Is There a Supreme Court Legitimacy Crisis?

In the aftermath of Justice Brett Kavanaugh’s confirmation, debates about the Supreme Court’s legitimacy remain in the public spotlight. Some believe that the Kavanaugh confirmation caused a legitimacy crisis that can only be solved by reform proposals such as court packing and term limits for justices, while others believe the Court has maintained its legitimacy and is still a neutral arbiter of the law. Is the Supreme Court really having a legitimacy crisis? Host Jeffrey Rosen discusses that question and the future of the Court with two constitutional scholars from opposing sides of the Kavanaugh debate – Professor Jennifer Mascott, who testified on Justice Kavanaugh’s behalf at his confirmation hearings, and Professor Melissa Murray, who testified against his nomination. 

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PARTICIPANTS

Jennifer Mascott is an assistant professor at George Mason’s Antonin Scalia Law School. Professor Mascott clerked for then-Judge Kavanaugh on the DC Circuit and testified on his behalf at his confirmation hearing. She teaches and writes in the areas of administrative and constitutional law, and previously clerked for Justice Clarence Thomas..

Melissa Murray is a professor at NYU Law who specializes in constitutional and family law and reproductive rights. She testified against Justice Kavanaugh at his confirmation hearings. She previously clerked for Justice Sonia Sotomayor, then of the Second Circuit and later taught and served as interim dean at UC Berkeley School of Law. 

​​​​​​Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” 

Additional Resources

• Senators Richard Blumenthal, Mazie Hirono, and Sheldon Whitehouse, “History Will Judge John Roberts if His Court’s Steady Stream of 5-4 Pro-GOP Decisions Continues,” Slate (2018).
• Testimony of Jennifer Mascott before the Senate Judiciary Committee Hearing on the Nomination of the Honorable Brett M. Kavanaugh to be an Associate Justice of the Supreme Court.
• Testimony of Melissa Murray before the Senate Judiciary Committee Hearing on the Nomination of the Honorable Brett M. Kavanaugh to be an Associate Justice of the Supreme Court.
• Judge Jeffrey S. Sutton’s Town Hall program at the National Constitution Center: Why State Constitutions Matter.

This episode was engineered by Dave Stotz and produced by Jackie McDermott and Scott Bomboy. Research was provided by Lana Ulrich and Jackie McDermott.

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TRANSCRIPT

This text may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:06] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. In the aftermath of the confirmation of Justice Brett Kavanaugh, voices on the right and the left are asking an important question, Is there a legitimacy crisis at the U.S. Supreme Court? And if so what can we do about it? Justices Kagan and Sotomayor recently talked about the importance of the Supreme Court maintaining its nonpartisan legitimacy and Chief Justice John Roberts added his voice to that important debate, emphasizing the crucial importance that Americans maintain their faith in the Court as an impartial arbiter of the rule of law. Joining us to discuss whether there is a legitimacy crisis; if so, what's causing it; if so, what can we do about it, are two of America's leading scholars of the Constitution and we're so honored to have Jenn Mascott is assistant professor at George Mason's Antonin Scalia Law School. Professor Mascott clerked for then Judge Kavanaugh on the D.C. Circuit and testified on his behalf. She is a frequent commentator on constitutional issues and previously clerked for Justice Clarence Thomas. Professor Mascott thank you so much for joining us. 

Jennifer Mascott: [00:01:31] Thank you for having me. 

Rosen: [00:01:32] Melissa Murray is professor at NYU Law School. She specializes in constitutional and family law and reproductive rights. She testified against Justice Kavanaugh at his confirmation hearings and previously clerked for Justice Sonia Sotomayor, then of the 2nd Circuit, and has served as interim dean at the University of California Berkeley School of Law. Melissa It was wonderful to see you in Berkeley last year and it is great to have you on the show. 

Melissa Murray: [00:01:58] Thanks so much for having me. 

Rosen: [00:02:00] OK. Let's jump right in with the central question. Is there a legitimacy crisis at the Supreme Court? in the 1980s majorities routinely reported they had a great deal or quite a lot of confidence in the Court. The latest Gallup polls from earlier this year found that only 37 percent had a great deal or a lot of confidence. Jenn is there a legitimacy crisis at the Supreme Court? 

