Leah Litman

How to Reform an Unrepresentative Supreme Court

Air Date: March 22, 2021

Constitutional scholar Leah Litman discusses a 6-3 Supreme Court majority whose opinions are not representative of the American people.


HEFFNER: I’m Alexander Heffner, your host on The Open Mind. I’m delighted to welcome to the program today Leah Litman. She is a constitutional scholar and professor at the University of Michigan School of Law. She’s also the host of the Strict Scrutiny podcast. Welcome professor.


LITMAN: Thanks so much for having me.


HEFFNER: We have a lopsided us Supreme Court, right? It’s 6 to 3. And in recent memory, it’s never been so lopsided, but we haven’t really seen the results yet manifestly of that lopsided court. And I was hoping you could just begin by expounding on the fact that in the public consciousness, we don’t really know yet what this court is going to embark on in terms of wholesale changes to law, or, you know, the implications of that for public policy.


LITMAN: We don’t yet know what this court is going to embark upon, but we do have some indications about what it might mean. If you just consider some of the cases from the past term when it was a 5-4 conservative court. So why not? What’s a 5-4 conservative court. You had several decisions in which Chief Justice John Roberts joined with the then four more liberal justices, Justices Ginsburg, Breyer. Sotomayor and Kagan to form majorities, those majorities, among other things, invalidated President Trump’s attempt to end the Deferred Action for Childhood Arrivals program, the DACA program. By the same 5-4 majority, the court also invalidated Louisiana’s restrictions on abortion providers that require them to obtain admitting privileges at hospitals within 30 miles of where they perform abortions. That requirement in Louisiana could have closed two out of the three remaining abortion clinics in the state. If the court had been a 6-3 conservative court, then, both of those cases would have come out the other way that is President Trump would have ended the DACA program, allowing his administration to potentially deport Dreamers and the Louisiana restriction would have been allowed to stand, again, closing two out of the three remaining clinics in the state. So, we have some indications about what this court might do when it is presented similar cases to those ones.

HEFFNER: One of the things that concerns me is just the lexicon with which we’re using still to this day about the conservative versus the liberal justices, because there was a day in American political life and judicial life where restraint and heeding stare decisis or precedent was the conservative attitude. And I was hoping that you could bring us into a more nuanced and perhaps accurate assessment of what the 6-3 majority means right now and how to define it.


LITMAN: So, I think before the 1990s or before the 1980s, it didn’t used to be the case that you could tell how a justice was going to vote on major high profile, politically salient, ideological salient cases, based on the political party of the president that appointed him or her. If you think back to, for example, the Supreme Court as it existed during the new deal with President Franklin Rosenfeld, when President Roosevelt encountered conflict with the Supreme Court, the justices who were striking down his programs were appointed by both Republican presidents and Democratic presidents, but that’s no longer really the world we live in today. Now, based on the political party of the justice of the President that appoints the justice, you have some idea about how a justice is going to vote on major high-profile ideological cases involving abortion or LGBT equality or other issues. So that’s part of what has changed is just the political parties have become more polarized. And so, the judges and justices they appoint, understandably are also more polarized and better reflect the political parties’ views. So, you know, we can think about any particular issue and ask how a 6-3 conservative court might decide it. You know, one of the cases that the Supreme Court is going to decide this term involves LGBTQ equality and rights, and that’s Fulton vs City of Philadelphia. In that case, the city of Philadelphia has contracted with a variety of private agencies that now certify whether foster care parents meet the city’s criteria to serve as foster care parents. And some religious agencies are seeking an exemption from the city’s requirement that they not discriminate, in order to allow them to refuse to certify same-sex couples and same-sex parents as foster care parents. You know, on that issue, it was pretty clear from the oral argument that the justices were going to be divided along ideological lines. And I don’t know that that was particularly surprising to anyone. Again, this is a major social issue, religious exemptions from non-discrimination protections for LGBTQ individuals. And it seems like the justices could very well break down along ideological lines.


