RBG, Judge Amy Coney Barrett & the Impact on SCOTUS

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Lawyer 2 Lawyer Law News and Legal Topics

RBG, Judge Amy Coney Barrett & the Impact on SCOTUS

10/02/2020

 

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Deborah Pearlstein: So the extent Americans care about and we care about sort of rule by the majority, there’s a growing sense in reality in which the current membership of the Supreme Court doesn’t reflect the views of the majority of the American population and that’s a legitimacy problem for the court going forward when I think it’s going to survive however this current nominations turns out.

 

Intro: Welcome to the award-winning podcast, Lawyer 2 Lawyer, with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

 

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1. Craig Williams: Welcome to a very special episode of Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams, coming to you from Southern California. I write a legal blog named May It Please the Court and have two books out, titled How to Get Sued and The Sled.

 

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On September 18, 2020 we lost Powerhouse on the Supreme Court, an Advocate, a Fighter for women’s rights and a Trailblazer Justice Ruth Bader Ginsburg passed away leaving behind a huge legacy, in addition to a very empty seat on the Supreme Court.

 

Well controversy wasn’t too far behind amongst the Republicans and Democrats with President Trump nominating Federal Appellate Judge and Notre Dame Law Professor Amy Coney Barrett known as a conservative judge based on her rulings to fill Justice Ginsburg’s seat in an election year.

 

So what kind of influence for the loss of RBG and the appointment of Amy Coney Barrett have on the high court. Today on Lawyer 2 Lawyer, we are going to discuss the latest on the SCOTUS the passing of Justice Ruth Bader Ginsburg and her legacy, the controversy surrounding President Trump’s nomination of Amy Coney Barrett in an election year and the potential impact on Roe v. Wade, healthcare and other issues before the high court.

 

To do that, we’ve got a great guest for you today. With us is Deborah Pearlstein. She’s Professor of constitutional and international law and Co-Director of the Floersheimer Center for Constitutional Democracy at Cardozo School of Law, a leading national voice on law and counterterrorism, Professor Pearlstein has repeatedly testified before Congress on topics from military commissions to detainee treatment.

 

Before embarking on her career in law, she clerked for Justice John Paul Stevens of the US Supreme Court and served in the White House from 1993 to 1995 as a senior editor and speechwriter for President Clinton and welcome to the show, Deborah.

 

Deborah Pearlstein: Thank you. It’s great to be with you.

 

1. Craig Williams: Well Deborah, before we start discussing this topic. Let’s give a little bit but background from you on Ruth Bader Ginsburg, her Legacy in the Supreme Court, perhaps some important rulings that she’s well known for.

 

Deborah Pearlstein: Sure. So Ruth Bader Ginsburg is known for a lot. Not just her work while she was a justice, but her work in the law before that. So I think it’s probably most important to say that one of her most important contributions to law was in changing the meaning of equal protection under the Constitution. Before she litigated some of her most important cases as an advocate as a young lawyer before the court, the Equal Protection Clause of the Fourteenth Amendment of the Constitution didn’t clearly prohibit discrimination on the basis of gender, and it was attorney Ginsburg’s earlier arguments that produced some of the landmark decision from the court recognizing that discrimination on the basis of gender, on basis of sex was equally constitutionally problematic under the Fourteenth Amendment, just like discrimination or almost just like discrimination on the basis of race.

 

She extended that jurisprudence when she was on the court making clear that there has to be a really good reason if the government or the state of any kind is going to discriminate on the basis of gender and she was in all respects a pioneer in that part of the law, a part of the law but my law students now can’t believe was ever otherwise. So that’s tremendous.

 

On the court obviously, she’s known for her contributions to Reproductive Rights cases, abortion, which I’m sure we’ll talk about. But she was also a fierce advocate for voting rights for affirmative action again, Fourteenth Amendment Equal Protection issues in which she had a vision of the equal protection clause that was not just about classifications based on race for example.

 

00:05:03

 

She didn’t think that the harm that the Equal Protection Clause was trying to prevent was just classifying people on the basis of race. She thought the harm that the Equal Protection Clause was trying to protect was about subordinating one race to another. It was about preventing the subordination of one race to another and her jurisprudence that was highly protective of voting rights and affirmative action is really shot through with that idea.

