'If You Can Keep It': Reforming The Supreme Court, Part 2

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It's been more than two weeks since the Supreme Court's decision to weaken the last key provision of the Voting Rights Act of 1965, protected minority voters from discrimination in elections. And that ruling invoked a wave of renewed calls to reform the court. We discussed what those reforms might look like from expanding the bench to restricting the shadow docket during the last installment of our weekly politics series, if you can keep it. And we heard from so many of you. Regarding the Supreme Court, two things. I do not think they should have lifetime appointments. And I do think they should be expanded. To answer the question, if we have faith in the Supreme Court, answer is absolutely no.

What really bothers me is that they seem to abandon even the pretense of nonpartisan objectivity. Numerous Supreme Court justices have lied under oath when they were being questioned about what they were going to do. Should they become Supreme Court justices? And did the exact opposite of what they said they would do. They should be kicked off. Yeah, you all had so many perspectives. on whether and how to reform the Supreme Court that we're returning to that conversation today

and the stakes for democracy couldn't be higher. Last week, the Supreme Court agreed to immediately finalize its opinion on Louisiana v. Calais by passing its typical 32-day waiting period after a ruling. Days later, Louisiana Senate approved a new congressional map that eliminates one of the state's two majority black and Democratic-leaning districts, giving Republicans an electoral advantage. The court's decision also cleared the way for Alabama to use a map deemed racially discriminatory by a lower court ruling, a ruling the Supreme Court upheld in 2023. Meanwhile, the court has refused to let Virginia use a new congressional map that favors Democrats and was approved by Virginia voters.

The court said lawmakers didn't follow proper procedures when putting that question on the ballot. This all comes as in-person primary voting started in Louisiana over the weekend. Mail-in voting was already underway when Louisiana v. Calais came down and was halted so the state could redraw its map. Alabama is holding its primary tomorrow. I'm Jen White. You're listening to the One-A podcast. And I'm Todd's Willie. Today, we ask what happens when the Supreme Court loses credibility among a large swath of Americans? And how can it get it back when partisanship on the bench has become the expectation?

We'll be back with answers to those questions and more after this short break. Stay with us. This message comes from Granger. This is the story of the one. As a procurement manager for a hospital system, she keeps every facility in her network stocked and ready. That's why she counts on Granger to be her single source for thousands of products, from disinfectants to lighting, air filters, and more. And with fast, dependable delivery,

Granger helps her keep every facility stocked, safe, and running smoothly. Call 1-800-Gra. Granger, click granger.com or just stop by, Granger, for the ones who get it done. Every episode of It's Been a Minute, NPR's What's Happening in Culture Podcasts, starts by asking three questions. Who? How? Why now? If the culture's asking it, we're talking about it. At NPR, we stand for your right to be curious and indulge your cultural curiosity. Follow it's been a minute wherever you get your podcasts, and we'll break down the zeitgeisty topics that are filling your feed. Welcome back to the 1A podcast.

We're bringing you a follow-up conversation about reforming the Supreme Court, whether we should and what it would take. And we decided on this show, by the way, because we heard from so many of you during our first conversation that we just had to continue. So let's get into it and meet our guests. Joining us for this discussion is Kate Shaw. She's a professor of law at the University of Pennsylvania. She also co-hosts the strict scrutiny podcast. Professor Shaw, welcome back. Thank you so much for having me.

Also with us is Alicia Steve Bannon. She's the director of the Judiciary Program at the Brennan Center for Justice. Alicia, great to have you back. Thank you for having me. And Daniel Epps. He's a professor at Washington University School of Law. He also co-hosts the podcast, Divided Argument.

Professor Epps, welcome. Thanks for having me. So, Alicia, before we get into reform, let's talk about the Supreme Court's decision to expedite finalizing its opinion on Calais, ahead of Alabama and Louisiana's primary elections. How significant is that move from the court and what are the implications?

Well, I think what's so significant about what the court did in fast-tracking the implementation of Kaleigh is that it really runs against how it has approached other election cases. So for years, the court has applied what's a doctrine known as the Purcell principle that says that essentially you should avoid, court should avoid making big election changes too close to an election. And repeatedly, the court has applied that principle. So, for example, courts have found. maps to be discriminatory, and the court has said, well, wait, we can't, we can't make a change

because it's too close to the election, and so therefore an election should proceed with a discriminatory map. And here we're seeing the court break with how it's approached those cases, coming out of Calais, doing so in a context where we're seeing real chaos now in states across the country that are moving very quickly to change maps, sometimes while elections are actually even ongoing. Professor Epps, that's the Purcell principle that, Alicia Steve Bannon is referring to, is that, is the 32-day customary waiting period separate from that? Why usually is there a 32-day waiting period before rulings are finalized? And why was it bypassed here? So typically there is this delay so that one of the parties could come back to the court and say, hey, you really screwed something up.

