The Legitimacy of SCOTUS

Episode Notes

Transcript

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Douglas Keith: Perhaps, the court is already feeling chastened from the response to Dobbs this summer. You know, I wouldn’t get my hopes up, but this public pressure, public response, other officials pushing back on court decisions, this is all part of the messy conversation that is democracy and we should encourage critiques of the court, not dismiss them.

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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’re listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I wrote blog named, ‘May It Please The Court’ and have two books out titled, ‘How To Get Sued’ and ‘The Sled.’ Last month at a Judicial conference in Colorado Spring, two judges from the Denver-based Tenth Circuit Court of Appeals interviewed Chief Justice John Roberts on all things SCOTUS. And in that conversation, he decried a tax on the court’s legitimacy that followed after the Dobbs versus Jackson Women’s Health ruling. Chief Justice Roberts said that if the court doesn’t retain its legitimate function of interpreting the Constitution, I’m not sure who would take up that mantle. You don’t want the political branches telling you what the law is and you don’t want public opinion to be the guide about what the appropriate decision is.

In a later response to Justice Roberts comments, Justice Elena Kagan declared the judges create legitimacy problems for themselves when they don’t act like courts and when they instead stray into places that look like politics. So does the Supreme Court of United States have been legitimacy problem? Today on Lawyer 2 Lawyer, we’re going to spotlight the legitimacy of the Supreme Court, we’ll take a look at the public’s reaction to recent SCOTUS decisions, the Justices reaction to a legitimacy problem in the High Court and what the new term will bring. And to help us better understand this issue, we are joined by Douglas Keith counsel in Brennan Center’s Democracy Program where he works primarily to promote fair, diverse and impartial courts. Previously, he was the George A. Katz Fellow at the Brennan Center working on matters related to money in politics, voting rights and redistricting. Douglas recently wrote an opinion piece for the Brennan Center titled ‘A legitimacy Crisis of the Supreme Court’s Own Making’. Welcome to the show Doug.

Douglas Keith: Thanks so much for having me.

J. Craig Williams: Well, let’s talk about the legitimacy of the high court here. You know, I guess we can say that it began with Marbury vs. Madison.

Douglas Keith: The court has been keenly aware of its legitimacy and the significance of its legitimacy since the very beginning. The court knows that it does not have the power over law enforcement or the military that the President does. It doesn’t have the power over budgets that Congress does. All it has is the public’s trust and the public’s expectation that other people, other officials are going to follow its decisions. And so the justice is in the corner, at least know that its legitimacy is important, whether they’re doing a good job of maintaining it as a different question.

J. Craig Williams: Great. Well, we’ve seen such things as a shadow docket. We currently have kind of an odd — not necessarily an odd situation, but politically an odd situation where Clarence Thomas will be deciding the appeal for the Mar-a-Lago issues. What kind of issues did those present?

Douglas Keith: You know, these are some of the really good examples of how the court has seemingly acted without a lot of regard for its own legitimacy. It is doing things that it does not need to do that seem almost calculated to undermine the public’s confidence in it. It is deciding cases, as you said on the shadow docket without any explanation. They’re not even telling the public. They’re not giving the public any reasons to think that the court’s decisions are grounded in the law rather than politics, even when those decisions seem to just further Republican policy priorities as some shadow docket decisions have. I’m thinking of decisions that have overruled lower courts on redistricting questions or on pandemic mandates.

(00:05:01)

And then the ethical issues that have come up this term in high profile cases also seemed calculated to undermine public confidence. You have the US Supreme Court deciding questions about documents related to the January 6 insurrection. And then the public finds out months later that Clarence Thomas participated in that decision, even though many of those communications were those of his own wife. These are not the move seemingly of an institution that is worried about its place in our democracy, even though recent polling suggested that maybe it should be.

J. Craig Williams: Well, and there has been some examples if you take some of the Republicans approach to government. There’s a lot of criticism that had been leveled at former President Trump as a consequence of being put into office, but the Republicans seemed to be willing to put up with that type of behavior, let’s call it in order to justify the ends. Is that what’s going on here?

