Christopher Kang

Accountability on the Supreme Court

Air Date: November 1, 2021

Demand Justice cofounder Christopher Kang discusses how to incorporate democratic representation in the law.


HEFFNER: I’m Alexander Heffner, your host on The Open Mind. I’m delighted to welcome our guest today. He is the co-founder and chief counsel for Demand Justice. Christopher Kang, thank you so much for your time today.


KANG: Thanks so much for having me.


HEFFNER: Chris, let me ask you, this is front of mind for most of the country that follows our jurisprudence, the rule of law. We know that the Supreme Court is the deciding body of what the law of the land is here in the United States. Justice Breyer has alluded to the fact that he is cognizant of the ramifications of his seat and who succeeds him. Is it possible in your mind that the justice retires within this calendar year?


KANG: I think it’s unlikely that he retires during this calendar year. I think according to tradition as the Supreme Court’s term starts, it’ll sort of start on the first Monday in October, justices tend not to retire in the middle of the term. So I think the next natural opportunity would be for him to retire in June, which by the way, is why we thought he should have retired last summer. Sort of leaving this now nine-month window open when anything could happen, I think is rolling the dice with our democracy.


HEFFNER: Right. And you know, you at Demand Justice opposed the three appointments of President Trump. You made the argument that here was yet again another president who did not win the popular vote and this time did not win it by millions and millions of votes, and had the opportunity to fundamentally redirect the court to an extreme place that is not representative of the popular will. If you take a survey of country on Roe v. Wade, the majority is going to come out in favor of that. Is your operating argument right now, most centrally about democracy and that while we don’t elect judges, they are supposed to exist in the context of a democracy?


KANG: So that is fundamentally, our argument is that the Supreme Court is now broken. And it’s not just broken because Donald Trump appointed three justices, even though he lost the popular vote. It’s not just broken because Republican presidents have lost the popular vote eight out of the nine times and yet have appointed to six of the nine Supreme Court justices. But fundamentally you look at how we got here, where Mitch McConnell stole a Supreme Court seat from President Obama and not allowing Merrick Garland to even have a hearing. Senate Republicans, when Neil Gorsuch was too extreme to garner the necessary bipartisan support. They changed the Senate rules to get him through. They rushed through credible allegations of sexual assault and perjury by Justice Kavanaugh, confirmed him anyways. And then finally they rammed through the confirmation of Justice Amy Coney Barrett, eight days before election, after 60 million Americans had already voted, essentially stealing that seat from President Obama. And so, really watching the way that Republicans have used every possible political maneuver possible to rig this court really is what gives us the undemocratic and anti-democracy Supreme Court we have today,


HEFFNER: It follows the trope in the argument of conservatives and textualists and the strict constructionists that we are not a democracy. And they’re now finding solace in this argument about the Supreme Court, which is, this is evidence that we are a Republic or a Constitutional Republic or a Democratic Republic, but not a democracy. And I just wonder how you respond to that because there’s a way in which a Democratic Republic ought to operate. And it’s not very much different from a democracy. It’s just a different style of democracy. But increasingly in response to your argument about the undemocratic or anti-democratic nature of the Supreme Court, Republicans who still represent a little under half of this country, if you looked at the 2020 election results, they say, well, we’re not a democracy. And that really is their fundamental defense now of a Supreme Court that’s going to rule in a way that’s antagonistic towards the majority of people, whether that’s 60 percent of the country or 75 percent of the country, or ultimately one day 99.9 percent of the country.


KANG: Yeah. So there’s no question that sort of the last refuge, that Republicans have sought is this theoretical abstract idea about whether we’re democracy or a Democratic Republic, or what that means. I think that’s because they can’t stand talking about what the real-life stakes are, right? If you’re a woman in Texas right now, you might not even know you’re pregnant, but you don’t have the option to access abortion anymore. If you are a black or brown voter in the south, your opportunity and ability to vote is being ripped away. Or you have to wait in line hours longer than white voters in other states. You know, if you’re trying to join a union, or if you care about gun violence prevention, the Supreme Court is hampering your ability to address either of those things. Time and time again, this Supreme Court is doing things that impact I think negatively impact our everyday lives. And then the only thing that Republicans have to fall back on is some abstract political science that really nobody cares about.


