This is Democracy – Episode 272: Supreme Court Reforms

[00:00:00] Intro: This is democracy, a podcast about the people of the United States, a podcast about citizenship, about engaging with politics and the world around you, a podcast about educating yourself on today’s important issues and how to have a voice in what happens next.

[00:00:24] Jeremi:  Welcome to our new episode of This is Democracy.

Today we are going to discuss Supreme Court reforms. Many scholars, many observers have argued for some kind of set of reforms to the operations of the United States Supreme Court for a number of years. There was in fact a commission created a number of years ago for this purpose. But just recently, President Joe Biden has put Supreme Court reform front and center for the end of his term as a major agenda item.

President Biden is arguing that the Supreme Court has, in essence, gone off the range and that it is now time for some overdue reforms. We’re going to discuss those Supreme Court reforms, what could be some of the most important legal reforms of a generation. We will discuss those today with our friend and colleague Sandy Levinson.

Sandy has been on our podcast a few times before. He’s one of the rare people who we like to bring back time and again because he offers so much insight and perspective on these issues. Sandy Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair at the University of Texas Law School.

He also has affiliations at Harvard and other institutions. He’s the author of, uh, more than 400 articles, book reviews, commentaries, uh, major pieces in both professional and, uh, popular journals. He’s written at least six books. I’m probably missing a few. I can’t keep up, uh, with everything. I’m just going to name some of them, uh, that I encourage our listeners to read really well worth reading.

Our undemocratic constitution. Where the Constitution Goes Wrong, which I think was a really radical book in its time, um, but now I see many other legal scholars are following Sandy’s lead. I believe that the dean of the Berkeley Law School has a book coming out that looks like it’s going to make a similar argument.

So Sandy was correct and ahead of his time with that book. Framed, America’s 51 Constitutions and the Crisis of Governance, really I think the best book I’ve read on constitutionalism and federalism in the United States. An Argument Open to All, Reading the Federalist in the 21st Century, probably one of our most important texts on the framing and the founding, uh, Sandy really, uh, unpacks that.

And then a book he wrote with his wife, which I, I, I must mention, a book he wrote with Cynthia Levinson, Fault Lines in the Constitution, The Framers, Their Fights, and the Flaws that Affect Us Today. Sandy, thank you so much for taking time to talk to us today.

[00:03:05] Sanford: My pleasure. Complete pleasure. Uh, one addition, incidentally.

I’m also holding an appointment in the Department of Government at UT. And the reason I mention that is that, um, I often point out that in my sunset years, I really do consider myself much more of a political scientist than a lawyer. For reasons that no doubt we’ll talk about.

[00:03:32] Jeremi: That’s really wonderful.

You brought that up and I should have mentioned that. I’m sorry. You also had been in the Department of Politics at Princeton before, correct?

[00:03:40] Sanford: Right. Before I came here. Yeah.

[00:03:41] Jeremi: Yeah. So, so you, you are grounded in at least two disciplines. And I also consider you are a historian, Sandy. I mean, your, your work is so grounded.

I sometimes

[00:03:49] Sanford: play it on TV.

[00:03:53] Jeremi: Well, before we turn to our conversation, Zachary, we have, uh, your scene setting poem as always. What’s the title of your poem today? The Judges. The Judges. Well, that seems appropriate. Let’s hear about the Judges.

[00:04:07] Zachary: When Jethro came to Moses in the desert, he said, you shall seek out the trustworthy and shall set these over them as chiefs and let them judge the people at all times.

The Judges. Because, he said, you cannot do it alone. Because, in other words, he said, the law is not your own, but the law of all. What happens then when the judges turn and say, we are the trustworthy, we were set above you as chiefs, to judge of you and say what is the law, who will there be to say, as he said, you cannot do it alone.

Who will there be to say, as he said, the law is not your own, but the law of all who is there to judge the judges who is there to lead the leaders? Who is there to say to the sages, you’ve gone too far. Who is there? But all of us whose trust it is that makes them worthy, whose law it is that they must learn.

