President Biden Attempts SCOTUS Reform

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Matt Katz: It's The Brian Lehrer Show on WNYC. I'm Matt Katz from the WNYC and Gothamist newsroom filling in for Brian today. On today's show, the intractable crisis at Rikers Island. There was some news this weekend involving solitary confinement at city jails. City Councilmember Carlina Rivera, who represents parts of Lower Manhattan, will join us to talk about why the council was outraged by the mayor's executive order concerning Rikers. We'll want to hear from people with connections or concerns about the city's notorious jail complex. That'll be in about a half hour.

Plus, later in the show, our climate story of the week. We'll talk with the author of a book that offers solutions to the climate crisis. We'll wrap up today's show with a conversation about dating and politics. Some new polls show that young women's politics are firmly to the left of young men's. We're hoping some of you will call in to talk about how that dynamic might be playing out in your own dating lives. First we begin today's show with words from the end of President Biden's address at an event held yesterday celebrating the 60th anniversary of the Civil Rights Act.

President Biden: My fellow Americans, in two years we'll commemorate the 250th anniversary of the signing of the Declaration of Independence. That July 4th of 2026 will be a moment not only about our past but about our future. Imagine that moment and ask yourself, what do we want to be?

Matt Katz: The circumstances surrounding the president's question are particularly striking. There's President Biden at an event celebrating the Civil Rights Act at a time when the sitting Supreme Court gutted abortion rights and affirmative action. Some fear the power that this court is wielding and they wonder what's next. Biden stood in the Library of Lyndon B. Johnson, another president who left office without running for a second term. Biden framed this as a tension of American politics. Do we move forward, expand rights and include more people, or do those with power maintain their grip? In yesterday's address, President Biden outlined major reform proposals for the Supreme Court. Hear why he argues the time for change is now.

President Biden: In recent years, extreme opinions that the Supreme Court has handed down have undermined long-established civil rights principles and protections. 2013, the Supreme Court in Shelby County case gutted the Voting Rights Act, opening the floodgates to a wave of restrictive voting laws that have seen states across the country pass. In 2022 the court overruled Roe v. Wade and the right to choose that had been the law of the land for 50 years, 50 years. The following year the same court eviscerated affirmative action which had been upheld and reaffirmed for nearly 50 years as well.

Now there's an extreme movement and agenda called Project 2025. By the way, they're serious, man. They're planning another onslaught attacking civil rights in America. For example, Project 2025 calls aggressively attacking diversity, equity and inclusion across all aspects of American life. This extreme MAGA movement even proposes to end birthright citizenship. So far they've come, in birthright citizenship, which if you're born in America, you're an American citizen.

Matt Katz: Joining me now to delve into Biden Supreme Court reforms is Elie Mystal, justice correspondent and columnist for The Nation Magazine, host of the new podcast Contempt of Court with Elie Mystal and author of Allow Me to Retort: A Black Guy's Guide to the Constitution. Elie, welcome back.

Elie Mystal: Good morning, Matt. How are you?

Matt Katz: Doing great, man. So glad you're here to walk through this whole thing with us. You just heard that clip of Biden. He's arguing that the time for change is now by recounting these extreme opinions of the Supreme Court in recent years. I want to start there. He starts off with the gutting of the Voting Rights Act. This was 2016. What effect has that decision now had on our nation over the last eight years, from your perspective?

Elie Mystal: Oh, well, look, I credit the Supreme Court's decision in Shelby County v. Holder which gutted the Voting Rights Act, which allowed for voter suppression to take place on an unprecedented scale since the end of the Jim Crow era, I credit that decision with the election of Donald Trump in 2016. There is a one-to-one connection about whether or not you allow Black people to vote and therefore save the country from racist white folks who like Donald Trump or not. John Roberts and his conservative cabal on the Supreme Court decided that they wanted to suppress the Black vote and then you see what happens, Larry, you get Donald Trump. That's where you start with the extremism.