HEFFNER: But again, I want to just nail down this idea of a 6-3 conservative court because, you know, there was a conservatism or even a textualism or a strict constructionist attitude that was not so activist in nature, and that would respect Philadelphia’s right to, you know, have a standard that it sets. So, I’m just trying to parse this out a little bit more in terms of understanding whether it is accurate to call the new Trump appointees conservatives or is there a better way to understand what their judicial, their jurisprudential or their political goals are. And, if you were to compare that to the Gorsuch, Kavanaugh, Coney-Barrett, to the older school Alito and Roberts and Thomas, you know, is, is there a way we can maybe be more precise in understanding what their goals are or, or defining their conservatives?


LITMAN: So, I think that when sometimes people think about, you know, conservative judicial ideology, they think about principles of judicial restraint, you know, the idea that judges should be invalidating, federal statutes or decisions made by the politically accountable or popularly elected branches of government. But that has never really recently been, you know, the conservative philosophy of justices on the Supreme Court. You know, you mentioned the older school conservative justices, Justice, Thomas and Justice Alito, and I don’t think anyone would necessarily refer to either of them as embracing a strong model of judicial restraint. You know, both Justice Alito and Justice Thomas would have invalidated the Deferred Action for Childhood Arrivals program that is, not just allowed President Trump to end it, but also went a step further and said that DACA, you know, words to exist is unlawful. You know, the two of those justices also would have invalidated all of the Affordable Care Act. So, I think it’s honestly been a while since we’ve had a justice who’s been appointed by a Republican president who has truly embraced a strong form of judicial restraint. I think Chief Justice John Roberts is probably the closest justice, you know, on that model. But, you know, we use the terms conservative and liberal just as proxies for the political party of the president, back appointed the justice. And as I was saying earlier, that’s not a bad pneumonic for how the justices might vote in any given case, given the extent and increase in polarization.


HEFFNER: Forgive me for belaboring that, if only to remind our viewers that during the eighties and nineties, it was the conservatives, if you will, the Republican-appointed judges and their political for forefathers, if you will, who were accusing the liberals or the Democrats of being the radicals or the activists, and maybe it is the Trumpian projection tactic of accusing your opponents of what you’re actually in fact doing. And with respect to the decisions at play here, there’s the shadow docket and then they’re the cases that we come to know as the kind of landmark institutional change cases. If you were to predict on where this 6-3 majority would decide to be more activist in reversing the status quo or undoing the legacy of the Rehnquist or the Warren courts before this court, where do you think they would be poised to do that more radically more quickly?


LITMAN: I think one of the major areas of law where we are likely to see some significant changes, concerns administrative law, the law that governance administrative agencies that are part of the federal government, like the EPA, the Environmental Protection Agency, or other agencies like that. And it’s possible we will see changes along several different dimensions. One, we could see the Supreme Court be more willing to second-guess the factual and policy determinations that agencies make under the federal statute that governs all administrative agencies decisions, the Administrative Procedures Act. Courts are allowed to set aside agency actions that are arbitrary and capricious, which includes decisions that aren’t supported by the weight of evidence. And it’s possible again, that we will see courts more aggressively review the factual determinations and policy judgements that agencies make under that. But second, you know, it’s also possible that we will see, you know, the court’s efforts to limit Congress’s ability to allow administrative agencies to make any decisions whatsoever. This principle is sometimes called the Non-Delegation Doctrine and the Non-Delegation Doctrine maintains that Congress can’t give away, i.e. delegate the power to make laws or make rules, and Justice Gorsuch, as well as, you know, several other justices who are currently on the court have expressed a willingness and an interest in reviving the Non-Delegation Doctrine which would limit the extent to which federal agencies can make the rules and regulations that govern so much of our lives today. So, I think that on executive power, presidential power, and administrative law is where we’re likely to see some significant changes over the course of the next few years. And that’s partially because, you know, the Biden Administration will be doing a lot of policymaking through administrative agencies. And so that will provide an occasion to revisit, you know, doctrines of administrative law in the near future.


