Let’s Talk About How Truly Bizarre Our Supreme Court Is

“Getting race wrong early has led courts to get everything else wrong since,” writes Jamal Greene. But he probably doesn’t mean what you think he means. Greene is a professor at Columbia Law School, and his book “How Rights Went Wrong” is filled with examples of just how bizarre American Supreme Court outcomes have become. An information processing company claims the right to sell its patients’ data to drug companies — it wins. A group of San Antonio parents whose children attend a school with no air-conditioning, uncertified teachers and a falling apart school building sue for the right to an equal education — they lose. A man from Long Island claims the right to use his homemade nunchucks to teach the “Shafan Ha Lavan” karate style, which he made up, to his children — he wins. Greene’s argument is that in America, for specific reasons rooted in our ugly past, the way we think about rights has gone terribly awry. We don’t do constitutional law the way other countries do it. Rather, we recognize too few rights, and we protect them too strongly. That’s created a race to get everything ruled as a right, because once it’s a right, it’s unassailable. And that’s made the stakes of our constitutional conflicts too high. “If only one side can win, it might as well be mine,” Greene writes. “Conflict over rights can encourage us to take aim at our political opponents instead of speaking to them. And we shoot to kill.” It’s a grim diagnosis. But, for Greene, it’s a hopeful one, too. Because it doesn’t have to be this way. Supreme Court decisions don’t have to feel so existential. Rights like food and shelter and education need not be wholly ignored by the courts. Other countries do things differently, and so can we. This is a crucial moment for the court. Stephen Breyer is retiring. And in this term alone, the 6-3 conservative court is expected to hand down crucial decisions on some of the most divisive issues in American life: abortion, affirmative action, guns. So this is, in part, a conversation about the court we have and the decisions it is likely to make. But it’s also about what a radically different court system could look like. We discuss the Supreme Court’s recent decisions on vaccine mandates, why Greene thinks judicial decision-making is closer to punditry than constitutional interpretation, the stark differences in how the German and American Supreme Courts handled the issue of abortion, Greene’s case for appointing nearly 200 justices to the U. S. Supreme Court, why we even have courts in the first place and much more. Mentioned: The Ezra Klein Show is hiring a managing producer. Learn more here. Book Recommendations: Rights Talk by Mary Ann Glendon Law and Disagreement by Jeremy Waldron Cult of the Constitution by Mary Anne Franks Thoughts? Guest suggestions? Email us at [email protected]. You can find transcripts (posted midday) and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast, and you can find Ezra on Twitter @ezraklein. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs. “The Ezra Klein Show” is produced by Annie Galvin, Jeff Geld and Rogé Karma; fact-checking by Michelle Harris and Kristina Samulewski; original music by Isaac Jones; mixing by Jeff Geld; audience strategy by Shannon Busta. Our executive producer is Irene Noguchi. Special thanks to Kristin Lin.

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:05Ezra Klein?

  I'm Ezra Klein and this is the Ezra Klein Show.

• 0:21Ezra Klein?

  So before we begin today, we're looking for a managing producer for the EK Show. This person will run our operations, bring some more logic to them, oversee our processes, manage our producers. Editorial and management experience here is a must and so particularly is a genius for process and schedule. But your experience doesn't specifically need to be in audio. We're looking for the right person, not just the right resume here. So we'll put a link to the listing in the show description and if you apply, do not forget the cover letter. We don't look at applications without them. All right, on to today's show.

• 0:54Ezra Klein?

  This is going to be a crucial year for the Supreme Court. Stephen Breyer is retiring. The Sixth Reconservative Court is expected to flex muscle on really the most divisive issues in American life: abortion, affirmative action guns, they already did, vaccine mandates. And so this is a time, I thought, to bring on Jamal Green. Jamal Green is a professor at Columbia Law School. He's the author of a book called How Rights Went Wrong. And in it, he argues that America does constitutional law all wrong, that we do it in a way that other countries don't, in a way that is tearing our country apart. And the key mistake, he says, is that, quote, "US courts recognize relatively few rights, but strongly. They

• 1:36Ezra Klein?

  should instead recognize more rights, but weakly." So let me unpack that for a minute. Green's argument is that US constitutional law is built around a canon of cases that have shaped not only the legal character of the judiciary and the way it thinks, but also its social and cultural dimensions. He's got this great idea of the anti-canon, the cases that stand as an example of where the Supreme Court went badly wrong, the things that lawyers swear they're never going to do again. Every lawyer learns the anti-canon, so do most schoolchildren. Dred Scott versus Sanford, Plessy versus Ferguson. These are the cases where the court wiped out the rights of human beings, particularly, of course, black human beings.

• 2:18Ezra Klein?

  And it stands against the canon, the cases where the court got it right. Brown v. Board, Loving v. Virginia, the cases where the court stepped in front of politics, often in front of the majority of the country, and protected the fundamental rights of human beings. And to Greene, the legacy of these cases, the desire to not get it wrong in that way again, has created a strange and poisonous way of thinking about rights in America. For one thing, because American courts believe the government has to protect a right at all costs, because that's almost how we define a right, we only recognize rights we think we can protect. That's what he means by recognizing few rights strongly. Other countries, they recognize more rights, but they don't assume the government can

• 3:03Ezra Klein?

  fully establish them. And so, a right to education or shelter, it may be recognized, but the government may or may not fulfill it. And so, in other countries, courts mediate between the more numerous rights they recognize, the capacity of the government to fulfill those rights, and the social conflicts over those rights. And they recognize also, more often than our courts do, that rights often conflict with each other, that they do not stand alone. But because America recognizes few rights, but recognizes them strongly, we've inadvertently set up a contest to try and convince the Supreme Court that whatever it is you want is actually a right. Because if it can become a right, then it's unassailable.

• 3:45Ezra Klein?

  And Greene argues that this raised the stakes on both political and legal conflict beyond what the country can bear, that it's led the Supreme Court to these bizarre contortions where it'll protect corporate absurdities that are framed as free speech and then ignore human necessities because they'd be too difficult to secure. And it's created a situation where legal argument in America, it's a dizzying tower of rhetorical abstractions, trying to find or argue for rights in this fog of constitutional interpretation. Not, as it often is in other countries, more pragmatic arguments meant to balance the complex needs of a diverse society. This, for Greene, is incompatible with the country we've become, and even more so the country we need to be.

• 4:30Ezra Klein?

  It's made the stakes too high and the decisions simply too weird. In a lovely line, he writes, "The last century gave us constitutional tools to fight political exclusion. In this century, we need the tools to build a politics of pluralism." And so what would it mean, under these circumstances, to build the legal tools of pluralism? How do we lower the stakes of the Supreme Court and create a judiciary that can ease our conflicts rather than exacerbating them? As always, my email is [email protected]. If you've got guest suggestions, recommendations of things we should read, or look at, or think about, or listen to, or just feedback. Here's Jamal Green.