Zachary,

[00:05:04] Jeremi: I I absolutely love that poem. I feel like I’m, I’m back in synagogue as I, as I’m listening to you there. Uh. What is your poem about?

[00:05:13] Zachary: Um, my poem is about, uh, what I think is so easy to forget when we’re talking about, uh, the Supreme court in the United States or any sort of form of judging. Is that a judging only works, uh, if there’s public trust in the judges themselves, um, that.

In, in so many ways, like judging is a, is a spectacle of sorts, and it depends on public trust, public belief, and in that sense, the judges are, uh, almost subordinate to the trust of the people, um, and they serve the people as opposed to telling the people what to do, and I think, uh, it’s often easy to forget that, especially when we’re confronting a court that seems to be doing the opposite of that kind of, uh, principled judging.

Okay.

[00:05:57] Jeremi: Hmm. Sandy, is that correct, that trust is really at the foundation for jurisprudence?

[00:06:03] Sanford: Um, yes. I think it really is a wonderful way of setting up the conversation. Um, I might note, and I don’t remember exactly which book of the Bible this is, but, um, is treated in. Um, but, you know, Aaron, Moses’s brother, was viewed as one of the first judges.

Moses was the political leader and Aaron was the judge. He installed his two sons as his successors and both of them were widely regarded by the Israelites as basically corrupt. And this is a recurrent theme within the Hebrew Bible, um, that is leaders who go wrong for one, another reason. And so the question is, Whether you’re talking about judges or kings or prophets or whatever, what is it that entitles them to rule?

And ultimately, it is a faith based system. Or a trust, I must say, I also think of the wizard of Oz at what happens when you open up the cabinet door and realize that the grand wizard is actually a flawed human being. And I mean, here I think is where the tension between being a political scientist and a lawyer is, really comes to the fore, because lawyers are prone to emphasize, as I have myself in a lot of my more recent work, the importance of formal institutions, the importance of viewing these formal institutions as legitimate.

So that my friend Bill Galston, for example, has a column in yesterday’s Wall Street Journal on how dangerous J. D. Vance is because he basically is willing to attack the legitimacy of the Supreme Court. And what Bill argues is no, the rule of law relies on accepting whatever it is that courts say. And even if we don’t like it, but it’s a legitimate question.

Why should we do that? If we don’t really trust the judges who are making the decision, and that’s why Zachary’s poem really is directly relevant because once people start losing their faith And I use that word advisedly my very first book was titled constitutional faith Uh once they lose the faith Either in the constitution as an abstract way of organizing things or in the people who purport As the Supreme Court does purport to be the ultimate interpreters, that’s their own phrase, the ultimate interpreters of the Constitution.

If you lose your faith in their own self declaration, then what happens? People become more critical. They start asking questions. Why should I trust you? What have you done to earn the trust? And I think that is the dilemma that is presented right now across the whole institutional domain. That except for the U.

S. military, it’s not clear that any of the basic institutions of the American national government enjoys a very high degree of trust.

[00:10:43] Jeremi: Right. Why, Sandy, do you think that the Supreme Court in the last 15 years or so has seen the trust it had built up around it that that trust has has diminished so precipitously?

I mean, I remember and we talked in a prior episode about the Bush v. Gore decision in 2000. And I think I was one of many people who at the time thought the decision did not make sense. Right. But there was a trust or a faith in the court, and it was almost verboten to say that the court might have been acting in political ways.

Today, that’s become cliché. How did we go from the world of Bush v. Gore to the world of today?

[00:11:27] Sanford: Well, I think I would take some issue with you that this is a completely modern phenomenon. It is true that if you look at polling data, You discover that far, far more people are willing to express their dissatisfaction with the court than was the case before.

But as somebody who grew up in North Carolina in the 1950s and 60s, Brown v. Board of Education provoked a lot of Impeach Earl Warren roadside posters and There were lots of people, most of them people that we did not respect, who certainly were attacking the Supreme Court and attacking the legitimacy of its decisions.

