David Pozen

Disequilibrium on the Supreme Court

Air Date: November 19, 2018

David Pozen, Knight First Amendment Institute inaugural scholar and Columbia Law professor, discusses the future of American law.


HEFFNER: I’m Alexander Hefner, your host on The Open Mind. The future of American law and morality, the jurisprudence that will define America is our topic today. The High Court is reaching a potential crossroads, return to an aspirational consensus or deepen a polarizing divide. Can the court veer from a partisan legitimacy crisis to neutral constitutional arbiter? I’m delighted to welcome Columbia law professor and inaugural Knight Institute Fellow David Pozen to consider this question, the bruising nomination battle confirming Justice Brett Kavanaugh, and if and how the Court can salvage democracy. Thank you David for being here today.

POZEN: Great to be here.

HEFFNER: Can the Court salvage democracy?

POZEN: No, I don’t think it ever could…

HEFFNER: Not by itself.

POZEN: Not by itself. The Court can get in the way of democratic developments. It can facilitate democratic trends. The Court has never in itself, however, been the main engine of progressive or conservative law making this country that falls to the political branches.

HEFFNER: And Chief Justice Roberts said in response to a question, the context was cameras in the court, but he said something he didn’t have to recently, which was that it’s not the function of the Supreme Court to educate the American people. And to me that was an unusual statement disregarding the Framers intent of the most informed populace that is humanly possible. And I wonder how you reacted to that as someone who’s clerked at the Supreme Court, at the circuit level, who’s now a teacher, is it now the time Kavanaugh’s confirmation in the deep deep polarization around it for the Court to teach constitutional theory in a way that can be more neutral then your way or the highway?

POZEN: Well, I do think that’s a worthy aspiration for the court to be a kind of public educator to the country. It’s interesting that the Chief said that himself because his opinions are often written in a way that suggests they are intended for public consumption, very accessible and his prose a more important than the courts educated function though is as you suggest, I think it’s role in safe guarding constitutional rights and allowing the political process to move forward. For the most part within broad boundaries, I wouldn’t say the court has ever been truly neutral. It’s always had intense politics to it but we are potentially reaching the place we haven’t been for some 100 years where the Court’s politics are severely misaligned with the country’s politics. That at least could be the world we’re entering post 2020, depending on how the elections go. So I guess I would reframe the concern as being less about neutrality per se, and more about this mismatch between the Court’s conception of democracy and the peoples’.

HEFFNER: Given the lack of equilibrium on the Court today and the fact that the older justices are more likely than not going to be liberal justices who either resigned or have to leave the bench at some point, we were talking about this, there are potentially two avenues for creating that or recreating that equilibrium. One is appointing new judges who are going to balance the Gorsuch and Kavanaugh effect, but another is the idea of expanding the Court or redefining what the Supreme Court is because nine was always an arbitrary number. It was Federal law, not the Constitution that dictated that. So, which of those avenues potentially is more likely to restore equilibrium?

POZEN: Well, first I’d say on the question of what is equilibrium, there are a lot of ways to think about that, but I do think there’s a strong case to be made, that we’re out of equilibrium in the sense that the Court’s composition doesn’t reflect the composition of the political branches in recent decades. The last time that a majority of the justices on the Court were appointed by a Democratic president was May in 1969. So we’re about to hit five decades straight of Republican President dominated courts. I believe 15 of the last 19 justices have been appointed by Republican presidents. And that’s in a 49-year window in which there have been five Democratic presidencies. The Senate’s been controlled by Democrats, more than half of the time, Democratic presidential candidates have won a plurality or majority of the popular vote in six of the last seven elections. So, that sense of being out of equilibrium reflects these, these stubborn facts, these difficult facts about the Court’s politics vis a vis the countries and I haven’t even mentioned other factors such as after Justice Scalia died, holding open his seat for more than 11 months prior to President Trump’s inauguration, denying the Merrick Garland nomination even a chance at a hearing. So, I sympathize with the distress on the liberal side that something is out of equilibrium. Getting back to equilibrium is a very hard question.


POZEN: For starters, you have to win presidential elections and a lot of congressional elections to even potentially begin to rectify that imbalance: the Presidency for obvious reasons. There need to be a numerous appointments made and the coming decades. But Congress, because of what you raised about the possibility of changing the structure of the court itself. So, this is known as court packing among constitutional lawyers when the size of the court is expanded so as to change its ideological composition, it carries a taint at this point in light of the failure of President Roosevelt FDR in 1937 to engineer at court packing plan of his own.