HEFFNER: Here’s something that I care about and I’ve thought a lot about. And Chris, I know you’ve probably thought about it too. And I don’t think it’s too abstract. I think it’s the paradigm in which we exist. And I hope I have the opportunity to ask some of your contemporaries on the other side of the aisle the same question, because when we think of the United States Supreme Court, we want to think of a body that is serving the interest of the constitution, which is intent on serving the interest of the people. So serving both the constitution and the people. I want to kind of transcend this dialogue about strict construction, textualism and living constitutionalism and focus on just majoritarian and minoritarian. And the idea that the people in states who would want to abolish Roe v. Wade in their state, like Texas has effectively done now, with the Supreme Court, sanctioning it. In a state like Texas. if you did an initiative, a referendum, the result on Roe v. Wade would probably be in favor of the decision. Now, if you did that in South Dakota, North Dakota, Wyoming, Montana, you actually might see, by a fairly small margin, the people in those states wanting to outlaw Roe v. Wade. Now putting aside for a moment that question of reproductive rights as human rights and whether they are protected within our constitution that our forefathers wrote, there is this interesting question of federalism and whether or not the voters ought to be respected and protected in their states. Right now, we have a Supreme Court that doesn’t represent majority opinion, but in states like the ones I mentioned, they’re arguing in effect that for so long, the Supreme Court’s rule has not represented their opinion. And I just wonder how you tackle that issue, again focused on this question of popular opinion and democratic rule.


KANG: So that is a great question. And it’s a great way to think about it because I don’t think that the Supreme Court is another political body. I don’t think the Supreme Court should sort of reflectively go where, you know, the majority of the people, whether the people are those in the entire country or in a state sort of believe. But I think when you start talking about their fundamental rights, like, I don’t think we can’t just set aside the fact that reproductive rights are, I believe enshrined in the constitution. Same with same with same-sex marriage and LGBTQ equality or desegregation. And I think there are a lot of core principles that like if put to a popular vote might not win in a particular jurisdiction, but the court is meant to uphold the rights and liberties of all of us. And that’s where I think Court’s really fallen down.


HEFFNER: Right. It is this tension with the argument about what the future of federalism in this country is. And I think we understand why the Texas law on some level is antithetical to the concept of the United States, right? The United States. And I suppose that’s why for many, many decades we’ve operated under the assumption that the Supreme Court has to make the final call here when it comes to Roe v. Wade, and it has to be preserved or eliminated for the entirety of the country. And I just wonder as we are so hotly politicized if there’s any way for this particular court that has a 6-3 conservative majority, and you could argue at least four, if not five of those Republican-appointed jurists are extremely opposite of popular-will, if there’s any place you think for a decision on the upcoming Mississippi case that will likely make a more official stance on the future of Roe v. Wade, if you think that there is any plausible compromise, or if you think that the response to the Texas law is indicative of the fact that this court would in effect, wipe away Roe v. Wade and perhaps even abolish abortion altogether. But start with just ending federal protection so that any state could outlaw abortion.


KANG: So I think that at the base level, I don’t think there should be compromise when it comes to our fundamental rights and liberties, but I also don’t know. I think that this Supreme Court, I don’t think at the end of the day, that they’re going to have a decision in which they Roe v. Wade is hereby overturned. But I do think they’re going to effectively overturn it just as they have effectively overturned it right now for 90 percent of abortions in Texas. Right. They will do things. They may not say the magic words, but they will do, they will go up to that line because they know that Roe vs. Wade is so popular. Like I actually, I don’t know if you put it to a vote and like literally every person in Texas or South Dakota and North Dakota could vote, I don’t know. I think we sort of fall into this trope that we’re like an evenly divided country on so many issues. On abortion, it’s like 80 percent of people support Roe vs. Wade. And I don’t think then that the numbers are so skewed in blue states versus red states, that it will be sure of a runaway when even in those red states.