What was strange about the era of the Warren Court, is that it is quite literally the only time in American history where political liberals really loved the Supreme Court and rallied to the defense of the Supreme Court. Historically, Reformers, liberals, radicals, whatever the term might be, were not fans of the Supreme Court.

Um, certainly abolitionists were not fans of the Supreme Court. Abraham Lincoln was not a fan of the Supreme Court. William Jennings Bryan and the populace were not friends of the Supreme Court. The New Deal coalition was certainly Not a friend of the old court. And, you know, we all remember that FDR tried to pack the court, but there was that, you know, magic moment, if you will, where political liberals convinced themselves.

that the Supreme Court was the friend and indeed agent of progress and a more progressive ideal, inclusionist ideal, of American life. But that was a blip in the record. But one of the points I’d want to make is that if liberals love the Warren court, That was certainly not the case with conservatives.

And what has really been underscored in the last now 25 years, that is since Bush versus Gore that you reference, is that liberals have returned in some ways to their quite traditional antagonism toward the Supreme Court. And conservatives are really quite uncertain these days as to what they really ought to think about our judicial power.

Um, and so what has happened is that the Supreme Court now has lost the support Of most of the country, because both liberals and conservatives for quite different reasons have reasons to be suspicious of the Supreme Court. And the court is not doing a very good job. of shoring up its own legitimacy, all it can do in a certain sense is to pound the table and say, we’re the ultimate interpreters.

But once you lose the faith, then this isn’t the thing.

[00:15:49] Jeremi: They’re becoming rabbis without a congregation, it seems to me, or priests without a, without a flock. Zachary?

[00:15:56] Zachary: I want to ask about the role of precedent in all this. It seems like one of the reasons that the court is losing so much legitimacy today is its willingness to sort of, what appears, at least to outsiders, willy nilly overturn precedents that we all sort of grew up with.

believing in, or at least thinking were sacred in some sense. What is your, uh, perspective on the role of precedence in preserving the legitimacy of the court? And is this moment unique, uh, in the court’s willingness to overturn, uh, such long standing precedence?

[00:16:28] Sanford: Oh, I mean, that’s an excellent question. But I have said, I think even in print, that liberals, excuse me, that liberals are basically in bad faith.

when they rally round the notion that precedent is sacred. Because going back to the Warren court, the whole point of the Warren court was to reject a lot of terrible precedents. Let me mention just two examples. The first one, obviously, is Brown v. Board of Education, the most fundamental decision of the Warren court, although, as a technical matter, it didn’t directly overrule Plessy v.

Ferguson. Practically, it did, and that is what the Southerners went after in the so called Southern Manifesto of 1954. Signed by almost all of the southern senators. With the notable exception of Lyndon Johnson, uh, to his credit. But William Fulbright signed. Yes. And, you know, almost all the, uh, Albert Gore Sr.

did not, also, incidentally. But most of them signed, and they went after Brown because it overruled established precedent. The second example. would be what Earl Warren thought was the single most important decision of his chief justiceship. even more important in some ways than Brown, and that is the reapportionment decisions, particularly Reynolds versus Sims, uh, that declared the existing systems of representation in all of the states to be unconstitutional insofar as they violated what the Supreme Court called one man, one vote, one person, one vote.

The Supreme Court had held In 1946, I think it was, that they didn’t have any jurisdiction over state apportionment. You know, 16 years later in Baker versus Carr in 1962, they overruled that decision. I could go through many other examples where the Warren court was, shall we say, creative, innovative, and more or less, um, ignorant of precedent.

So for liberals now to rally around precedent as if it’s something we have to adhere to, whatever the situation, I just think not only doesn’t make much sense, but as I say, it also indicates the bad faith of so much political discourse or so much, you know, general discourse. I would much have preferred had Elena Kagan, when she dissented in the Dobbs decision, if she had said, look, Roe versus Wade was right the day it was decided, and this is why.