Biden has even-- he mentioned Roe v. Wade, obviously he mentioned affirmative action. The Supreme Court has been wilding out over the past eight years, Matt. We're talking about gutting the labor rights to the point where even the right to strike is diminished and under threat, we're talking about ending the regulatory state, we're talking about destroying environmental regulations, gun regulations, again, I said labor regulations, voting regulations before we even get into overturning Roe v. Wade signaling that they plan to attack LGBTQ rights. They are off the chain. I am very happy that Biden and the Democrats finally seem interested in doing something to stop these nine unelected, unaccountable people who've decided they rule over all of us by fiat.

Matt Katz: Can I go back to the Voting Rights Act bit? Is there data to backup that argument that without the Voting Rights Act being gutted by the court in 2016 and four years later, there would have been enough Black Democratic votes to push Hillary over the edge and defeat Trump?

Elie Mystal: You look at the turnout in Milwaukee and Wisconsin which went for Trump, you look at the turnout in Charlotte and Durham in North Carolina that went for Trump, you look at the turnout in urban centers that was depressed in 2016. Now, a lot of people go, like, "Oh, it's because Hillary was a bad candidate." Maybe, but maybe if you don't overturn what I call the most important piece of legislation in American history, the Voting Rights Act, if you don't overturn Section 5 of the Voting Rights Act, which prevented states who had a history of racial discrimination from further suppressing the vote of their Black and Brown citizens, I think the 2016 election goes completely differently. I think it's as simple as that. I've said so for the past eight years, but politicians were like, "Well, it was actually James Comey," or whatever people want to talk about. John Roberts did this.

The other thing about Shelby County, you got to remember, this was the Republican Supreme Court response to the reelection of Barack Obama. Obama wins in 2008. People are like, "Oh, maybe it's a fluke." Whatever. A Black man wins a second time and now people were like, "This is serious." The first thing the conservatives do is attack the 1965 Voting Rights Act, which, again, I say, is the most important piece of legislation because before the 1965 Voting Rights Act, we are functionally an apartheid nation.

Before the 1965 Voting Rights Act, which was the first piece of legislation that even attempted to enforce and take seriously the 15th Amendment and its prohibition on discrimination for race in voting rights, before you have a country where all people, regardless of race, color or creed, have equal access or at least equal legal access to the ballot box, we're an apartheid state. The 1965 Voting Rights Act is what not just redeems America, it's what makes America the democracy that it thinks itself of. The first thing the conservative Supreme Court does, after a Black man wins the presidency for the second time, is gut it, is take it away, is to make it less effective. So yes, I think, Matt, there's a one-to-one connection between Shelby County v. Holder and Trump's election.

To broaden the aperture just a little bit, this is the other thing that I think is so important about Supreme Court reform. There is no Democratic agenda, there is no liberal agenda, there is no progressive agenda, certainly, that can survive a conservative Supreme Court because the Republicans on the Supreme Court have decided that it is within their power and purview to simply veto legislation passed nationally that they don't like and to remake the constitutional structure in a way to make it easier for Republicans to win elections.

I'm focusing on the Voting Rights Act, but we haven't even talked about the court's gerrymandering decisions over the past years which has made it easier than ever before for Republicans to gerrymander away Black and Brown voting power in the various states. We have a full-court press from the Supreme Court to make the world safe for Republicans and for Democrats to not understand that, to think that all you have to do is win elections when the Supreme Court is literally making it harder for you to do just that, it has been a blindspot in the leadership of the Democratic Party for almost a decade now. This address, this proposal, this speech from an op-ed from Joe Biden, it is the first time that a leader of the Democratic Party has announced the intention to do anything to stop these extremist people on the Supreme Court.

Matt Katz: Even if this stands little chance in the immediate future of getting approved or any sort of agreement from a Republican Congress, it's significant in your mind that it's actually being raised as an issue by the president of the United States and the top Democrat in the country for the moment?

Elie Mystal: Understand that Joe Biden has been the biggest enemy to court reform within the Democratic Party. As the longtime head of the Senate Judiciary Committee, as a respected figure amongst the party even before he was president, and then certainly as president of the United States, if you go back, if you roll the tape back to the 2020 primary when you had 18 Democrats and the coffin man running to be president of the United States, Joe Biden was the least interested in court reform of anybody on that primary stage and he won the primary relatively easily.

