Supreme Court justices are selected by presidents and confirmed by senators – but does that mean they necessarily represent the will of the people? Kevin J. McMahon, John R. Reitemeyer Professor of Political Science at Trinity College, joins host Krys Boyd to discuss how we got to a court that doesn’t reflect the majority of the electorate, what that means for its reputation, and ideas for how to fix what’s broken. His book is “A Supreme Court Unlike Any Other: The Deepening Divide Between the Justices and the People.”
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Transcript
Supreme Court Podcast Full.wav
Krys Boyd [00:00:00] When we hear about Supreme Court justices in the minority, we usually think about those on the losing side of a particular ruling. But these days, five out of the nine individuals who sit on the High Court and help make up the 6 to 3 conservative majority are numerical minority justices. So they were indeed confirmed by a Senate majority. But the senators who approved their nominations don’t actually represent a majority of American voters. From KERA in Dallas, this is think I’m Kris Boyd. There is nothing illegal about numerical minority confirmations, but they may have contributed to some distinct mismatches between what American citizens say they want and what a handful of unelected justices say they can have under the Constitution. And my guest thinks the court has lost legitimacy as a result. Kevin J McMahon is John R right? Myer, professor of political science at Trinity College and author of A Supreme Court Unlike any other. The deepening divide between the justices and the people. Kevin, welcome to think.
Kevin J McMahon [00:01:05] Great to be here. Thank you for inviting me.
Krys Boyd [00:01:07] You opened the book by reminding us of the Dobbs ruling in 2022, which, after almost 50 years of precedent, declared that the Constitution in fact does not guarantee a right to abortion. Why was this the one that got many Americans wondering whether the court really represents their interests?
Kevin J McMahon [00:01:25] Well, I think most clearly, if you look at public opinion polls, right before that decision was released, and people were asked the question, where are the courts that overturn row or keep it in place? A substantial majority of Americans wanted to keep it in place. So it was a court acting, in a on a on a major issue. Right. And a hot button issue in a clearly, in a in a fashion clearly inconsistent with the majority of Americans.
Krys Boyd [00:01:57] I’ve heard the argument that the court is not supposed to care what most Americans actually want, that it kind of floats above, and it’s there just to interpret the laws in light of what the Constitution says. But I mean, does that convey the idea that we’re all powerless in the face of this document written almost 250 years ago?
Kevin J McMahon [00:02:15] Yeah, that’s an excellent point. I mean, I think we all learn, as you know, in, in elementary school or in secondary school, that the court is an independent body, separated from, you know, elected branches of government. But as I argue in the book, historically, the court has actually been part of political regimes. Right? So historically, we have tended to elect enduring regimes. So we tend to have a dominant political party, that lasts for very long time. So one example would be Franklin Roosevelt’s Democratic Party. That Democratic Party won five, five elections in a row. And therefore, even though Franklin Roosevelt struggled with the court early on in his presidency, he was also ultimately able to remake the court, and therefore, the court ultimately represents the wishes and the desires of the presidency and the dominant party represented by the president.
Krys Boyd [00:03:18] So did previous generations of justices pay closer attention to the will of the people, not just the will of the president, but the will of the people at whatever moment important decisions were handed down.
Kevin J McMahon [00:03:31] Not always right. Yeah. So sometimes you, you get, you do have unpopular decisions by by the court. That’s certainly the case. But nevertheless, you do have a closer. The argument I make in the book is that you have a closer democratic connection because of the the fact that these justices were representing, the the wishes of the this dominant party. Right. So again, so, for example, in my first book, it’s called Reconsidering Roosevelt on Race, the justices who struck down segregation and Brown versus Board of Education were really expressing, the, the, the desires of the Democratic Party, or at least the presidential wing of the Democratic Party when they reached that decision in 1954.
Krys Boyd [00:04:27] Your concern now is that the Supreme Court faces a democracy gap. What does that term mean, as you have coined it?
