don’t have a court that has term limits, there are age limits, which is something the committee pointed out. This is maybe a consistent way to treat the power of the Supreme Court in a way that sort of aligns with what other western democracies are sort of doing.
This also addresses the idea that presidents have this ability to just do luck or we talk about through manipulation to dominate the Court. I mean, Donald Trump has these three justices. We now appoint justices in their 40s and their 50s and they’re supposed to serve on this court for 30 years. Donald Trump was there for four years, but his legacy in terms of what the country looks like will continue decades, really because these three justices, which is why I said it might be the most important prize in American politics. It’s not even the presidency, but it’s the Supreme Court.
Lessening the dominance of one president over really sort of future generations I think is a pro of the idea that there would be term limits. But there are some cons to it. Major con is that when you are appointed to the federal bench, you have a lifetime appointment. I don’t know how so much of a con it is, but how practical it is I think is a question because you would have to amend the Constitution to be able to implement that by determinant of proposal.
The other idea is it’s not clear how term limits necessarily align with the idea of judicial independence. Part of the reason you have the lifetime appointment is because you’re there for like, you don’t have to worry about the consequences of what will happen if you render a particular decision to you or your job, which you might have to worry about in terms of term limits. I mean you could think of a justice kind of getting to the end of the term and thinking what am I going to do afterwards and how might this decision ultimately impact my ability to do that.
There’s real questions about in the framers, in their infinite wisdom, believe that these lifetime appointments created judicial independence. Now, the framers also didn’t have people who live forever but happens today, but there are those questions about whether or not these term limits will negatively impact judicial independence and that’s significant as well.
Meghan Steenburgh: I think the commission also discussed many alternatives, some of which had been new to me. They went through numerous possibilities, rotating justices, instituting a panel-like structure, limiting the power over for instance statutory legislation, elevation of transparency to include code of conduct video transmissions. Do they look more tempting now? Do any stand out as potentially more relevant or even doable, especially now?
Todd Berger: The all have problems. I mean, that’s kind of in a sense where the committee sort of threw up its — tends to throw up a tangent, but it wasn’t tasked with making recommendations and saying which is the most likely. But there are significant practical issues with almost all of them. Sometimes legal issue.
Let’s take the rotating justice piece of it. This is something that Pete Buttigieg talked about, Bernie Sanders who talked about it, and there’s different formulations of it. But one of the ideas of the rotating justices are that you would have this group of federal judges and under Article 3, the president doesn’t appoint people to a particular — you get lifetime appointment, I should say, when you are a federal judge regardless of whether you are a Supreme Court justice or an appellate judge.
The idea essentially would be that you’d have this group of judges with this lifetime appointments, but they would be able to sort of rotate out from the circuit court to the Supreme Court to circuit court to the Supreme Court again, which is much a way that you have panels constructed at the appellate court level. They’re just sort of randomly constructed panels in which judges rotate in and out.
One of the advantages of that is, of course, that there’s 180 appellate judges and it would significantly lessen the ability of any one president to dominate the court when you have 180 appellate judges appointed by all different presidents sort of rotating in and out. One issue with it is that you can get a crazy panel one day, crazy from the left, crazy from the right, and that becomes sort of the law of the land. There’s no guarantee that you would be getting panels that would be sort of objective or moderate, you could end up with just some randomly extreme results, which people wouldn’t be happy about.
The biggest issue with it, though, is that under Article 2, which controls the executive branch, the president has the sole authority to nominate people to the Supreme Court. It’s not clear exactly how you rotate the judges in and out. The president would have to presumably appoint all of the judges you ultimately sit on the Supreme Court under Article 2.
The ability to rotate judges in and out in that regard has some practical constitutional concerns as well that may require a constitutional amendment to go along with it. There have been ideas floated by some that each president should get to a point. A certain number of Supreme Court justices, say two. This is a popular idea. Every president gets to appoint two Supreme Court justices and you just use appoint away. Those judges have lifetime appointments everyone gets to in the beginning of their term. Obviously, someone dies or retires or something, you can feel it.
This would just result in the court expanding in size, but of course, people would die. People would retire. Some predictions are that if you did that, the Court would have even numbers of judges at different times, which means lower court decisions would stand if the courts split but you also end up with a situation where as judges retired, died, there’s belief that it would probably end up around 15, give or take here or there. And so, that would kind of be what the Court would look like.
Now, that would presumably lessen the power of any one president to dominate what the Court looks like because every president would get those appointments, but it doesn’t mean we went to gamesmanship out of the confirmation process, because, of course, a party could just refuse to hold hearings on the president’s nominations, which would be an issue. The other thing is there’s an argument that that increases the intense politicalization of the Supreme Court process.
If you think about it now, you don’t know that any one president gets to appoint anybody. It’s an issue in presidential elections but not a concrete issue because again you don’t know that you’re ever going to get to make those appointments. If every president got to appoint two, they really increase how important the Supreme Court was in these elections because any given time, you know you get two appointments and you know that that could ultimately make a difference based on the composition of that Court. So it would increase the political nature of the appointments and the hardball nature of them as well. Some pros and some cons with that, but the beauty of that approach is at least it doesn’t require a constitutional amendment.