And that was the correct understanding of the constitution. Then it’s the correct understanding today. Instead, she’s, she focused on the fact that for 50 years, this has been settled law, how dare the Supreme court reject it. But as I say, I find that argument. in some sense hollow. What I always taught my students year after year after year about precedent is that the only truly interesting thing about precedent is when you believe you have a duty to adhere to a decision that you believe was wrong, maybe even stupid.

Or maybe even evil. If you adhere to the earlier decision because you think it was rightly decided, then quite frankly, you’re not relying on precedent. You’re spreading the good news right before. And you’re going to continue getting it right today. Press the power of precedent really asserts itself when you’re not really willing to defend what the court did before But to say in essence, we’re stuck with it.

And I really don’t know why people would regard that as a necessarily winning argument.

[00:22:16] Jeremi: Speaking of precedent, um, or unprecedented decisions. Um, let, let’s start with, I think the first of president Biden’s proposed reforms to, uh, he claims restore trust to the court. And the first one is actually a constitutional amendment, right?

To. Um, basically lay out that the president does not have immunity, uh, for his, for his, uh, illegal actions. Um, this is a reaction, of course, to the court’s decision that, that seemed to go well beyond I think where anyone expected the court to go. What, what, what is your perspective on Biden’s proposed amendment here?

[00:22:57] Sanford: I am very harsh, I have to say. I think it is a pointless set of proposals that between the two of us or the three of us and your listeners, I find in certain ways an insult to the intelligence. And let me explain why. There is zero possibility that Biden’s proposals will be accepted. Congress, we talked in previous programs about gridlock in Congress, the inability of Congress to rise to the challenge of practically any of the serious problems that faces.

So insofar as congressional action would be called for, and so long as you still have the filibuster rule, these proposals are going nowhere. in the remaining five months of his term of office. He also is proposing constitutional amendment. And one of the things we’ve talked about in a previous program is the near impossibility of constitutional amendment.

That is the single most anti democratic feature of the U. S. Constitution. That is how difficult it is to amend it. So you have to ask, why is he using his waning days of the presidency to make such completely politically pointless proposals. Now it would be different Perhaps if you said, well, even if he, if these proposals aren’t going to go anywhere now, they are so very important and point out such fundamentally important problems that we should cheer him for bringing these to the attention of the public, even if they’re not going to go anywhere in the next five or six months, but they’re not that important.

The evils of the Supreme Court, and I’m quite willing to say they are evils, have relatively little to do with the ethical issues presented by Clarence Thomas and Samuel Alito. The immunity decision that Biden is rightly critical of. was written by Chief Justice John Roberts. I don’t like John Roberts. I wish he were not on the court in many ways, but nobody has ever accused him of conflicts of interest in the way we usually use that term of being corrupt.

Instead, he is a conservative ideologue and Amy Barrett, the most recent Uh, of the conservative appointments is ethically impeccable. She was a law professor at Notre Dame. I think I might have met her, but frankly, I don’t really remember, but friends of mine who have interacted with her all speak highly of her personally.

Doesn’t matter. She’s a very, very conservative. Judge placed on the court by Donald Trump in the last four months of his term, rammed through the Senate by Mitch McConnell. And that’s the basic problem with the court, that it has been packed with very, very conservative judges. And if you don’t like what the court has been doing, you need to figure out a way to get different judges.

[00:27:21] Jeremi: That’s the part of Biden’s proposal that I think makes the most sense, Andy, right? And it goes back to, uh, in some ways to FDR’s proposals in the 1930s, right? Which is that there are 18 year terms for judges, and then they move into some sort of senior status. So they’re still on the court, but that would mean that you would get turnover.

Um, and it’s done properly. Each president would appoint two judges per term. Are you in favor of that?