You need to, you forgot some important thing or some argument wasn't raised, and you need to reconsider the ruling. In this instance, you know, the court decided, you know, based on a filing that, you know, nobody's going to come back and there's nothing wrong with this opinion and we should just go ahead and do it because waiting longer will cause even more chaos. And that's separate from the Purcell principle, which is sort of a rule of discretion. It's sort of this idea that courts should exercise a lot of caution, avoid, you know, really introducing a lot of chaos into elections. And that's something that the court. has seemed to kind of cast to the wayside by being, at least creating the perception that it's eager to let lawmakers go ahead and completely upend their maps as we head into the election and indeed as the election in these states are already ongoing.

Well, several Democrats are speaking out against the Supreme Court's decision in Calais, including Illinois Representative Sean Caston. Now, Chief John Roberts has said that we now live in a colorblind society to which I would ask you all, does your answer to those questions depend on? on whether their robe is white or black. Because make absolutely no mistake, the agenda of this Supreme Court and the agenda of the Klan are far too similar.

Strong statement there from Rep Kasten. Professor Shaw, Alabama is now moving ahead with a congressional map again. A lower court ruled it was racially discriminatory. A decision the Supreme Court upheld in 2023 arguing it violated Section 2 of the Voting Rights Act. And this is the section that was greatly weakened by the court's decision in Kelle and April.

The court didn't offer an explanation for why Alabama's map is now constitutional. So how should we understand the court's behavior here? Yeah, I think the Alabama sequence of events is in some ways the hardest to understand on principled terms. I mean, it really does just look like the court putting its thumb on the scale in favor of redrawing the Alabama map in a way that is necessarily going to hurt, injure black voters and advantage the institutional interests of the Republican Party that's redrawing the map in Alabama. So basically, as you already mentioned, three years ago, the court actually affirmed a lower court opinion that had found Alabama's congressional map illegal. And Calais, the Louisiana case, didn't overturn that earlier Alabama case. It said it sort of raised some different issues, but it wasn't actually touching it. And then actually post-20203, so after the Alabama case in the Supreme Court, there had been additional litigation in Alabama, finding that the Alabama map was intentionally discriminatory against black voters.

And intention was an important element of the Calais ruling. Right, which would seem right under Calais to still be something unlawful, intentional racial discrimination. And the Supreme Court didn't even bother to tell us why it was allowing Alabama lawmakers to move forward with a map that had been deemed intentionally discriminatory. And so it's hard to know. Did Calais mean what it said, that intentional discrimination is still unlawful, or is that now okay too? And because the Alabama order was issued on the shadow docket without explanation, we don't know. And so I do think it leaves a very negative impression of the court sort of rushing to allow these maximalist implementations of Kaleigh without any explanation.

So without any explanation and then negative impressions, let's talk about that. I mean, Alicia Steve Bannon, the court hasn't offered any explanation, as Kate Shaw says. How does that leave room for speculation about its motivations? We heard this statement from a congressman on the color of the robes. I mean, it couldn't be more incendiary, but that's giving voice to a perception based on the court's actions. I do think that we're seeing real concerns being raised that it is hard to explain some of the activities of the court without putting some kind of a partisan lens on it. So I do think the fact that there's no explanations being given is certainly contributing to a perception of, illegitimacy in how the court is approaching these cases. As Kate was observing, in Alabama,

you had a lower court finding of intentional discrimination. That was not at issue in Calais. And at the very least, the court owed the public an explanation as to why it was weighing in now, so that we can be confident that it's actually treating like cases alike. We got this email from Stephen who says, it's interesting that SCOT has changed Section 2 of the Voting Rights Law, making gerrymandering worse by diluting the power of minorities, but uphold the Virginia Supreme Court's decision to knock down a recent vote to further gerrymander the state

based on political affiliation. Now, last Friday, the Supreme Court said that Virginia could not use a new congressional map that favored Democrats the same week it cleared the way for Alabama's congressional map that favors Republicans. Professor Epps, how is the court explaining that move? So I think the Virginia case is a little bit more complicated because there, you know, it was a decision of the Virginia Supreme Court

that had said this doesn't comply with Virginia's state constitution. And there was an attempt to get that to the Supreme Court, and there is some precedent for the idea that under extreme circumstances, the U.S. Supreme Court could come in and say, hey, state Supreme Court, the way you've interpreted your own constitution is so out of whack that you've taken away the power of your state legislature to draw election district boundaries. And that was actually an argument that had been being pushed in recent years by Republican lawmakers to try to push back on their own state,

Supreme Courts, which were trying to rein in, gerrymandering a little bit, and here the valence of that was flipped. And, you know, perhaps, you know, unsurprisingly, given, you know, what we think about the court right now, the court had absolutely zero interest in that argument, one line denial, no explanation, no separate writing, no one noting any dissent. Chief Justice John Roberts recently defended the Supreme Court saying justices are not, quote, political actors. but support for the court largely breaks down along party lines.