He had just won a landslide victory. Congress was favorable. Courts had been blocking his legislative agenda to a remarkable degree. Circumstances look quite favorable for court packing you might think but his plan failed in Congress, elicited tremendous backlash. He really took a hit in his popularity and his ability to move his domestic policy agenda forward afterwards. So a lot of people have thought that one lesson from that story is that court packing is largely out of bounds. You’re right that the Constitution itself does not prohibit changing the size of the court. It was done seven times, I believe in the 18000. But the last time it was done, it was 1870. So we’re now 150 years or so into a kind of stable settlement in which neither side has tried to pack the court. That all said, arguably we’re at a point now where calls for court packing make more sense than they have in a long time, especially if the political branches move progress in the court, which is not only Republican dominated but more homogeneous and it’s conservative approach the Constitution than it has been in several decades.

If that misalignment gets increasingly deepened and profound than court packing we’ll hear more and more calls for it. I guess my own view is that there are better options than court packing if attainable. I think court packing is very risky; it threatens to unravel that 150 years settlement that neither side effectively accomplishes it. It invites tit for tat where Republicans will further expand the size of the court should they win back Congress and the presidency even further down the line. And let’s also remember that in a world in which Democrats could even conceivably pack the court, they would have to control both houses of Congress and the presidency. So that’s a world in which they have a lot of political power, very different from where we are now and could be doing a lot of other things.

So there’s an opportunity cost to focusing on packing the court instead of doing major voting rights reform, which could fundamentally alter the way our partisan politics plays out, there are scandalously low voting rates in many elections in this country as you, as you know, well, there are bills ready to go that a lot of liberal groups have been developing to do automatic voter registration, expanded early voting and take other common sense measures to increase the vote. That seems to me like an obvious priority for this future Congress, which Democrats have the power to do a lot.

HEFFNER: And you also point out that in the event that those pieces of legislation are passed, it has to have constitutional muster.

POZEN: Yeah.

HEFFNER: At least it can’t be overturned by the Supreme Court. It might be adjudicated at a lesser level and not reach the Court, but that’s the risk in avoiding the court.

POZEN: Yeah.

HEFFNER: But, hear me out in a second because the context here is that in the case of Donald Trump it’s a president who won the Electoral College, not, who doesn’t have the popular will, the other potential avenue for constitutional reconciliation that might be imminently needed is this idea that moderates on the court or people who are not just executing the will of the Federalist Society or a pet cause, can unify some establishment of law in so far as, you know, if their Executive overreaches under understanding and underscoring to the American people, we as a consensus, whether it’s a seven to two block or an eight one or just, you know, a unanimous decision on something that is clearly a violation of the Constitution. So how confident are you, if at all, that Justice Kagan who said at her hearing “We’re all originalists now”, can route her thinking in the letter of the law enough to get the other side thinking, you know, I can sign onto this.

POZEN: I’m not at all confident not withstanding her great skill and smarts as a Justice and she’s been a phenomenal. The ability to forge that kind of consensus seems to me naive on the most hot button issues that Americans will care the most about, whether it’s in the political process and partisan gerrymandering or racially inflected gerrymandering, whether it’s voter suppression, whether it’s in the area of rights, affirmative action, reproductive rights, the justices at this point are pretty well set in their ways. All of the Conservatives have a well-developed track record and jurisprudence on all of these issues. There they have not evinced a great desire to meet the liberal justices in the middle, on those most salient of issues where you see the most compromised or on relatively technocratic, legalistic issues, that aren’t of great political moment. So, I think it is possible that if our politics becomes increasingly Democratic or progressive, that the court, conservative justices will pull back a bit on where they might have otherwise gone. So as in recognition of the precarity of their position and the legitimacy crisis they may find themselves in, that seems to be plausible that the margins, the court will try to stave off what might be the backlash in the form of a court packing program or otherwise jurisdiction stripping statutes calls for impeachment something even more dramatic. But the idea that the liberal justices through dint of their brilliance and their reasoning or their adoption of cooptation of originalism, will move the minds of the conservative justices in a deep way just doesn’t seem to me to reflect the way that the court’s been deciding cases for a long time now. I might add, there’s, I think there’s a third way.


POZEN: So, you suggested one way out of our disequilibrium would be court packing, the hardball solution.


POZEN: Another would be the justices reaching consensus themselves through whatever means. And cooling off the political battles that rage around them. I think that the third way is another effort at reforming the court that doesn’t involve court packing. And what I have in mind here are proposals that have been, many of them supported by conservatives and liberals kicking around for years now that would change life tenure as we currently know it. The most common proposals would have the justices serving fixed terms of 18 years as active Supreme Court justices. Every president, every second year would get a new pick to the Supreme Court so they, they’d rotate on a regular basis and you would know ahead of time that each presidency would get adjusted every second year. And to comply at least arguably with the Constitution’s requirement that justices get to keep their office during good behavior.