[00:27:50] Sanford: Sure. I advocated that in our undemocratic constitution, which was published in 2006. Uh, and I stole the idea from somebody else. It’s not original with me. So this is an idea that’s been around a long time.

But why do I describe it at this particular moment in time as an insult to the intelligence? The reason is this that even if by some miracle you were able to establish this as a policy tomorrow, it would still be grandfathered and grandmothered for a variety of reasons so that All of the current members of the Supreme Court would continue to enjoy life tenure.

It would not be the case, for example, that Clarence Thomas and Samuel Alito and John Roberts, all of whom have reached the 18 year mark, would be fired and told to go home. Amy Barrett could continue to be on the Supreme Court. for another 30 years. So what Biden is proposing and what I proposed and lots and lots of people have proposed is that future appointees be limited 18 years.

I think that was a good idea. And remains a good idea. But if your fear is the current Supreme Court and the mischief they are doing the to the fabric of the country, the proposal is utterly and completely irrelevant. Go ahead, Zachary.

[00:29:57] Zachary: What do you think that means, though, for those of us who are concerned about the current court?

Should we not be talking about structural reform at this moment? Or what, in other words, where should our focus be if it’s, if not on what is a long shot?

[00:30:13] Sanford: Sure, we should be talking about structural reform. But Joe Biden himself took great care to neuter the importance of the commission he appointed at the beginning of his presidency.

It was an effort to kick the can down the road. During the campaign, he didn’t speak to the issue of judicial reform, although some people were saying that court packing should be on the table. No, what he said in effect is, you know, I will point a commission and he did appoint a commission. that was packed with moderate or somewhat liberal law professors, none who could be called radical, and they were basically instructed not to make any suggestions at all.

That is to say, we’re in favor of this or that. Rather, it was very academic, They ended up writing a long report that would be very useful for people like Jeremy and myself to use in classrooms. to, you know, look at the history of the U. S. Supreme Court and a variety of different proposals. But as I say, they didn’t say we’re faced with these problems and this is what ought to be done.

And then once they wrote their report, Joe Biden pleatedly ignored it and did nothing about it. Now, suddenly, with five months remaining in his term, he says, this is the most important thing to think about. It isn’t. If you really want to go after the current court in less than the next 18 years, then you might talk about court packing.

If you’re not willing to talk about it, then all you can say is, look, vote for Kamala Harris and hope that the conservative justices die while she’s in office so that she can appoint liberal successors. Otherwise, we’re stuck because the Barrett, Kavanaugh, and Gorsuch are all very young. And Alito, Roberts, and even Thomas give no indication that they would, in fact, retire voluntarily if a Democrat is in office.

Um, Biden just isn’t serious in certain ways in talking about the crisis of trust that That Zach began with. And the problem is not merely the kind of corruption that you might believe attaches to Clarence Thomas. It’s much more the ideological packing of the court by the Republican party and the inability.

Of the Democrats, including Joe Biden to say anything truly cogent. About that fundamental reality.

[00:34:07] Jeremi: So Sandy, as I understand what you’re saying, which is compelling, uh, as it always is, um, it, it seems to me, you’re arguing that the next president, uh, Kamala Harris should, uh, work with Congress to appoint more justices.

Uh, as I’m sure our listeners know, the constitution does not indicate how many justices there should be on the court. So Congress has in the past changed the number of justices. I hear you arguing that a president Harris or some other president should go ahead and add two, three, four new justices. Is that, is that your position?

[00:34:44] Sanford: Basically yes, because without that, the current majority can and will continue to do more or less whatever it wants. And let me emphasize. What I think is an important reality, the current majority is sincerely committed to its own view that they know what the constitution means and are faithfully enforcing it.

It is a mistake to believe that they are merely quote political, unquote. And not devoted to the constitution. The most fundamental reality is that the constitution is capable of generating different meanings most of the time. And one of the things I hated about the discourse during the Reagan administration Was there the allegation that Justice Brennan, for example, knew that he was violating the Constitution, but didn’t care because he had his own political agenda, unquote.