Mascott: [00:02:27] I do not think there's a legitimacy crisis. No. I mean as you know the Supreme Court is not driven by poll numbers. It shouldn't be driven by poll numbers. It's a branch that's designed to be insulated to a degree from politics, from the political branches. And you know, the Supreme Court this term began business October 1st and Justice Kavanaugh was actually on the bench to be part of the cases heard the second week. And you know the Court- the Courtroom was was full. I was there one of the days during oral arguments when the litigants proceeded as normal. The justices all seemed to get along fine on the bench. I believe the day previously when Justice Kavanaugh sat for the first time the Chief Justice welcomed him on, Justice Kagan who sits next to him had some conversation with Justice Kavanaugh and he jumped right in asking questions of parties. And I think one of the things you know you look with the Supreme Court being insulated from politics is- is it an independent body? Is the federal judiciary deciding cases just according to the law rather than political preferences? All the members of the Court have expressed commitment to independence in the judiciary. Then Judge Kavanaugh expressed a lot of adherence and priority on that principle during his confirmation hearings and then over the course of his 12 years on the D.C. Circuit. And interestingly during the oral arguments that I happened to see on Wednesday of last week, the second week that the Court was in session, from questioning it appeared that in at least one of the cases Justice Gorsuch and Justice Kavanaugh from their questions may not necessarily already even be seeing that one particular case the same way. Both appointed by the same president but they're on the Court independently coming at cases perhaps from a different perspective even though they were appointed by you know the one in the same president. 

Rosen: [00:04:18] Thank you so much for that. Melissa you heard Jenn's introductory thoughts that there is not in fact a legitimacy crisis when it comes to the Court. Do you agree or not? 

Murray: [00:04:27] Well I don't think I would say in such unqualified terms that there is no legitimacy crisis. I agree that the Supreme Court at this moment is not necessarily an illegitimate institution. But I think the last month has certainly been a bruising one from the- for the Courts. And I think we'd be hard pressed to say that the Court hasn't been affected by what has happened during the confirmation process. As Professor Mascot says, the Court unlike the other branches is insulated from the political process. It's supposed to be a neutral arbiter of the law. And I think for the public at least that question is an open question now after what the public has seen in the course of the confirmation hearings. I mean the confirmation hearings are always somewhat partisan with a lot of political posturing from the senators but usually the nominee sort of stays the course, maintains a kind of neutral temperament and discusses his or her judicial record and we can make some prognostications about what they might do on the Court. But I don't think we've ever seen a situation where the nominee, now the Justice ever inveighed in such a partisan way about the confirmation process, about claims made against him and invoked a sort of left wing conspiracy against him, and I think those kinds of questions about whether or not this newest member of the Court has been infected by a kind of partisan politics will certainly raise questions for the American public about whether the Supreme Court continues to be a neutral body and again do I think this is a kind of legitimacy crisis like we've seen- like after 1954 when the Court got far ahead of some parts of the country on the question of integration and desegregation? Maybe not. But I think it's something that we will have to look at over time and I think it's something that the Chief Justice who is perhaps the most ardent steward of the Court's reputation and legitimacy will certainly be mindful of as they go forward and make decisions on some of the more controversial cases this term and in upcoming terms. 

Rosen: [00:06:33] Thank you so much. So Jenn, Melissa as you've heard suggested that Justice Kavanaugh's comments in his confirmation hearings might lead people to see the Court in partisan terms. I know you want to respond to that and then maybe say more broadly, has the increasing partisan tone of confirmation hearings culminating in Justice Kavanaugh possibly raised a legitimacy crisis at the Court and are things worse than they were more recently? 