He has been a symbol for the Democrat's resistance to take the Supreme Court seriously as a threat to democratic self-government. For him to finally, and I subscribe, Matt, to the Sam Seaborn from The West Wing policy, "Let's ignore the fact that you're late to the party. Embrace the fact that you showed up at all." That's how I am this morning, but for Biden to finally get to the point where he's willing to consider any court reform and these reform proposals are incrementalist, moderate, relatively weak, but common sense reforms. This is not as far as the reforms need to go, but it's a start.

Him saying it gives, obviously, Vice President Kamala Harris cover to continue this push, should she be elected. It gives cover to Democrats not just on the kind of left-wing side of the party, but center-left and moderate Democrats, it gives them cover to support some form of court reform. You're now not just talking about Sheldon Whitehouse who has been on this track for quite some time, but maybe now you finally get the actual Democratic Chair of the Senate Judiciary Committee, Dick Durbin, to do something and care and do anything to stop the Republican onslaught on the Supreme Court. You give cover to a bunch of the rest of the party to now start taking this issue seriously and to work towards a point where you can have the votes to pass this.

Quite frankly, I think most of your listeners know, it's not just that you don't have control of the Republican House at this point. At some point, to get any of these reforms, you're going to have to break the filibuster in the Senate. You're going to have Democrats keep control of the Senate through a very tough electoral map, and then be willing to break the filibuster to do this. I imagine that there are quite a few Democrats that are still not there yet, but that's why we're not likely to see reform in the near future.

It's not just Republican control. It's Democrats unwilling to break the filibuster. I saw in The Washington Post in their follow-on article to the Biden op-ed, they were like, "Well, you need 60 votes to pass it." You don't need 60 votes. That's not in the Constitution, Washington Post. You need 51 votes. It's just an anachronistic antebellum rule, Senate tradition called the filibuster, that pushes the vote count beyond a simple majority towards 60, but you could pass the two legislative proposals with just 51 votes. The constitutional amendment, there, you need 66 votes. You need two-thirds of both houses in order to pass a constitutional amendment. The two legislative proposals, those can be passed at 51 votes.

Matt Katz: Given all that, given those hurdles, given that you need Democratic control of the Senate, that you need to get rid of the filibuster, that if you were to follow through with all of Biden's reforms, you also need this constitutional amendment. I got a text from a listener to that end. Listening to Biden talk about SCOTUS is ridiculous. He chose to do nothing for his entire presidency. He chose to let them get away with all of it. For the first two years of his presidency he had the Congress and he chose to do nothing. It's too little, too late. You've already said you'll take anything, and it helps to move the conversation forward, I'm wondering, why now? Was it the Dobbs decision that became the moment of reckoning? Was it because he's a lame duck and it doesn't matter at this point? Why now?

Elie Mystal: Yes, great question. It wasn't Dobbs. It should have been Dobbs. Look, I've been on this since Shelby County. I think most people have been on this since Mitch McConnell changed the number of Supreme Court justices from nine to eight by refusing to seat any Supreme Court justice so long as Barack Obama was president and threatening to not seat any Supreme Court justice if Hillary Clinton was president. I think that was when most people paying attention should have gotten the memo that Supreme Court reform was needed, but for people who weren't paying attention, Dobbs should have been the point where Democrats started taking this seriously, and it wasn't. I can't explain that, and I can't defend that.

To answer the question as best as I can, why now? I really think that you got to put yourself in the mindset of an institutionalist, of a moderate like Biden, like many other Democrats who, despite all evidence to the contrary, still think that the Supreme Court is some kind of reasoned, deliberative, nonpartisan body. If you put yourself in that mindset, you were probably pretty shocked when the Supreme Court declared Donald Trump a king and granted him absolute immunity for all official acts. That probably surprised you. Didn't surprise me, because I know these people. I read these people. I understand what these six extremist conservatives are all about.