I don’t think it works that way. I think that the way ideology works is that you become genuinely and deeply committed. to certain ways of looking at the world. And you believe that these ways of looking at the world are exactly what the constitution and what Robert Jackson once called its majestic generalities mean.

So the problem with the Supreme Court is not that they’re personally corrupt. I don’t think that’s true even of Thomas. I don’t think that he has ever thrown a case. Because Harlan Crow will take him on a trip to Indonesia. I think that Harlan Crow finances Clarence Thomas because he realizes that Thomas is sincerely and deeply and genuinely committed to a view of the constitution that Crow really likes.

And he wants to make sure that Thomas won’t be tempted ever to retire and cash in by making speeches at 50, 000 a pop and the like, so he could afford his own vacations. So, you know, I think it’s important to distinguish between politics and ideology. And if you believe that the court Has been packed by people with deep ideological commitments.

Then you have to try to figure out ways. of replacing them or neutralizing them.

[00:38:26] Jeremi: It sounds, Sandy, like you’re suggesting something similar to what Lincoln and the Republicans did, uh, in the 1860s, right? When they remade the court, which had been a Confederate court, into a Republican court, right?

[00:38:40] Sanford: Now, of course, they had the cooperation, as it were, that a number of the Southern justices left the court because they were loyal to the Confederacy.

Roger Taney did not, but John Campbell returned to Louisiana. So, you know, it would be wonderful if several of the conservative judges were to retire, assuming Harris is president. But, you know, we’re in the fix we’re in, because Jimmy Carter In his four years as president, didn’t get an opportunity to name even a single judge.

Bill Clinton, in eight years as president, had the opportunity to name only two judges. Barack Obama. In his eight years as president was able to name two justices and made what I believe was a disastrously stupid decision to nominate Merrick Garland to fill Antonin Scalia’s seat. And we all know what happened that Obama was simply outplayed by Mitch McConnell, who stole that seat.

that was then filled by Neil Gorsuch. But what you have had over the last 50 years is electoral success by the Democrats in getting to the presidency, but not getting a significant number of Supreme Court appointments, whereas the Republican presidents Going back incidentally to Richard Nixon have made out like bandits.

So that Donald Trump in his one term of office was able to name three members of the Supreme court, whereas I say, Jimmy Carter got zero appointees in his one term and Obama and Clinton got only two appointments within Obama’s case. Part of that was his own fault. In nominating Merrick Garland

[00:41:15] Jeremi: is part of the problem, Sandy, that that Democrats have bought into the myth of an objective nonpolitical court, because you’re describing Republicans who have been fully political.

I mean, I think this is what the Federalist Society is all about on. Is it that Democrats have not recognized this reality until now?

[00:41:34] Sanford: I think you’re probably right, but they’re not that stupid. I think in private conversations, Democrats fully recognize that it makes a difference who the judges are. But for whatever reason, Democrats until right now have never really made that a campaign issue so that Hillary Clinton I don’t think ever made a major speech about the Supreme Court.

Merrick Garland was left to twist slowly in the wind. Barack Obama did nothing, basically, to protest. against his mistreatment and Hillary Clinton did nothing. Whereas the Republicans always were focusing on the importance of the judiciary. I can’t really explain why it is that Democratic presidents and Democratic candidates for the presidency basically chose not to make the courts an issue.

Perhaps it is because of the fact that politics Aren’t supposed to enter into judicial appointments, but nobody believes that. I mean, that’s like believing in the tooth theory, but we don’t have a good way of really articulating that. So, you know, it’s easier for Joe Biden or for Kamala Harris for that matter, to say that the problem with the Supreme court is that it’s corrupt.

Rather than to say the problem with the Supreme Court is that it is packed with people who have the wrong, what we believe is the wrong view of the Constitution. And if I’m in office, I’m going to appoint people who have the right view of the Constitution. And then somebody will say, well, who are you to say what’s right and wrong about constitutional interpretation?