Mascott: [00:07:05] So thank you for that question. As far as justice Kavanagh during his confirmation hearings, I mean during the during the bulk of the days of the hearings he was addressing you know legal principles and talking about his commitment to an independent judiciary. Professor Murray was referencing the final days of the hearing when Justice Kavanaugh was responding to personal allegations and I think I should first say, yes I think the best way to continue sustaining the Court's legitimacy and for the American people and the legal system to experience Justice Kavanagh's is of course to see the approach that he takes now that he is on the Supreme Court, and how is he going to be deciding cases, how is he going to be talking to litigants when they come into the Courtroom. We've already seen that in the first week of arguments in which he's participated. You know he struck a very similar style it seemed to me already in his first arguments that the Supreme Court as he had done at the D.C. Circuit - being very well prepared, having insightful questions, trying to throw challenging questions to both sides. About the final day of the hearing I mean I think one observation that a lot of folks have made is, that was a unique situation where in a sense it was almost as though then Judge Kavanaugh was not really any longer operating in a role as a judge. He was a person facing allegations that were that were put forward on a public stage. And so I don't think the way that one has to strongly respond to dispel allegations that one believes are false is necessarily indicative of how that individual approaches a legal role or how that person's going to be as a juris,t when they're having to speak to very challenging circumstances in a personal capacity. About the question about the Court in general and confirmation proceedings, I do agree that you know confirmation proceedings have been challenging. I mean you know they've always- they've been televised for quite some time this particular time you know there were a lot of protests, a lot of contentious things that happened and arose. And I think most people would agree that you know moving forward it would be great to have more of the focus of the confirmation hearings be on the role of the Court, the role of the legal system, the philosophy of the nominee sitting before the senators. And- but I don't think that the fact that there was a particular type of you know protest or controversies that arose this time necessarily needs to for all time undermine the public's view of the Court. I mean my sense is from how sometimes this has played out in the past and there have been contentious confirmation proceedings in the past is that you know the public is very- reacts very strongly at the time and gets very involved in the confirmation hearings and then the new justice sits on the Court and tries to independently and fairly apply the law and the country is able to move on and appreciate that individual's role in the Court and the Court's role as an institution and that the most important thing above all is that the Court as an institution continue to try to sit as an independent body and apply the law in the way that they believe is right. 

Rosen: [00:10:11] Thank you very much for that. Melissa, Jenn gives us an optimistic scenario that Justice Kavanaugh was facing unique circumstances, that he will operate as a justice for all the people as he said in his swearing in ceremony, and that the public eventually will come to accept the Court's rulings as non-partisan as in the past. Do you agree that if Justice Kavanaugh behaves that way that people may change their views or do you think something structurally is changed? And would that be just the confirmation hearings or the possibility of lots of 5 to 4 decisions on the Court that might change the way it's perceived in the public eye? 

Murray: [00:10:48] So again I don't want to say that this is an unqualified legitimacy crisis but I don't think I'm as optimistic as Professor Mascott, so you know perhaps I am the fly in the punchbowl at this party. 

Rosen: [00:11:01] And what a punch bowl it is. 

Murray: [00:11:03] Well again I think it's true thathe Courtrt has seen many bruising confirmation battles and you know public perception othe Courtrt dips and rises, it waxes and wanes, and that's pretty standard. But I think we haven't really reckoned with how unprecedented this particular confirmation battle was and I don't think I've seen in my lifetime a Supreme Court nominee writing an op ed that appeared in The Wall Street Journal defending his performance before the Senate Judiciary Committee. I don't think I've ever seen a nominee inveigh about um the Clintons and sort of speak to a broad conspiracy against them and I recognize that the circumstances were incredibly challenging. You know I can't imagine what it would be like to face those kinds of allegations and then have to answer for them in a public forum. But the fact remains it was a job interview where one of the questions was whether or not you have the temperament to be on the nation's highest court and to receive a kind of public trust- to be vested with that public trust. And I just think that Justice Kavanaugh's performance would certainly leave some people, future litigants with some questions about whether or not he could be neutral as to their specific concerns. Imagine being a woman bringing a claim that had something to do with sexual harassment or sexual misconduct. Would you believe that given that particular performance at the last part of the hearings that you would get a fair shake from Justice Kavanaugh? Maybe you would. Maybe his record as a jurist othe Courtrt would alleviate your concerns. But I think for many you'd probably wonder. What if we had a decision like Bush v. Gore that again came beforthe Courtrt and the Court was in a position to essentially decide the course of an election. Would we feel comforted in knowing that this was a decision made neutrally or would we think, given what we have seen over the last month, that this was instead a very partisan decision? Will the impact of future 5-4 decisions and I think there will be a lot of 5-4 decision going forward, will we feel that these reflect studied and considered review of Supreme Court text or Constitutional text or will we just think that the Court is simply divided along predictable party lines? I think those are the questions going forward because in fact this is something we have never seen before. 