Kevin J McMahon [00:04:36] Yeah. So what I mean, there is that historically, you know, as you as you suggested in the, in the introduction, historically, both the president and the Senate, which confirms the justices have, have historically been aligned. So the president chooses the individual justices and the Senate, confirms those justices. But what we have today is this, historical anomaly that five of the justices, the five most conservative justices, those who joined together and and overturning Row and Dobbs, are what I call numerical minority justices. So, as one example, Brett Kavanaugh, when Brett Kavanaugh was confirmed, the the the number of of senators, 52 who voted to confirm him, they collected 24.5 million fewer votes than the senators in opposition. Right. So that is really a stark. Representation of of this disparity between what the voters, who the voters are voting for and who’s on the court. So these historic. These are numerical minority justices. These five are the only five in American history. And that is is simply this inconsistent one. So when I’m arguing is that there’s a gap between the court and these democratic processes that and endow it with, legitimacy.
Krys Boyd [00:06:17] So I want to make sure I’m with you here. Those senators whose votes confirm a Supreme Court justice may come primarily from states with very small populations. But of course, their votes in the confirmation process count just as much as senators elected by, you know, very large populations, many millions more people.
Kevin J McMahon [00:06:36] Exactly. Yeah. So so, you know, if you have a state. So to some extent, this is just the nature of our historical sort of our constitutional structure. A state like Wyoming with about a half a million people, they get two senators. Those senators get the vote right. A state like California, a much larger population. They also get two senators. So, you know, some someone might critique this idea, but even if you take out or even if you focus on these bigger states, the ten largest states, you still have, this numeric numerical problem with at least some of the justices, that are in the majority.
Krys Boyd [00:07:17] Okay. We’re definitely going to get to your suggestions in this conversation. But, first, I want to talk a little bit more about the way you say the democracy gap erodes the legitimacy of the court. Do you distinguish between, like, perceived legitimacy, how much citizens in general trust in the court to do the right thing, and actual legitimacy, which is the right of any justice to a seat they’ve been appointed to and confirmed for according to the processes outlined in the Constitution?
Kevin J McMahon [00:07:46] Yeah, it’s certainly perceived right. It’s this, this idea that that in the past and what I’m trying to do and, and this is the reason for the title, the Supreme Court, unlike any other. You know, this is not really a critique on the conservative nature of the Supreme Court. I argue that there have been other Supreme courts that are deeply conservative, that were deeply conservative, that were more, legitimate. Right. The this court is historically distinct, in a number of ways, and one of which is this this idea that the majority are numerical, minority justices. So it is a perception. If we also look back to history, we will see that sometimes when the court has felt itself out of line with public opinion, it’s drawn back. Right? It’s it’s been less aggressive on certain issues. So there’s a there’s a possibility that that this group of justices will do the same. Although if you look at this. You know, these recent, court, these recent court decisions, including this current, this, this one that just ended a few weeks ago. You know, we see the court being pretty aggressive on some very important issues.
Krys Boyd [00:09:06] I mean, so much has changed politically in this country in the past, not quite century since the Roosevelt era, which you mentioned, including the extent to which the country is split almost down the middle, right over which parties ideals are right for the moment. So, presidents, it seems like, no longer win landslide victories. Now, sometimes the popular vote and the Electoral college vote don’t match up. Why does that matter in terms of who sits on the Supreme Court and represents us?