If you don't know these people and you don't read these people, and you believe their press clippings and you believe Roberts is an institutionalist and you believe all that bull crap, well, then I bet you were pretty surprised at the end of June, at the beginning of July, when the Supreme Court declared Donald Trump a king. I think if I put myself in the mindset of a moderate Democrat, I do think that the immunity decision really surprised them and really changed their minds and really made them think that they had to do something to stop this. Even if you look, remember, there are three proposals, and I don't think we've said it, Matt.

Matt Katz: Yes, let's go through them.

Elie Mystal: The three proposals are term limits, ethics reform, and a constitutional amendment that Biden's calling the no one is above the law amendment to say for sure that presidents are not immune from criminal actions, from criminal prosecution after they leave office. Now that's interesting that the constitutional amendment that you want in this moment is to overturn the immunity decision, because the immunity decision, while it was terrible and awful and changes the nature of the American republic, I don't know that that's in the top five of my worst decisions from the Roberts Supreme Court over the past eight years.

It's interesting that you're trying to make the 28th Amendment the immunity amendment, as opposed to, I don't know, the Equal Rights Amendment, which would guarantee equality to women and restore abortion rights as a constitutional matter as opposed to a legislative matter. It's interesting that you go to immunity as opposed to restoring affirmative action or putting a real right to vote in the Constitution. Not just all the constitutional amendments about voting rights are phrased in, we shall not prohibit voting based on blah, blah, blah, blah, blah. You could have a much stronger amendment saying that you affirmatively have a right to vote that cannot be abridged through whatever latest Republican trick there is to abridge it.

There are lots of other contenders for that 28th Amendment slot, and Biden chose the immunity one. I think that's an indication of just how surprised, shocked, and appalled he was by the Supreme Court's decision in the Trump immunity case.

Matt Katz: It also seems like the one that would have the most bipartisan appeal, theoretically, in that it is a way of avoiding having a president who can just do what he wants and have no consequences, which feels to many people as unconstitutional and un-American. Maybe that's why, since there's a bigger hurdle for getting a constitutional amendment through, maybe that's what he sees as something that there could be a consensus for in some way.

Elie Mystal: If you know Republicans who support Trump that are against criminal activity, that would be news to me, Matt. I would like to meet some of those MAGA Republicans because from where I sit, telling Republicans that they can't commit crimes is the last thing they want to do. Sure, I do think that these proposals are extremely popular. These are 60/40 issues in the American public. We can go into whether or not term limits are constitutional, but everybody thinks they should be. The idea that somebody should serve for life is generally an anathema to the American people. I know for a fact that there is a lot of popular support for term limits, constitutionality of it be damned.

Certainly, ethics reform, when you talk about stopping public corruption, and when you talk about how openly and publicly corrupt the Supreme Court has shown itself to be over the past two or three years thanks mainly to the prize-winning reporting of ProPublica, if you look at that, ethics reform is extremely popular. This idea that presidents shouldn't be kings is also popular. I do think that in the answer to the why now, Biden is also taking advantage of the most politically popular reforms and the most politically popular moments here to try to rethink how to deal with the Supreme Court.

Matt Katz: Listeners, do you see reforming the Supreme Court as a step in the right direction for our country? Do you see these ideas we're about to discuss as a plunge into unchartered waters? Are you a MAGA voter that Elie was just talking about? Are there other reforms to the Supreme Court that should have been on the table? We'd like to take your calls, your questions for our guest, Elie Mystal, from The Nation magazine, 212-433-WNYC, 212-433-9692. You can also text us. Elie, I just want to play a clip of Biden talking about the Supreme Court's presidential immunity decision that we were just discussing.

President Biden: Here is what Justice Sotomayor, a Supreme Court justice, wrote during dissent. I quote, "Under the majority's reasoning, the president now will be insulated from criminal prosecution. Orders the Navy's Seal Team 6 to assassinate a political rival. Immune. Organizes a military coup to hold onto power. Immune. Takes a bribe in exchange for a pardon. Immune. In every use of official power, the president is now a king above the law." This is what Justice Sotomayor wrote in her dissent. Folks, just imagine what a president could do in trampling civil rights and liberties given such immunity. The court's being used to weaponize.