[00:13:38] Thank you so much for that. Jenn, two questions I guess: the first, knowing Justice Kavanaugh as you do, do you believe he would be embittered by the confirmation hearings, or do you think he will act as he said in his swearing in ceremony as a justice for all the people who will put all the controversy behind him and really strive to judge neutrally and you know and- of course we're all eager for your thoughts because you do know him well. And then the second question is Chief Justice Roberts is concerned about 5 to 4 decisions along partisan lines. He's said so ever since he was confirmed and he's signaled that recently. Will Justice Kavanaugh also be concerned about that appearance and reality and will concerns about the Court's legitimacy inform his votes on the Court? 

Mascott: [00:14:25] So those are great questions and thank you. So, knowing Justice Kavanaugh I mean my sense- and you mentioned I clerked for him. I clerked for him 12 years ago during his first year on that on the D.C. Circuit and my sense from that year and then continuing to have him as a mentor since then is that he will really strive to move past the confirmation hearings. I do not think of him as a person who would be embittered. He's talked publicly a lot about trying to bring a sense of optimism and does have a long history in Washington whether it be you know in the White House before his time on the Court or during other situations in the past that maybe some would've thought of as more politically charged and I think was able still to emerge from those and be an impartial jurist on the on the D.C. Circuit. And so if I if I had to guess actually I would say if anything he might be overly attentive or particularly attentive to trying to dispel any notions that he's going to be a partisan on the Court, particularly during the first couple years. I mean I think in an ideal situation you would want to have you know justices, regardless of what experience they've had prior to coming to the Court, in every case be doing what they believe to be right according to the law. And I do think Justice Kavanaugh will do that. But my sense is from him because I think he does actually share the Chief Justice's concern that the Court not be seen as a political institution that he will be try to be particularly attentive to that. I don't know how that will play itself out whether that- I would think or hope that wouldn't necessarily impact a voting decision but perhaps justices that are trying to keep in mind views of the Court's legitimacy perhaps may do certain things in terms of explaining the basis on which the Court is ruling or trying to reach across the ideological spectrum and come up with commonalities in an approach to a case. Perhaps those will be strategies that different justices will use. About the 5 to 4 decisions: I also wanted to quickly mention that Post article, I believe, that came out this past summer you know suggested that while the 5 to 4 decisions often get the most play that, since 2000 I think, the statistic that I read is that actually only 19 percent of the decisions have been 5-4 and that more than half of the decisions were decided by a majority of seven or more justices. And so I do think that the Court has a strong history of having a lot of unanimous decisions and decisions that have more lopsided majorities and that we can expect to continue to see that over the years. And then there was also a recent opinion piece by Senator Whitehouse and Senator Hirono and one additional senator maybe just yesterday or online just yesterday talking about five to four decisions and mentioned that I think seventy nine of them had been by what they said was a was a 5 to 4 majority aligned by political party but because over the course of time they were examining there were more than 200 five to four decisions, there were quite a few, well more than half of those decisions therefore that must have been decided by a 5 to 4 majority that actually did not line up based on which political party appointed the justices, so sometimes even in those 5-4 decisions it's not the ominous all Republican or all Democrat appointed justices lining up. Sometimes even in those you don't have a straight party split. And I think we can expect to see the Court moving forward trying to reach decisions according to the law and then that means a lot and vast majority of cases that are not necessarily dealing with politically charged issues, there's going to be a bipartisan majority reaching decisions. 

Rosen: [00:18:07] Thank you very much for that. Thanks also for calling out this really interesting piece which I just googled by, as you say, Senators Hirono, Whitehouse and also Richard Blumenthal. And it was in Slate. It's: History Will Judge John Roberts if his Court's Steady Stream of 5 to 4 pro-GOP Decisions Continues and the three senators make the argument, you can imagine from the headlines, although as you note, the 5 to 4 story is more complicated. So Melissa, Democrats are obviously concerned, as these three senators express, about the idea that important decisions would be decided by these 5 to 4 votes. Chief Justice Roberts is as well. I have this amazing interview with him right when he was confirmed where he said that he thought it was bad for the Court and bad for the country to issue decisions that appeared to be 5 to 4 on partisan lines and more recently he's reaffirmed his determination to try to avoid that. What is John Roberts' power to avoid that? Melissa, do you think that he can obviate this fear among Democrats that the Court is a partisan institution and are you optimistic that he'll succeed? 