Douglas Keith: You know, I think it’s hard to say exactly what is going through the Justice’s mind. What I’m trying to think about is where we go from here, because let’s talk about the facts in terms of public confidence. A Gallup which has been polling on the US Supreme Court for decades just came out with its most recent polling in September, and found the lowest ever percentage of Americans who have “a great deal of trust in the Supreme Court that was 7%.” The highest ever percent of Americans who disapprove of the job the Supreme Court’s doing, that was 58%.

And so we’re clearly in a different moment than we’ve been in the past. And the reason that public legitimacy matters for the reasons I mentioned, you know, the court’s only authority comes from the public’s confidence. So what happens the next time there’s an opinion that the public doesn’t really like? What happens the next time there’s a Bush v. Gore, or some other kind of contested election and public trust, public confidence in the court is so low? Does that decision resolve the election as it did in 2000? Or does it only lead to more conflict of people? Are other officials tempted to just ignore that decision?

J. Craig Williams: I presume we’re talking about impartiality. I mean, how do you get the court to appear impartial when it is a result of partisan appointments.

Douglas Keith: Of course, any justice that arrives on the court today, they’re arriving through a process that is highly politicized. They are themselves political animals. You don’t get that close to that powerful position without being keenly aware of politics and having your own politics. And even outside of partisan politics, everyone has their own experiences that they’re bringing with them to the court. And those experiences and those politics are going to win and form judge’s decision making.

But what we’re looking for in judges, because this institution it’s supposed to be doing something different than the political branches. So even with every judge and justice having their own politics and having their own personal biases, they should be capable at times of deciding cases in ways that don’t align with those politics, that don’t align with those biases. And if a judge is incapable of doing that, if they’re incapable of — if they appear incapable of doing that, then there’s no point to the institution because then you just have another legislature.

J. Craig Williams: Right. But you’ve got a president who’s a political party, you got a congress that’s a political party. How do you draw impartiality out of those two lead ins to getting on the Supreme Court?

Douglas Keith: The point is that when that person is appointed to the Supreme Court, they have life tenure. They will never be removed. The only possibility of removing them from that position is impeachment which is incredibly unlikely. While they arrived at the court through a partisan process, they were selected because of their ideological leanings. They have no allegiances to those people. There’s no reappointment, there’s no reelection. All of that pressure should be gone. And so a judge should be capable of understanding that their politics are not the primary deciding factor in their decisions.

Douglas Keith: Let’s go back to law school when we started Con Law1 and you’re learning the Constitution. There is that debate between originalists and progressives, let’s just call it people that are going to interpret the Constitution according to what’s happening in the current time.

(00:10:09)

Is it necessary for the Supreme Court to remain legitimate to change with the times and not alleged leave rely on this originalism that we heard as an excuse for everything lately?

Douglas Keith: So I think you raise an interesting question about the substance of Supreme Court decisions. You know what, they’re actually saying and doing with these orders and how that affects public confidence in them in how it should. Chief Justice Roberts in these comments where he said, he didn’t understand the criticism of the court. He said that he didn’t see critiques of decisions as having anything to do with legitimacy, his ideas, the court’s decisions are what they are and the public disagreeing with the substance is neither here nor there. That over time that’s been shown to just not be that true.

First of all, from the public’s perspective, lots of polling shows that public trust in the court does have something to do with whether the court is far out of step with the public’s view on questions of high political salience. And second of all, the Supreme Court itself has seemed to recognize that. There’s a lot of research showing that even that in times where the court may be falls behind public opinion, it tends to catch up seemingly aware of how much its legitimacy depends on public confidence, and how keeping up with public opinion is short a part of its job and part of the way that it maintains its credibility as an institution.

J. Craig Williams: What do you think the impact of the general public questioning SCOTUS is going to be? Do you think that Justice Roberts is going to react to that and go, “Oh, I’m so wrong.”

Douglas Keith: I think if there’s a moment where the court actually feels that it is losing the public to the point where its decisions will not be followed, I think you may see justices get spooked and maybe change their behaviors in ways and become a bit more cautious.

J. Craig Williams: Well, here you have the issue of abortion, one of the lively topics that we’ve engaged in lately. California has got prop one now on the ballot as Kansas had and prop one is the one that’s going to enshrine the right of abortion into our constitution here. Other states are flatly rejecting it. Are we keeping a scorecard here?