 

1. Craig Williams: I don’t mean to jump right into a kind of sensitive topic, but it occurred to me after Kamala Harris asked the question one time. I think it was of Justice Kavanaugh, are you aware of any governmental laws that regulate men’s bodies in any way? Do you think that equal protection has any application to abortion?

 

Deborah Pearlstein: Well, the next thing I was about to say was actually the way she changed the way the court talks and thinks and rules about abortion rights. So Roe v. Wade famously, of course, the case that first recognized abortion rights under the Constitution grounded its ruling on this idea of privacy that there’s a constitutional right to privacy and in particular in Roe v. Wade, a privacy that goes to the relationship between a woman and her doctor as they make this difficult decision.

 

Justice Ginsburg wrote before she was on the court and while she was on the court and in opinions that she issued while on the court that abortion is not just about some as she put it abstract right to privacy. It’s not only about individual liberty, a liberty that attaches to the woman and not the woman and her doctor but it’s about equality. It’s about the right of women to have equal citizenship stature as she put it in this country, and that if you deprive women of the right to make this decision for themselves, whatever their views, then you are treating them as something less than equal citizens with equal rights under the law.

 

1. Craig Williams: How do you think that argument is going to play out as we move forward with all the clamor that Roe v. Wade is doomed with new conservative justice.

 

Deborah Pearlstein: Well, it’s a fine question. It’s a million-dollar question. And I’m no tea leaf reader, but it is clear of course that the current nominee to fill Justice Ginsburg’s seat, Amy Coney Barrett seems quite opposed to abortion, not just personally but as a matter of law. I think today was the news that she had signed on to a two page newspaper advertisement, not only calling for Roe v. Wade to be overturned several years ago, but also calling the legacy of the decision barbaric.

 

So whatever the court say about abortion rights and it’s not clear how quickly it will move but she’s obviously coming from a very different perspective. I don’t have any impression from her writing although maybe we’ll learn more in her confirmation hearings perhaps that she views abortion as a question of women’s equality as opposed to some other sort of right that is arisen recognized under the constitution.

 

1. Craig Williams: All right. Well, let’s delve into that pending nomination, how does this compare to Merrick Garland’s situation?

 

Deborah Pearlstein: Well, so Merrick Garland famously was President Obama’s nominee, Justice Scalia died unexpectedly in 2016, the last year of President Obama’s term. President Obama nominated then DC Circuit Judge named Merrick Garland to fill the seat and the Republican-controlled Senate at the time Senator McConnell in particular took the position that with the election then I guess 10 months yet away, the Senate, it would be inappropriate for the Senate to take up the President’s nomination to fill the seat that instead we should wait 10 months until the election happened so that the American people could decide.

 

And the argument was based very much on the role of the court and a democracy that once the Supreme Court Justices confirmed under current law, they are on the bench for life, there are essentially no checks on what he or she does once they were on the court and that whenever possible, the American people should be given the option to weigh in on which justice should be picked by electing the President that they prefer at that time.

 

It was an unprecedented move at the time. It’s certainly been the case that the Senate has not approved presidential nominees to the Supreme Court before but the Senate had never simply for the better part of a year refused to take up a presidential nomination and as a result, the court functioned at an eight justice capacity for more than a year until a new president was inaugurated in January of 2017 and then nominated a new Justice to fill that seat.

 

In this circumstance, I think people are troubled probably for several reasons. One reason is, the hypocrisy of the Republicans taking one position in the Garland matter and taking a very different position here.

 

00:09:58

 

The second is to the extent you take the democracy argument seriously that is if you think the American people should, as voters, have as much of a say as possible over who’s going to fill these immensely powerful positions. Now, we’re at a moment when the election isn’t 10 months away. The election is underway in most states now, I think or at least in many, early voting has already begun in Michigan and Pennsylvania, in states across the country.

 

And with the vote underway, and the election ending just a few weeks from now on November 3^rd, this seems like the kind of moment when democracy really has a lot to say about it. And I think the final reason this has been — one of the final reasons, this has been so particularly controversial is that it is this nomination at this moment is that it is crystallizing the extent to which the Supreme Court and the country more broadly has become systemically vulnerable to sort of minority rule and the Supreme Court really is the ultimate example of that.