Matt Katz: Elie, do you agree with Sotomayor's analysis there? Does she lay out the stakes accurately?

Elie Mystal: Oh, yes. Sotomayor's dissent in the immunity decision was one of her best, and I think it'll go down in history as one of her best dissents. She's absolutely right. If you look at the reporting that was released yesterday about the internal conversations over the immunity decision, what you see is that the six Republicans, including Chief Justice John Roberts, who always gets unfairly painted as an institutionalist moderate when he is actually just as hardcore of an extremist conservative as the rest of them, he just has better press clippings. When you look at what Roberts was doing behind the scenes, he took the hard-line stance that presidents should be immune from the jump and at no point tried to find any point of compromise or collegiality with his liberal colleagues. I think that's one of the reasons why the Sotomayor dissent came out so hard and came out with such fire as it was because Roberts and the rest of them took a hard-line pro-Trump stance from the very jump of deliberations in this case.

Matt Katz: On the term limits, go a little deeper on this. He wants Supreme Court justices to serve only 18 years, get rid of lifetime appointments. First of all, is there a world in which a term-limit forced justices could be packaged with a term limit for senators, for the House, and that get a more popular approval among Democrats and Republicans? Is that something that there might be political appetite for?

Elie Mystal: I don't know, but Matt, I guess I disagree with the frame. Term limits are already popular for the Supreme Court. You don't need term limits to become more popular with the American public. We're already there. People do not think that justices should serve for life. When they wrote it in the original Constitution that justices should serve for life, they were writing in a time before Robitussin. They were writing in a time where people could die because they got caught out in the rain.

The average service of a Supreme Court justice in the first, I think I'm going to say this on live radio, so I was about to say, don't quote me on this, but something in like the first 100 or so years of the Republic was 15 years. When you think about an 18-year term limit, that is much more in keeping with what the founders thought they were signing up for when they gave them lifetime tenure. They didn't think that people would live, quite frankly, as long as they have.

They certainly didn't think that people would regularly be appointing 50-year-old judges who would serve for the next 35 years. Americans understand this. Again, term limits are already extremely popular in the country. Republicans don't like them right now because right now Republicans are winning. I promise you, if you roll the tape back 40 years, Republicans would be, "Oh, term limits. That sounds great." Term limits just make common sense. The problem is-

Matt Katz: I was just wondering if you need a constitutional amendment to do it. That's what a listener texted in to ask. Can you just do that with legislation?

Elie Mystal: Right, and that's the rub of it, Matt. The problem with term limits is not their popularity. The problem is their constitutionality, which is suspect at best. The Constitution, Article 3, which is the Supreme Court article of the Constitution, is quite clear that federal judges serve while in good behavior, good behavior has been interpreted to mean life tenure. There are some workarounds.

The reason why the 18-year plan has been popular among academics is that it largely tracks with what we already do for lower court federal judges. Federal judges on the district court or the circuit courts of appeals, they are effectively term-limited out. We call it senior status. Once they accrue enough age and enough time on the bench, they have the option to take senior status.

They keep their full salary, they can still hear cases, so they fulfill the constitutional requirement of holding their office while in good behavior. They're not fired, they're not put out on the street but they take senior status and that opens up their seat so that they can be replaced by the president of their choice. The thing about senior status that we do, again, for every lower court in the country by statute, is that it's voluntary.

Judges can choose to take senior status, and often judges don't choose to take se-- right now, very few Republican judges are taking senior status under President Biden. Under President Trump, very few Democratic-appointed judges took senior status under President Trump. Senior status works as a constitutional matter but it's still fundamentally voluntary in a way that this term limits thing probably isn't. That's one huge complication.

There's an argument, Matt, it's a highly technical academic argument that basically the constitution gives the Supreme Court what's called original jurisdiction in a very small number of cases, mainly just when states are suing other states. Appellate jurisdiction is something that the Supreme Court created for itself. It's not given to it in the Constitution necessarily. So there's an argument that you can remove judges from appellate jurisdiction but not original jurisdiction. That's a super technical argument.

