This week’s topic covers the Supreme Court and Democracy. How has the the Supreme Court contributed to and detracted from American democracy? What are the prospects for the coming years?
Zachary begins with a scene-setting poem, “Closing the Tab.”
Sanford Levinson, who holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, joined the University of Texas Law School in 1980. Previously a member of the Department of Politics at Princeton University, he is also a Professor in the Department of Government at the University of Texas. Levinson is the author of approximately 400 articles, book reviews, or commentaries in professional and popular journals–and a regular contributor to the popular blog Balkinization. He has also written six books: Constitutional Faith (1988, winner of the Scribes Award, 2d edition 2011); Written in Stone: Public Monuments in Changing Societies (1998); Wrestling With Diversity (2003); Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It)(2006); Framed: America’s 51 Constitutions and the Crisis of Governance (2012); An Argument Open to All: Reading the Federalist in the 21st Century (2015); and, with Cynthia Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and teh Flaws that Affect Us Today (forthcoming, September 2017). Edited or co-edited books include a leading constitutional law casebook, Processes of Constitutional Decisionmaking (6th ed. 2015, with Paul Brest, Jack Balkin, Akhil Amar, and Reva Siegel); Nullification and Secession in Modern Constitutional Thought (2016); Reading Law and Literature: A Hermeneutic Reader (1988, with Steven Mallioux); Responding to Imperfection: The Theory and Practice of Constitutional Amendment (1995); Constitutional Stupidities, Constitutional Tragedies (1998, with William Eskridge); Legal Canons (2000, with Jack Balkin); The Louisiana Purchase and American Expansion (2005, with Batholomew Sparrow); Torture: A Collection (2004, revised paperback edition, 2006); and The Oxford Handbook on the United States Constitution (with Mark Tushnet and Mark Graber, 2015). He received the Lifetime Achievement Award from the Law and Courts Section of the American Political Science Association in 2010.
He has been a visiting faculty member of the Boston University, Georgetown, Harvard, New York University, and Yale law schools in the United States and has taught abroad in programs of law in London; Paris; Jerusalem; Auckland, New Zealand; and Melbourne, Australia. He was a Fellow at the Institute for Advanced Study in Princeton in 1985-86 and a Member of the Ethics in the Professions Program at Harvard in 1991-92. He is also affiliated with the Shalom Hartman Institute of Jewish Philosophy in Jerusalem. A member of the American Law Institute, Levinson was elected to the American Academy of Arts and Sciences in 2001. He is married to Cynthia Y. Levinson, a writer of children’s literature, and has two daughters and four grandchildren.
Guests
Sanford LevinsonProfessor in the Department of Government and at the Law School at the University of Texas
Hosts
Jeremi SuriProfessor of History at the University of Texas at Austin
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Jeremi: Welcome to our new episode of “This is Democracy.” This week we’re talking about the Supreme Court, and it’s historical as well as its contemporary role in the evolution of American democracy. We have with us my colleague and friend and I think the person who’s written the most important recent work on the Supreme Court, Sandy Levinson, a professor at the law school, here at UT. Good morning sandy.
Sandy: Good morning.
Jeremi: Nice to have you on. And of course, we start with a scene setting poem from Zachary Suri. Zachary what’s your poem about today?
Zachary: My poem is about justice and how we can find justice in our daily lives, and how we often fail to find justice.
Jeremi: Fantastic, well let’s hear it.
Zachary: It’s titled “Closing the Tab.” Standing in the rain by the bus stop, staring at the idealist streets, trying to write a poem about justice. I complained to the air of my misery in sweater clad umbrella comfort. I complained of the wayward winds to myself outside my warm private school. How do I write about justice? On the radio of the inner city islands, the tortured Muslims, or the Eurasian plains. The murdered journalist in a phosphorous grave. The biting wind drifts across my face, bitter, drained, I longed for the bus, but the rhythm still escapes me. I am lost in the glimmer of light on the rain drops. The newspaper is awash, awash with the repressed. The death, the dying. I quickly closed down the tab for CNN, The Washington Post fades a little less into subtly. Latin participles, principle parts sift through my mind. How do I write a poem about justice? I hear of prison cells filled with the innocent, the black, brown, and bris off into the maelstrom. The ACLU sent me an email last Thursday. The bus is me and two ragged men, wrapped in flowing waves of plastic ponchos. I dropped my leather wallet, set it back in the backpack atop the umbrella. I sit back in my seat, and watch the rain drops.
Jeremi: Zachary, that’s a very ecological poem. Um, what’s the significance of the rain and its relationship to justice?