Kevin J McMahon [00:09:36] Democrats have won the popular vote in seven of the last eight presidential elections, but six of the nine justices have been appointed by Republican presidents. Right. So there’s sort of this this lack of alignment that is different than in the past. As I said previously, in the past you tended to have these dominant coalitions. So we have this new era of polarization. Why is this problematic? So let’s just take a look at like the 1970s, you had these presidential candidates, Republican presidential candidates who were winning massive elections. If you start from 1968 to 1992, that time period, every one who won the presidency was a Republican, except for 1976 with Jimmy Carter. Not only were they winning, they were winning in great landslides in 1972. Richard Nixon wins 49 state landslide more than 60% of the vote. 1984 Ronald Reagan wins the 49 state landslide, just under 60% of the vote. Right? So these massive victories, but when they had chances to alter the court, when there was a vacancy and a chance to fill a seat, they were they often were unable to appoint the most conservative justices that they wanted. So they had a number of stumbles. Nixon had had some of his nominees declined by the Senate. Same with Reagan. There were two reasons for this one, a lot of times the Democrats controlled the Senate, and there was this this filibuster, right. The filibuster was in place. So so you needed really 60 votes to confirm a nominee. Now the filibuster is gone. You have these presidential candidates, like Donald Trump winning without the popular vote, but having a more significant impact on what the court does, right, in terms of the ideology of the court. To me, that’s democratically problematic, that in the past, when you have these presidents winning great landslides, they were less able to move the court in, in their direction, in their ideological direction than a president like today who doesn’t have those massive victories.
Krys Boyd [00:11:48] So, in other words, there’s no incentive necessarily now for presidents to have to make compromise choices.
Kevin J McMahon [00:11:55] That’s right. Yeah. You don’t. You tend to. As long as the president and the and the Senate are of the same party, the type of nominee. And this is this is particularly Republican story, just given how few Democrats have been Democratic presidents have had an opportunity to fill seats as long as the Senate is aligned with the president or the the the Republican majority in the Senate is aligned in Trump’s case, is aligned with the president. The the nominee will be confirmed. So, you know, back to Kavanaugh, as somebody who was challenged as much as Kavanaugh was in terms of, you know, this alleged sexual assault, in the past, that type of nominee, that controversial nominee would not have won Senate confirmation. We we have several historical examples where when the Senate’s voice or voice displeasure, when a significant portion of the Senate voice displeasure, the nominee was not confirmed and a number of things might have happened to him, he might have stepped aside, the president might have withdrawn the nomination. The he might have lost in a vote, but they didn’t become justices. But obviously, we know with Kavanaugh he did become a justice. Why? Because his main audience, when he was given that testimony with his calendars and hand and he was angry and sort of chastising the Democrats for, for their critique of, of, or their highlighting of, of this event that took many years. It took place many years ago. What he was doing, he wasn’t really trying to convince the Democrats. He was trying to convince the president to keep them in place. And, and the Republicans in the Senate who were going to going to vote to confirm. And he did that successfully.
Krys Boyd [00:13:52] Kevin, this brings us to the role, once again, of the Senate in confirming Supreme Court nominees. What do you mean when you describe the confirmation process in recent years as being, and these are your words, little more than theatrical?
Kevin J McMahon [00:14:08] Yeah, yeah. I mean, we have these we see these hearings. Right. And what do you what do you see is you get very similar questions. The Republicans, if it’s a Republican nominee, are very supportive. The Democrats try to be a little hostile, but typically what the nominee does is any any question that has the potential to reveal how he or she thinks on an upcoming case. They simply say, well, I’m sorry, I can’t answer that question because it may become, you know, might come before me, case with what these sets of facts may come before before me. So I can’t answer the question. Right. So we don’t really get any real answers. It really becomes a showcase more for the senators as opposed to to the, to the nominees. So we really don’t have a full understanding of what the the nominee is. Believe we can make guesses. And certainly, senators and, and the public as a whole make, assumptions about what these nominees will be like once they become a justice. But we but we really can’t delve deep into their philosophy.
Krys Boyd [00:15:28] I mean, when you put it in those terms, it’s interesting to think about the fact that there’s probably no other job interview on the planet where when you were asked a direct question about how you would act in the job, you’re able to demur and say, I can’t possibly respond to this. Is there some legal reason that prospective justices are required to not directly answer these questions?