Here's the problem. You don't have to convince me, I don't have to convince you. Somebody has to convince John Roberts. Because when you put term limits up through regular legislation, the first thing that's going to happen is John Roberts is going to say, well, I don't think that that's constitutional. And guess who gets to decide what's constitutional or not? Me and my friends. There are currently three judges who have served longer than 18 years, John Roberts, Clarence Thomas, and Samuel Alito.

Matt Katz: Those are all the conservative-

Elie Mystal: Who is going to tell them that it's time to leave and what are they going to rule when you tell them to? That's really your pro-- it's not that I can't make a constitutional argument to support term limits without an amendment, it's that I can't make an argument that I have any confidence that term-limited justices themselves will agree to, and because of our stupid way of doing things, we let these judges decide their own powers. That's where term limits is going to fail as a legislative matter without a constitutional amendment.

Matt Katz: We are going to take a quick short break, catch our breath, and when we're back, Elie Mystal, justice correspondent and columnist for The Nation, he will take your calls. Stay with us.

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It is The Brian Lehrer Show on WNYC. I'm Matt Katz filling in for Brian today. My guest is Elie Mystal from The Nation magazine. We are talking about President Biden's push to reform the Supreme Court. Let's go right to the phone lines. Chris, in Fairfield. Good morning, Chris. How you doing?

Chris: Thanks for taking my call. I appreciate it. Elie, it's really an honor to speak to you. I love your stuff. I just wanted to make a quick point. I think you actually just touched on it, but assuming it's a hard sell to get the constitutional amendment to reform the Supreme Court, if the Democrats keep the Senate, is there a possibility of impeaching Thomas and Alito over their conflict of interest? It seems like they've barricaded themselves, the Supreme Court in general under Roberts has barricaded itself into a stronghold where they can quash any attempt to reform the court, but with regard to maybe impeaching Thomas and Alito, would that be the Senate? Would they have the possibility of doing that?

Elie Mystal: Hi Chris, thanks for your call. It's possible. If the Democrats control both chambers of the House, both chambers of Congress and The White House, you could do impeachment just like you do impeachment for a president. Impeaching a Supreme Court justice is the exact same as impeaching a president or any federal official. It's got to start in the house. You got to get a majority vote in the House, then it goes up to the Senate and you need two-thirds of the Senate for conviction.

Put it like this, you can break the filibuster by changing a rule. If you control 51 votes in the Senate, you can change the filibuster by yourselves. For impeachment, you almost certainly are going to have to get Republican votes and I don't see any opportunity for the Republicans to agree to impeach Thomas or Alito, which brings me to the bigger point. This is really hard for lots of moderates to understand, but the most moderate, the most constitutional and the legislatively easiest way to fix the Supreme Court is to expand the number of justices.

Don't take Thomas and Alito away. That is actually harder to do than expanding the court. Because if you break the filibuster, court expansion just needs to be a simple bill in the house passed by a 51-vote Senate and signed by the president. Boom, expanded. Impeachment; you got to hit a higher threshold of votes to actually do impeachment. As we just talked about term limits, you have to probably get a constitutional amendment to do term limits. These ideas that sound moderate to people, that sound smaller to people are actually the harder way to do it. The easier way is to expand the court.

Let's say you want term limits. Give me six justices that agree with me that term limits are constitutional and then pass your term limits legislation. That's how you get term limits. The analogy I've made, Matt, before is that it's like tranquilizing an elephant so you can put a radio tracking collar on the animal to monitor it. There's an order of operations there, first the tranc, then the collar. If you do that backwards, if you try to put the collar on first, you're just going to have elephant stomping on your neck. Court expansion is the way to tranquilize the Supreme Court so then you can do all these great high-minded reforms that you want.

Matt Katz: Joe Biden, too much of an institutionalist and didn't support that when that came up when he was running. Well at the beginning of his term he wouldn't entertain that idea of expansion.