You wouldn’t kick them off after 18 years. They would take a sort of senior status which could be organized a number of ways. So, why would that be healthy? And by the way, you could, you could have this phase in a way that you wouldn’t know at the moment enacted which president would benefit to what degree, but it would be a very healthy reform I think because justices would no longer be able to strategically time their retirements under presidencies that they favor, president’s wouldn’t be incentivized the way they are now to pick young nominees who can stay on there as long as possible. And there’d be less arbitrariness about when a new justiceship is, you know, it’s a disaster for Democrats and Jimmy Carter got no Supreme Court picks. Trump has had two in the first half of his first term as president.

And, these kinds of contingencies of history determining our political future is really troubling in a democracy and it would also deal with the fourth issue, which is justices are staying on the court longer than they ever have for most of the history of the republic. Justices averaged under 15 years on the Supreme Court. Since 1970 or so, they’ve been averaging over 25 years on the Supreme Court. So there’s a real democratic problem there in itself in the lack of turnover on the court. So if you want to get out of our kind of cycle of hardball that we’ve been in for awhile now, ideally we would get to a place, I think where the court would be, the battles around the court would be cooled off through this sensible, good government reform okay. The difficulty or the paradox however, is how will we ever get there in a world in which one party at one time, feels advantaged by the current regime that there the threat of court packing may be useful, not necessarily to actually implement a court packing program, but to bring both sides to the table to think about reforms that are in both parties interests in the long term.

HEFFNER: You point out packing has a pejorative connotation. If there is an earnest effort to make such a plan, it should be called an expansion because packing, it implies something malevolent in your intent and just that’s a side point,


HEFFNER: But it’s a worthy point because at the end of the day, politics and law are inseparable, right? And so if you’re going to make the case to the American public during an election season, if you’re the 2020 candidate opposing Trump on the Democratic side, then this is something you put forward, whether it’s your 18-year tenure position or a court packing or expansion idea. But saying, look, we, like you just suggested: chance in a democracy is a really dangerous thing just to test chance by flipping coins to see who gets what. As you point out, President Carter revolutionized, at least attempted to revolutionize the circuit courts with what he did with vacancies, but he didn’t have…

POZEN: Yeah.

HEFFNER: …In his four years a nominee to the high court. If there were recognition that the emoluments clause was violated because Trump was accepting payments as his organization seems to from various governments. I thought that my friend Neal Katyal should have made his arguments squarely about that in the Travel Ban case. How can you trust the genuine public service requirement if you’re imposing the ban on states, countries where Trump properties don’t reside.

POZEN: Yeah. Yeah.

HEFFNER: I thought the focus should have been squarely on that. It wasn’t.

POZEN: Right.

HEFFNER: And so when it comes to, if it crystallizes that Trump’s positions on Russia or Saudi Arabia, emanate from some of his own personal holdings, that’s relevant context that the court might need to consider it in the future. And I don’t know if there can be a consensus formed around the violation of the Emoluments clause because it hasn’t, there’s no precedent for it. But on what issue, if not the hot button ones, would you see presumably a Kavanaugh or Gorsuch or maybe just one of Robert’s, Kavanaugh and Gorsuch, recognizing this is about protecting the country and not the President or party that appointed me.

POZEN: I don’t know. The example you gave of Emoluments is a very plausible one with that where the court would be asked to weigh in sooner than later on this Administration at, on this fundamental issue of whether the President’s business dealings have created conflicts of interest that potentially skew decision making in deeply disturbing ways. As you may know, there are three separate lawsuits winding their way through the lower courts right now on this emoluments issue. One brought by DC and Maryland, another brought by members of Congress and another brought by a civil society groups and business and hotel owners. And, at least one of the cases, the DC and Maryland case the District Court judge found that they had standing to bring the lawsuit and found that the Emoluments Clause, clauses is domestic and foreign one, are being violated today.

HEFFNER: I really didn’t understand the Robert’s decision on the Travel Ban ‘cause he was in effect saying that the President has this right, even if it’s unconstitutional or unethical or unlawful. In a sense, this is his prerogative as the Chief Executive of this country. But then if you go to the substance of what he’s doing, and if it is not based on fidelity to the Constitution, then how is it constitutional?