 

If you think about how Supreme Court Justices are named, they are named by the President and the Senate. The Senate has been non-majoritarian for a long time. California, for example, has 68 times the population of Wyoming but of course, both states have two senators the same number and not only that, but presidents, Republican presidents who have lost the popular vote including the current president right have been able to nominate a large number of currently sitting justices on the Supreme Court.

 

The last two Justices Gorsuch and Kavanaugh were rejected by senators representing a strong majority of the nation’s population. So the extent Americans care about and we care about sort of ruled by the majority. There’s a growing sense in reality in which the current membership of the Supreme Court doesn’t reflect the views of the majority of the American population and that’s a legitimacy problem for the court going forward when I think it’s going to survive however this current nomination turns out.

 

1. Craig Williams: And some would say that they’re not supposed to and some would say that the whole idea behind the Supreme Court is that it — and symbolized by the lamps in the hallway. I’ve been told by one of the clerks there with the lamps rest on turtles symbolizing the slow and steady pace of justice.

 

Deborah Pearlstein: Yeah the clerks use to joke as one of the former justices said, the turtles represent justice moving slowly and in all directions. Therefore, turtles at the bottom of those lamps and they’re all facing in different ways. Justice is supposed to move slowly, but I think here right that really cuts — I’m not sure which way that cuts right. This is a pretty swift and potentially quite dramatic shift in the way the court works and as I imagine, we’ll talk about later, multiple areas of law, of constitutional law that the court rules on regularly.

 

So I think the sense is or anyway, the source of concern is that this current nomination and this current process, especially given the politically volatile state of the country at the moment is that it’s moving far too quickly.

 

1. Craig Williams: I wouldn’t imagine that the Congress is going to be able to do much about it. The Article III provides for lifetime appointments. There’s a movement limited to 18 years, but wouldn’t that take a constitutional amendment.

 

Deborah Pearlstein: So there are a couple of things. I mean first there’s the question of what Congress can do now as with the nomination pending and then there’s the question of what the next Congress does with respect to the court. In terms of what the Congress can do now, you’re right, there’s not a whole lot but there are a few things that the Senate and to some extent the house can do to try to delay the process some by hours and days and force various motions and various procedural mechanisms to try to delay a bit.

 

Those minor delays can’t stop a nomination, but even modest delays in these circumstances might help if you can get it to November 3^rd, special election in Arizona for senate if the Democratic candidate wins, he would be seated right away and indeed on November 10, the court is scheduled to hear oral arguments in healthcare case the Affordable Care Act case.

 

So if you can delay at least a bit, you might forestall some of the most immediate consequences but really the issue is the longer-term question that you raised, what if anything can be done. And the proposal, there are a number of court reform proposals that are out there. One that was introduced to Congress in a bill in the house just this week would impose 18-year term limits on justices and it would grandfather in existing justices, so they wouldn’t be bound by the 18-year term limit requirements. But it would also give every president a guaranteed appointment at least in the first and third years of his or her term.

 

00:15:03

 

So it would have the effect in the near-term likely of expanding the court by a few justices, but in a longer-term way, it would — or the idea is that it would try to take some of the political victory all out of the process of nominating and confirming Supreme Court Justices, lowered the stakes a bit and for that kind of change, for the most part, a constitutional amendment isn’t needed.

 

Congress has the power to change the offices of the Supreme Court and the jurisdiction of the Supreme Court in a variety of different ways. The 18-year term limit proposal, which is a proposal that’s garnered support by both left and right leaning law professors at constitutional law is one of those proposals that doesn’t require a constitutional amendment. It requires majority of both houses of Congress and the signature of a president.

 

1. Craig Williams: This has been a fantastic discussion so far, but before we move on to our next segment, we’re going to take a quick break to hear from our sponsors. We will be right back.

 

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1. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is Deborah Pearlstein, Professor of constitutional and international law and Co-Director of the Floersheimer Center for Constitutional Democracy at Cardozo School of Law.

 

We’ve been discussing the Supreme Court Ruth Bader Ginsburg and drastic changes that may be coming to the Supreme Court. Well before the break we talked about it, there Trump will be able now appoint three judges to the Supreme Court if this one goes through, which is drastically more than most presidents have been able to appoint in their lifetime.