So coming up, we discuss partisanship on the court and what it means for the institution's integrity. Jay writes, when Donald Trump ran for president in 2016 in a bid to get black voters, he asked them, how much worse could it be for you if he were elected? With the Supreme Court appointees and urging Republicans to redistrict, the Voting Rights Act has been eviscerated, and black Americans now see how worse it can get for them. The possibility that Republicans would support reforming the Supreme Court is as likely as the Pope converting to Islam.

However, we must keep trying to push for Supreme Court reform in order to save our democracy. We have to take a quick break, but more to come. Stay with us. This message comes from Granger. This is the story of the one. As a maintenance supervisor at a manufacturing facility, he knows keeping the line up and running is a top priority. That's why he chooses Granger, because when a drive belt gets damaged, Granger makes it easy to find the exact specs for the replacement product he does. needs, and next day delivery helps ensure he'll have everything in place and running like clockwork. Call 1-800 Granger, click granger.com or just stop by. Granger, for the ones who get it done. For three weeks in 2020, part of my Seattle neighborhood was taken over by a protest occupation. We were here to protest police brutality. But it ended in tragedy.

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Welcome back. Let's get back into our conversation about reforming the Supreme Court. Again, we're doing a second discussion about reforming the court this week for, if you can keep it, because we heard from so many of you. We got this from Jim, who writes, we need a complete overhaul of our federal judiciary. The court should have at least 21 members diluting the power any one person has when serving. One member from every circuit and appeals court, members of SCOTIS should rotate into the court. from the circuits and appeals court, so there are no appointments directly to the court. The justices should also be ethically accountable just as their federal justices are. Lastly, all administrative judges across the federal government should be centralized into the federal judiciary, making them completely independent of the executive, and all legal decisions that are

issued at the federal level should be issued from the judicial arm of the government. So Jim did a lot of thinking about this. He just thought it through. That's a long list of recommended reforms. about some of them. We talked about expanding the court during the last installment of, if you can keep it last week, you can find that conversation on our website at the 1a.org. And of course, we want to hear from you. So many of you have been writing it. It's why we decided to revisit this for a second week because of you. If you could reform the Supreme

prevent no longer exists. Professor Abbs, your thoughts? So, you know, I think one way to deal with something like that is a party could come back and say, hey, in your opinion, justice, you relied on this fact and this was wrong. That happened sometimes, and I think basically always the result is maybe they edit the opinion at best, and they say, well, we still reach the same result. And that was just a side point. And I think that goes to the fact that a lot of people think that Supreme Court, I opinions are often just a way to justify an outcome they're going to reach anyways. And I think that certainly would be the case here.

I don't think, you know, fly specking, something like that, is going to cause the court to reconsider its view. Well, we were talking about the timing before the break, the court sort of abandoning its per cell norm and its 32-day norm to drop this decision onto Louisiana and Alabama. There's an additional part of the timing here. I just want to get to very quickly. Yes, a Voting Rights Act decision that nullified votes in Louisiana came right before Alabama's primary. But it's more than that, Kate Shaw, that the country is also in the middle of a separate partisan war over gerrymandering quite separate from the VRA Voting Rights Act issues.

And the court also decided to do all this in the middle of a partisan war and jumble all of the redistricting together. together. They decided to do that. Absolutely. And so a couple of points on the timing. One, so Calais has decided at the end of April. And in many ways, that was the worst possible time to do it. So this case was argued last fall. It had actually been previously argued. It was re-argued in the fall. And the parties asked the court to move quickly, which I think everyone thought meant, you know, end of December or January, so that states really knew what the legal framework they were working within looked like and they could draw their districts accordingly. So if that had happened early, you know, I think the decision still, to my mind anyway, would have been deeply wrong. But it would have given states the time to responsibly read or irresponsibly as a case maybe, but to redraw their district. So everyone knew where they were voting and for whom in a timely fashion. If they had waited until, yeah, go ahead. And just even beyond drawing the districts, we're talking about ballots. We're talking about people knowing who they can legally vote for as well. And that takes time and money for the people who manage our. election systems to actually prepare. Absolutely. And so, and if they had waited until late June, the district would have been drawn