POZEN: Well, I guess Roberts would say that by the time the Travel Ban reached the Supreme Court, it had gone through several iterations and if you just read the text of the Presidential directive, at the time, by the time it reached the Supreme Court, on its face, it did not clearly discriminate on the basis of a prohibited ground such as religion. So to read in that unlawful discrimination, whether a violation of the First Amendment or the 14th Amendment – into the Travel Ban, you had to be willing to look beyond the four corners of the document to what the President and his allies were saying.

HEFFNER: Understood. But there’s almost a clause in that decision that says we can even expect the overreach, or examples of abuse, but it is still within the prerogative of the Executive. We’re running out of time. David, one more question.


HEFFNER: A final thought on that.

POZEN: There I’ll say I, I think I disagree with the Travel Ban decision…


POZEN: I thought dissent had the far better of it. That was a troubling early test of how of the court’s willingness to stand up to this presidency. I look forward to seeing what happens in the Emoluments Clause area though because there without the national security gloss that makes at least some justices generally more likely to defer to the Executive. There’s a very plausible Constitutional violation. It’s an obscure set of clauses, but they serve an important anticorruption function that I think most Americans would be upset about if they train their minds on what’s happening in the Supreme Court, could within the coming years hear that case. So that’s an area to look out for, for how the Roberts Court with Kavanaugh on it will deal with the Presidency

HEFFNER: The other potential example is the President’s unwillingness to accept a subpoena if a Special Counsel …

POZEN: Yeah. Yeah.

HEFFNER: Or someone investigating him decides that he in order to complete his investigation or she, needs to get some information and there is the idea that he might refuse that

POZEN: And that also, but I would just put it in slightly larger frame. I do think people should also look ahead to this. If Democrats are able to take both houses of Congress in 2020 and also take the Presidency, the whole world, again, in which court packing is at all plausible is a world in which that happens, I think where the most profound tension may happen between the court and our political system is if Democrats are able to do a transformative statute in any of the areas that progressives have been talking about from voting rights, healthcare.

HEFFNER: Let’s zero in on voting rights to conclude.

POZEN: Yeah.

HEFFNER: Because there is the argument and Akhil Amar made it to me not so long ago when I was with him, that voting rights are sacrosanct. They are the original intent of the framers. And when you update it with the 13th, 14th and 15th Amendments, and later on you bring women and people of color into the picture and that’s the Constitution. That’s the original document as we interpret it now. In the voting rights and the purging case, purging voters off the ballots in Ohio in, which the court basically said you don’t have the right not to vote, you only have the right to vote and to be rewarded by staying on the ballot or staying registered. And I thought about what Akhil Amar said at Yale Law when we were together recently and he was arguing that it is actually most originalist to believe in representation and voting rights. It’s the founding principle of this Republic. And so you, you said to me before no, no chance of, of the, really the, no real plausibility of the, of the, the so called Federalist Society judges the Conservative, strict contextualists coming around and finding some consensus. It brings to mind to me the analogy with the NRA, which is if all the liberals went out and became members of the NRA, they might have a majority and they might want to be responsible gun owners and enact gun safety reform and still preserve the Second Amendment. And so I come back to this question, not specifically have Justice Kagan, but this idea of the Akhil talks about this, Ganesh Sitaraman talks about this. Is there any potential for those who are marginalized as living constitutionalists to take ownership of the document and to become the true originalists?

POZEN: I agree with Amar that the Constitution is best read to, and it doesn’t take much creativity to read it this way to envision very robust voting rights coming out of the reconstruction amendments. As you say, more and more groups are enfranchised. The Constitution has never in its amendments cut back on the right to vote. It’s only moved in one direction from people of color to women to younger Americans. But I’m looking at the track record of the Supreme Court’s cases since at least Bush versus Gore, itself extremely worrisome decision in which the court effectively gave the presidency to George W. Bush, old history of 2000, but since 2000, there’ve been a welter of a voter suppression efforts at the state level that the court has not very productively engaged with. The court has let a lot happen at the state level. That’s extremely troubling from a voting rights perspective. The court itself partially neuters the canonical Voting Rights Act as reauthorized by Congress and the court has not been responsive to claims of partisan gerrymandering. Many different troubling practices are happening right now to dilute the right to vote on the ground and the court not only has failed to stop that, but it’s enabled some of that behavior. That’s what gives me concern.

HEFFNER: To be continued. David, thanks for your time today.

POZEN: Thank you very much for having me.

HEFFNER: And thanks to you in the audience. I hope you join us again next time for thoughtful excursion into the world of ideas. Until then, keep an open mind, please visit The Open Mind website at Thirteen.org/OpenMind to view this program online or to access over 1,500 other interviews and do check us out on Twitter and Facebook @OpenMindTV for updates on future programming.