• 5:13Ezra Klein?

  Jamal Green, welcome to the show.

• 5:15Speaker 01

  Good to be here.

• 5:17Ezra Klein?

  So the news of the day, as we're talking, is retirement of Justice Stephen Breyer. But even if Biden does get to replace Breyer, the court remains the 6-3 conservative majority we see right now. So I want to look at this with some length to it. How do you think 10 years of this court will change the country?

• 5:35Speaker 01

  I think the first thing I'd say is, we shouldn't be so sure that there'll be 10 years of the court. I think things change quickly and they change unexpectedly all the time. But if you're looking at the 6-3 majority you have on the court now, no matter who replaces Justice Breyer, you're seeing a court that is pretty eager to get some historically conservative wins pretty quickly. That includes abortion rights, that includes affirmative action, that includes rolling back the administrative state, that includes making some progress on gun rights, that includes rolling back labor rights in various ways, increasing the rights of corporations to engage in what's known as commercial speech. So I think you'll see a court where John Roberts, a very conservative person, has five people to his right. And

• 6:20Speaker 01

  so therefore, he doesn't have a lot of control over where the court goes. And I think it'll be as one would expect with a rock-solid conservative majority.

• 6:29Ezra Klein?

  Now, I want to take the counterfactual here. It's not hard to imagine a world where Hillary Clinton won in 2016, where Democrats took the Senate that year. So imagine that. She appoints replacements for Scalia, she appoints a replacement for Ruth Bader Ginsburg. Let's assume Anthony Kennedy steps down and she replaces him too. So we have a 6-3 liberal court. Over the same time period, how do you think that would have changed the country?

• 6:54Speaker 01

  Well, so this is interesting, right? Because it's not entirely symmetrical, what liberals and conservatives are asking the court to do. And I think that's why you've seen a lot of focus within the political right on making sure that the court is at the front of political conversations. Because the ways in which the court changes, a five-four court changes jurisprudence over a 10-year period, isn't that dramatic. It's sort of keeping in place a lot of what are perceived as progressive gains on things like abortion rights, on things like affirmative action. You might see a state or a local jurisdiction try to pass a pretty aggressive campaign finance law, and you might see a court try to overturn a case like Citizens United if you're a left court.

• 7:38Speaker 01

  But it's really preserving gains and making sure that legislation that's passed by that more progressive or more liberal federal government gets upheld. So liberals are putting a lot of faith in the legislative process. And conservatives, what they tend to want out of the court, at least the modern conservative movement, what they tend to want out of the court is striking laws down.

• 7:59Ezra Klein?

  One thing that has always struck me about the role of the Supreme Court in American political and simply daily life is that it is a lot of power and flux that all hinges on whether a handful of very elderly people die or choose to retire at a certain moment. And so we talk about the court as being undemocratic, which it is in many ways, but it's very randomly so. Vacancies don't come up on a schedule, different presidents get to appoint very different numbers of justices. Is this normal internationally? Is this how other countries do it?

• 8:38Speaker 01

  It is emphatically not normal internationally. And it's really a confluence of a bunch of different things, right? It's life tenure, which is a big part of it. It's also a very small court relative to other high courts internationally. So most countries have much shorter tenures, eight years, 10 years, 12 years. And they're picked on a pretty regular schedule because they've got those particular terms. And so you have life tenure, and you have this pretty small court that always sit together. They always sit in bank is the legal term. So you have a court that's, in a lot of ways, very driven by specific personalities or specific justices. So if you're someone who's really internal to the law, like me... You know what Sam Alito thinks, you know what Brett Kavanaugh thinks, you know what John Roberts thinks,

• 9:22Speaker 01

  you know what Breyer thinks, and that's going to be the court for the foreseeable future. That's a really a kind of personalization of the law in ways that I think go beyond, as you say, Ezra, it's undemocratic, but it goes beyond that in a way because all courts have some undemocratic tendencies to them, all constitutional courts, anyway. But it goes beyond that to be like a very oddly idiosyncratic court, right? So you're paying a lot of attention to like, over the course of two decades, Anthony Kennedy is shaping the law, this single person. I think that's actually a serious problem for the court, no matter what side of the political aisle you sit on.

• 9:58Ezra Klein?

  I've always liked, actually, to your point about this being a problem for both sides of the political aisle, my favorite part of Rick Perry's 2012 campaign was he had a proposal for term limits for Supreme Court justices, and I've always wished to see that become something we actually did, but I doubt there's going to be a lot of take up for that on the Republican side right now.

• 10:18Speaker 01

  Probably not, because it seems like it's to their political advantage to have this court sit for a long time. But among scholars, there's a pretty wide spectrum, ideological spectrum of people in support of term limits for the Supreme Court. And the real debate among constitutional scholars is can you do it through regular statute or would you need to amend the Constitution? So there's a, that's a real debate, but, but there's a lot of consensus, actually, that there's no, that there aren't really good reasons to have a life-tenured court.

• 10:45Ezra Klein?

  So you argue in the book that there's something more fundamental separating American courts from international peers, and it's how we treat rights. And before we get too abstractly into this, something that I enjoyed that you did is you have a bunch of examples where you contrast the kinds of rights the court ends up protecting and discovering, and the rights the court ends up not even recognizing, much less protecting. Can you just walk me through some of those examples?

• 11:15Speaker 01

  Sure. And a lot of the book is pointed at the gap that the way we think about rights creates between what you might call rights and justice. And I don't, I don't want to suggest that the court should just be out roving, looking for injustices. What they do should be grounded in the Constitution. But you have a right to watch pornography. If you're a pharmaceutical company, you have a right to data mine the prescription drug data and, and try to market your drugs to doctors. Like, that's like a First Amendment right that you have under our Constitution. But you don't have a right to food. You don't have a right to education. You don't have a right to healthcare. I'm just sort of basic things that anyone would really associate with justice. And it's not because anyone

• 12:00Speaker 01

  thinks that, or not because most people think that, you know, it's more important that we peddle porn than people have food. It's because there's this very kind of constrained, very jaundiced way of looking at rights and how far they can go and how they can be protected by courts. That leaves us to, to all sorts of distortions in how we understand rights. And the book tries to catalog the ways, big and small, that that affects our politics and affects the way even people outside of courts end up thinking about rights.

• 12:32Ezra Klein?

  I think the way someone might initially hear this is to say, well, wait, isn't the way this works that the court simply protects the rights in the Constitution and that whatever is not in the Constitution, it does not protect. But one thing you argue in the book, one thing that I think is obvious, and we'll get into more in this conversation, is the court has discovered, read in a number of rights to the Constitution. And there are other places where they could have done that. But you note that they sometimes will not simply because it would be too hard, that a right that they can't enforce is a right that they won't recognize. Can you say a little bit about that?