Zachary: Well, I think it’s talking about how it’s around us in our everyday life, and how we see injustice, and we also see justice. But we have trouble recognizing it, and we think our own little problems are the most important things. And I think it’s really interesting how the poem starts and it’s really about justice, but it starts and half of it is really just me complaining about it being cold outside. And I think that’s a really interesting point, how…
Jeremi: That’s great, that’s great. Well, that’s a good spot for us to turn to Sandy Levinson. Why did the founders, Sandy, create this odd institution of the Supreme Court, and what role did they see it playing in the protection of justice in our democracy?
Sandy: You know, I think the honest answer is that we really don’t know. That it was – it was obvious that you needed a court. And the – one of the very few things that Congress is basically required to do is to create a Supreme Court. The only other thing they’re really required to do is have a census. Everything else, arguably is optional. They can declare war if they wish too, but obviously they don’t have to go to war. But Supreme Court was written into the Constitution and interestingly enough, what the Constitution calls inferior courts, that is circuit courts, district courts, are up to Congress to initiate or not. District courts were founded very early on. We didn’t get the modern circuit court system until 1891. So what was the Supreme Court supposed to do? It was supposed to interpret statutes, which is what courts traditionally have done. It – there is certainly some reason to believe that most of the founders believed that the court would serve as a check against unconstitutional legislation. But unconstitutional didn’t necessarily mean unjust.
There’s a famous speech by James Wilson from Philadelphia, who was by most accounts the second most important at the Philadelphia Convention, James Madison being the first. And in this speech, where Wilson was really talking up the importance of structural checks on potential majority power, he says “Legislation could be tyrannical or unjust, but not as tyrannical or unjust as to be unconstitutional, so we have to find other checks than looking to the court.” The court- you know, easiest example of something that would be unconstitutional is if Congress said “The larger states should get extra senators.” That’s a great idea, I really dislike the Senate intensely, but you know you read the Constitution and you realize that it just says, unfortunately, that each state gets the same two senators. But, you know, if Congress passes tyrannical legislation, that may or may not be constitutional, and there was no agreement at all, in fact I’d even say fairly strongly that most of the framers would have rejected the idea that the courts had a roving commission to strike down anything they thought was unjust. Precisely because they realized that people disagreed very radically on what was just or unjust.
Jeremi: And so what did what did they really expect the court to do?
Sandy: Not much, frankly. Which is in many ways what the court did for the first 50 or 60 years. You know, I’m struck at home, I have a run of Supreme Court. I used to have a run until pretty much the modern era. And the first 60 years take up less than a single shelf. And then you get to the 21st century, and five years will take up a single shelf. Now part of this is an illustration that Congress is passing more and more statutes that have to be interpreted, and we have the modern administrative state. And courts spend a lot of time interpreting what administrative agencies can do. Congress passed very little legislation in the first fifty or sixty years, and we didn’t have the administrative state as we know it now. So there are a relative handful of important cases that we tend to teach in law school. And most of them, incidentally are not sterling tributes to the Supreme Court as an agency of justice, because much of what they do during that period is to uphold the rights of slave owners.
Jeremi: Right.
Sandy: And to legitimize Congress’s passage of one of the most tyrannical acts in our history, that is the fugitive slave law.
Jeremi: Right.
Sandy: But you know, I think, as is true of so much of the Constitution and I don’t mean this in a demeaning or snarky way, they made it up as they went along, that the Constitution is what John Marshall, in what I regard as the single most important decision in our history, that is, McCulloch v Maryland, um, he described the Constitution as the great outline. It’s not a Napoleonic code, or a tax code. Um, it’s a relatively short document that’s very specific about some things, like Congress getting – like each state getting two senators, but otherwise, it is what I’ve called in a book that I wrote, an invitation to endless conversation. And so both the political leaders in Congress and the presidency, and then the very different sorts of political leaders who end up on the Supreme Court are trying to figure out how this system will work. Especially given the inevitable dynamic changes so that – one of the reasons I think McCullough is so important is that Marshall says that the Constitution is designed to endure. And if it’s to endure, it has to be adapted to the various crises of human affairs.
Jeremi: And McCullough is 1803, is that right?
Sandy: No, 1819.
Jeremi: 1819.
Sandy: You’re thinking of Marbury, is 1803, in which the Supreme Court for the first time strikes down a thoroughly significant federal statute as being unconstitutional.
Jeremi: I see. So that’s judicial review, and McCullough gives us federal supremacy.