Elie Mystal: It's really frustrating, Matt, but again, this is the moderate Democrat problem. Court expansion sounds more radical than it is, and so it sounds easier and more moderate to do things like term limits, even though, again, order of operations, they have it backwards. I also talked about how term limits are hugely popular. Joe Biden, in an election year, even though he's not running, they want to do the popular thing that's still term limits. Court packing, court expansion, not as popular quite yet. Term limits polls at close to 70%, court expansion like 42%, 43%, 44%. Look, I started talking about court expansion when it was polling at 12%, so 42% is big for me, but it's still not over the critical mass hump.

I get why, from a politician perspective, you say the popular thing as opposed to trying to lead people to the less popular water, but this doesn't get, and I have a piece coming out in The Nation today that basically says this, Matt, this doesn't get done, reforming the court, until you expand the court because the court won't allow itself to be reformed until you put reformist justices on the Supreme Court. That's just the order of operations of it. I think Americans need to see these moderate, common sense, incremental proposals fail. They need to see the Supreme Court reject them before they'll believe people like me that it's the Supreme Court itself that has to be tranquilized before you can reform it.

Matt Katz: We have another caller, Jay in Pomona. Hi Jay, thanks for calling in.

Jay: Hi. Thanks for having me.

Matt Katz: Sure.

Jay: Well, I'm trying to figure out, as a conservative who listens to WNYC to get the other perspective, if it were Donald Trump trying to propose a term limit to get the late Ruth Bader Ginsburg from the Supreme Court so he could put his own justice in her place, would the Democrats, the more liberal, feel the same way about proposing term limits or is it just, we don't like the current Supreme Court, so let's get rid of that?

Elie Mystal: This is the classic projection from Republicans where it's like, "Oh, you're only doing this because you don't like the decisions." Well, there are a couple of things here. First, to answer your actual question, Jay, if Donald Trump supported term limits, I would still support term limits. Term limits are just a good idea and they're a nonpartisan idea.

Understand, term limits doesn't ensure that the court will be more liberal or more conservative. All term limits ensures, the reason why they're using 18-year term limits, because 18-year term limits with a nine-member court, works out to each president getting to make an appointment every two years.

All term limits do is make the partisan balance of the Supreme Court responsive to the winners of elections as opposed to who choked on a ham sandwich last night. All it does is make our democracy responsive to the winners of election as opposed to responsive to the grim reaper. That's good. I don't care who proposes it. David Duke could support term limits and I'd be like, "Good idea, Klansman." These term limits just make sense, that's number one.

Number two, in terms of these larger reform issues, the argument from conservatives is always, "Well, you just don't like some Supreme Court decisions." Yes. It's like how I didn't like the Dred Scott decision in 1857, which said that there were no rights the Black man had that a white man was bound to respect. That was a bad call. At some point when the Supreme Court gets something so wrong so fundamental so consistently, something needs to be done about the Supreme Court.

What was Abraham Lincoln's response to the Dred Scott decision? It wasn't to start the Civil War, that was the conservatives in the South. Abraham Lincoln's response to the Dred Scott decision was court expansion. Abraham Lincoln changed the number of Supreme Court justices from 9 to 10 during the Civil War. Boom.

When the court gets something fundamentally wrong, and cannot be reasoned with, refuses to be reasoned with, court expansion is actually the preferred constitutional method to change the court. Thomas Jefferson did court expansion. Andrew Jackson did court expansion. Abraham Lincoln did court expansion. FDR tried and everybody was like, "Oh, FDR failed." Did he though? Did he though? Because FDR was losing all of his New Deal cases 5-4. Then he threatened to pack the court, and then all of a sudden, magically, he started winning his New Deal cases 5-4.

If you want to tell me FDR failed, I'd love to fail the way FDR did. Court expansion is what you do when the court gets out of whack with the main of the American people. While yes, it's one thing for me to say, "Oh, well, I don't agree with it's decision in Ohio v. EPA about pollutants that cross state lines." Yes, I don't agree with that decision, I think that's a bad call. I wouldn't be saying let's reform the Supreme Court just based on that one case.