• 13:08Speaker 01

  Yeah, you could imagine a Constitution that just kind of lists every right that we think you should have. There's a thousand rights in the Constitution, let's say. And every time you want a new right, you just amend the Constitution and add that right. And anytime you want to take one away, you amend the Constitution and take that right away. We have a very, what we call a framework Constitution. It lays out Rights and structure in very broad terms. So usually what we're arguing about is not, you know, does the Constitution have a right to abortion or something like that? We're, we're talking about whether really vague language, the right to due process of law, the right to equal protection of the laws,

• 13:49Speaker 01

  whether those really broad principles apply to much more specific things. So I'll tell you, there's no specific constitutional right to vote. There's no specific constitutional right against racial discrimination, things that we think of as really core rights. There's no right to freedom of speech against the state government, right? Those are not specific in the Constitution, but of course they're there. And the reason they're there is because over time, and for lots of good reasons, courts have read them into the Constitution. So it's not really going to be adequate to say, well, we'll just look at the Constitution and protect the rights that are there and the ones that aren't. The Constitution doesn't give us enough guidance to do that. What courts have ended up doing over time is protecting rights in what I view as a fairly narrow way.

• 14:32Speaker 01

  And as, as you say, because we've in some sense given rights to the courts, we really rely on courts to speak for us when it comes to rights. They speak for us in ways that are kind of familiar and easy for them to manage. So when I talk about a right to food or a right to healthcare or a right to education, the reaction of a typical American judge is, well, of course, we can't give everyone an education. We can't give everyone food. That's just too much. And so that means it must not be a right because if we can't manage it judicially, it must not be a right. And that's not how other countries think about rights at all.

• 15:09Ezra Klein?

  So tell me how they do think about rights. What does it mean to have a right to education in a country that doesn't have the operational capacity to give everybody an education or a right to food in a country where not everybody gets food?

• 15:22Speaker 01

  So those are both rights, and I talk about this a little bit in the book, that you see in the Indian Constitution, for example. And that's just one example. There are lots of constitutions that protect both the right to food and the right to education. And the Indian constitution is an interesting example, right? Because you've got over a billion people, mass poverty, a lack of state capacity in relation to the United States. And yet, they protect those constitutional rights. And the way you protect them is not by saying, what it means to have a right is that we must maximally protect it at all times. What it means to have a right is that that particular interest, the particular value protected by the right, is a subject of constitutional concern.

• 16:03Speaker 01

  It means that when the government acts in ways that restrict that right, courts have to care. It doesn't tell you how to win the case. It doesn't tell you whether you're going to win the case or not. It just means that it's a subject of constitutional concern. And so, the state has to justify itself if it's not providing education to people. It has to justify itself if it's making decisions that are, that's going to impact how much food people have. And the focus of attention is on what is the government's justification for what it's doing? That's what court cases are about in much of the world. That's a much more granular, much more contextual, much more incremental way to think about rights, and I think more productive in a pluralistic society.

• 16:46Speaker 01

  In the United States, court cases in constitutional law are often about, do you have this right or not?

• 16:53Ezra Klein?

  An argument you make throughout the book is that because of our emphasis on recognizing relatively few rights very strongly, so long as they can be found or argued to be found inside the Constitution, that American legal argumentation is very much legalism. It's very much how many angels can dance on a head of the Constitution, on a pin stuck in the Constitution. And it's not like this everywhere. You write, quote, "Courts should devote less time to parsing the arcane legalisms, probes of original intentions, pedantic textual analysis, and mechanical application of precedent that they use to discriminate between the rights they think the Constitution protects and the ones they think it doesn't, and spend more time examining the facts of the case

• 17:38Ezra Klein?

  before them," end quote. And what's interesting about that to me is it, at least in our mythos of what the court is supposed to do, at least if they are justifying their work by saying, well, we have special knowledge of the Constitution.

• 17:54Ezra Klein?

  Well, then, in theory, even if we don't really believe it, it's not just nine folks in robes telling everybody what to do. But when you get into that more factual question of now they're just looking at the case before them, asking factual questions, deciding if the government is making a good faith effort to give everybody an education. Well, on whose authority? Why do you need them in not just normal politics? Tell me a bit about how you think about that question of legitimacy.

• 18:19Speaker 01

  It is the right question to ask. The way in which courts should talk about rights conflicts should be continuous with, should be in dialogue with the way that the rest of us talk about rights. We talk about facts, we talk about relative burdens, we talk about costs and benefits. And there's this mythos within the United States that that's not what judges should talk about, that's just something that should be part of politics. And I, I think it's really something that needs to be continuous because in the first instance, questions about rights are granted to politics, that political actors should be thinking about exactly these kinds of questions, and courts need to be encouraging them to think about these kinds of questions. Now, it doesn't just mean that courts are just politicians in robes. They have a different institutional orientation.

• 19:04Speaker 01

  You know, we talk about life tenure, we talk about political insulation because courts are differently situated, they have different incentives, they don't have the same partisan or professional incentives that other actors do, so they can call out the blind spots of the political process. That's an important role for courts to play. I'm not one who thinks that courts have no role to play in these controversies. But it doesn't mean that the thing that courts are doing when they have a rights case is something fundamentally different from what the government should be doing when it has a rights case, which is seeing what the values on either side of the conflict might be, trying to make a contextual judgment about What the government's trying to do and how it's trying to do it.

• 19:48Speaker 01

  And making sure that anyone who enters that rights conflict leaves it knowing that their interests have been taken into consideration in an important way.

• 19:58Ezra Klein?

  So I want to keep circling this question of, well, then what is the role of the court? If it is so continuous with politics, but, but I want to move into some concrete examples that maybe will help us look at it more closely. So let's begin here. The court, the Supreme Court recently handed down two rulings on the Biden administration's employer vaccine mandate policies. Can you walk me through at a high level? Those two cases and what the court decided in each?

• 20:24Speaker 01

  Sure. So these are two cases involving policies ultimately by the Biden administration, but in some formal sense by agencies within the administration. In one case, the Occupational Safety and Health Administration, the other case, the Health and Human Services Department. The first mandate is a mandate that says all employers who have 100 employees or more need to either require vaccination or have people who are unvaccinated wear masks and get weekly COVID tests. The other policy was one that said that facilities that take Medicaid and Medicare patients have to have vaccinated healthcare workers.

• 21:06Speaker 01

  And the court upholds the vaccine mandate for healthcare workers, but strikes down the vaccine or test requirement. And these aren't actually constitutional cases. So these are cases where the question is basically, is there a federal law passed by Congress that gives these agencies the power to pass this kind of regulation? And in the one case, the court says no, because OSHA, the Occupational Safety and Health Act, only gives power to agencies. To regulate workplace hazards or occupational hazards. And COVID is too broad, the court says, to be a specifically occupational hazard. And in the other case, they say it's actually tailored perfectly well.