and the ballots would have been ready and people would have again known where and where they were voting and what their choices were. I think late April was kind of a maximally chaotic time to do this. So as we've been saying, Louisiana, tens of thousands of voters had already cast their ballots, ballots that have now been thrown out because new maps have been drawn. Alabama was on the eve of this election and other states have moved very quickly to change their maps fundamentally. And so it did feel like kind of a chaos maximizing moment to drop this decision. And as you said, it's happening in an already chaotic landscape in which states are moving to redraw their districts to maximize partisan advantage because the Supreme Court has unshackled

legislatures to do that in its decision separate from this Calais decision, this decision called Rucho, that said that the Supreme Court and federal courts in general couldn't adjudicate challenges to partisan gerrymandering. Those were what are known as non-justiciable political questions. So political, partisan gerrymandering may be problematic. It may be undemocratic, but it's not something federal courts can remedy. And then in Calais, the two sort of come together because Calais really elevated this kind of prerogative to engage in partisan gerrymandering to almost a constitutional

entitlement on the part of state legislatures. And sort of said the VRA interferes with the ability of state legislatures to maximize their partisan advantage by drawing districts that help their party. And so I think that we are in essentially uncharted waters in terms of both kind of allowing legislatures to entrench themselves in power by, you know, maximizing the sort of advantages of the maps they draw to their political parties. And also, as we've seen states across the South, race to maximize partisan advantage and to eliminate historically majority black districts. We are seeing, I think, the sort of real profound dilution of the voting power of black voters across.

the South. And so I think the consequences are incredibly significant. And those two sort of gerrymandering trends are kind of converging in the Kaleh opinion and its implementation. Well, at a recent conference for judges and lawyers in Pennsylvania, Chief Justice John Roberts said, quote, I think people view us as purely political actors, which I don't think is an accurate understanding of what we do, end quote. But last month, Ketanji Brown Jackson Ketanji Brown Jackson criticized her conservative colleague's use of emergency orders to advance President Trump's policies on immigration, federal funding cuts, and much more, saying, quote, there is value in avoiding having the court continually touching the third rail of every divisive policy issue in American life, end quote. As we said earlier, the court's decision to let Alabama use a congressional map,

it originally deemed racially discriminatory, began with Alabama officials requesting an emergency ruling. And during our last discussion last week on reforming the Supreme Court, we talked to Professor Jack Balkan, a professor of constitutional law at Yale. He also served on the Presidential Commission on the Supreme Court. And he talked about the kind of public support that's lacking when it comes to the court, and why that's dangerous? The Supreme Court's legitimacy depends a great deal not on the views of partisans, because those go up and down like a yo-yo.

They really depend on what's called diffuse support. Diffuse support is people who basically say, I don't know, I'm not a lawyer. know what the cases say, I don't read them, but I generally think that the Supreme Court is doing the best they can. Essentially, over the last couple of decades, the Supreme Court has moved from a situation with very high diffuse support to a situation where diffuse support is essentially cratered. Professor Epst, do you have a view on how the Supreme Court's contradictory actions around Alabama's congressional map, Virginia, Alabama, Louisiana, the timing that Kate Shaw talked about,

is feeding into what he just referred to there as the diffuse support for the court, just the generalized idea that they're politicians, not judges. Yeah, I think that's absolutely right. I mean, I think that, you know, the Supreme Court's legitimacy is really premised on kind of a common understanding across all ideological spectra of our society, that it's worth it to have a court, that we want to have an institution, that maybe we're not going to agree with them all the time, but we can bring our most important disputes there and they can resolve them in a way everyone can live with. And I think part of that depends on people just looking at the court

and thinking it's not consistently advancing the agenda of one political party. And for a long time, that was true. I mean, you had a court that had a certain ideology, but we do unpredictable things. You know, you had a somewhat conservative court, but that would rule in favor of same-sex marriage. And now, as people step back, and maybe they're not, you know, reading all the filings in the shadow docket cases, but they see case after case after case after case that seems to favor the interests of the Republican Party, it's really hard for people to believe that this is an institution that's doing something different than politics, even if the justices themselves believe they're doing something different than politics. You know, Alicia, we refer to justices as being liberal and

conservative, but their decisions, as Professor Epx just said, are not met to be influenced by politics, but they are appointed by presidents who do belong to political parties. And the justices don't always rule along ideological lines. We've even seen that with this court. But what does it mean that we've come to anticipate a level of partisanship from the Supreme Court? What are the stakes for our democracy? Well, one way that this court is different than previous iterations of the Supreme Court is that if you look at the membership of the court, the ideological composition is perfectly predicted by the president who appointed each justice. So that didn't always used to be the case. So liberal justices like Justice Stevens, Justice Souter, were appointed by