HEFFNER: So, you think that the court might act more expeditiously in that arena than on the specific social issues with which we are concerned now knowing that the court represents a minority opinion, you could even argue, it is a kind of tyranny of minority sentiment. If you were to look at public opinion surveys, this court would constantly rule in opposition to the majority vote on any given issue, but we know reproductive rights is among those issues. So, you’re suggesting that they might act more quickly on the administrative law piece than the deeper dive into reversing what have become, and are known as precedents of social policy.

LITMAN: It’s certainly possible, you know, I mentioned the administrative law angle just because I think that that issue or that set of issue is sometimes flies under the radar and is perhaps less appreciated as an area of law where the Supreme Court could change rather quickly in the next few years, but that’s not to say I don’t think they will also be looking for cases involving the social issues that you were referring to on reproductive rights and justice, the Second Amendment and gun control, you know, First Amendment and religious exemptions from non-discrimination provisions or other issues.


HEFFNER: Do you think that the chief and the justices are at all considering the fact that there was a strong movement and continues to be a strong movement within the Democratic Party to increase representation on the court to make more equitable the appointment and service on the court so that who dies, which justices resign or die in which administrations and that contingency, which can be quite unpredictable and random, is not what governs or enforces the law of this land, is weighing on their mind and whether they want to take more radical steps towards those, if we want to call them conservative goals. The fact that the political party that represents the majority of Americans is deeply concerned about a lack of representation on that body, the United States Supreme Court.


LITMAN: It’s certainly possible that the prospect of, you know, Supreme Court reform has entered at least to some of their minds. But I’m not sure that that prospect is something that they allow themselves to think about or allow to shape their views on actual cases. I don’t know that a justice who thinks that, for example, the First Amendment requires there to be exemptions for religious objectors to non-discrimination provisions would then change their vote or say that it doesn’t, out of some fear, you know, that Congress could modify the structure of the Supreme Court. These are people who have, you know, clearly formed views and ideas about what the law is and what the law means. And so, they might not allow those views to be influenced by, you know, the idea that Congress might respond with some kind of Supreme Court reform. That being said, it’s probably difficult to ignore it entirely. But I also don’t think that the calls for Supreme Court reform have gathered enough traction where they are sufficiently real to really factor that prominently into the justices or any of the individual justice’s view.


HEFFNER: Right, if you overturn Roe V. Wade, then that does become, you know, something that really can gain momentum and traction, right? I presume that is a circumstance in which you think this discussion is revived quite seriously.

LITMAN: That could very well be. But there are many ways that the court has effectively eliminate the force of Roe vs. Wade without writing an opinion that says we overturn Roe vs. Wade. So, for example, you know, the opinion that I was referring to on the Louisiana abortion restrictions, you had four justices saying they would overturn the Supreme Court’s recent abortion decision and Whole Woman’s Health versus Hellerstedt decided only in 2016. And that didn’t exactly lead to rallying cries of Supreme Court reform, even though it was one vote away and would have come out the other way, you know, once the Republicans replaced Justice Ginsburg with Justice Barrett. So there are many ways that they can limit access to abortion and expand state’s ability to restrict abortion and give that ideological movement a lot of wins without writing an opinion that says we overturn Roe vs. Wade, which could generate the kind of political pushback that you were referring to.


HEFFNER: So, when we think of the potential for Supreme Court reform, there have been various proposals on the table or that have been contemplated, nothing really formulated with precision or with the backing of the entire Democratic Party or judicial establishment. That is why in part president Biden has enlisted some scholars like yourself you know, people with backgrounds in the academy and in the judicial branch to form a commission what do you expect that this commission will recommend?