Douglas Keith: Clearly the court is they are not in a moment right now where they are feeling that pressure. Their decision in Dobbs which was really maximalist. It went as far as they could possibly go in that decision, even when there were off ramps for the conservative majority to still grant Mississippi a victory and do it in a way that they could pay lip service to Roe v. Wade, which is a really incredibly popular opinion. And so right now, the court is not feeling the pressure. But perhaps that’s or at least wasn’t before Dobbs. But perhaps that’s changing and we’ll see what happens in this election and coming elections. And if there’s a clear message sent that that the court has gone too far in this moment, then it will be important to watch whether the court changes its behavior.

There’s a case already argued this term, one of the first cases of the term about redistricting and what remains of the Voting Rights Act, which is just an incredibly important law that the Supreme Court has decimated over recent years. And the State of Alabama was really pushing the court to take a fairly extreme position. The justices, even the most conservative justices seem to back away from those maximalist attempts. We’ll see what comes out in the actual opinion. But perhaps the court is already feeling chastened from the response to Dobbs this summer. You know, I wouldn’t get my hopes up, but this public pressure, public response, other officials pushing back on court decisions, this is all part of the messy conversation that is democracy and we should encourage critiques of the court, not dismiss them.

J. Craig Williams: Right. Well, Doug, at this time, we need to take a quick break to hear a word from our sponsors. We’ll be right back.

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(00:15:03)

J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m joined by Douglas Keith, counsel in the Brennan Center’s Democracy Program. We’ve been talking about the legitimacy of the Supreme Court. And you know, Doug, you mentioned look forward, and where are we going to go from here? What’s the chance that any kind of ethical restrictions are going to be laid on the Supreme Court that there’s going to be someone who’s a watchdog or some type of I mean, no one governs the Supreme Court, other than Congress being able to overturn its decisions through passing a different law.

Douglas Keith: One benefit of the scandals involving Justice Thomas hearing these cases involving his spouse’s communications is that the public was reminded once again that the Supreme Court is the only court in the country where judges do not follow any sort of ethical code, and they’re not accountable to an ethical code. The Chief Justice John Roberts has been paying lip service to adopting a code of conduct for years now, but has declined to do so. It’s fully within his authority to get the court to adopt such a code. And now there are proposals in front of Congress for Congress to do that themselves, or at least to require the court to adopt a code. And it seems about time for that. The most powerful court in the country cannot also be the least accountable. And the reality of how this court is operating today should only make that more apparent.

J. Craig Williams: And who would they be accountable to? Themselves?

Douglas Keith: You know, there’s a few different proposals for how the justices would be kept accountable. There are systems which would involve the justices themselves deciding when there’s been an ethics violation. There’s a proposal involving a congressionally based panel, there’s proposals in which other judges would issue advisory non-binding opinions, which wouldn’t be binding as I’ve said but they might shame the justices into following those advisory opinions. And so there are different approaches to it. I don’t know which one will progress or get the most support but we’re not without options here. And the court has had its chance to do it themselves. And now it’s time for Congress to take on this responsibility.

J. Craig Williams: What are the kinds of revisions are in the offing? I mean, are we going to see things like packing the court that was attempted before on the old stitch in time that saved nine? Are we going to see term limits imposed on justices’ requirements that there be some level of impartiality in the elimination of — what’s going to happen?

Douglas Keith: I think the way that the court is behaving right now without regard for the public makes it only more likely that significant structural changes are coming in the court’s way, or at least that there will be significant momentum behind them. There has to be political support for any change. And we all know how the Senate operates today. But term limits, 18-year term limits in particular are wildly popular. Every place on the ideological spectrum, the partisan spectrum in this country polls the 18-year term limits poll especially well with every group. Whether justices are added to the court, or some of the court’s jurisdiction is removed as has been proposed and has happened at times in the past. I think these are all on the table. And the more the court does that shows its disregard for the public and its disregard for our democracy, the greater for them there is that some of these proposals come to pass. But the greater disregard the court shows for our democracy, the more challenging it will be to actually pass some of these things. And so it’s a bit of a catch 22.