• 21:50Speaker 01

  What I think is interesting from the perspective of the arguments in my book here is I've just told you a pretty technical way of understanding these cases. And it's very easy to imagine the listener just kind of falling asleep and saying, well, this is just some kind of technical thing. But as we all know, right, the temperature of these cases, the kind of jazz of the cases was that these are about people's rights, right? These are about whether you have a right to be unvaccinated. And the core problem in the OSHA case is you had the federal government without a lot of statutory, particularly specific statutory authority, saying basically everyone who works for a big employer is going to have to be vaccinated.

• 22:31Speaker 01

  Now, it turns out, and here is really where I really get frustrated with the court, is that the law or the regulation did not, in fact, require people to be vaccinated. It gave an alternative. You could either be vaccinated or have a, or wear a mask and be tested weekly. But the case was argued as if it was just a vaccine mandate. And I think part of that is precisely because, and the court is very much a part of this, we tend to reduce a wide range of political conflicts into conflicts about whether people have certain rights or don't have certain rights. And then you lose sight of the facts, right? You lose sight of, oh, by the way, this was not a vaccine mandate at all. But it barely shows up in the court's opinion. And that's a, that's a problem for the court's legitimacy. It's a problem for our democracy.

• 23:18Ezra Klein?

  I found these cases and all the legal argumentation around them, as I often do, just really baffling because slightly as you say, and then slightly to the side of what you say, there's just a very clear effort to make the cases about things they're not really about. For instance, this idea that OSHA regulates workplaces and COVID is too big to be about workplaces. Well, OSHA regulates all kinds of things that come in and out of workplaces. They regulate constant, like ergonomics do not only exist in workplaces. Issues to lung safety and so on are not only in workplaces, but they are there as well. Fire safety deals with both things. So then the court says, well, you can't undo your vaccine when you go home.

• 24:01Ezra Klein?

  But on the other hand, if you catch COVID at your workplace and bring it home, your whole family gets sick. It is one way in which it seems almost like a fallacy to say that there are facts to these cases that are deciding them, because from an outside perspective, it seems 100% clear that you just had Republicans on the court less comfortable with the government intruding in this way, and Democratic appointees on the court more comfortable with it. And it broke down in a completely predictable political split. But we have to spend all this time pretending that it's really an argument about the major questions doctrine, or OSHA's specific workplace powers, when, to go back to the counterfactual, if Hillary

• 24:46Ezra Klein?

  Clinton had made the appointments, it probably would have fallen the other way. And it gives the whole thing a feeling of unreality to me, that we are constantly having an argument about the shadows on the wall, and not the thing casting the shadows.

• 25:02Speaker 01

  I think that's exactly right. And I think this particular case may have driven over the edge the last remaining of those who sort of believed in a firm law-politics distinction, because I think it is very hard to imagine this case coming out the same way if you had five democratically-appointed justices. It's part of a broader issue that judges tend to translate real-world conflict involving actual people. Things that are not a game are translated into these kinds of language games. And I'm enough of a realist to know that in difficult, complex, divided cases, courts are going to come out in ways

• 25:43Speaker 01

  that are consistent with their ideological priors. But what that means is that what we need to be able to ask of them is to do it in a transparent way, do it in a way that shows us exactly what is at stake. If you want to argue that you actually don't think getting vaccinated is a big deal, rest on that, and let's have an argument about that. Let's have a political conversation about that, instead of pretending that this case should come out on the basis of, as you say, the major questions doctrine, which is an arcane thing that you need to go to law school to understand.

• 26:17Ezra Klein?

  This is what I spent the most time wrestling with in your book, which is... Whether or not there is value to the American effort, the effort we have in the way we treat the courts in this country, to create a fig leaf of separate authority for this other less democratic institution. And that's a complicated way of saying this. So long as the argument of the court is that they're not judging anything, their power all comes from the Constitution and they're simply interpreting the Constitution. That's why there's a lot of rhetorical power in, say, the originalism of Scalia, even if I don't think he was always that faithful to it. Because if it's just Scalia making the

• 27:01Ezra Klein?

  decisions, well, then who are you? Like, why should you trump politics? But if it's the founders making the decisions, then it has a different weight. It seems to me that in what you're putting forward, which is this argument that courts should recognize more rights and mediate more honestly and transparently between them, you're asking us to trust judges to do something in the name, but that we don't truly trust them to do, which is simply judge. You're saying that we should have appointed these people and then their role in the government is to judge with some reference to the legal framework of the country, whether or not things are being done correctly. And I noticed

• 27:42Ezra Klein?

  how much trouble I had simply accepting that, which probably means I have bought into on some level that I don't even recognize, the court's mythos. But I guess people in other countries just accept that, that you're going to have these people out there, they're called judges, and the reason they're called judges is we've trusted them to judge. Is that the difference? Is that a way a court can maintain legitimacy? They're just supposed to be thoughtful as opposed to have secret Constitution powers?

• 28:09Speaker 01

  I do think that's the way they maintain legitimacy. I will acknowledge that we may be too far gone to claw this back to the place where I think it should ideally be. And by that, I mean... You know, we have a very different confirmation process than other countries. There's no place in the world where there is nearly as much attention paid to who's on the court, what are the confirmation processes like. But part of that is life tenure, and part of that is they're going to be there for a long time, and they're a small number of people, so they have enormous amounts of power. So I think that a lot of what I'm saying really has to go hand in hand with court reform that reduces the amount of power that individual judges have within our system

• 28:52Speaker 01

  so that they go back to being people who no longer have the luxury of reading their own press clippings and really are just sort of thoughtful people. But I think there is something deeper here, and when you talk about the court's own mythos, it's Brown versus Board of Education, right? It's our history of race relations and what the court's role in that has been. And we do tell ourselves a story that the court helped to rescue us from a deep pathology, and that that's what courts are able to do, right? They are going to be heroes when the government goes to pot. And I talk about race and the role that race played in this story quite a lot in the book. And I think that turns out to be quite dangerous, right?

• 29:33Speaker 01

  Because it makes us think that the ordinary case, the ordinary case is if you can claim a right, it means the government is pathological. It means the government is doing something on the order of the Jim Crow South instead of saying, no, no, no, no. The reason, the reason Brown versus Board of Education was a problem is not because rights are always sacred and must overcome and must trump everything else. The reason Jim Crow is a problem is because it involved a pathological government, and judges are the ones who have to play a role in recognizing that.

• 30:05Ezra Klein?

  You have a really potent line, I thought, in the book about this, where you write, quote, "The last century gave us the constitutional tools to fight political exclusion. In this century, we need the tools to build a politics of pluralism." Tell me about that distinction.

• 30:23Speaker 01

  I think back to the famous W. E. B. Du Bois line, which I also reference in the book of, you know, "The problem with the 20th century is the problem with the color line." And he said that in 1903, and that was so prescient, right? The 20th century in American constitutional law, the story of that century is a story of bringing people who were excluded from our politics into our politics. Now, when they get there, in a formal sense, and roughly speaking, this is the 1960s, there is a lot of churn when you genuinely become a pluralistic society. You can no longer, if you ever did, hang on to the myth that there is a single "we, the people" who have some set of rights that always point in the same direction or some set of interests that always point in the same direction.