HEFFNER: We ought to expand the arsenal of our discussion beyond reproductive rights. That is in the news right now. That’s timely. That is certainly salient, but we know that the appointees of Donald Trump did not hide the fact that they would like to turn the clock on jurisprudence. And that’s why Democrats, over the course of hearings, were asking questions about, do you respect stare decisis and precedent when it comes to Miranda, when it comes to Brown v. Board, when it comes to a number of decisions that had not been in dispute and that are now open for revisiting. And so, put this in perspective in terms of what exactly in your mind is on the chopping block, not as an advocate for necessarily Supreme Court reform, but just as an observer, like an objective neutral observer, to the extent that you can offer that perspective as to what is on the chopping block. And then we can get into the angles about reform, but first just what is on the chopping block?


KANG: So I think literally everything is on the topping block from reproductive rights as we’ve discussed, but also economic justice, the ability to join a union, your ability to even bring a case in court. The Supreme Court is pushing more cases out of court and into arbitration. Racial justice issues. The Supreme Court has made up this doctrine of qualified immunity that people will become more familiar with, in which police out officers can escape accountability, even for the most brutal acts of police violence. The government’s ability to have regulations around health, safety, and the environments, or ability to address climate change is at risk. LGBTQ equality, and whether or not same-sex couples and LGBT people will have the ability to have the same rights as the rest of us. You know, I could go on and on, immigration everything, right? And so I think the challenge here now is that you have a court that’s so out of step that I think the other thing, and this is probably a less objective observer view is that I think our very democracy is at risk right now. I think our very democracy is on the chopping block. You look at what this Supreme Court has done, from Citizens United, where they got campaign finance reform, to Shelby County versus Holder, where they gut the Voting Rights Act to allowing partisan gerrymandering, to allowing voter roll purges. Time after time during the pandemic, they made it harder to vote instead of easier. This Supreme Court is moving in an anti-democracy perspective. And when you start looking at some of the real threats to the access to vote, or what may be coming in a contested 2024 election, I really think that this is going to be a big issue.


HEFFNER: We know that there are institutions like the filibuster and that’s not the only one, but there are institutions that their intent is to protect minority opinion. But what they have done in the case of the United States Supreme Court, at least when it comes to some jurisprudence, is enabled what I’ve called on this program, a tyranny of the minority. And as long as you have a still significant segment of the country that supports the idea that a president was elected, even without the popular vote, and we could have all nine justices who were appointed, if the president won the Electoral College and those justices were duly appointed according to the constitution, then that is America. That is the rule of law. And you’re, I think you’re, you’re dealing in your opposition to grassroots movements on the other side of the aisle, precisely that argument, whether it’s in good faith or not, that’s what you’re up against.


KANG: Yeah, but I do think like, again, the last 32 years, we’ve had a Democratic president 16 years and Republican 16 years. If the court were more balanced than it would be a different comp, like, you know, you don’t get to a nine justices appointed by one president, really by one political party, sort of naturally. I think that’s part of what’s really animating this is that they did take these seats. They took the seat from President Obama in a way that’s technically constitutional. But then again, so is Supreme Court expansion, right? There’s nothing in the constitution that says the size of the Supreme Court should be nine. And the size of the Court’s been changed seven times before. I think that’s sort of the constitutional…


HEFFNER: Right. Chris, and if you had two different senators from West Virginia and Arizona, you possibly could have reformed the Supreme Court and already added seats to replace or make up for the lack of popular opinion in the appointments that were made by the prior administration, right? I mean, it’s literally two senators, if you could have a vote to override a filibuster for legislation that expand the Supreme Court, that is within the realm of possibility, and that’s what Demand Justice wants to make clear to the American people, that there is nothing unconstitutional or anti certainly not. anti-democratic about this mission. It is grounded in the constitution, grounded in the power of Congress to make the judiciary. And so that’s where you sit right now. And I know in the absence of Justice Breyer’s retirement, you and Brian Fallon, your team at Demand Justice want to make the case for judicial reform. The Biden administration has undertaken the beginning of an evaluation of this question, which may include, you know, more than a blue-ribbon commission, but it purports to be studying the issue right now. And I know that President Biden has rather quickly appointed judges where there are vacancies in lower courts so far, but what to you is the realistic, it may be an aspiration, but not the fantastic, but the realistic path to reforming the court?