Murray: [00:19:15] Well so many have said that Justice Chief Justice Roberts will sort of take on Justice Kennedy's role as the swing justice and sort of moderate the Court's lurch to the right or shifts in its jurisprudence, and I think that Chief Justice Roberts will certainly be the member of the Court who I think is most attentive to the question of the Court's legitimacy and who has been most attentive to it. But Chief Justice Roberts is very clear where his sort of ideological jurisprudential leanings are and he isn't a swing justice in the mold of Justice Kennedy, who was you know less predictable in his thinking and the way he might come out on particular cases. He's more to the right. So that means the center of the Court is going to be more to the right. Will he exercise some of his own discretion as Chief Justice when there are these sort of 5-4 splits on cases that are really blockbuster cases? I mean as for Professor Mascott said, a lot of cases are not 5-4 along predictable party lines but the blockbuster cases typically are and those are the ones that stay in the public's mind and perhaps are most emblematic of the Court's work for the lay person, and I think in those kinds of cases the kind of thing that someone like Chief Justice Roberts might be able to do to sort of moderate and sort of maintain the public perception of the Court as a neutral body is maybe to decide some of these cases more narrowly, more incremental shifts as opposed to lurches to the right. And you know this is something that I think is in his power to do just because he can determine who he assigns decisions to, whether he is the person in the majority who writes the decision as he often may be. Those are things I think are within his control. But the fact that he is the center of the Court now, the swing justice, I think has a lot of implications for just how general practice at the Court is going to be. You know with Justice Kennedy as that swing justice for so long, you really had litigants moderating their own positions in order to capture Justice Kennedy in that crucial fifth vote. I think now that the center of the Court is more to the right we may see less of that moderating impulse at the litigation stages, in the arguments that they make at the lower courts, and I think we'll see different kinds of arguments being made at the Court itself. There won't necessarily be this impulse to be more temperate, more restrained in the kinds of arguments that are being made. 

Rosen: [00:21:47] Thank you very much for that. Jenn, as Melissa suggests, one thing that Chief Justice Roberts can try to do is persuade his colleagues to decide cases on narrower rather than broader grounds to avoid these 5-4 splits. Justice Kennedy notably was resistant to that. He preferred sweeping rulings. Do you believe that justice Komanoff might be more sympathetic to Chief Justice Roberts efforts to decide cases narrowly. Or would he be more like Justice Kennedy or perhaps like Justice Thomas more determined to just get the right answer even if that involves a sweeping ruling and a 5 to 4 split. 

[00:22:27] Well I think it's a great question. I mean I think one thing actually that could also impact the types of cases that the Court decides of course is how the Court votes in terms of which cases it decides to grant cert review in and so who knows how- you know justice Kavanaugh may see a different set of cases as cert worthy than Justice Kennedy or perhaps the justices will actually keep in mind concerns about public view of the Court based on what cases they decide to hear when or how much percolation they require of the lower courts before the Court takes up big questions. So there might be some of this that shaped a little bit behind the scenes just in terms of the types of questions that the Court will consider answering. I would expect justice Kavanaugh to be driven like a lot of the justices I presume are in part based on how the question is presented by the litigants and so I think the justices are more likely obviously to reach narrower rulings when the question before the Court is phrased in a way that is narrower. One thing that may mean that he will not write as many opinions that are quite as sweeping as some of the ones that we've seen from Justice Thomas over the years is Justice Kavanaugh in his confirmation hearings talked a lot more about stari decisis than I believe Justice Thomas did in his hearings and so Justice Kavanaugh we know he hasn't given us exactly the precise factors in how he weighs them but he has talked about the idea that stare decisis is baked into the Article III judicial role in the constitution. So even at times when litigants raise broad questions whether it's asking directly for something to be overruled or asking a broad constitutional question I do think at least to some degree he will have in mind what has the Court's doctrine been on this case up to this point and be thoughtful about that in terms of how he works to draft an opinion if that role is assigned to him. And so I- so I do think that that approach to judging will will temper a little bit in the way in which he chooses to rule in cases. 

Rosen: [00:24:33] Very interesting. Melissa, if Justice Kavanaugh behaves as Jenn suggests and is- both works with Chief Justice Roberts in having the Court refuse to hear controversial cases to begin with and also perhaps is amenable to deciding them more narrowly, might that help restore the Court's legitimacy in the eyes of skeptics? 