• 31:07Speaker 01

  What it means to be a genuinely pluralistic society is that people are going to have really different interests. They're going to have really different values. They're going to have really different sets of commitments that are going to come into conflict with each other. And you don't have a choice other than to go back to exclusion. You don't have a choice but to try to blend those together in some way. So a lot of the book is pointing to one of the ways in which we can start to talk about rights and pluralism as coexisting. And the only way they can really coexist is if we recognize more of them, because we have to recognize that people's rights and interests and values are going to take different forms. But they can't be recognized absolutely because they're going to clash with each other.

• 31:52Speaker 01

  So the only real possibility for living together going forward is to think about and to build resources for trying to mediate between different kinds of rights and different kinds of commitments. Our courts have to be part of that, and our ordinary politics have to be part of that and have to understand that that's really inherent in the idea of marrying a commitment to rights to a genuine commitment to pluralism.

• 32:40Ezra Klein?

  So let's take the hardest possible case and talk about something the court is likely to do this year, which is they're considering a case called Dobbs v. Jackson Women's Health Organization, which many think will spell the end of Roe. Can you give a brief overview of the case and what you think is going to come out of it?

• 32:58Speaker 01

  Sure. So Dobbs is this case out of Mississippi in which Mississippi has essentially banned abortion after 15 weeks of a pregnancy. This is in the second trimester of pregnancy. Under Roe versus Wade, this would be clearly unconstitutional. Under Planned Parenthood versus Casey, which is the follow-up case, the 1992 follow-up case to Roe versus Wade, also fairly clearly unconstitutional. Casey says you can't impose what's called an undue burden on abortion rights prior to fetal viability. No one thinks that a 15-week-old fetus is viable. And so therefore, Mississippi is violating the Constitution as the court has understood it so far. Of course, it's a different court than the one that decided

• 33:41Speaker 01

  those cases. And the state is taking a bet, and lots of other states have taken the same bet, that this court is going to either overrule or pare back either Roe versus Wade, which has already been pared back, or Planned Parenthood versus Casey. I think that's a good prediction on their part. I think it's very likely that the court will pare back the Casey decision. If I had to bet on it, and I'm not really in the prediction business, but if I had to bet on it, I'd say the court probably doesn't outright overrule Roe versus Wade and say there is no right to abortion, but rather says that something along the lines that 15 weeks is sort of long enough for a pregnant woman to make a decision about whether to terminate the pregnancy or not. And so it's perfectly reasonable and not

• 34:24Speaker 01

  an undue burden for Mississippi to forbid the practice after 15 weeks. That sounded like that's maybe where Chief Justice Roberts is going, but there's very little question that the court is going to pare back Casey in some way. And it's possible that they, in fact, overrule Roe versus Wade outright.

• 34:39Ezra Klein?

  So you spend quite a bit of time in the book on abortion, and you use the legal path it took in Germany as a counterfactual for what could have happened here. So tell me what happened in Germany and what you think the lessons of it are.

• 34:55Speaker 01

  I find this a really fascinating story. And I'll say I give the account of what happens in Germany as a model of what it might look like for there to be a genuine politics around abortion rights. The idea is not, you know, we should all have the German abortion regime. It's that this is a regime that is arrived at through politics and it's arrived at through politics with the assistance of the court. So Germany has some eerie parallels to US abortion cases where the Constitutional Court of West Germany hears an abortion case right around the same time as Roe versus Wade, just a little bit after Roe, and it comes from a very different direction.

• 35:37Speaker 01

  So Roe versus Wade is about whether states are allowed to forbid abortion or prohibit abortion or heavily regulate abortion, given that women have rights to reproductive autonomy or some basic rights reproductive autonomy. Germany comes at it from the opposite direction. There is an abortion liberalization law where the federal legislature liberalizes. So it had been illegal before that. It liberalizes access to abortion. And the question that the court understands itself to be answering is whether a liberalization law sufficiently protects the constitutional value of fetal life. Now, this is, from an American perspective, a kind of startlingly conservative way to

• 36:20Speaker 01

  think about the question, which is fetal life has constitutional value and you can't, you actually can't pass too liberal of an abortion law. So it sounds like a really conservative decision and the West German court actually upholds the value of fetal life and strikes down the liberalization law. Now, the key is that the court doesn't say because fetal life has constitutional value, you can't have any kind of legal abortion. What it says is this is a value that has to be protected in combination with, complementary to. The value of women's autonomy. So these values have to be jointly taken into consideration. They have to be kind of jointly optimized.

• 37:03Speaker 01

  So what ends up happening is you, the court gives some leverage to both sides of the abortion dispute. And it was a very, very controversial dispute in the 1970s, way more divisive in Germany in the 1970s than it was in the US in the 1970s. But what happens over time is you get a bunch of political compromises winding up in a 1992 law that's known in Germany as the Group Bill. And it's called the Group Bill because a bunch of different constituencies got together. And what they end up doing is figuring out where their common ground is. So rather than say, well, I believe in women's autonomy, you don't. I believe in fetal life, you don't. And so there's no middle ground. It's, well, where is the middle ground?

• 37:44Speaker 01

  Well, we can all agree that women having some degree of choice over whether to terminate a pregnancy is a value that should be of constitutional concern. We can also all agree that we would like there to be fewer abortions, that we want people to have pregnancies that they want and have genuine choices about bringing a fetus to term. And so the debate ends up being really focused on how do you give women genuine choices when they're pregnant? And the way to do that is not to criminalize abortion. The way to do that is to give lots of prenatal care, is to give lots of social services to women after they have children, to give childcare, to give employment guarantees, to use the tax

• 38:26Speaker 01

  system and the housing system to make it easier for people who are facing hardships to become parents. And both on the right and the left of this issue, the debate ends up really focused on those kinds of things. So you look at the controversy and they look at the controversy in Germany, we're very, a much more holistic perspective because the court requires the government to take into consideration a wider range of values.

• 38:52Ezra Klein?

  When I was reading this example and thinking about it, one of the questions that kept occurring to me was whether this reflected primarily differences in the legal decisions and frameworks or in the broader political systems. So, one of the things you note is that the anti-abortion side in Germany really does come into this compromise to offer more wraparound social services. The idea is if we're going to make it hard for you to get an abortion, which they did, you should have paid leave off to take care of a sick child. You should have childcare and expanded childcare. You should have better child support. You should have help if you can't do your job while you're pregnant, and so on and so forth.

• 39:36Ezra Klein?

