30 Issues: Is the Supreme Court A Problem for Democracy?

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Brian Lehrer: Brian Lehrer on WNYC, and yes, we are in our 30 Issues in 30 Days election series, and up to episode eight of 10 straight episodes of 30 Issues on what many of you on the phones ask for, by far, the most when we open the phones on the question of what's your top issue for the midterm elections in a series of call-ins this summer, it's democracy in peril. Now we're going to talk to a Supreme Court watcher about the Supreme Court. Is the Supreme Court of the United States of all things contributing to democracy being in peril?

Our guests for this to talk about little history of the Supreme Court, little current state, and how it might be changed, if it should be changed, is Emily Bazelon, staff writer for the New York Times Magazine, co-host of Slate's "Political Gabfest" podcast, Truman Capote fellow for creative writing and law at Yale Law School, and author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. Emily, thanks for bringing your Supreme Court-watching side to help us understand this. Welcome back to WNYC.

Emily Bazelon: Thanks so much for having me.

Brian Lehrer: I'm going to jump right into a little piece of history that's relevant to the debate over whether to expand the Supreme Court. Was the Supreme Court designated to have nine justices in the constitution?

Emily Bazelon: No, it wasn't, and the number of justices on the Supreme Court has changed in other times of our history. During the 1860s, from 1863 to 1866, the Congress twice changed the number of justices. It went from nine to 10 to seven and then later, back to nine. The Constitution does not specify a number.

Brian Lehrer: It was political in those cases, right? We like to think of the Supreme Court as being above politics, and maybe it's an insult to say it's political when the stakes were so high, but Lincoln got Congress to expand the court to 10 justices to help him prosecute the Civil War, and then Congress, as you say, shrunk it back to seven when the next guy took office, Andrew Johnson, and as I read it, it was because he was opposed to reconstruction and, and Congress wanted to disempower him. How much is that your reading of history?

Emily Bazelon: Yes, I think you're right. There's always a tension with the Supreme Court. There is supposed to be something called law that the justices and judges generally do that is different from politics, and in many, many cases, in most cases, the Supreme Court hears that rule holds. The cases are about rather technical matters of statutory interpretation. They don't have a clear political bent, but there have always been some issues the court has been involved in that are inherently political, and what you see in the lead-up to the Civil War is the Supreme Court ruling in cases like Dred Scott, this is one of the most infamous decisions in the court's history.

The court denies citizenship to Black people during the time of slavery, and then you see the country ripped apart and then you see Lincoln worrying that the court was going to be an obstacle to his plans for the Civil War, and then after the war, yes, the Supreme Court gets caught up in the fight over reconstruction and you see the number of justices change as Congress tries to negotiate that.

Brian Lehrer: There are polls out these days that I'm sure you're aware of that show the Supreme Court has the lowest approval rating of any time in its history, or at least since they started polling that thing. A Gallup poll in June, 25% of Americans, only 25% have confidence in the Supreme Court, and there was a pupil last month that asked, among other things, if the Supreme Court has too much power and more Democrats than Republicans not surprisingly thought that it has too much power, but the idea of the growing belief that the court as an institution has too much power for me raises questions, not just about individual decisions that people don't like, but about the place of the Supreme Court in our democracy itself. Do you read it that way?

Emily Bazelon: Yes, I do. One thing that is a irony of the Supreme Court is the Constitution does not say that the court has what we've come to call the power of judicial review, and what we mean by that in the United States is that the Supreme Court took upon itself in a very big important 1803 case called Marbury versus Madison, the power to declare what the Constitution says.

The court made itself the final word on the meeting of the Constitution, and ever since then, it has played that role. It's baked in, but I think what we're seeing with these lower approval ratings is the sense that the court's interpretation of the constitution has become more partisan and the public can see that there are six justices appointed by Republicans who tend to vote in a conservative way in big cases five of them with great vigor.

Chief Justice Roberts, a little more tempered, and then you have a minority of justices appointed by Democrats who are dissenting, and when that pattern holds again and again in big cases that are changing American law, like the court's decision to overturn Roe versus Wade last summer, the public is going to see what's happening, it's evident.

Brian Lehrer: Now we get these proposals. Well, let me ask you another history question first. Have there been other times in our nation's history where the legitimacy of the Supreme Court, not just agree or disagree with individual decisions, the legitimacy of the Supreme Court has been in doubt for as many people or as much of a percentage of the population as it seems to be today.