Sandy: Right. And the most important reality of judicial review, especially when we’re talking about national legislation. State legislation is more complicated, um, but the most important thing about federal judicial review, is that almost all of the important decisions uphold what the national government wants to do. So the Supreme Court traditionally – and the fugitive slave law is a good example, becomes the handmaiden of national power. It’s stronger in striking down state laws, but again, if you look at the actualities, many of the state laws that are struck down are trying to achieve what many of us today would view as justice, and the Supreme Court says that the states don’t have the power to do this, they don’t have the power to pass the minimum wage law, or the maximum hour law, or a law protecting suspected slaves against the tyranny of the fugitive slave law.
Jeremi: It’s so interesting, Sandy, because in the field of civil rights, of course, which we’ve talked about on prior shows, there’s often a view that the Supreme Court is the protector of individual rights against the federal government, which is the opposite of the fugitive slave law.
Sandy: Right. You know, there is a bright, shining moment after World War II, and it’s important to know that World War II was billed as the epic struggle between constitutionalism or democratic constitutionalism, and dictatorships. And so after World War II, there was a great deal of emphasis on protecting civil liberties. We get the Warren court, and the Warren court does indeed become identified with protecting civil rights and civil liberties. Now their record in fact is spottier than some of the most enthusiastic historians would have billed. There’s no doubt that the Warren court period was the high point of the courts protecting civil rights and civil liberties. But the fact is, it will be 50 years, next year, since Earl Warren was chief justice.
Jeremi: Right.
Sandy: And the Warren court was a very important moment in history, but we should recognize that it is not typical of the 235 years of Supreme Courts, and the Supreme Court that we have now, which is far more conservative, I would argue, in certain ways, recklessly indifferent to protecting civil rights, and it has created a notion of civil liberties that has the primary function, often of protecting the right of the wealthy, to corrupt our political process. And overall, I have to say, I think the current Supreme Court, if you look at the overall history of the institution, is probably more typical than the Warren court.
Jeremi: But Sandy, others would say on the right of course, that the court has been much too active. And then some, like myself would look at the court and say, in spite of its conservatism, having an Elena Kagan and a Sotomayor, and a Ruth Bader Ginsberg, I mean, these are very different kinds of judicial thinkers than what you’re describing as the mainstream of the court, even when they’re not in the majority.
Sandy: Oh, sure. That’s true. I think it’s also true that you have nobody on the current Supreme Court who is a true devotee of what used to be called judicial restraint. That is the function of the court in some ways is to sit back and legitimize what it is that legislative or executive institutions want to do. You know, the – here let me talk for a moment again about the Warren court, because there is a deep paradox that part of what was important about the Warren court, was striking down state legislation. But the other part that was important about the Warren court, is that it upheld all sorts of very, very important, innovative, federal legislation, against constitutional challenges, that might well have been accepted by earlier courts, and quite frankly, have been accepted by the current court.
Jeremi: Right.
Sandy: And you know I certainly would love a Supreme Court in which Elena Kagan was chief justice. But you know as Donald Rumsfeld said, you know, you fight wars with the armies you’ve got rather than the armies you wish you had, and part of what the Trump administration has been extraordinarily successful in, is packing the court, or the judiciary in general. And so one really has to hope for a number of contingencies to happen if the court is to move to the left or in a more liberal direction, in the next 20 or 30 years.
Jeremi: So it’s interesting, these thoughtful words on your part about the Warren court, which of course is the court under Chief Justice Earl Warren, who was appointed by President Dwight Eisenhower, and Warren was a Republican governor of California. Should we expect justices who have been appointed recently to go through the kinds of transformations Warren went through?
Sandy: No, no.
Jeremi: Why not?
Sandy: I think the great lesson, not only of Warren, but also of Liam Brennan, who was also an Eisenhower appointee, or for that matter a David Suter or Harry Blackman, is that presidents and their judicial appointees – that is people in the administration who seek out judges, are much, much more sophisticated than would have been the case 50 years ago, in terms of scoping out the likely views of nominees. So it’s a very, very important move, and a very clever move, when Donald Trump said, in essence, “Look, I’m not going to pick the judges, I delegated this to the federal society and the Heritage Foundation, they’re going to give me a list of sound conservatives, who are not going to stray.” And they come out of movement conservatism, they’re applauded by the conservative organizations, they will be treated like heroes, and I think it would be astounding if any of the recent Republican nominees moved significantly, even towards the center, let alone the left. It could happen, but I think it would be a silly bet, just as you shouldn’t bet that Elena Kagan or Sonia Sotomayor are going to move significantly to the right.
Jeremi: I see, so I guess this will be our last question Sandy, where do you see the court going then? I mean it sounds like we’re in a pretty static moment, from what you described. What do you foresee, and what should, especially our listeners, who care about civil rights, and care about women’s health, and care about the right to choose for a woman, how should they think about moving forward and thinking about the Supreme Court?