  But a pretty big difference between German politics and American politics, between in general, Western European politics and American politics, is you really do have a lot of these more socially conservative, economically populist, or even liberal parties out there. Whereas the American right, at the exact same time Roe is being decided and politics is beginning to polarize around it, I mean, this is a period of the rise of the post-Goldwater conservative movement, the rise of Ronald Reagan, an American right that is extremely against social insurance, that sees Medicare as a step to socialism. And so, there have always been arguments for these kinds of third-way compromises

• 40:19Ezra Klein?

  and coalitions, but that that space has long been off the table in American politics because the coalition that is pro-life is also the coalition that is, at the same time, trying to get rid of welfare for, by the way, mothers primarily, and trying to do all kinds of things that make it harder to access social insurance. So, what makes you confident this was a legal difference, not a political and coalitional one?

• 40:47Speaker 01

  So it's a very good question, and I'm not confident that it's entirely a legal difference. And I'm not someone who thinks that you can explain these kinds of complex phenomena through kind of single-cause legalism. But I do think it's part of it, and I think it's important to not be anachronistic about these differences, right? So as you say, in the 1980s, of course, the Reagan coalition is firmly against social welfare in various ways. The differences between Germany and the US in terms of the eagerness of the political parties to support social welfare is much larger now than it was in the 1970s, when these cases are being decided. And there's lots of evidence, at least when it comes

• 41:29Speaker 01

  to pregnant women and families, that the way in which the German court framed the abortion conflict contributed to a willingness to provide social insurance. And when we think about the US, the debate in the US, in part because of what Justice Blackman, who writes the majority opinion in Roe versus Wade, frames the right in privacy terms, which focus very much on the individual choices and decisions of the pregnant woman. And there are lots of reasons to frame it that way. There's quite a lot of nobility in that argument. I don't mean to fully criticize it. But what it did do is it gave an opening for those on the right who were opposed to various forms of social insurance, and particularly

• 42:12Speaker 01

  Goldwater Republicans, who weren't necessarily as animated by social issues, but were animated by fiscal issues. So you passed the Hyde Amendment in 1976, and the argument behind the Hyde Amendment is, you Democrats, or you progressives, say, this is a private decision, so why should the government have anything to do with it? As opposed to making the kinds of arguments that were much more prominent before Roe, which is, if you're going to have restrictions on abortion rights, those must be accompanied by support for people, because people need help to make these kinds of choices. People need help if they're going to raise families. And that kind of middle ground, which was actually taken by a number of prominent Democrats, including Jimmy Carter, including Ted Tannen, in the middle of the

• 42:55Speaker 01

  1970s, that just kind of goes off the table, as the abortion conflict gets cleaved into, on the one hand, people claiming privacy rights, on the other hand, people talking about fetal life.

• 43:06Ezra Klein?

  One counterargument you'll hear in this, more from the left on this side, is, "Well, this shouldn't be a middle ground question, that this should be up to the person bearing the child because it's ultimately going to fall on them." And it'd be one thing, maybe, if Germany was the only example, but Canada is a kind of interesting counterexample here, too. So in 1988, its court decriminalized abortion at really all stages of pregnancy. And the political result in terms of the defanging of abortion in its politics seems to be closer to what you see in Germany than in America. There's still disagreements, but the issues become more depolarized over the past 30 years. It's rare for a major party leader now to come out as pro-life.

• 43:51Ezra Klein?

  Now, I want to be very clear that I'm not saying that a corresponding Supreme Court decision in America would depolarize abortion, but I'm curious what you make of the Canada example, which went in the highly legal, highly rights-oriented direction, but also seems to have resulted in a less polarized politics.

• 44:11Speaker 01

  I might push back a little bit on saying that Canadian constitutional law is in the sort of highly legalistic, highly rights-oriented direction, but you're quite right that the Canadian Supreme Court basically struck down some procedural limitations on abortion rights, and then it never, basically never got revisited by the legislature. I'm not someone who believes that you can separate the legal culture entirely from the political culture or the society. It is certainly the case that in the US, abortion politics are highly contingent on what's happening in broader national politics. And the cleavaging of the Democratic Party, the destruction of the New Deal alliance

• 44:52Speaker 01

  between Northern Democrats and Dixiecrats, using various social wedge issues to do that, Ronald Reagan shows up, and the Moral Majority show up at a certain time in our political history, and it doesn't mirror Canada in nearly the same way. So the cultural politics are very different in Canada than in the US. And, you know, there's only so much the legal regime can do about that. So that's what I sort of make of the Canadian case. When you have a case like Roe versus Wade, in which the court explicitly takes off the table... The animating and central argument of one side of a divisive dispute and what

• 45:34Speaker 01

  the court says in Roe versus Wade is fetuses cannot be understood to have constitutional rights. That's a very risky thing to do in politics and it has, what to my mind, are bad political consequences. I'm not coming down in a particular way on whether there should be some middle ground. It's, we live in a country that has really diverse views about this and in a country where those views, the views on the right of this issue are held in good faith and in other realms of our politics, you know, we do care about issues like the value of life. And so to say that this is just not something that the state's allowed to care about at all seems to me to be unnecessarily extreme.

• 46:14Speaker 01

  And again, you look across the Atlantic to Germany and they acknowledge the constitutional value of fetal life, but wind up in a very different place, in part because they bring the issue back into politics instead of overly constitutionalizing it.

• 46:52Ezra Klein?

  So if you were Chief Justice and you had a movable, mutable court, I'm not saying you've got this court, what would you like to see done? What would balancing the rights here and taking a mediating and politically open approach look like in 2022?

• 47:11Speaker 01

  I think in general, there are any number of issues, including abortion rights, where I would start to change the way the court talks about these issues. You start from the proposition that the case is not about Whose rights are more valuable? Or which community's rights are the ones that the court will recognize? And which are the ones the court is not going to recognize? You start from the proposition of there's a conflict here, but often between the state and a citizen. The state's trying to prevent the citizen from doing something. Why is the state trying to do that? What are they trying to accomplish? Are these objectives that we think within our traditions are objectives that we credit and give value to? And then what are the rights on the other side? And there are frameworks for doing this.

• 47:56Speaker 01

  Proportionality is a legalistic term, but one that is used in courts around the world for having a kind of structured approach to thinking about the different interests on either side of rights conflicts. And it doesn't focus most of the attention on the kind of abstract interpretive question of are there rights at stake here? It focuses a lot of attention on, well, what's the government doing? What's it trying to accomplish? What are its purposes? Is it going too far?

• 48:22Ezra Klein?

  So are courts in these other countries just bringing different tools to bear? Because again, I think what ends up being useful about the emphasis on constitutional and statutory text analysis in American courts is the courts are saying the value we bring to this is that we understand the constitution, we understand the laws, and we make this a country of laws. So if they changed that and they're saying instead, hey, is the government doing a reasonable job here? Are they being fair? Are they being transparent? Then what are they doing that's different than, say, a political analyst like me? I mean, I'm a pundit. I'm also trying to ask if the government is fair, but my punditry doesn't have very much force behind it. So what separates them from me?