Kevin J McMahon [00:15:54] Well, it’s based on this idea. You know, John Roberts, the chief justice, used this this, this, I hope is not hypothetical, this, metaphor, right? That they are that they are like umpires calling balls and strikes. Right? So, the the sense is that if they if they reveal their views on, say, abortion, they’re not going to be objective evaluators, of a case once they get to the, to the high bench. Right. So, so they’re going to be biased in some ways. And they’re going to sort of have to stick to whatever they said before the Senate committee, Judiciary Committee, they’re gonna have to stick to that. And that that’s that means they’re not, you know, objective adjudicators of the law.
Krys Boyd [00:16:42] So you’ve said your primary concern is not that the court has specifically taken this sharp right turn in recent years, based on that 6 to 3 conservative majority, that you would have perhaps written the same book if we had a runaway liberal majority based on the same methods of selecting and confirming justices. But how did it happen that the court has come to contain such an overwhelming majority of conservatives in an era of relatively weak Republican presidential outcomes?
Kevin J McMahon [00:17:13] Well. So part of this is, is a clear campaign on the part of Republicans particularly, you know, what’s known as the conservative legal movement. You know, as I mentioned previously, we had those Republicans at one point. Ten justices in a row were appointed by Republican presidents. Jimmy Carter, as I said, was the only Democrat. But there was no vacancy during his four years in office. So from 1969, with Richard Nixon’s appointment until George H.W. Bush’s appointment of of Justice Souter, those were all Republican appointees, but in part because the Senate was, as I said earlier, and in Democratic hands most of that time. And because of the filibuster, those Republican presidents chose questionable conservative or compromised candidates, right. Candidates in the case of, for example, Sandra Day O’Connor, the first woman, to be a justice who were called 80 percenters in the Department of Justice. So what did that mean? That meant that the expectation of the Reagan Justice Department was that she would vote, like, along the lines of the president 80% of the time. And that turned out to be true. Right. It turned out that on some of these key issues, like, like abortion, she was unwilling to overturn Roe versus Wade. Right. Roe versus Wade. As 1973, the court has an opportunity to overturn Roe in 1992. The Casey decision, eight of the justices at that time had been appointed by Republican presidents, and one Democratic appointee was a dissenter in row. So there’s this opportunity to to overturn Roe in 1992. And the court doesn’t do that. Right. So what what these conservative. Lawyers led by Leonard Leo in the federal society did was they organized and they tried to identify individuals who would be committed to the conservative cause. And and they they didn’t they wouldn’t have to worry about individuals like justice O’Connor. Right. Who might be with them, who might not be. So they worked very hard at identifying these individuals, oftentimes as early in law school. And. When it came time to choose new, you know, a new justice for a vacancy. Leonard Leo and the Federalist Society was very much involved. That was true in 2005 with the appointment of Roberts and Alito. And it was true with the three Trump justices.
Krys Boyd [00:20:00] How did the Federalist Society become such a powerful force in determining which would be jurists are selected by Republican presidents specifically?
Kevin J McMahon [00:20:13] Again, very good question. I mean, it’s it’s really doing the, the, the, the ground work of organizing fellow conservatives, having conferences, talking about ideas, having in, in with the administration in power. In the case of Donald Trump, for example, he basically passes off these decisions to, to the federal society in the, in the inheritance. Right. That he he asks them for a list of nominees, that he’s going to, to choose from. So that’s much different than in the past. In the past, presidents knew the individuals. They were pointing to the court. Oftentimes these individuals were were members of their administration. President Roosevelt played poker with some of the justices, right. They knew them quite well. In the case of Donald Trump, George W Bush, you know, oftentimes they meet these individuals for an hour before they make the appointment or they before they make the appointment, they don’t know them very well. It’s basically, you know, delegated to to some other, some other organization like the federal society to make these elections.
Krys Boyd [00:21:30] I mean, this past era, Kevin, where presidents typically knew in some kind of personal way or had worked with the Supreme Court candidates they nominated, I mean, it seems good and bad, right? Did that climate make it harder back in the day for women and for people of color to make their way on to the court because they weren’t prominent in as many government positions?