Sandy: Well, quite frankly, there is a great deal of talk these days, more than in many years, of clipping the Supreme Court. My own view is that life tenure for the Supreme Court is a terrible idea in the 21st century. And what you have are people across the political spectrum, who are talking about the desirability of limited tenure, the usual number tossed around is 18 years. Because I think people on both the left and the right are increasingly disturbed by the fact that these people can serve forever. There’s also talk, for the first time in many years, about court packing.
Jeremi: Right, that goes back to Franklin Roosevelt, of course.
Sandy: Right that basically, most democrats, including myself, believe that the Republicans stole the seat that should have gone to Merrick Garland, who is a perfectly capable, and basically central appointment. Um, they refused to give him a hearing, they rolled the dice, they got Donald Trump, and they got Neil Gorsuch, and then of course they got Brett Kavanagh. And so either Democrats can be good sports and wait for the relatively young republicans to die, the oldest of the Republicans is Clarence Thomas, who’s only 70, or, there is more and more serious conversation, should the Democrats win in 2020, and have Congress, to increase the membership of the Supreme Court to 11.
Jeremi: Which the Constitution allows, correct Sandy?
Sandy: The Constitution has no numbers in it. The Supreme Court can be as small or as large as Congress wants. It has ranged over our history from five to ten, it’s been seven since 1871, and most Americans believe, altogether falsely, that, “Well, nine is the Constitution-required number.” But it isn’t. It’s like the old two term tradition, where a lot of people, in 1938 would’ve said, “Well, presidents can’t run for third terms.” Until FDR did. And so if Congress wants to raise the number, or if Congress wants to be far more imaginative for example, that the Supreme Court only be composed of random circuit court judges chosen for particular, for fairly short periods. And so we get away completely from this Sturm und Drang that now attaches to any nominations in the Supreme Court. I think the Supreme Court is controversial now in a much deeper way that if you were to Gallup poll, less than 50% of the public as any great say in the Supreme Court, that’s different.
Jeremi: Right.
Sandy: Um…and I think this is part of a general crisis of legitimacy of our institutions. You might say the Supreme Court has greater support than Congress, which is usually around 12% or presidents who these days seem to be in the 30s or low 40s, but the Supreme Court by no means has the strong support of most Americans.
Jeremi: Right, and certainly recent events have not helped. Sandy, this has been a wonderful exploration of the court and you’ve certainly taught us how its role has changed and that should in a sense empower us to think about how the role of the court can continue to change hopefully for better in our society as we move forward. Thank you for joining us today Sandy.
Sandy: My pleasure.
Jeremi: So Zachary, I want to turn to you now. How to young people of your generation who follow these events around the Supreme Court–how do you think about the Supreme Court? And what do you see in the future for the court?
Zachary: Well, I think that people of my age especially those who are not as involved in politics see the Supreme Court in a very partisan way as an extension of legislative or executive branch and it’s seen more I think increasingly and within not only the student body but also the general society that the Supreme Court is a means of achieving your agenda, and I think often times this leads presidents to a point certain justices that um do not serve the interest of the court but do serve their short term interests. I think we saw that with Brett Kavanaugh. I think that the best model I see going forward is the presidential appointments that resemble that Merrick Garland who was very center and I think it’s important for presidents to not just look at political opinions but their own sort of intellectual capabilities and thought process and I think that will…
Jeremi: And do you think that we could have a moment where we see people talking about the Supreme Court as being less political? And instead being more focused upon justice and democracy?
Zachary: Well I think so but I think the things, the institutions that have gotten us into this, particularly the Senate and the presidency are the ones that can get us out of this. And I think we need to see a more mature appointment and more mature actions in terms of courts by presidents and legislatures.
Jeremi: I think that captures our central theme today which is Sandy Levinson has explained to us so well, the Supreme Court has evolved over time and it played a very different role after World War II then the founders imagined it would, the Warren court, as Sandy told us it would really became an important place to expand and protect civil liberties and over time the court has changed its role and become a more static as Sandy described it. But over time it could change again. And today’s discussion should encourage all of us to think about that and to act and pursue positive changes in the way we structure the Supreme Court, the way we choose people for the court and the way we think about its role in our democracy. And that’s the whole point of our show is to understand how history can help us to do better in the future. Thank you for joining us today for this episode of “This is Democracy.”
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Speaker 5: This podcast is produced by the Liberal Arts Development Studio and the College of Liberal Arts at the University of Texas at Austin.
Speaker 6: The music in this episode was written and recorded by Harrison Lemke and you can find his music at HarrisonLemke.com.
Speaker 7: Subscribe and stay tuned for a new episode every Thursday, featuring new perspectives on democracy.
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