The other piece I’d add there too kind of relating to term limits somewhat and it’s kind of a combination of term limits and rotating off is that judges could be appointed for to the Supreme Court for 18-year terms. Then afterwards, they would be given senior status, which would mean that they’d still have their lifetime appointment, but wouldn’t be called upon to — would only hear cases when called upon and it’s not clear that that would be constitutional. Is that sort of consistent with lifetime appointment, if you sit on the corporate 18 years and you automatically get senior status, would that be challenged? That’s a version of term limits that would result in judges rotating on and off but maybe Constitution or maybe not. So they all have their underlying issues here or there.
Meghan Steenburgh: Let’s continue to talk about the alternative changes the Supreme Court. One of the suggestions is the limitation of power and what is called jurisdiction stripping. Can you talk to us about that a little bit?
Todd Berger: This was something that’s come up and brought before the commission was also recently after Dobbs, something that a group of Democratic Congress persons had suggested and called for the Court specifically to be stripped of jurisdiction to hear questions relating to reproductive rights. Article 1 gives Congress the power. There’s only one court created with a regional jurisdiction, there’s the Supreme Court of the United States. Other than that, Congress has the power to create Article 1, which are lower federal courts and implicit in Congress’ power to create federal courts is the idea that Congress can restrict the jurisdiction of those courts to hear cases.
In the Constitution itself, the Supreme Court is only given a regional jurisdiction over a certain number of limited matters. It can hear disputes involving ambassadors and cases in which the state sue each other, but it’s overall fairly limited in terms of jurisdiction that it has. Over time, Congress has gradually expanded the jurisdiction of the Court through statute.
One of the arguments is that the Supreme Court has essentially occupied too large a role in American life. One of the things that think that’s really interesting is if you look at the section on the Constitution that creates the legislative branch, it’s something like 3,000 words. If you look at the section that creates the executive branch, it’s 1,000 words. If you look at the section that creates the Supreme Court, it’s 375 words. Really interestingly, the S in Supreme Court is not even capitalized. The first meeting of the Supreme Court, half the justices didn’t show up and then had to adjourn.
This idea was never intended to occupy the central role that it has in American life and in fact throughout most of early American history, the Supreme Court rarely over rule Congress. Believe It or not, Dred Scott decided in the 1870s was only the second time that Congress had ever declared a federal statute invalid. And so, the Court’s role in American life gradually expanded significantly during the 20th century and the argument is that, that is not exactly what the framers intended. It is in a lot of ways become maneuver legislation.
A law gets passed and then the justices get to decide whether they like it or not. Ultimately, what’s created through the most direct democratic process only gets to stand if the Supreme Court says that it likes it and then just probably not the deference that it looks like the framers wanted to see the Court show to the legislative process. And so, that’s become a significant issue. The Court’s use of the shadow docket I think has significantly increased calls for perform. The court continues to take cases without the benefit of full briefing or oral argument and then make decisions that are unsigned often times without much explanation, which appears to be a power grab.
I think it’s also really interesting is what some says the undemocratic nature of the Supreme Court. It’s three of the justices. The three trunk justices were appointed by someone who didn’t win the popular vote, and five of the justices were confirmed by Senators who represented a minority of the country and this appears sort of be a kind of an undemocratic way in which the Court operates and sort of what some would say looks like a world in which we live under minority rule. And so, the argument has been, well, let’s strip the Court of its jurisdiction. It was not intended to sort of have this outsized role in American life and so that’s been an argument that’s been put forth in favor of jurisdiction stripping.
The counter-argument to it is that while we certainly know that Congress has the authority on some level to control jurisdiction, it kind of exists in the abstract. We don’t know what jurisdiction stripping would look like or whether how the court would interpret statutes district jurisdiction, would the Court say that those statutes themselves were constitutional? It’s sort of a difficult process to see what the end result would be. And so, that’s sort of one of the drawbacks to it is you think this might work, but you can’t really see all of the problems with it in place before you were to start to strip the Court of jurisdiction.
Meghan Steenburgh: I think the hard part for me is that it just is back and forth as a political issue, many and many of these conversations are being had right now because there’s outrage over a number of decisions, but it feels as though you change things now and much like the filibuster, it’s just going to come back to haunt you again later. If you’re a Republican, you’re arguing that Senator Schumer started this back with an 18-month sort of a, what did he say? She said, “I’m not going to George W. Bush.” She said, “I’m not going to move forward in the confirmation process if it’s within 18 months.”
Then you’ve got Senator McConnell putting forth similar rules and then it just seems as though for me, a lot of the route of the politics is in that nomination process, and the confirmation process and the politicization of all of that. Way back in the back of the commission report I think was appendix C, there was a witness who had previously served on the Senate Judiciary Committee and I thought a lot of those changes were more probably beneficial to the process in terms of mandating within X number of days, you proceed with this and 21 days later you do this, and 10 days later do that. So you take out some of that, to me, the political manipulation. What do you think about that confirmation process, that nomination process? How much of a role does that play?