Kevin J McMahon [00:21:51] Well, that was certainly true. I mean, you know, this court, I call this a cookie cutter court, right? Because I suggest that the justices come from. What I call the Supreme League. And so these justices come from, you know, a very small slice of America. And one of the differences is that, for example, in the past, it was not uncommon for politicians to be appointed to the court. Somebody like Hugo Black, was a sitting senator. Earl Warren was a, the governor, former governor of California. He had been a vice presidential nominee. Right. So that’s a different type of of justice that that we don’t see today. However, what we do see today, as you suggest, is a much more diverse court in terms of gender, in terms of race and ethnicity. So is that a question? Is, is that based on, the way in which the process has changed or just the the diversity of America and the diversity of American politics? More more generally, I would suggest that it’s more the latter that this is about the diversity of American politics more, more generally. Right. We didn’t, you know, just talk about, the events of, today. The fact that Kamala Harris is likely to be the Democratic nominee. Well, that would be a new thing. We wouldn’t that we’ve never had a black woman who’s who’s been a nominee of a party. So. So I think, you know, the diversity of the court in terms of race and gender, is a reflection of, of American politics, generally and not specifically about the process in which justices are chosen.
Krys Boyd [00:23:44] Just to drill down a little further into this, you know, selection mostly of people who come from the supreme elite. People may be listening and saying, well, you know, Justice Thomas, Justice Sotomayor, their backgrounds are not of the supreme elite, but in terms of their education and then their subsequent careers, there’s a pattern and they don’t diverge from it.
Kevin J McMahon [00:24:05] Yeah. I mean, here’s here’s my best example. There are 37,000 high schools in the United States. Two of the justices went to the same high school. Georgetown Prep. Right. I used to be able to say to my students that if you want to be a Supreme Court justice, you can go to any law school you want as long as it’s Harvard or Yale. No. Amy Coney Barrett went to the, Notre Dame law school, so that’s changed that for a while. But again, looking historically, we used to get justices from a much, in terms of educational background from a much broader array of schools. So another example, the last justice. To attend a public. Institution of Higher Education as an undergraduate was, it was confirmed in 1969. Right. Last one who went to a public undergraduate institution? The last one who went to a public law school was confirmed in 1957. So what we have is what? So what’s the reason for this? Well, one of the one of the reasons why, justice. Sorry. President Nixon’s nominees were defeated. A couple of his were defeated. Is by the in the Senate was they were dismissed as for lack of quality. Right. Well, it’s an easy shortcut to say, you know, this nominee attended Yale or Harvard Law School. Therefore, he or she is qualified, right? It’s just it’s just easy. It sort of fits with our understanding of these institutions and the quality of these institutions. So it’s much more difficult. You know, an example of this is Harriet Miers, who was appointed by George W Bush in 2005, who was dismissed. Right, because she was considered not a serious constitutional thinker. She didn’t go to Harvard or Yale Law School. That was one of the easy ways in which you could dismiss her. And, you know, again, this is what’s striking about this is some of the great justices, some of the, you know, historians considered great justices didn’t go to Harvard Law School or Harvard or Yale Law School. Right. They had a a more individual experience. And, and they and their path to the court was much more was much different than those who get there today.
Krys Boyd [00:26:41] Kevin, what is this checklist that the Federalist Society has in order to ensure that the people they recommend as potential Supreme Court justices have kind of the right conservative bona fides?