LITMAN: So just to be clear, I haven’t been selected for the commission, not a commission. So I want to, I just want to be clear, I’m not speaking for that. You know, it’s a little bit difficult to know exactly what the commission will do because we don’t yet know the commission’s makeup. And one thing that President Biden had said he wanted to do was create a bipartisan commission. And if you create a bipartisan commission, I don’t think you are going to have a commission that will embrace any strong form of court reform given that the Republican Party does not exactly want to reform the court and take away, you know, the political victories it won by gaining the control over the Supreme court with the 6-3, you know, Republican control of the Supreme court. You know, some of the difficulties that you alluded to with court reform are coming up with a precise set of reforms that would actually address different problems that people have with the Supreme Court. And one of the reasons that I don’t think there has been consensus around how the Supreme Court should be reformed is that people don’t necessarily agree on what the problem is. So for some people, the problem with the Supreme Court is that the Supreme Court just decides too many issues. And it’s a way of deciding issues that are better left to the political branches and better decided in Congress or state legislatures or the executive branch. And if that’s your problem with the Supreme Court, then one way of fixing that is to eliminate the Supreme Court’s jurisdiction to strike down statutes on constitutional grounds. But if your problem with the Supreme Court is that you fear that a 6-3 Republican court could invalidate any administrative rules or regulations or statutes passed by Democratic administrations, or would interpret those statutes to mean very little, then eliminating jurisdiction in the courts is not going to solve that problem. Then you actually need to staff the courts with judges who you think will correctly interpret the laws that Democratic congresses pass and correctly interpret the regulations under existing statutes that Democratic administrations pass. So different problems with the Supreme Court lead to different kinds of reforms. And I think coming up with a precise package that will solve all of these reforms or any one particular reform is quite difficult. You know, if your concern is that the lower federal courts as are currently constituted will enjoin a bunch of democratic rules and regulations or democratic statutes, you know, how, how many judges are you supposed to add, or if your concern is that, you know, the 6-3 Republican court will invalidate democratic rules and regulations or statutes, well, how, what kinds of cases should you eliminate their jurisdiction over? All constitutional cases? First amendment constitutional cases? These are difficult questions. And I think one of the things that the commission will be doing is really inviting people to think about how exactly do we fix what set of problems


HEFFNER: Would you say though, that the unifying problem is the one that I alluded to, which has to do with representation and the fact, again, not as a partisan point, but as a representative democracy, right, not suggesting that judges should be elected, but suggesting that the people who appoint them should ideally be the majority, and in some cases, it should be the minority too, because I do and I think the constitution and the Federalist papers do respect that virtue. But when you have back-to-back administrations, appointments, in which the majority of the country has denied any say, I mean, there’s not an element of a Biden or Clinton voter that would side with a Barrett or a Gorsuch or a Kavanaugh. So yes, that you’ve made the point that the partisan polarization has led to extremists being nominated. But isn’t the unifying problem that, the question of equity and political representation if you want to preserve you know, self-government, if you want to preserve Republican ism or, or democracy?


LITMAN: No, I think that that is a major concern. You know, we talk about the democratic deficit of the Supreme Court, and usually people just think about that as well, the justices themselves aren’t elected or accountable to the people, but it’s actually a compounded democratic deficit because the people who are the justices did not themselves win the national popular vote. And then they are appointing people who don’t represent the views of a majority of people, or even, you know, approximating a majority of people on particular issues. And then you have the justices being confirmed by senators who represent less than a majority of the United States. So, it’s undemocratic on multiple different levels and all of those anti-democratic aspects of the court, compound the problem and compound one another.


HEFFNER: And, and even though there is respect for minority view in Senate procedure, for example, we all know about the filibuster, there’s nothing that suggests in the constitution that the minority should have the monopoly on judicial supremacy.


LITMAN: I don’t think there is anything in the constitution that suggests that.