Republican presidents. Now we've seen a real kind of sharpening of, you know, the relationship between kind of ideology and party in a way that I think has contributed to perceptions of the court's politicization. I mean, stepping back, I think the court is obviously tied up in politics. judiciary is a branch of government. I think what we're seeing now is something different, which is the court kind of reaching to inject itself into the greatest political controversies we're facing as a country, race, injecting itself into politics in this very direct way, and often going against precedent, going against procedural norms that were intended to constrain the court's power. And so I think it's that combination that's really contributing to

this perception of a court that isn't really acting like a court right now. We're talking to Alicia Steve Bannon from the Brennan Center for Justice and law professors Kate Shaw and Daniel Epps. We're also hearing from lots of you. Carl writes, clearly the Supreme Court needs serious work. My ideas include term limits from 20 to 25 years with stagger terms to avoid any one president from having excessive influence. The court should have one justice for each of the federal circuits.

Given the gravity of their decisions, court justice. confirmations should require a two-thirds majority in Congress, and any departure in practice from statements made under oath during confirmation should be grounds for immediate impeachment and if removed disbarment. We shouldn't even have to say this, but justices should also be required to be attorneys. And we're getting so many suggestions for reforming the court. We got a lot of experts out there. Some of you probably are experts, given the detail of some of the suggestions that we got. Kate Shaw, here's the thing. The court, the Supreme Court is self-policing. They make their own rules. But Congress has a say here. Congress has the power to set a lot of rules for the court, certainly to set its structure, its size, term limits maybe, if that's what people want. We've got a very, very weak Congress right now doing, I dare say, one thing I know is, I don't know much. I know Congress. They're not doing anything these days. They're too weak to reform the Supreme Court. What do we do? Well, we need to demand better from them, right? So I think that, of course, a lot of the problem, I think, with this kind of out-of-control Supreme Court is a Congress that has shown itself unwilling to regulate the court. And I think the court has sent signals that it won't look kindly on any efforts to regulate it by Congress. So Samuel Alito gave this kind of jaw-dropping opinion to the interview, rather, to the Wall Street Journal in 2023 in which he said no provision in the Constitution gives the Congress the authority to regulate the Supreme Court period, which I think is

just flatly wrong and also kind of a stunning statement that Congress has a lot of authority to regulate the kinds of cases the Supreme Court hears. It, I think, could mandate an ethics code that actually is binding upon the Supreme Court justices. It could limit in various ways what they can do on the shadow docket or how they have to proceed on the shadow docket. It certainly can set the size by statute. I don't think anyone seriously disputes that. So Congress has a ton of authority, and it hasn't used it with respect to the regulation of the Supreme Court. But I mean, One other thing is Congress has passed a lot of statutes, and the Supreme Court, so in some way saying, well, Congress needs to sort of step in is not an entire answer because Congress has done many things and the Supreme Court has been pretty contemptuous of congressional authority. So obviously, the Calais decision invalidating a key provision of the 1965 Voting Rights Act is just the most recent and egregious example.

But there are tons of examples of the Supreme Court acting in ways that are wildly inconsistent with and undoing the choices made by the democratically accountable. branches of government like Congress. And to be clear, as Dan Epps was just saying, you know, courts in a democracy, you know, sometimes act in ways that don't accord with majority will, right? Sometimes the majority acts to oppress groups that are too small or powerless to protect themselves. We want a court that's properly functioning to sometimes do that important rights protecting function. But I think we've seen the court in some ways sort of doing the opposite and underprotecting rights, over-protecting majority interests in certain respects, but that only some majority interests, and fundamentally not acting to facilitate the kind of functioning of the democratic process, but rather undermining it.