Murray: [00:24:55] I think it will certainly do a great deal to ensure that the Court is not too far out in front of the public on these crucial issues. I mean again the Court is sort of an unusual organ in our constitutional structure. Unlike Congress it lacks the power of the purse, unlike the executive but lacks the power of the sword. It really depends on the public believing in its legitimacy, believing in the work that it does, even when the public may not necessarily agree with what the Court decides in order to be a legitimate and functioning part of a constitutional democracy. So again I think more incremental shifts are important in these circumstances. I think if we had a true broad lurch to the right in some of these cases I think people would again begin to continue to question whether the Courts sort have been overtaken by partisan politics. What we're seeing is just a predictable split along party lines in an effort to move the Court in a clearly rightward direction. More incremental, more modest decisions I think will do a lot to alleviate fears that the Court has been captured by politics. 

Rosen: [00:26:09] One last beat on the, is there a problem? question: Jenn you know there's of course as we all know a long debate about what judicial activism is over the course of the 20th and early 21st century and both sides have accused the other of engaging in it, in particular of using broad rulings to strike down laws that they don't like. And do you have a sense that the current debate might create more support for incrementalism on the left and the right? And whether we call it activism or not, basically for narrower decisions rather than broader ones and that these concerns about legitimacy might factor into judicial decisions more broadly? 

Mascott: [00:26:46] Well I'm not necessarily one who sees the idea of- the question of judicial activism as as necessarily narrow versus broad rulings. I mean I think going back to the question of how broadly the Court rules in a given case, we certainly have a number of examples recently where the Court has issued narrower rulings sometimes when constitutional questions are raised but at the end of the day the Court does have to I think honestly and fairly answer the question that's that's presented to it. You know Justice Kavanagh in at least one speech that he had delivered in his role as a judge talked a little bit about this idea of judicial or constitutional restraint. And he also suggested that he sees it more in terms of not necessarily narrow versus broad rulings just to- for the sake of being narrow but being more guided by the law that if it's something where the text of the Constitution or statute suggest one particular answer that the political branches have not been adhering to then at that point the Court needs to apply the law perhaps by finding action taken by the executive or the legislature to be unlawful. In an area where there's no law on point then it would be a problem and a violation of judicial restraint for the Court to step in and say there's- there's a violation you know just because it violates some norm or preference of the justices themselves. So I think you know him at least suggesting that it's important to be driven by you know by the text of the law when deciding whether to strike down or find unlawful something that a coequal branch is doing. The one other point about judicial restraint is you know obviously we want the Court to play a role in terms of making sure that it's reaching legitimate decisions, being fair minded and not trying to go toward one party or the other in how it reaches decisions. But I also think you know there can be responsibility taken by some of the other branches of government as well. So I mean I think one thing in general that would alleviate a lot of the pressure put on Supreme Court confirmation hearings or how much controversy or strong feelings there are when a particular justice is appointed or not would be if the Court just was seen by the whole legal system less frequently as the final absolute arbiter of every important issue. So one thing would be respecting the role of states in the constitutional system sometimes to be able to have the final word on decisions and the federal government not necessarily stepping in. Sometimes that might be Congress playing more of a role to reach solutions. So one particular example that comes to mind now is the issue of national injunctions that sometimes you know one federal district judge on both sides of the aisle has been issuing an injunction that might be striking down you know something by a president nationwide of both political parties and is that really the role that we want the federal court to play? And you know perhaps the Supreme Court will one day be called to weigh in on the propriety of national injunctions. But there's also legislation in Congress so maybe this is an area where instead of the Supreme Court actually itself having the final word on what its lower court should be doing with national injunctions maybe Congress sometimes can step in and answer some of these questions by being clear in the procedural guidance that it gives to the Courts. Perhaps you know in some areas maybe not every single area needs to be always addressed by you know the Court system. So I think that you know if other branches and levels of government can play a role as well and bring you back some balance the separation of powers that may also help over the years. 

Rosen: [00:30:17] Very interesting. Melissa what do you make of the suggestion that one way to reduce the perception of partisanship would be for other branches and institutions to play roles? There is a new interest in federalism among liberals and conservatives. Jeff Sutton has just written a great book, 50 constitutions, about the importance of turning to state constitutions. And Jenn has also talked about Congress doing its oversight role as well as thinking about national injunctions, so do you agree, and from a progressive perspective what could the other branches do to reduce the centrality of the Supreme Court? 