KANG: So I wish it were true that we’re only two senators shy of being able to do this in the Congress. The reality is we’ve got a little bit of work to do, right? I think that there are not, there are an increasing number of democratic lawmakers who support Supreme Court expansion, especially in light of what the Supreme Court has done in Texas. And I think that’s part of this, right? It’s not just that Donald Trump picked these justices, or it’s not just that these justices are conservative, it’s that they’re showing their true colors. They can’t help themselves. Time after time, they’re ruling against the rule of law. They’re overturning precedent in order to enact a partisan political agenda. And that’s what I think is really going to fuel this, in which we start to see this big movement of people really understand, look, I didn’t come to Supreme Court expansion as being like, oh, the way to fix this is to add seats to the Court.


This sort of need for me, at least to sort of wrestling with the fact that the Supreme Court is broken. And if the Court is broken, how are we going to fix it? And I think expansion is the best way. And then we have to do the hard work of convincing people, what, from grassroots activists or family neighbors, all the way up to senators and to President Biden to make the case that this Supreme Court is so out of control, not just out of step with the American people, but out of control when it comes to the rule of law, that it has to be reigned in. And so I think over the next little time, and we’ll sort of see how extreme, I think the more extreme the Supreme Court is the faster the move to expand the Court will rise.


HEFFNER: As Justice O’Connor, Sandra Day O’Connor emphasized, the first woman on the Court, decisions have real-world practical implications. And I think that in all likelihood, Chris, you would have to see real evidence of Gilead, if you will, in order to entice the American people and really engage them in this movement, in the same way, March for Our Lives inspired a generation of gun reform advocates and actual changes in the passage of legislation in states and federally. So I think, in all likelihood, you’ll have to see those manifestations, those practical consequences of decisions that may hurt people’s lives. But but let’s just go back to Demand Justices’ position on court reform. Have you attempted so far to put forward, you know, what is the top method of reform because there are multiple avenues of potential reform, which include adding seats to make up for the seats that Hillary Clinton would have appointed because she represented, you know, millions more Americans. There’s just a mathematical equation there in terms of wanting those Americans to be represented. So adding two seats or three seats, and then there are other ideas about retirement age, a rotation of judges. One thing that hasn’t been emphasized enough and I think is important in our federalist milieu is this idea of jurisdiction and rsort of a regional approach because the way that Texas votes and New York votes is different from the way popular opinion is realized in Oklahoma or the other states that we mentioned, but what would you say is the best strategy for reform right now, if you ultimately got, and I hear what you’re saying, you’re saying it’s not just about Joe Manchin and Kristen Sinema. You’re saying there are other senators like Feinstein I’m sure who are, who are iffy, if not reject entirely the argument for expansion. But let’s say, you know, you are in a place to push the momentum on this, and you, you know, you are in a place where it’s up to two senators. What argument are you making in terms of the specific the specific reform?