Kevin J McMahon [00:26:57] Yeah. So this is this is not a checklist that I found, like in the in the papers of the Federalist Society. This is basically looking at the types of nominees that were selected by Republican presidents. Again, this is basically a Republican story in terms of recent appointees. So again, what we were talking about earlier, how if if you’re a conservative group and you’re very upset with somebody like Justice Souter, who people thought would be a conservative, he was chosen based on the understanding that he would be a conservative, but then he he reaches decisions that are actually quite liberal, or at least moderate. But he, you know, the most important decisions in terms of issues like abortion, he’s not he’s unwilling to overturn Roe versus Wade. Well, how do you ensure that the next nominee, that you have a chance to choose is going to be a true conservative, not somebody like, so not somebody like Souter, and they actually had a name for this. It was called the greenhouse effect. Right. And this doesn’t deal with climate change or anything like that. Right. The greenhouse effect is that a new justice will come to Washington, and we’ll think that he or she is a conservative. But once they get to Washington, they will want to have good press. In The New York Times and the long time writer for the New York Times was Linda Greenhouse. She the court writer for The New York Times. So the the idea was that when they get to Washington, they want to be seen, positive among liberal elites. So this is they will appeal to Linda Greenhouse and this is the greenhouse effect. So how do you prevent the greenhouse effect? Right. This is sort of the question that they’re trying to answer. Well, well, what I argue is that they look to the model of conservatism on the court. And that’s Antonin Scalia, right? So so Antonin Scalia, appointed in 1986 by law, Ronald Reagan confirmed 98 to nothing. Right. Becomes really the face of conservatism on the court, particularly for his harsh dissents. But he’s also known for having a, a great amount of charisma. He’s funny. His best friend on the court was Ruth Bader Ginsburg, a liberal? Right. How do you how do you get somebody like Scalia? And basically what this checklist is like it where this, this chest checklist comes from is is trying to identify the next Scalia. If you would like to we can go through some of those some of those points.
Krys Boyd [00:29:47] Is there Kevin, any kind of, organization or effort to present very liberal candidates to presidents? That has bubbled up from the Democratic Party.
Kevin J McMahon [00:29:57] Yes. There has been, attempt on the left to sort of, you know, have a have a similar movement like the, like the federal society, but it really hasn’t taken much. It really hasn’t gone anywhere, in all honesty. And the people have really scratch their heads on why that’s the case, but but it just, it just hasn’t, hasn’t been as effective, that the Democratic presidents really haven’t looked to it, and that, and its leaders have not had such a central role as Leonard Leo has in Republican administrations.
Krys Boyd [00:30:37] Another phenomenon you describe in the book is that in recent years, like every day, Americans are paying attention to the actions of the Supreme Court in ways that previous generations may not have. Individual justices might be seen as superstars or as villains. Voters are instructed to elect candidates who might play a role in installing justices with certain ideological preferences. When did that start to be a major consideration in how we vote, and something that all Americans are expected to pay attention to?
Kevin J McMahon [00:31:06] Yeah. So again, historically, the court would only pop up as an election issue occasionally. And we can we can in terms of presidential elections, we can point to, say, 1936, when the court and Franklin Roosevelt was Franklin Roosevelt’s, first reelection campaign and the court had struck down a lot of his, New Deal legislation, the so-called first New Deal. So the court was obviously an issue there. In 1968, when you had a lot of disruption, you know, rioting and Lyndon Johnson that famously stepped down. Not even though he was constitutionally entitled to run for another term. He chose not to. The court was very much in the conversation at that time as well. So there are certainly moments when the court has been an issue historically, but unlike today, where really the court has been on. The top of the minds of voters in 2016. As you recall, in 2016, we had, the death of Antonin Scalia in February of 2016. Barack Obama attempted to appoint Merrick Garland, to his vacancy, that the Republicans in the Senate blocked that. So we knew that and that the the winner of that race. Was going to have a chance to fill Scalia’s seat. And in 2018 we had another a similar thing with Brett Kavanaugh had just been confirmed right before, the election. And in November, the midterm elections, and, and importantly, a number of Democratic senators were trying to get reelected and red states, states that the Donald Trump had won. So that issue was was front and center. In 2020, we had the the death of Ruth Bader Ginsburg in mid September. Right. Really, as people had started voting or any of those who had the opportunity to, to have mail in ballots. And the the quick confirmation of Amy Coney Barrett. And then in 2022, we didn’t have a vacancy or a new justice, but we did have we did have. The recent overturning of Roe versus Wade in Dobbs. So, so this idea of, to what extent would would that decision have an impact on elections was it was very important as well this year. We’ll see if the court plays a role. Obviously the court. Again, as I mentioned earlier, has has issued some very controversial decisions, particularly on presidential immunity. My guess once the the Democrats get their ticket together is that that will be a focus that, you know, it’ll be it’ll be, a question of targeting Donald Trump and and combining that with the opportunity that the court has seemingly given him, with the presidential immunity case. And you’ll also see abortion, abortion is on the ballot in a number of states. There’s a question that if the Republicans win both the Congress and the presidency, that they might have some national ban on abortion. Although president former President Trump has certainly tried to to, alter the conversation a bit, on this question, but so once again, this fall, well, maybe not as much as, you know, the last few elections. I think the court will will be part of the conversation in the campaign.