Todd Berger: It makes a lot of sense because one of the things that Mitch McConnell had said, well, to justify Amy Coney Barrett’s nomination was at the time that I said we wouldn’t confirm the Obama nomination, it was something like, well, there was a president of one party and Senate of another. Then, the Amy Coney Barrett, he said, well, it’s different situation now. The president and the senator of the same party. The weather might have been a little bit different on the day you said one thing and the days of the other thing, why is it not clear why that would make much of a difference at all.
And so, each side kind of is involved in manipulating the process themselves. I think it makes sense to streamline the process and impose rules that everyone has to play by. I think that ultimately can build trust in a lot of ways. When the Democrats say one thing and then they do another, Republicans say one thing and do another, it’s just erodes public confidence and trust in the Senate and in Politicians, which believe it or not, I guess, it’s theoretically possible to go lower.
Nobody thinks that what you say is a serious thing. You’ll just look for some ridiculous reason to kind of change it later on. I think that those kinds of reforms make sense and I think the confirmation process as a whole could be reformed. I mean, arguably, you could get rid of it. I mean, you can’t get rid of it legally because they have to be sort of nominated by the president and then confirm with the advice and consent of the Senate, but maybe you could eliminate the stupid hearings.
Nobody thinks that those hearings are useful. One of the things that the Senators say to the respective judicial nominees, whether the Supreme Court nominees or otherwise is, well, this is the one time that you’ll be held to account to the American people and they’ll be able to ask you questions through their representatives before you go up to the court and then they’re all coached, Democrat or Republican, to say nothing or to be so vague in the things that they say that Susan Collins can think Brett Kavanaugh told her that he wouldn’t overturn Roe versus Wade or whatever.
The process itself, I think, erodes public trust because it’s supposed to be people answering questions, honestly, and they don’t. They just answer questions in these highly technical and political ways and it makes it look useless. I think ultimately, creating this useless political process is something that the American people look at and say, “This has this is little value. This is not kind of the functioning government in the way that it is.” I think eliminating that process which takes a time and it’s cumbersome and has very little might ultimately be a more streamlined better approach in a way that would lend itself to less of these kind of later arguments, the arguments that you lied or you should be impeached because you lied kind of thing, just make the process a lot cleaner.
Meghan Steenburgh: My final question today, do you feel as if the commission were meeting right now following the Supreme Court decisions that came out this summer of 2022, do you think that its guidance might be different now following those decisions?
Todd Berger: Yes. Nancy Gertner who was one of the few non-academics on the committee, was a federal judge, has come out publicly and said I told you so. She believed that the committee should ultimately propose the changes in the composition of the Court. I think many other people on a committee might feel that way as well. I mean, it’s hard to know exactly, but although and people probably should have seen this coming. I don’t think they’d been under illusions as opposed like what this Court was necessarily going to do, but the breadth of what it’s done and the quickness with which it’s done may change some opinions.
I mean, we know Roberts would’ve voted in favor of upholding the Mississippi legislation but he said we should do it incrementally. We don’t have to overturn Roe with this. They went and they sort of made this decision to overturn Roe in a kind of a bold step and less of an incremental way. The decisions have restricted the Biden Administration’s ability, any administration’s ability to regulate carbon emissions through EPA regulations. They struck down New York’s concealed carry laws and rendered some decisions that have been controversial in the world criminal defense.
Many of their important decisions involving things like gerrymandering or even the Texas case that came up before Dobbs involving reproductive rights have been done through the shadow docket. I think there may be a difference of opinion on what the committee should do now. I think Gertner said, she kind of put it well. You would think of the court is this place of rational debate and people are thinking through problems and I was going to agree with trying to use the law, engage in objective analysis to reach some sort of correct conclusion, but now, it feels like it’s just we have the power, so let’s just do the things we want.
I think as long as that perception is there, the more agitation you’re going to have, not just on the political left but really among scholars and commentators and court watchers sort of change the composition of the Court because it’s hard to imagine that people will want a court to continue to exist that appears to be something that is, at least in people’s perception, is motivated to implement the designs of particular political point of view, which is — yesterday, Kagan had said that. She said publicly, “We have to make sure we’re not just implementing public policy but we’re following the law,” and I think that is a perception that continues to exist. There’ll be more and more of a desire to sort of see the Court reformed.
Meghan Steenburgh: Professor Todd Berger, professor of law at Syracuse University College of Law. Thank you for joining us.
Todd Berger: Thank you, Meghan.
Meghan Steenburgh: Thank you for listening. I hope you enjoyed this episode of the Law Student Podcast. I’d like to invite you to subscribe to the ABA Law Student Podcast on Apple Podcasts. You can also reach us on Facebook at ABA for Law Students and on Twitter @ABALSD. That’s it for now. I’m Meg Steenburgh. Thank you for listening.
Outro: If you’d like more information about what you’ve heard today, please visit legaltalknetwork.com. Subscribe via iTunes and RSS. Find us on Twitter and Facebook or download our free Legal Talk Network app in Google Play and iTunes. Remember, U.S. law students at ABA accredited schools can join the ABA for free. Join now at americanbar.org/lawstudent.
The views expressed by the participants of this program are their own, and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.