We heard from Brian who writes, the court should not be changed. The whole point is not to have it changed at the whims of the political parties, in this case the Democratic Party. On the other hand, voting districts should not be a radically shaped to influence who is included in a particular district. Parties should not be a factor in shaping districts, neither should race or any other factors. Professor Epps, I mean, to that point, do you see this in this? moment as a strictly partisan exercise calls to reform the court. So I'll just say I actually really liked that point in that it sort of draws this connection between this idea of court expansion, which Republicans say is this terrible, terrible power grab, you know, you have a party trying to grab control the court and connecting it

partisan gerrymanding, which I really think it's the same thing, right? It's in the sense that it's one party using its power to try to like change the actual underlying structure of power. So I think that's really, really important. And so to your mind in this moment, is this a partisan exercise that we're seeing these calls to reform the court? Or do you see it as a broader question about how the court functions as a whole? I think it's both. I mean, I think that there's a mix of motivations. And, you know, I think some people are just very unhappy about the court's rulings and want to change it. But I think there's a lot of people who just think that, you know, whatever your politics are, this is heading in.

a bad direction, right? If we have a court that is losing its ability to command respect from people that disagree with its decisions, that is a bad thing, not just for Democrats, but it's a bad thing for the country. And we should figure out some way to reorient things where we don't end in that kind of death spiral, which we're currently on. Well, we have to take another quick break. More about reforming the Supreme Court just ahead. We'll be right back.

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Call 1-800 Granger. Click Granger.com or just stop by. for the ones who get it done. Let's get back to today's installment of our weekly politics series, if you can keep it, on reforming the Supreme Court and whether and what it would take to do it. We're here with Kate Schaub. She's a professor of law at the University of Pennsylvania. She's also co-host of the strict scrutiny podcast. Also with us, Alicia Steve Bannon, she's the director of the judiciary program at the Brennan Center for Justice,

and Daniel Epps. He's a professor at Washington University's School of Law. He's also co-host of the podcast, Divided Argument. And we're on week two of our discussion about if and how to reform the Supreme Court because so many of you reached out during last week's show all during this week. And while we're on the air now, we got this from Elena Kagan who says one idea that I first heard during the 2020 elections from Pete Buttigieg was to reform the court in the following way. Have a 15-member court, five appointed by Republicans, five appointed by Democrats, the other five appointed by unanimous. consent of the other 10. It would end, ending a model like this would eliminate, having a model like this would eliminate much of the partisan issues that we currently see on the court. Professor Epps, I think this is actually a proposal that you and your colleagues came up with

that Mayor Pete Buttigieg, former Transportation Secretary, that he later endorsed. What do you think this would solve? How would it solve some of the issues on the court that Keegan is advocating for here? I'll just say you have very informed listeners. We do. The idea behind this proposal is try to find a way to get back to a court that isn't just seen as partisan and isn't just seen as handing out wins for one side. Something like what we think the court looked like for a much bigger part of the 20th century. Before you had increasing polarization in the parties, increasing polarization in legal culture,

We have like the Federal Society, we have basically two different legal worlds and before the abolition of the Senate filibuster, right? So we now have a system that's designed to select for, you know, pretty extreme partisan views, at least in terms of the outcomes they want to reach. And the idea behind our proposal was, is there some structural way to rebuild a court that has the center, a center that doesn't just map onto one or the other political parties? And I think that a court that looks like that is one that's more likely to command the kind of long-term support that the court needs. Well, we're getting so many suggestions from you, and we want to get to as many of them as we can in the time we have left. Matt writes, my suggestion is to reform the court so they cannot pick the cases they hear. The cases should be picked by a rotating body of judges from the courts of appeals, one judge from each district, and a new panel every year. Professor Shaw, what do you make of that suggestion?

It's not one that I've heard, but I don't see any constitutional problem with it. And I think that I think that's kind of interesting. I mean, I do think that the agenda control that the Supreme Court currently has, they can basically decide what questions they should be asked so that they can supply the answers that they want to give, with the exception of a very small minority of cases that have what's called mandatory jurisdiction. So some cases the court has to hear. But most of them, it can hear, it can not hear.

But kind of outsourcing that function, choosing the case, cases, I think would actually be a pretty interesting innovation. You know, there might still be other reforms that are necessary. But I think that's one, I think your listener has, is on to something. And I think that's something that should be, that could well warrant some serious thought. Okay, here's the next one. This is from Augustus. Alicia Steve Bannon will give this one to you. Augustus says the nine new justices would be appointed on a regular schedule, one every two years, over the course of 18 years. That spans four and a half presidential terms and thereby assigns the appointments to three to five different presidents, depending on how the intervening elections

turn out. Appointments happen in the first and third years of the presidential term, following the presidential election and the midterm congressional elections. That is, each appointment is preceded by a vote of confidence from the electorate, and no appointment is made during an election year. So there's Augustus trying to have a rotating system of appointments with elections in between so that there's the consent of the public. Alicia Steve Bannon, what do you think about that suggestion? Well, I think proposals that look to regularize appointments of justices are very

promising. Again, I don't think there's any constitutional issue with that. And I think there's two reasons why I think that would be really beneficial. One is that it would kind of tighten the democratic link between the court and the public, but in a way that still respects judicial independent. So in other words, as presidents turn over time, you would have the courts, the court evolving to kind of reflect public values. Right now, you've had presidents have a wildly different impact on the composition of the court. Jimmy Carter didn't have a single Supreme Court nominee in his term. In President Trump's first term, he had three. And there's no reason from kind of a democratic theory why presidents should have such different imprints on the court.