Harris can say, at least she’s a lawyer, if you think that makes a difference. But it really does get to the point that there are smart people on both sides of all of these issues. And it doesn’t help that much simply to pound the table and say, I’m right and you’re wrong. Instead, I think we have to say, you have one way of looking at the constitutional world.

I have another way. Not surprisingly, I think my way is better. And if I get into office, I’m going to make sure that people who agree with me are going to be making the law, but that isn’t the way we usually talk. And that’s a real problem.

[00:45:20] Jeremi: Zachary, to bring this together, I mean, Sandy has given us so much.

He’s given us a whole semester’s worth of judicial philosophy here. And I think it’s a compelling argument that he makes that there isn’t an objective reading of the Constitution, and the court shouldn’t try to derive trust from some objective reading. Oracular status, but that it’s actually a place where the politics of different interpretation should, should be in balance and in debate with one another, is is that compelling to you?

And do you think that would restore trust?

[00:45:51] Zachary: I think so. I think to be honest, this is sort of naturally how a lot of people today think about the court. Um, I think if anything, what we were talking about earlier, the sort of court’s willingness to overturn precedent to make these decisions that are very clearly unpopular, not just among Democrats, but among the population at large, is sort of forcing people who maybe would rather think of the court as this sort of like sacred institution beyond politics.

It’s forcing us to recognize the reality of the court, um, and the reality of the politics around judicial appointment. Um, and I think, I think, uh, Democrats in the future, at the very least, will be much more wary of sort of stepping aside And deferring to Republicans willingness to, uh, aggressively fight to appoint judges and others.

And, and I think, I think that recognition of the political reality of the court, uh, is probably our best bet for changing the makeup of the court, or at least moving towards a reformed, uh, Uh, court in the future,

[00:46:55] Jeremi: right? In essence, what I hear you, Zachary and Sandy saying is that fundamentally, we need a more democratic court, not a democratic party court, but it’s court that’s more attached to democracy, and it would be more of a democratic court if it were a court where there is actual recognition that these are political debates.

These are not oracular debates. debates about some, some biblical truth. Um, and, and I guess just as religion is politics, uh, jurisprudence is politics, uh, in that way.

[00:47:27] Sanford: Yeah. I generally would stay away from using the word objective because I think that often suggests that there’s one true answer. I think that what one can say is that competent, sincere, dedicated people can objectively interpret the constitution in different ways precisely because there is not a singular correct answer.

And so we construct an answer out of the materials before us. I mean, you’re, a world class historian. And I think what most historians would say is that you have a duty to be objective in the sense of being guided by the materials in front of you and not throwing a discomforting document under the table because it conflicts with the argument you’d like to make.

You can’t do that. On the other hand, I think very few historians really and truly believe that they come up with the very last word on any complicated historical controversy, and that Somebody who writes a book taking a different view isn’t objective. I think what we would tend to say is, well, they look at the material differently.

They have different interpretations of it, but they’re not corrupt. They’re not simply trying to serve a partisan interest. They simply look different. We at the world in certain ways from the way we do another thing. I want to say You are correct And zach is correct in suggesting That we need a more little d democratic notion of the legal system, but we could have an entirely separate hour long discussion You of the debate about so called judicial reforms in Israel because If you take the Netanyahu arguments seriously, which I tend not to do because I don’t trust Benjamin Netanyahu at all.

And this gets back to Zach’s original poem. That is the importance of trust. But if you look only at the surface of his arguments, what he is saying is that the Israeli judiciary needs to be democratized. And that’s not a stupid argument. It is a real tension between the claims Of elite professional authority made by warriors and the arguments made by non warriors Who say, look, you’re just trying to use a certain sort of professionalist mumbo jumbo to impose your own ideological views on the rest of us.

That’s not a dumb argument. And the problem in both the United States and in Israel is that we can’t really figure out a way to argue about this in a way that doesn’t descend fairly quickly into shouting at one another and acrimony. I want to say one other thing because it’s part of Biden’s proposal.