 

What is the likelihood that there will be some kind of action out of Congress to make these kind of changes come in, were it gets more balanced, is there any kind of likelihood that the House of Representatives which is more representative numbers-wise of the population of the country, will that be part of this equation?

 

Deborah Pearlstein: So that’s a great and difficult question, right and a lot depends on the result of the next election of course. If Democrats take control of both houses of Congress, retain control of the house, win control of the Senate, which is far from certain but not impossible and also win the presidency, I think it is perhaps more likely than not that we will see some serious efforts to reform the court and/or the confirmation process one way or another.

 

The parties at least when it comes to confirmation of Supreme Court Justices, but also justices on the lower federal courts, judges on the lower federal courts as well have been in this sort of downward spiral or arms race, I suppose of a kind in which each party has felt compelled to make the stakes and it’s supposed the term constitutional law professors uses play hardball, take actions that are not consistent with constitutional norms, but don’t necessarily violate particular constitutional law like refusing to move on the nomination of Merrick Garland that has produced a confirmation process that today most of us would say is dysfunctional.

 

It’s dysfunctional because it’s purely partisan and it has the effect I think of undermining the legitimacy of the court and its justices by suggesting that the work of the court is nothing more than an exercise in partisan politics.

 

I don’t think that accurate, I don’t think it was ever true. I think it’s even still today not always true. And in any event, it’s not good or healthy for the country to think of the court as simply politics by another means but without actual accountability or elections. So I think there are a lot of good reasons to change and reform the confirmation process and even the terms of the court itself, most high courts in most of the world have term limits on justices. So they don’t end up serving for 30 and 40 years. I think that’s the kind of reform that makes sense here in the United States as well.

 

00:20:04

 

1. Craig Williams: Well a clerk for Justice Stevens, you’ve got an inside track on this. What was discussed in the hallways of the Court when you were there about the future?

 

Deborah Pearlstein: Well, so it’s been a little while since I clerked now and I don’t want to give the impression that justices and for that matter clerks themselves don’t come to the court with their own opinions and views on matters, that’s certainly not the case. But it is nonetheless striking. I’ve had the pleasure of working both in the White House and at the Supreme Court and I’ve been in the halls of Congress testifying and for other reasons one way or another and the difference in the way the building’s function and the people in the buildings work is really striking.

 

And the White House and in Congress, the hallways are filled, there are people talking, there are people arguing, there are people all over the place going from one place to another. And the sense of not only busyness but politics and decision-making through a lot of — for a lot of reasons including irrational reasons, it’s very clear. There’s very little of that at the court right, there are nine chambers. It’s a small building.

 

The justices all know each other, they traditionally and this was certainly true most famously with Justice Ginsburg and Justice Scalia have become friends with each other across partisan lines. The clerks spend a lot of time reading, and writing and so do the justices and still today, it is the case. The vast majority of decisions that the Supreme Court issues are not 5-4, but are 9-0, or significant majorities in one direction or another.

 

There is a certain amount of work that the court does, lower-profile work, but nonetheless incredibly important work that the court does that is not easily or readily attributable to partisan biases or explainable by those things. But it is the case that these very high-profile issues; abortion, affirmative action, voting rights, and some of the other issues that have come before the court are politically fraught and those are the cases that get the most attention and those are the cases where it’s difficult to discern from the bear text of the constitution how exactly it’s supposed to apply in any given case.

 

What does it mean equal protection? What does it mean due process? And different justices have different approaches to how they answer those questions. But at the Supreme Court level, you have to, to some extent, fill in the gaps that the text of the Constitution leaves with an understanding, your own understanding of the values, the broader purposes that the constitution is trying to achieve.

 

And I think that more than raw partisan politics at least in most cases better describes what’s going on in the court than what we see in what have become these sort of highly dramatic affairs that are the Supreme Court confirmation hearings, which is where most Americans get their sense of what the court does.

 

1. Craig Williams: Let’s talk about what the court might do. We have Amy Coney Barrett. We have two years worth of her opinions to look at which is not very much in the scheme of things. We have heard a lot about her background. What can we look forward to from her and will some of the same things happen that’s happened in the past where Justice Kavanaugh and others have surprised us with more moderate rulings. Is there a change that comes over once you get on the Supreme Court as a Justice?