I also think that kind of a regularized system might help turn the temperature down on judicial nominations because you wouldn't have these high-stakes moments when all of a sudden the court would be on the line, you would have a predictable system where each president would have the same imprint on the court. Well, that brings us to the confirmation process. Another Supreme Court reform that's come up for many of our listeners is changing that process by which justices end up on the court in the first place. So Professor Shell just really quickly walk us through how that process currently works. Well, sure, under the Constitution, presidents nominate and the Senate advises and consents to the confirmation of Supreme Court justices. In the modern era, those have involved hearings that are televised before the Senate Judiciary Committee. And they are now kind of highly politicized, sort of very choreographed, not terribly informative undertakings in which senators give speeches and post questions to justices. And justices kind of dodge and evade really giving me.

meaningful answers to most of those questions, often invoking this idea that they can't really opine on things that might come before the court. And no one learns much about the jurists or, I think, about the judicial system. And I think that, you know, beyond just the kind of the televised confirmation hearings, there has been this selection process that in some ways the sort of three selections made in President Trump's first term represent the sort of culmination of, which is presidents trying very carefully to ensure that they are going to have confidence in the votes cast by their nominees in any particular case. And that means usually just nominating sitting appeals court judges who have a track record of votes and sometimes academic writings rather than drawing as

presidents used to from state courts, governors, senators, sort of individuals with kind of a range of backgrounds and experiences and just kind of sharp legal minds. And I think that returning to that kind of experiential diversity in terms of the nominees that presidents turn to, and also maybe fundamentally overhauling the actual Senate confirmation process would both be, you know, constructive developments in terms of the court that we end up with. Well, we got this from John, who writes, in order to moderate the extreme positions on the court, you shouldn't be able to get a Supreme Court nominee on the bench without a 75% majority in the Senate. I mean, Professor, apps, are there any reforms you'd like to see in the confirmation process? So I totally agree.

with trying to get back to a system where a nominee has to have much more consensus support, right? And I think that the disciplining effect of the threat of the Senate filibuster for Supreme Court nominees did push, you know, the nominees towards more moderation. And when, you know, the Republicans abandoned that in 2017, we lost that. I think it would be hard to just, you know, snap your fingers and get back there, right? because the parties are so polarized and our legal culture is so polarized. And it's now kind of hard for me to even imagine who the nominees are that might plausibly get that level of support from senators on both sides.

I would like to figure out a way to get our political and legal culture back there. I don't totally know, you know, I think it's more than one reform that has to get us there. I mean, you think about changing our political culture, we'd have to change the way we draw districts, right? It's all tied up with gerrymandering, right? Which selects for the most extreme and most polarized members of political parties in Congress. Well, we got this from Jan who said, in order to reform the Supreme Court, you have to first reform Congress and get them back to being a place where ideas are deliberated and discussed, not just blocked by one side of the other. Removing the limits set to cap members of the House and going by population as originally envisioned would be a great start by injecting new people and new ideas into the mix. that might go someplace toward reform more broadly.

But Alicia, back to the Senate floor that Professor Epps was just talking about, John recommended a 75% majority in the Senate. They've gone in exactly the opposite direction over the course of decades. The filibuster used to be 67 votes. Then it was 60. Now it's nothing. Now it's 50 vote-bear majority. It is, forget about cooling saucer.

It's a boiling hot cauldron in the Senate now when it comes to the Senate. the Supreme Court. So what about the idea of engineering more ideological consensus in the Senate? Is it possible? Well, I think it is challenging with the current partisan divisions that we see right now. It used to be that most Supreme Court nominees were confirmed by supermajorities across party lines. And increasingly, we're seeing, you know, close to or entirely party line votes in. in the confirmation process, and there's a lot of reasons for that, but part of it is that, you know, we have a political and legal culture right now that is so polarized. I think there are other reforms we could be thinking about with respect to the confirmation process. I mean,

one small but significant one would be to address what we saw when Merrick Garland was nominated by President Obama and wasn't given a hearing or a vote. I think you could, one sort of very specific but important reform, I think, would be a fast track process in the Senate that ensure that any nominees or at least get consideration and that senators have to take a public stand, take a public vote, and take public heat if they're not moving forward with qualified nominees. I want to kind of focus in on the, in this last moments we have, on what the American public can do. Rick writes, what really needs to be done to bring the Supreme Court back to the political center of American life would be to allow specific Supreme Court decisions made within the last 10 or 20 years regarding