• 49:06Speaker 01

  Not a lot separates them from you, other than that they are in a position, they play a certain role within the society and they're socialized to take a less partisan approach to particular issues, to maybe see things that a legislature might not see. I'll use Citizens United as an example, a really polarizing case. What's the court's approach to Citizens United? It's a case about corporate speech rights. Do corporations have free speech rights or do they not have free speech rights? I'm not overstating too much that this is exactly how the court frames the question. And so when I talk about being too abstract and being too legalistic, this is what I mean, is take it out of the abstract, do corporations have speech rights? And take it in a much more granular way to, well,

• 49:51Speaker 01

  what is the conflict here? Right, so Citizens United is an ideological corporation. So that makes it very different from General Motors or very different from Coca-Cola. Citizens United is a closely held corporation. It's not a publicly traded corporation. So it makes it very different from something traded on a major stock exchange. What they were trying to do in Citizens United was put out a movie about Hillary Clinton. So they weren't putting out a TV ad, which is what the target of most of our campaign finance laws were at the time. They're trying to put out a movie, which is much longer, much more ideological content. And it's a video on demand movie. So the only people are going to see this are people who have asked for it. So there's no issue of captive audience.

• 50:35Speaker 01

  Right, so my point is that when we see a conflict between a campaign finance law and a company that wants to put out this kind of ad, instead of asking the really ideologically divisive questions, like do corporations have speech rights? We should be asking all of those questions. Like, should we think about this differently if it's a small company? Should we be thinking about this differently if it's a privately held company? Should we be thinking about this differently if it's an ideological company? Should we be thinking about this differently if it's video on demand rather than ads? Those kinds of less culturally interesting questions. But we used to think that what judges were especially good at was listening to facts and deciding about the relevance of those facts to the legal dispute. I mean, that's what trial courts often do. And I don't think that Supreme Court justices are necessarily separate from that.

• 51:19Speaker 01

  The notion that courts have some knowledge or some special knowledge that the rest of us don't have, it makes a lot of sense when it comes to a technical statute that we might not be able to parse, don't have the legal training to parse. But if they're asking, what is equality? And it's our constitution, it's not theirs. It's all of our constitution. Those are not technical legal questions. Those are questions of political morality. And all of us have major stakes in answering those questions. And where the court intervenes is in making sure that the political branches are not missing something or not refusing to value something that's really important within the case. It's not deciding our values for us. That is an autocracy, not a democracy.

• 52:02Ezra Klein?

  So in some of the sequence of decisions that we refer to as citizens, Justice Kennedy, Anthony Kennedy, he writes some things that as somebody who actually does cover politics and campaigns, to this day, I just find unbelievably bizarre about political corruption, that he's not just doing punditry there, he's doing bad hack level uninformed punditry. But of course, on the other side of that, you have his decision in, say, the Obergefell versus Hodges case to make same-sex marriage constitutional. And the majority opinion that he wrote for that case, it's celebrated and that night the White House lights itself up in rainbow colors. And part of the reason liberals like the court is through these kinds of decisions, like the Obergefell decision, but also like Brown and others, where, as you say, there's

• 52:46Ezra Klein?

  a feeling that the court stepped in for freedom and equality at a time when the government would not. So under your approach, do you still have something like the Obergefell decision?

• 52:54Speaker 01

  I think you might, and I think from my perspective, a case like Obergefell is an easy case. But the way the court watcher or way a law student might think about this is, well, it's easy if sexual orientation is a suspect classification. That's a very legalistic way of thinking about this question. Well, no, the reason it's easy is because there are people who are trying to get married to the partner of their choice. We all believe that that's an important thing in our society, and someone's preventing them from doing that for no good reason. Some of us are going to disagree about the importance of that particular value. Some of us are going to disagree about whether there are good reasons or not. But those are the right questions to ask in a case that is fundamentally a case about

• 53:34Speaker 01

  political morality, is how are people being affected by the government's choices here? And what are the government's reasons? And I can articulate the case for why I think that it's an easy case. Maybe someone else can articulate the case for why they think it's a hard case. I'm not suggesting a decision procedure that tells you the answer to these questions. What I'm suggesting is that the kinds of questions we should ask are not, is sexual orientation a suspect classification, which is a meaningless question to most people. But instead, what is the nature of the burdens here? And what is the government trying to accomplish? Questions that all of us can ask and answer. Judges are not more morally wise than the rest of us, but they aren't running for election.

• 54:18Speaker 01

  And so they can make these decisions without fear or favor. But that's it. That's what makes them different. It's not that they have superior wisdom about the value of marriage.

• 54:31Ezra Klein?

  That conception of judges, it seems to me, is the piece of the court's edifice that has taken the most damage over the past, let's call it 20 years. And there's very good evidence on this. For much of the 20th century, the party that nominated a Supreme Court justice did not tell you very much about how that justice was going to end up voting. You had huge surprises like John Paul Stevens and others. But that got absorbed in the political system as terrible errors. And the parties have really resolved to never make any mistakes like that again. And so it's true, of course, that these judges don't run for reelection. But they are now nominated by people who do and who see part of their contract with

• 55:16Ezra Klein?

  their voters as ensuring that anybody they put on the court is going to be reliable for their side, which seems to me to be a very, very big problem for this kind of judging. If we're saying we're actually just going to have judges and trust them to be a thoughtfulness check fundamentally on lawmaking and rights and how the country is governed and structured, then there needs to be a kind of legitimacy that I think they're losing. So you had gestured at this earlier when you said that Supreme Court reform would need to be part of this. And so I'd like to hear a bit about that. Right now, we're going to get a replacement for Breyer by Joe Biden, an elected Democratic

• 55:59Ezra Klein?

  president, using the machinery of the Democratic Party and his White House to pick somebody they think will be really good on their version of really good. How do you think judges should be put forward and named and put on the bench? Would it vary dramatically?

• 56:15Speaker 01

  Let me just first say something about the legitimacy of the court on my conception versus on the status quo. I think it's totally right that because of polarization, because of partisanship and the perception of partisanship on the court, the court's capacity to make the kinds of nuanced judgments that I'm suggesting might be called into question. One way in which I do agree with Justice Scalia, who used to say this all the time, is that part of the reason the legitimacy of the court has been questioned is because of the kinds of questions that they're answering. Are questions that are fundamentally moral questions rather than questions that look like technical legal questions. So in the 1960s, when the court dramatically increases

• 56:58Speaker 01

  the range of rights questions and the kinds of rights questions that it hears, well, of course, these are the kinds of questions that we're all going to have opinions about, and we're all going to disagree about because we're different from each other and because we're committed to pluralism. And so when we see courts making those decisions, it's going to undermine their legitimacy if they make decisions in ways that we don't like, and that's going to happen in both directions. I don't think that that problem goes away if the court pretends that what it's doing when it makes these moral decisions is making them on the basis of what James Madison thinks, as opposed to making them on the basis of the actual benefits and burdens associated with government action. I think it's actually a bigger problem on the status quo, because you make a decision for all time, right?