KANG: So I think that the most important reform is also the simplest it’s called the Judiciary Act. It’s been introduced in both houses of Congress, and literally it’s like a page long, and it strikes out nine and it inserts 13 to expand the size of the Supreme Court. And the reason it’s the right thing, one is that we have to expand, we have to restore balance right now. I agree with you that the more bad harms that are brought to the American people, the more, the louder the cry will be for Supreme Court reform, but then there, all of these people are going to be harmed in the meantime, right? Like, so there are great ideas, like term limits, for example is another form that we supported at Demand Justice, but that’s not going to restore balance for like 10, 20 years. What’s going to happen in the meantime? We need to have something that is actionable now and that also is clearly constitutional. I think a lot of the other proposals, I think they’re constitutional, more importantly, people smarter than me, sort of scholars on both sides of the aisle think that, that you can make these changes by law without amending the constitution. But this Supreme Court is going to be the one that determines what’s constitutional and they’ve not shown any interest in ceding their power. I think that if you expand the Supreme Court and add four seats, then you’ve restored balance. Then you have an opportunity for all of these other reforms to get a fair shake and see what happens. But in the meantime, you have the opportunity to preserve the rights and the livelihood of so many people. And again, Congress has changed the size of the Supreme Court seven times before, which is why, you know, that it’s both possible and constitutional.


HEFFNER: In short, what you’re saying, Chris is that the justices are not going to let fly any changes that would terminate their status. They want these justices, at least the nine who currently preside. They want to determine when they retire. At least they want to model their future on the justices who proceeded them. But in fact, it is the arbitrariness of death in which administration that is really the most undemocratic and I don’t want to say nonsensical. I don’t want to insult the framers. May they all rest in peace. But we know at least with the contemporary knowledge that we have, that swinging a trajectory, you know, or flipping the coin, you know, on the basis of, you know, who has a heart attack on any given day, it’s like playing the lotto. And I mean, the framers designed a system that’s held up, but there is something so deeply flawed about that particular provision, I think if you were to assess it, honestly.


KANG: Oh, I completely agree with you. I mean, one of the great things about term limits and one of the term limit proposals would allow every president to appoint two justices. So it sort of gives some uniformity to it. It also makes, again, the Court a little bit more reflective of the popular mandate, even with the Electoral College, right, because the president gets to appoint two justices. But then you don’t have things like Justice Kennedy sort of waiting and timing his retirement so that he will be replaced by a like-mindedness justice. Also, to your point, like Justice Breyer supports 18-year term limits, and here he is going into year I think 28. So he’s not exactly likely to do anything here that would sort of curtail his own power. But I think that this is really like, again, he’s sort of hoping that both his health holds up, but also the health of every democratic senator. I think Mitch McConnell has already said that when the Republicans take control of the Senate, that he’s not likely to give President Biden’s nominee a hearing. So why, why risk that? Why inject more uncertainty to what I think, as you noted is already a pretty unfair system?


HEFFNER: We only have 60 seconds or so left Chris, but I mean, I’m not going to ask you to analyze Justice Breyer. There’s been a lot of discussion about that. But in just whatever seconds we have left, you know, help explain why you think it is that is it, is it fundamentally that Breyer sees the writing on the wall of 6-3 and he, he doesn’t really accept that his seat being replaced by a Democrat that the idea of 6-3 versus 7-2, that it makes a difference, or alternatively, is it, is it just sort of what we’ve come to expect from this court when it comes to cameras in the course and all of the policies that they’ve resisted because they are a very protected clan, they, they want to, shield themselves from scrutiny and they, and they, I guess are fundamentally traditionalists who don’t want to rock the boat?


KANG: It’s hard to say it. I think that after watching what happened when Justice Ginsburg tragically passed away at the wrong time and was replaced by Justice Barrett. There’s a huge difference between 5-4 and 6-3. I think there’d be another difference between 6-3 and 7-2. I think unfortunately, Justice Breyer sort of revealed his true intentions over the summer when he said he likes it. He likes being the most senior, you know, justice on the side of the three, and that’s not a great way to run a court, right? And when you think about what…


HEFFNER: It sounds like he’s being interviewed on Sports Center.


KANG: There are people actually at risk here. And I’m like, I’m glad you’re having a good time, but maybe it’s time to pass the baton and like, ensure that the things..


HEFFNER: This isn’t … Chris we’re out of time, thank you for your insight and explaining the situation right now with the court. Appreciate it.


KANG: Thanks so much for having me.


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