decisions directly affecting voting or the configuration of House districts to be subject to a national vote based solely on a majority of the electorate casting ballots. My rationale for this proposal is that creating term limits for Supreme Court justices or expanding the numerical size of the court does not change the nature of the underlying game. Each political party will still utilize whatever political power they have to control the composition of the court. I would be most interested to hear some of the reactions to my proposal from any of your guests. So really, what Rick is proposing there is saying, here's the decision, American public. What do you think? Ratify it if you want to. Yeah. Professor Epps your thoughts. So I think it's really interesting.

I mean, I think it's the kind of proposal that I think would require, you know, Congress to get the ball rolling by sort of establishing this framework. You know, I think if you were trying to make it binding, there's some constitutional problems there. But I think more generally, I like this. spirit of the proposal, which is, I think that if people want to change things, they just have to keep being loud because there are some lessons from history, which are that the court is willing to stand up to the elected branches and the American people for a little bit, but eventually they back down. The court is always very cautious about getting into these, you know, head-on collisions with politics. And eventually, I think, if it becomes clearer to the court that it's just way out

over at skis, it's going to have to rein itself in. And that can happen in a lot of different ways, but I think that keeping the kind of political conversation and the political volume loud is a way to do that. More ideas coming from listeners. Judith writes, there should be video cameras in the courtroom. Justices are our employees. We should be able to see how they work. That's transparency at the most basic level. Kate Shaw, what do you think? I'm not sure the pivot to video has been good for political or anywhere. So I am not that enthusiastic about the proposal. The spirit, though, is right.

The court is a deeply non-transparent institution, kind of, you know, I think that deliberately. So, and I think that any transparency forcing mechanism make them give the reasons for their shadow docket orders, make them tell us how they're voting on those orders, obviously make them do more robust disclosure, you know, in the ethics vein. All of those kinds of pro-transparency reforms, I think, are to the good. but I think I personally draw the line on it video. Well, we got this message from one of you. Alexander Hamilton wrote that the executive branch has the power of the sword.

The legislative branch has the power of the purse. The judiciary has nothing but the fidelity of the governed. That fidelity depends solely on the perceived legitimacy of the court. The justices have profoundly damaged the court because at the end of the day, the only thing that sustains the court's legitimacy and its power as a co-equal branch of government is respect. And Kevin asks, does anyone believe, significant Supreme Court reform is possible in the next decade. So as we wrap up here just briefly, Professor Shaw, I'll come to you first. What do you think?

I want to underscore something that Dan Epps just said, which is that I think that significant reform can happen, even if the specific legislative proposals that we are batting around aren't ever implemented. I do think that robust public debate and discourse about the Supreme Court just is a reminder that it is a democratic institution. It is part of our system, it doesn't stand outside of it. And when it airs, as I think it badly has in recent years, like we should be actively talking about ways to change and fix it. And I think that could have the effect of causing the court to demonstrate some more internal restraint, or it may mean we end up with some but not all of this kind of laundry list of possibilities. But I think that sort of sufficient

sustained public attention, both demands of our elected representatives and just broad public conversation actually could in the next decade bear some fruit. So I think it's important for us to keep trying. Alicia, in just a couple of sentences, I'll give you the last word. I agree. I think that we, it's up to us to create the political momentum and political opportunity for Supreme Court reform. We've already seen the court is both very unpopular and there are a number of reforms like ethics, term limits that have broadened bipartisan support. And so I think what we need to see in the coming years is increased public clamoring so that members of Congress, as well as the Supreme Court, are feeling that pressure and that we have the opportunity to really rethink the way this

institution is functioning in our democracy. Well, that's Alicia Steve Bannon. She's the director of the Judiciary Program at the Brennan Center for Justice. Also with us, Daniel Epps, a professor at Washington University School of Law and co-hosts of the podcast, Divided Argument, and Kate Shaw, Professor of Law at the University of Pennsylvania, and co-host of the Strict Scrutiny Podcast. Thanks to you all. Tomorrow, 1A will broadcast live from American University for the nation's 250th birthday.

Naila Boodoo will moderate a discussion on religious liberty and how it's shaping the country. I'll be back on Thursday. Today's producer was Haley Blessingame. This program comes to you from WAMU, part of American University in Washington, distributed by NPR. I'm Jen White. And I'm Todd's Willie. Thanks for listening, and we'll talk more soon. This is 1A.

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