That is the Supreme Court decision on presidential immunity. I have no trouble in denouncing it As a pernicious decision, but I also think we’re kidding ourselves If we think it is truly transformative the fact Is and jeremy, you know more about this than I do because you’ve written about this much more than I have since world war ii the american president Whether Democratic or Republican has amassed ever more power and the ability to use that power in basically unaccountable ways.

Impeachment has become a bad joke. No president genuinely fears impeachment. The Department of Justice has a rule that no incumbent president can be indicted. And so what the Supreme Court did was horrific. But in a certain way, all it did was to underline the reality of what Jack Balkin and I have called constitutional dictatorship.

As part of understanding the American presidency, that’s not the only way to understand the American presidency and the anomaly. Is that there are many ways in which the American president is quite weak, but the paradox Is that one way that all American presidents try to overcome? some of their political weaknesses is to push the envelope either by taking advantage of what Justice Cardozo back in 1935 called delegation run riot or through extravagant interpretations of article two of the constitution.

So another reason I’m just really angry at Biden for these proposals at this particular moment. What Joe Biden ought to be doing is to saying, is saying something must be done about the Insurrection Act, which goes back to 1803. The Insurrection Act gives remarkable dictatorial power to the president of the United States.

You know, a lot of people have said the scandal is not what is illegal, but what is legal.

[00:54:58] Jeremi: Yes.

[00:54:59] Sanford: And the insurrection act is awful. Why isn’t Joe Biden telling us that Congress must reform the Insurrection Act. Instead, he is telling us about an 18 year term which is highly desirable but completely irrelevant to correcting the current problems, or he’s suggesting that the principal problem is the lack of a code of ethics.

Whereas What he really ought to be saying is that the president has too much power in certain important ways. And some of this could be corrected tomorrow if Congress were to act. Why isn’t he telling us About that,

[00:55:54] Jeremi: Sandy, I think you’re spot on. And, uh, what you’ve said, you’ve, you’ve offered us so much.

You’ve offered us two semesters, at least of insights here. Uh, but what, what you’re sharing with us is, is a core element of our podcast each week. Um, and it is why history matters that the real challenges in our democracy and no one has written about them better than you have. The challenges in our democracy are that the historical evolution of our institutions has often left our checks and balances, uh, out of check and out of balance and produced very undemocratic outcomes.

And the solutions have to look deeper than, as you say, a few surface Tweaks here or there and look deeper to fundamental, uh, elements of our institutions and the way we interpret it, behave within those institutions. The insurrection act being one of these, the, uh, ways in which, um, from the very beginning article two of the constitution is so vague on presidential powers.

Um, and, and that’s just the beginning of the story that there are deeper constitutional issues, as you’ve pointed out. that really have to be at the core of our discussion of Supreme Court reforms. The Supreme Court, in some ways, is a symptom of the problem, not the cause of the problem. Sandy, thank you so much for sharing all of these insights and your wisdom with us today.

[00:57:15] Sanford: Well, as always, thank you so much. for having me. I’ve enjoyed it and look forward to the next time if you invite me back.

[00:57:24] Jeremi: We will certainly have a next time soon. Zachary, thank you for your poem. Thank you for reminding us how important trust is. And thank you also for putting this in a kind of ageless parable of judges.

I thought that was really powerful, Zachary. And thank you also to our loyal listeners. Uh, thank you to those of you who follow our sub stack and, uh, thank you for those who listened to us. We couldn’t do this without you. Uh, this will conclude today’s episode of this is democracy.

[00:58:03] Outro: This podcast is produced by the Liberal Arts ITS Development Studio and the College of Liberal Arts at the University of Texas at Austin. The music in this episode was written and recorded by Harris Codini. Stay tuned for a new episode every week. You can find This is Democracy on Apple Podcasts, Spotify, and Stitcher. See you next time.