Emily Bazelon: Probably. We don't have the Gallup pole going back into the beginning of the 20th century, but we have a pretty strong sense that from about the 1890s through the beginning of the 1930s, the court's reputation was very wobbly, and that was a time when there were a couple eras of a very conservative Supreme Court that was preventing Congress and eventually FDR from doing things that most people wanted that, for example, were supposed to help the country get out of the depression.

When the court struck down important pieces of New Deal legislation under FDR'S presidency, you saw a lot of a clamor of public complaining about the court, and that, of course, led to FDR's plan to try to add justices. We talk about that now in this derogatory way as court packing. At the time, it appeared to be pretty popular, and what happened was not that FDR backed down. He didn't put extra justices on the court, that's true, but that was partly because the justices themselves pulled back from the brink.

You have this famous moment, it's called the switch in time that saved nine where a justice named Owen Roberts switch sides. They ended up allowing New Deal legislation and then you have a bunch of justices retire and Roosevelt gets to appoint people he wants to see on the court. There is historically this dynamic where public approval can have a great effect on the court.

Brian Lehrer: I think one of the things going on now besides a lot of Democrats not liking some of the recent decisions, is the whole Mitch McConnell thing. Then senate majority leader Mitch McConnell in 2016 refused to grant President Obama's nominee to replace Justice Antonin Scalia when Scalia died. Merrick Garland to grant him even a confirmation hearing on the excuse that it was Obama's last year, but then McConnell ignored his own standard there in getting Amy Coney Barrett approved in Trump's last months, and I guess that was all technically within the rules. Is that an example of how maybe the rules have to change with respect for the Supreme Court for democracy to be what it should?

Emily Bazelon: Maybe, it's certainly an example of the politicization of the appointment process for Supreme Court Justices. If McConnell hadn't had a partisan name of trying to make sure a Republican president would appoint this crucial swing justice, then he wouldn't have blocked Obama's choice at the time, Merrick Garland, from a hearing from a vote in the Senate. I like a term it's called constitutional hardball for what McConnell was doing. It's within the bounds of the constitution. It broke a lot of norms. I think it shook a lot of people's confidence in what was happening at the time, and that has had reverberations to the present when people's sense of the court as politicized has become stronger and stronger.

Brian Lehrer: Now we have various proposals on the table to change things. A number of people propose expanding the size of the Supreme Court to make up for McConnell's constitutional hardball, and I guess for other reasons as well, they're some members of Congress like Mondaire Jones, Maize Hirono, Ed Markey, who all supported the idea of expanding the court. I remember Pete Buttigieg when he was running for president, proposed expanding to the court to 15 justices and trying to depoliticize it by having, I guess, five appointed by Democrats, five appointed by Republicans, and then those 10 justices themselves appoint the other five. The other big thing that people talk about is term limits. Do you see either of these or is there any scenario for changing the structure of the court that I left out that's at all realistic?

Emily Bazelon: That's the big question, is whether these proposals really have a chance. It's interesting that even though there has been this rising sense of public disapproval for the court, there has not been a real groundswell of support in Congress, even among Democrats for changing the size of the court and for the other kinds of proposals that you are talking about. I don't totally understand that, except that I think American voters tend to be skeptical about what feels to them like radical change and this seems like radical change.

I think anything that is structural and wonky and about the composition of the government doesn't quite resonate with people. People have lots of things to pay attention to and this stuff can be complicated. Anything legal is dense and can seem just tricky. I think maybe for those reasons, we just haven't seen a real push. I guess the other thing to add is President Biden, it would take Biden's really using his bully pulpit to Marshall support for this and he has not done that.

BrianLehrer: We leave it there with Emily Bazelon with the Supreme Court's reputation, according to these recent polls, as low as it's ever been, at least in American history, when polling has been done, does it need to be changed to improve democracy? It's certainly an issue for our country today when so many people see democracy as being in peril.

Emily Bazelon, staff writer for the New York Times Magazine, co-host of Slate's "Political Gabfest" podcast, Truman Capote fellow for creative writing and law at Yale Law School, and author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. We always learn stuff when you come on, Emily. That's why we're going to keep having you on the show over and over again if you are willing.

Emily Bazelon: I am so willing, and that is a great compliment. Thank you so much, Brian.

 

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