 

Deborah Pearlstein: You know, that’s such a great question and one, I don’t know if I have a good answer for it except to say there’s little question that Justices have — some justices have changed while on the court. My own former boss Justice Stevens changed his mind in a couple of areas including on affirmative action, including on the death penalty. He was of course appointed by a Republican president initially and came to be considered among the most liberal members on the court by the time he retired.

 

And Justice Stevens is far from alone in that, many justices have changed their views on particular questions or more broadly while they’ve been on the bench. So I think it remains possible. I think the incentives surrounding the current Supreme Court confirmation process make it less and less likely that is to say justices are increasingly selected on the basis of perceptions of their substantive views, their position on for example abortion than they are selected on the basis of their intellect or disposition or ability to empathize with parties or anything else you might select them for.

 

So I suppose I think that becomes less likely but not impossible. My impression having read some of Judge Barrett’s writings when she was in academic, she was a scholar at Notre Dame Law School before she was appointed to the Federal Bench and a few of her opinions and you’re right, she doesn’t have an extensive judicial record yet.

 

00:25:05

 

Is that we’re liable to see a Justice more or less like Justice Scalia, which is who she clerked for, somebody who has a particular approach to interpretation. Somebody who says the text matter is first and foremost and we shouldn’t depart from that. But whose decisions are not always readily squarable with that particular interpretive view, and whose understanding of the values that the constitution is trying to protect are understandings that are informed by her own disposition, right a disposition that certainly thinks from everything one can tell from her record.

 

Abortion is not something that the constitution has anything to say about or at least it is not a right that the constitution exists to protect.

 

1. Craig Williams: Well Deborah, it looks like we just about reached the end of our program. So I’d like to take the opportunity to invite you to show your final thoughts, along with some information about the school Cardozo, but I’d kind of like you to give us a little bit of sketch about what’s coming constitutionally for the presidential election. Does the House of Representatives have any role in this decision, does the Beyond The Electoral College, does the Supreme Court have a role in it, it’s certainly for what we can tell everything’s up in the air at this point.

 

Deborah Pearlstein: Well, I wouldn’t say everything’s up in the air. We’ve conducted a lot of elections in US history, very few of them have gone catastrophically wrong and really only one in the entire course of US History has pivotally involved the Supreme Court. In any ordinary election, the court will have essentially nothing to say and that’s what we should hope for and expect from the Supreme Court.

 

So the notion that somehow the Supreme Court is going to ultimately decide the election is not an expectation that we should have going in. Now, it is certainly true that there are a lot of election law cases pending in the federal courts as it is, questions that have to do about access to absentee ballots and submission of absentee ballots, given COVID and the significant increase in absentee voting. Questions that go to efforts to suppress or interfere with voters’ ability to cast their votes and others and the federal courts have been deciding those cases for months.

 

They’re deciding them as we speak, several of them have already been to the Supreme Court and the Court has either declined to hear them or address them already and that’s happening in the in the ordinary course and we can expect that to continue to happen. It is true that if the election is closed and contested there are whole bunch of eventualities we might see; a circumstance in which if for example, the Electoral College is tied, the House of Representatives decides who will be the next president and there are other circumstances as well.

 

But I think the most important thing to keep in mind is that we have done this before a lot. We can do this again and claims of fraud or illegitimacy or so forth I think are broadly overstated. What we need to do is do this carefully and do it in a way that respects the democratic process and hope and work for a result that means that the court at a minimum has nothing to do with it.

 

1. Craig Williams: Let’s all hope so. Well as we wrap up, I’d like to thank our guest Deborah Pearlstein for joining us today. It is a pleasure having you on the show.

 

Deborah Pearlstein: Well, thanks very much and if viewers or listeners, I should say, are interested in learning more about Cardozo Law School, you can find us at cardozo.yu.edu. It’s a great school and it’s been a pleasure to be there and to be with you.

 

1. Craig Williams: Thank you very much and named after a very famous Jurist Benjamin Cardozo.

 

Deborah Pearlstein: That’s the one.

 

1. Craig Williams: For our listeners, if you like what you heard today, please rate us in Apple Podcasts, or your favorite podcasting app. You can also visit us at legaltalknetwork.com or you can sign up for our newsletter.

 

I am Craig Williams, thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

 

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