Krys Boyd [00:35:00] I mean, this recent ruling that, you know, grants presidents broad immunity from criminal prosecution for anything they do in the context of their job as president has taken many people certainly by surprise. It’s kind of unprecedented in American history. I’m curious as to whether constitutional law and its history are taught to law students now, in the same way it always has been, which is to say, generally assuming that what the court says, contains great wisdom that needs to be sort of followed and carried into future generations.
Kevin J McMahon [00:35:40] Probably less so. I think it’s fair to say, I mean, the the fun thing about teaching, constitutional law class is obviously these are very smart individuals. They, they put a lot of effort into into their opinions. They have law clerks that they rely on. And the law clerks are, you know, recent graduates who are typically tops in their class. But what’s really fun about teaching a constitutional law class is that you can a student will come to an opinion and read the majority opinion, and no matter the case, and be convinced that that justice has the right answer. And then the student will read the dissent and and start to think, well, maybe this justice has the right answer, right? So so I think, well, as you’re suggesting, traditionally students learn that sort of the doctrine, right, meaning the majority, what the majority has said that this is the the law of the land. There’s always because of these dissents and also often the quality of the dissents, that there’s always been the question, this questioning of whether the majority really got it right. So I think that tradition continues today.
Krys Boyd [00:36:51] And you think that’s healthy for students to, you know, have a lot of questions as opposed to right answers as they’re studying constitutional law?
Kevin J McMahon [00:36:59] Oh, I think it’s I think it’s it’s fundamental because instead of just having, you know, the professor teach what the law is, right, that the students really wrestle, you know, in what I tell my students is that they should be can become constitutional interpreters in their own right. Right. They should come to those opinions and consider, you know, whether the majority get it right or the dissent. Or maybe there’s another way, right? Maybe maybe they both got it wrong and that, that there should have been a concurring opinion, that offered another solution. So it really it’s not just about learning what the court said. It’s really about struggling and challenging themselves to to understand what they think. The Constitution says what it how it should be interpret it and what is, you know, quote unquote, the best answer for a particular case.
Krys Boyd [00:37:50] You do propose in the books and potential remedies to this problem of a high court that lacks legitimacy with large percentages of Americans. How could we change the rules about how long any given justice might serve on the court?