J. Craig Williams: It is difficult. I mean are we looking at not being able to solve this problem?

Douglas Keith: It will take political will to solve this problem, which that that fact alone should scare all of us because there are real questions as to whether our elected officials have that will. But this court is going to play a central role in maintaining our democracy against the extreme pressures that it is facing right now. This court is inevitably going to be involved in future elections probably sooner rather than later. And so it is my hope and my potentially naive optimism that there will be that political will to ensure that this court is capable of rendering decisions that are impartial and are not just carrying out the wishes of one political party.

(00:20:03)

J. Craig Williams: I remember very fondly my property law professor responding in great big letters from side to side of the classroom across the board when I responded and said, “I would hope that the court did.” And he just wrote, “Hope springs eternal.” It’s a good hope but it’s a — I go back to the title of your article, The Legitimacy Crisis of the Supreme Court’s Own Making. How did the court get into this mess?

Douglas Keith: The court has done this to themselves. And so any changes that come the courts way should not be a surprise to the court. I mentioned that the substance of its opinions being so far out of step with public opinion is of course significant for public confidence and public trust in the court. But what Chief Justice John Roberts and others missed about critiques of the court’s recent terms is that they are not just of the substance of the court’s opinions, it’s about how it’s going about doing its job and it is doing it in harmful ways that are entirely unnecessary. Deciding cases on the shadow docket as we discussed. Issuing really significant opinions without giving the public any reason to trust them. Deciding cases when there are clear ethical concerns that will raise questions from the public. Deciding cases and questions that it doesn’t really need to. Issuing more extreme decisions than the case in front of them really calls for. All of these things are not substantive. They’re not critiques of the substance of the court’s decisions, they’re about how it’s doing its job, how it is operating. And the court can change that tomorrow, and likely still reach a lot of the same outcomes that it wants to reach. But at least in the last couple of years, it has shown no interest in doing that.

J. Craig Williams: Well, Doug, this has been an amazing conversation, I hesitate to do it, but it’s time for another quick break to hear a word from our sponsors. We’ll be right back.

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And welcome back to Lawyer 2 Lawyer. I’m back with Douglas Keith. We’ve been discussing the legitimacy of the Supreme Court. Actually, a couple things that you have said have kind of triggered a thought in my mind about Justice Roberts saying, I don’t know who’s going to take up the mantle of making decisions if the court doesn’t have legitimacy. I’m left with well, if we’re going to get rid of the court or the court doesn’t have legitimacy, can we turn to something and you know, you since you’ve mentioned polling, can we turn to something like, and I don’t mean to make fun of it, but Dancing with the Stars or Voice or whatever these other programs are on television where you log in, they present the issue and you vote on it as a country.

Douglas Keith: You know what, I don’t know if we’ll ever get to that point. But there is a lot of interesting thinking going on right now about the court’s role in our democracy, and whether it needs to be that way. We are all taught in law school, that the court’s rulings are binding on the other political branches. We learned that in Marbury vs. Madison. We’ve been learning it ever since.

But there’s another way that the Supreme Court’s determinations particularly its reading of the Constitution could be viewed as just one more reading, part of the political discussion. And so the Supreme Court issues an opinion, they do their best job to persuade anyone reading that opinion as to why they are right why that reading is the right one. And then other elected officials, they just take that reading into consideration. And they act how they would like to act with that ruling in mind. And then ultimately, the public decides whether they like the fact that the official followed the opinion or didn’t follow the opinion.

J. Craig Williams: How the lower courts handle it? I mean, at that point, do we lose the seamlessness of the web?

Douglas Keith: You know, I think there’s a lot of good questions about how that would operate in practice. But the thing to keep in mind for me before I dismiss something like that which feels radical, having gone through law school and been indoctrinated.

(00:25:02)

Is that what we have right now, a court that seems to as the President of United States said this week seems to be operating more like an advocacy group than even handed. What is that as an alternative? Our status quo may be no less undesirable or complicated.

J. Craig Williams: Where are we on having these decisions be followed? I mean, are people openly rejecting the Supreme Court at this point?

Douglas Keith: You know what, we haven’t seen that yet with the US Supreme Court’s decisions. I think there will be real tests in upcoming elections, depending on how the court decides.