When they take away a constitutional right for the first time in American history, when they gut the most important piece of legislation ever passed in American history, the Voting Rights Act repeatedly, when they declare presidents kings, when they take bribes, when they're out here running off to rich Republican donors without disclosing where they're going and what they're doing and who's paying for their RVs. When the Supreme Court gets to where it is now, yes, reform is not only necessary, it's always happened in the past when the Supreme Court has gotten this far out over its skis.

Matt Katz: Hey, Jay, if you're still there I'd be curious if you would support term limits for a Supreme Court maybe if it was controlled by by liberals. Did we lose Jay? Oh, you're there.

Jay: I'm still here. Do you hear me?

Matt Katz: Yes, hear you. Thanks.

Jay: First of all, I'm just curious about the tone of voice. For some reason, it seemed to me that you got a lot more passionate in your response than you've been before. It seemed that the fact that you had to defend yourself to the conservative is something hard for you.

Matt Katz: I think Elie has been pretty passionate from the get-go, as he always is when he is on WNYC, but go ahead.

Jay: Okay.

Elie Mystal: As Samuel Jackson once said, "I'm not screaming, that's just the way I talk."

Jay: All right, and I get that a lot. I don't think I would support the term limits. The Constitution doesn't change based on popular opinion. Popular opinion is very popular but the Constitution is the Constitution. If we would keep on twisting the Constitution based on popular opinion, would be very upsetting for me, but to just say, let's do another wrong just to right the wrong that was done before, it just doesn't work.

Elie Mystal: See, Jay, when people say the Constitution doesn't change, I don't understand what you mean by that. Because clearly, the interpretation of the Constitution changes radically depending on which party is in control of the Supreme Court. If liberals are in control of the Supreme Court, the interpretation of the Constitution is that a woman's right to choose is constitutionally protected under, and you can pick one here, the 9th Amendment, or the 14th Amendment, or the 13th Amendment, or the 15th Amendment. You can just pick an amendment that you think works. I'll tell you, there's a liberal argument to support the right to choose. When conservatives and Republicans control the Supreme Court, suddenly there's no right to choose in the Constitution.

Now you say the Constitution doesn't change but the interpretation of it certainly does. My question then becomes or my response then becomes, why should conservatives get to control what the interpretation of that Constitution is for a generation? Why should any one person get to control what the Constitution means for the rest of their natural lives? Why shouldn't these reforms happen to make the Supreme Court more responsive to the winners of a democracy if that's what we're going to call ourselves?

The way it is right now, Jay, and I think you would agree with me on this, there is no law that I or you or anybody else can pass that we know will be upheld by the Supreme Court until they tell us. That's not how it's supposed to work in a democracy. I'm not supposed to be waiting to the end of June to figure out if massively important national pieces of legislation are allowed to exist because nine people I didn't elect tell me so. That's not how it's supposed to work.

The Supreme Court is supposed to have a very limited purview, and they have gotten, again, way far out over their skis. At the end of the last term, they were destroying whether or not the executive branch, through the executive agencies, have a right to issue regulations. Putting the Supreme Court at the center of every environmental debate, of every food and drug debate, of every healthcare debate, that's not how it's supposed to work because nobody elected them. If they're going to rule as a super-legislature, they should be treated like one at least. You can't because you don't get to elect them, and because they hold their positions for life.

I kind of feel like you need to have it one way or the other. If the Supreme Court is going to be this powerful and be a super-legislature, then they can't hold power for life. That's simple. If, on the other hand, they were going to be more moderate and restrained, and basically stay out of the way of democracy, there would be a different conversation.

Matt Katz: Jay, thank you for listening, calling in. As Brian would say, call again, we appreciate it. Elie, we've got to move on. Thank you for the passion as always. You did bring it the entire segment and we always appreciate that. Elie Mystal, justice correspondent and columnist for The Nation magazine, host of the new podcast, Contempt of Court with Elie Mystal, author of Allow Me to Retort: A Black Guy's Guide to the Constitution. Elie, it's always a pleasure.

Elie Mystal: Thank you so much for having me, Matt. Have a great day.

 

 

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