Kevin J McMahon [00:38:04] Yeah. So there are various proposals about reform the court. You know, one of the the one that’s most controversial is packing the court, adding justices, we have we’ve had nine justices for many years, but we haven’t always had nine. We’ve had as many as ten justices. You know, to me that’s a problematic proposal because, my guess is you’d probably have one upmanship. You know, if the Democrats, two justices, once the Republicans get in power, they would add two more. But this idea of term limiting a justice, I think is very attractive. And the most attractive proposal that I’ve read is an 18 year term. The court stays at nine justices. Right. And that there is a routine. Now, this will take some time, right? But there’s a routine where every two years there would be a new vacancy. That’s why you get 18 year terms, right? So nine justices every every two years you have the vacancy. What this allows for is that when voters go to the polls, then they would know that if I vote for, you know, Kamala Harris or Donald Trump, I know that these two justices will be leaving the court in the next four years. And I know what what this candidate, what type of justice Donald Trump is going to appoint or what what, candidate Kamala Harris is going to appoint, assuming she becomes the nominee, right, that this would allow this, this gap that I talk about, this democracy gap to to lessen. Compare that to our recent experience, right where Ruth Bader Ginsburg decided to stay on the court. Right. She was clearly waiting for a Democratic president to get elected. She expected that to happen in 2016. It didn’t. And she was hoping she could live long enough that it would happen in 2020. She died just before. If she had lived for another four months. Right. She died in September of 2020. If she had lived until mid January of 2021, Roe versus Wade would still be the law of the land. Right? It would be. It would be reduced, but it would be it would be, it would still be in place. Now that’s that’s there’s sort of a strangeness about that where, you know, liberals wake up every day hoping an 87 year old two time cancer survivor is still alive, right? This doesn’t seem this. You know, one thing that Donald Trump had was luck in in appointing Supreme Court justices. That, to me, is problematic for our democracy and a system that seeks to rectify that is a very good one in my mind. And 18 years is also historically about the average term in which justices stand on the bench. That’s no longer the case. But for a long time, that was approximately, how long justices stayed on average.
Krys Boyd [00:41:11] So are these changes that you suggest these would all require constitutional amendments, or could anything be achieved through legislation?
Kevin J McMahon [00:41:21] So court packing, adding justices would be achieved could be achieved through legislation. Franklin Roosevelt tried that in 1937. He wanted to expand the court to 15. That was defeated in the Senate. And that’s why the court remains at nine. And that’s one of the reasons why, the court packing is more attractive is, is because it could be done legislatively and not through constitutional amendment. In terms of having a court of in which there’s a term limit of 18 years. It’s my understanding that, there is a legislative route to do this. So the justices would and apparently the Biden administration is working on this, and, Joe Biden, hinted, teased that he was going to release something obviously offensive, have, change, change there. So we’ll see if, Kamala Harris takes that up. But but, that basically you could the justices who were the current justices would still be justices, but rulings would be decided only by the. Oh, most the, the the nine most recent appointees. That’s that’s my understanding of how the legislation would work. So you wouldn’t be removing a justice, right. They would still be there, but they would only be there sort of as a like an alternate juror, for a comparison.
Krys Boyd [00:42:50] Just as an observer of the court and as an academic who has studied the court, do you think there’s a limit to the size at which a Supreme Court can function effectively, like is 15 to many, or maybe you could go up to 21, or maybe it’s best with seven. Do you have a sense of that?
Kevin J McMahon [00:43:07] Yeah. I mean, the court has been you know, the court is a very intimate institution, right? These individuals serve together for many years, currently nine when they are in their conference room, it is only the nine of them. There are no staff members. You know, Justice Kagan tells us she was for many years she was the the most recent appointee. And the job of the most recent appointee is if there’s a knock on the door in the conference room, it’s the job of that justice, the most recent appointee to go and open the door. Right. So that seems to me that it’s a court, that that size of nine is one that works well and that if you, you know, after Brown versus board, for example, you had proposals from, from Southerners who wanted to expand the court to 500. Right. And what the idea is obviously to to make a court that doesn’t work. Right. To, to delegitimize it in a different way. So maybe you could go to 15. You know, certainly the court has has had less than mine, as I said before. But but nine has had obviously nine number is vast given given that you have five, four decisions, it seems to me a number that has worked very effectively. So I don’t see no overwhelming reason to change it.
Krys Boyd [00:44:28] Kevin J McMahon is John R right? Mayer, professor of political science at Trinity College and author of A Supreme Court Unlike any Other The Deepening divide between the justices and the people. Kevin, thanks very much for the conversation.
Kevin J McMahon [00:44:42] Thank you. I really appreciate it.
Krys Boyd [00:44:44] Again, I’m Kris Boyd. Thanks for listening. Have a great day.