J. Craig Williams: How do you think the lower courts would handle the issue of stare decisis now? I mean, we’ve begun to see since Roe v. Wade was overturned, pretty much amazingly so I think. But now we’ve seen other district courts come out and say, “We don’t have to pay attention to prior president anymore.”

Douglas Keith: You see a lot of lower courts, particularly conservative judges who were appointed under the Trump administration essentially taken for granted that they are in a legal free for all right now, and that they can anticipate that the court is going to overturn president and they are going to act accordingly. We saw this in cases about abortion access. There are laws that before Dobbs were clearly unconstitutional and yet courts were allowing them to survive challenges, anticipating that the court might ultimately go along with them.

We’ve seen this in cases about gun regulations. There are lower court judges who are reading the writing on the wall and think that the US Supreme Court is going to strike down any restriction on gun ownership. And so they’re doing the same, even though there’s clear precedent that such restrictions are constitutional. And so absolutely, lower court judges are responding to what they’re seeing at the US Supreme Court. And it is not pretty for our Constitution.

It’s also important to recognize that federal judges are not the only ones affected by this. We are seeing in state courts, state courts interpret their constitutions in ways that elected officials disagree with and elected officials are already ignoring some of those rulings. We saw this happen in Ohio with litigation around the state’s congressional districts and state supreme court ruling that those districts violated the state constitution as a partisan gerrymander and yet elected officials in the state have largely just ignored that decision. And so we may already be seeing somewhat of the trickle down of the lost legitimacy of the judicial branch in general, and it may be playing out in the state courts before we see it play out in the federal courts.

J. Craig Williams: And then that begs my last question which is dropping out of the cloud for a moment, the White Tower per se as this conversation has been. As a practicing attorney, how do I advise my client? Since it’s such a free for all, I just tell my client do what you want.

Douglas Keith: We are in some ways it is the heyday of legal realism. Any advice to a client has to fully appreciate the way that our courts are operating, the way that the Supreme Court is ruling, the individual judges that that client may be likely to come before in their case and ignoring the reality that the judicial branch faces today would be malpractice. This is the way anyone bringing a case, particularly a case that may end up before the US Supreme Court today has to be thinking about the current Supreme Court supermajority, not how the court may have been operating 40 years ago.

J. Craig Williams: Well, you know, to some degree, even as a trial attorney, I look up my judges and kind of learned their disposition before I appear in front of them. So is it any really different than that?

Douglas Keith: Maybe not different, just potentially more extreme.

J. Craig Williams: And more consequential?

Douglas Keith: Yes.

J. Craig Williams: Yes, very much so. Well, Doug, we just about reached the end of our program, so it’s time to wrap up and get your final thoughts along with your contact information so our listeners can reach out to you and continue this discussion. It’s been just amazing.

(00:30:02)

Douglas Keith: Well, I’m so grateful for you having me and for having this conversation. We are at a unique moment in the history of the judicial branch. As I said, confidence in the court is as low as it has ever been. We saw incredible backlash to the Supreme Court’s decision in Dobbs, we’ve yet to see how the court response to that backlash. And so, this term will tell us a lot about the direction that the court is headed in, but I’m not particularly optimistic unfortunately. For anyone who wants to continue this conversation, I’d be happy to be contacted, my email address is [email protected] and thank you once again.

J. Craig Williams: Great, thank you. And as we wrap up, I’d like to thank our guest attorney and professor Douglas Keith’s. It’s been an absolute pleasure having you on the show.

Douglas Keith: Thank you so much.

J. Craig Williams: Well, now that our conversation with Doug has finished up, it really does seem that the Supreme Court has legitimacy problem and I think Doug’s point about the public polling reflects that. But when you think back to what Marbury Madison had self-declared which is the court is legitimate because we say we’re legitimate, and we’ve kind gone along with that and held it out as the third branch of government, we’ve kind of as Doug has correctly pointed out indoctrinated as social studies and law students and everywhere else that there are three branches of government, but maybe there are only two and that’s a question that this Supreme Court is going to have to answer and I’m not sure that they answered it correctly. Well, thanks for listening. And if you like what you heard today, please rate us on Apple podcast or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you sign up for our newsletter. I’m Craig Williams, thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

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