HEFFNER: Or anything even remotely like that,


LITMAN: Right. There’s nothing like that. And it’s a little bit odd when you think about, you know, we have five justices on the Supreme Court appointed by presidents who lost the popular national popular vote. Even though Democrats won the national popular vote in I think it’s something like five out of the last seven elections you know, they have only appointed three of the current nine justices. And that’s, again, not even considering the votes of the senators and what percentage of the country they represent. So yes, this is very much a part of the problem.


HEFFNER: So if you are looking at that problem and that reality from as apolitical lens, as you can, or I should say nonpartisan, if you want to say political, it is political because the court determines whether it’s unitary executive authoritarian or small D or small R democratic or Republican. So, we just diagnosed the problem, if that is the problem, or the most salient problem for this commission and its recommendations, what is the most tolerable solution that could actually achieve an answer to this problem?


LITMAN: So again, I think it’s probably a combination of different reforms, because I think the reforms that we were just talking about, both of them would address this aspect of the anti-democratic or a lot not representative court. You know, one concern is you have a court that is appointed by presidents who lost the national popular vote, invalidating actions of a president that won the national popular vote. So one way to address that problem would be to limit the jurisdiction of the current Supreme Court over invalidating actions of democratically enacted administrations. But another way of addressing it would be to create some additional nominations or seats and fill those seats by appointments by a president who won national popular vote, and by senators who represent, you know, a majority of the United States. So, you know, here too, the problem has multiple solutions and it’s quite difficult for people to figure out, well, what exactly is the right combination of solutions to fix different aspects of the problem or in the same aspect of the problems.


HEFFNER: And separate and apart from the commission, Leah, you have a 50 plus one majority right now that could add seats to the Supreme Court. Of course we know the problem, the filibuster and the refusal to consolidate power one or two Democrats, and it may be longer list than one or two, but one or two have expressly said, they are not prepared to nuke or end the filibuster for the purposes of, you know, legislation that would add Supreme Court seats, but it’s worth pointing out that the mechanics of our government currently exist to do even the most ambitious of what might be in the commission’s recommendations.


LITMAN: Yes, no, that’s very true. And you can also think about the filibuster as another, you know, anti-democratic or at least constraint on majority rule. Like that’s another way in which we don’t allow popular majorities to have their policies enacted through the Congress, or even a simple majority of Congress, you know, a group that potentially represents greater than 50 percent of the United States population, to enact their policies into law, because the filibuster requires them to get 60 votes, you know, in the Senate.


HEFFNER: The, the question of term limits is the constitutional one in the sense that there is nothing violative of the constitution about adding seats. You know, Congress has done that, and there’s a precedent for doing that. So are you, if you were to recommend what you think to be the most effective and constitutionally acceptable form of reform, would it be additional seats being added rather than term limits or restrictions?


LITMAN: So I don’t think term limits would solve the problem through a statute. I think that term limits, you know, as such, would have to go through a constitutional amendment process. And I think if Congress wants to avoid that, it would have to do something else. You know, my ideal package of reforms is probably a combination of all of them, although I’m not exactly sure which combination one proposal that’s been floated is actually by professor Jack Balkin, and, you know, who suggested adding seats to the Supreme Court, but effectively preserving a nine justice Supreme Court to hear most of the Supreme Court’s cases, but then allowing the current justices or some number of them to hear cases that fall within the Supreme Court’s original jurisdiction, which are typically disputes between states over Admiralty or, you know, water law and not the kind of high stakes political cases is that we usually think of the Supreme Court when we’re talking about Supreme Court reform. So that’s one possibility. But I do think that we should seriously confront the question about what kinds of issues we want the Supreme Court deciding in a world in which they are now effectively, you know, so polarized that they’re making similar decisions that people have their political party make other branches of government. And so limiting the kinds of cases that the Supreme Court can decide, or at least decide on particular grounds, would I think be good for the health of our constitutional democracy.


HEFFNER: Leah Litman, professor of law at the University of Michigan and host of the Strict Scrutiny podcast. Thank you so much for insight today.


LITMAN: Thanks for having me.


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