• 57:41Speaker 01

  If you say, this is what the First Amendment means, and it's thus and so, and it always means this, and here's its exact scope, then you don't have a way to accommodate changes in view. You don't have a way to accommodate pluralism and ways in which important facts can change over time. But on the question of how do you nominate judges? Well, in my ideal world, the Supreme Court doesn't have life tenure. It's much, much bigger, in fact. So rather than nine judges, you have 16, or you have 18, or you have 24 judges on the court, and they sit in panels. And so the law is not nearly as personalized. The stakes are different because any particular judge is not going to be on the court forever, and is not going to be deciding every case. And so the stakes of any individual appointment

• 58:23Speaker 01

  change quite a lot. That lowers the political temperature so that it looks much more like the confirmation process that we see in lower courts. Now, of course, some of that would change if you change the way the court is structured. But I would lean in to the idea that courts do not stand above us in some moral hierarchy and say, they're just judges. And that's okay. They still have an important role in society. But that role is not to be oracles. That role is to be non-political decision makers who have pretty good judgment.

• 58:55Ezra Klein?

  Two pieces of this that I want to dig in on a bit. One is the larger court sitting and panels. I think people are, at this point, relatively familiar with the idea of what gets called "court packing." I think this is importantly, a somewhat different idea. So I'd like you to expand on that a bit and why you think it's important. And then also, I want to come back to the question of how they are named. Because it does seem to me that in an era of highly polarized parties, making it so the only way you can become a Supreme Court judge, or frankly, any kind of federal judge, is to be in good favor in the Republican and Democratic parties. At the very least, it disenfranchises everyone who is not a loyal Republican or Democrat

• 59:36Ezra Klein?

  from either being or being well represented by the courts. So I'm also curious how you think about that part of the naming process.

• 59:45Speaker 01

  I'll say a couple of things. So one is, I gave some testimony to the Biden Supreme Court Commission that talks in greater detail about my own views about the appointments process and what to do about it. One of the things that I say in my testimony to the commission, which was formed to think about the question of court packing, is that I favor a larger Supreme Court, but I don't favor court packing. And court packing is partisan. The idea is, you don't like the current political imbalance on the court, and so you increase the numbers so that you get the person who you like, in this case, Joe Biden, to appoint greater numbers of judges. I'm certainly sort of on the progressive side of the ideological spectrum, but I'm

• 1:00:27Speaker 01

  pretty uncomfortable with court packing, in part because I think it doubles down on, it leans in to the idea that these are really important decisions and the court should be the one making all these important decisions for the American people. And so we need to make sure our people are on the court. And then, of course, you'll get a reaction from the Republicans going in the other direction. And I think this is a bad form of escalation. What I suggest is disempowering the court. And I don't mean the court in general, I mean individuals on the court, by making it so that not every judge hears every case. And they are also not on the court forever, they're just on the court for a short period of time. And there are a number of ways of doing that. It's pretty complicated how you can do that without a constitutional amendment. But one of the kind of wackier ideas that's out there, not wacky in the sense that it's

• 1:01:12Speaker 01

  bad, but wacky in the sense that it sounds unusual. Is you could just designate all of the current Court of Appeals judges as Supreme Court justices, and only some of them would be Supreme Court justices on any, at any individual time. You still have lots of smart people, lots of people who have lots of protection against removal, even people who have life tenure, making these decisions, but in ways that reduce the political stakes of any individual appointment, so that you can go back to these being, yeah, we're just picking some judges, as opposed to, this is the oracle who will decide all of our important abortion cases forever.

• 1:01:47Ezra Klein?

  Are there crisis points you worry about for the court in the coming years? Which is to say, we've talked a bit about controversial rulings that might come down, like Roe. There's always this fear that the court is going to do something, and that's going to be the end of its legitimacy. I don't really buy that, but I do wonder, in the current collision over things like elections legitimacy, if the court could survive something like what happened in 2000, where it is brought in to rule on electoral irregularities in a place like Florida. Are there things you look at with this court, where you say, people aren't paying attention to this, but there is a significant, or at least realistic, probability of a disruptive

• 1:02:29Ezra Klein?

  event that could throw us into crisis if we don't fix things before then?

• 1:02:35Speaker 01

  I can imagine any number of instances in which I think people would get extremely irritated, and something that goes beyond an ordinary, your ordinary political irritation, if you had a major statute. Let's say you pass Medicare for All in some future democratic administration, and then the court, as I think it might very well do, this current court, just figures out a way to strike it down, and does it in a way that you sort of make up a new doctrine, which I wouldn't put past the court. I think that that would contribute to a sense that the court is not an institution to be taken seriously. What I will say is, there are so many other threats to the ordinary ways in which constitutional democracies go about their work.

• 1:03:19Speaker 01

  Whatever happens with the court is sort of dwarfed by the ways in which other political institutions threaten to behave in ways that are not normal. That state legislatures overturning the results of an election, for example. Or Congress installing a president or something along those lines. I think that those are much greater threats. Where the court comes in is in prior years, as with Bush versus Gore, if you saw genuine shenanigans happening somewhere else, you might trust the court to be an institution that can speak. And then when they speak, people will listen. But I don't have confidence that the genuine shenanigans that I think we have good reason to be worried about can be stopped by this court. The reserve of legitimacy that you want a court to have,

• 1:04:04Speaker 01

  I think we're maybe already at a point where it doesn't have enough to overcome the genuine risks of serious political dysfunction that might be coming down the pike.

• 1:04:14Ezra Klein?

  I think it's a good place to end. So always our final question here. What are three books you would recommend to the audience?

• 1:04:20Speaker 01

  I'll name a few that have been helpful to me in formulating my own thinking around some of these issues and for people who are interested in thinking about how we can think about constitutional conflict differently. One is a book called Right Talk, which is an older book from the 1990s by Mary Ann Glendon, which diagnoses some of the same problems that I diagnosed in How Rights Went Wrong. But she's a conservative. So seeing how these problems can be seen from across the ideological spectrum and where there's actually a lot of common ground in some things, I think would be really interesting for people. Another is Law and Disagreement by Jeremy Waldron, who is a philosopher, but is more accessible than most philosophers, I'd say, whose book is really about

• 1:05:01Speaker 01

  the problem of law being so fundamentally connected to the fact that we reasonably disagree about so many things, as opposed to it being that some of us are right and some of us are wrong. The third book, I'd say, is a more recent book by Mary Ann Frank called The Cult of the Constitution, which emphasizes ways in which we tend to fetishize certain kinds of constitutional rights instead of sort of stepping back and thinking more purposefully about what the Constitution is really for.

• 1:05:31Ezra Klein?

  Jamal Green, thank you very much.

• 1:05:33Speaker 01

  Thank you so much.

• 1:05:39Ezra Klein?

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• 1:06:08Ezra Klein?

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