Murray: [00:30:55] You beat me to it Jeff. I was going to mention the left's newfound affection for federalism which they now call federalism and they don't call states rights pointedly. But I've seen a lot of this in California where I lived for a very long time. But you know one of the responses to the Trump administration was California taking on a more potent role in articulating policy at the state level in areas like environmental law and reproductive rights where it thought the federal government was moving in a different direction from what the California populace would have wanted. So I think that's going to be an area where you see lots of progressive states getting involved. I do think the sort of shift to embracing some of these areas that I think for a long time have been viewed as sort of captured by the right means that what we really do need is sort of a set of first principles that are not ideological but rather sort of neutral principles about the role of states and when states intervene. And we haven't really had them. I don't think we have them now even as progressive leaders have grappled with the question of federalism and have advanced questions of federalism. In so far as the other branches taking on a more robust role so that the Court is no longer quite so weighty in these particular controversial issues, I think that's a terrific aspiration but you know right now I think political- the political legitimacy of both the federal branches, the political branches of the federal government are at all time lows. Like many people don't trust either Congress or the executive. So the idea that somehow the decisions made in both of those branches will be viewed as more legitimate than what could be done at the Supreme Court or somehow beyond the political process I think is unlikely. And then I think that leaves us with state governments. I think we've seen a lot of really interesting activism at the state level in both the progressive and the conservative groups to deal with state legislatures and to advance interests across state executives and agencies. And to me it seems like that's an area that can be incredibly generative over the next few years. I think I'm a little disenchanted and disillusioned with the prospect of a lot of this coming from the federal branches. 

Rosen: [00:33:14] Thank you for that. Jenn, we're hearing this renewed interest from both liberals and conservatives about federalism in the states. I misstated the name of Jeff Sutton's superb book. It's 51 imperfect solutions, and I recommended to all the We the People listeners. But Jenn I want to ask you more broadly about the theory called departmentalism. Some on the left and the right are arguing for a return to the theory that Professor Keith Whittington defines as the notion that each branch or department of the government has an equal and independent authority to interpret the Constitution, and Whittington notes that this has been embraced by presidents from Jefferson to Jackson to Lincoln to Roosevelt to Reagan, all insisting on the idea that the Supreme Court is not the sole interpreter of the Constitution and rejecting the idea of judicial supremacy. Can you describe departmentalism, what its consequences would be and whether you find it in any way appealing. 

Mascott: [00:34:14] I think you know that there could be perhaps a narrow view of departmentalism as well as broader views of departmentalism. I mean I think if it's viewed just in its most simplest form as you know the idea that all actors in every branch of the government take an oath to the constitution and have to abide by it, that of course would be a principle that would be you know very good and you know we want to assume that Congress when it's legislating is putting its own mind to work to try to figure out if what it's doing is constitutional, the president as well. And so that's certainly- I think there needs to be a little bit more of a mindset or understanding at every level of government and in every branch that each branch needs to take responsibility, interpret the Constitution for itself and not just wait and see what the Court is going to do. At the same time I mean I think stronger versions of the departmentalist view would be to say well you know the Supreme Court's decisions should only have so much reach and they don't necessarily if- a holding in one case doesn't necessarily need to bind you know the complete range of activity in that area and every other branch. I cannot honestly say that I have worked out completely my view of exactly to what extent departmentalism should be imposed in that particular way other than as I say to suggest that I do think each branch - president, members of Congress need to be mindful of the role that they play within the constitutional system and not just wait until the Court weighs in. At the same time I mean you know we have a system right now where the Court's reaching decisions and we have a practice of those decisions being implemented within the other branches in a particular way. And I certainly don't think that we want a situation like we have now where you know certain folks are saying maybe the Court is not legitimate or maybe we need to make a change because people feel as though there's been some political turmoil. I think that would be the worst time to try to revisit something like departmentalism and to the extent that we want to take a closer look at the extent and the weight that each Supreme Court decision is going to have, that we would want to wait until we were perhaps at a period, if there is to be one in the future, that seems less politically contentious, has had less dramatic recent change in the Supreme Court, and where we can be a little bit more assured that we're going to actually be looking at solutions like departmentalism or whatever it would be, increasing the number of justices, term limits, any proposal that somebody might mention and make sure that we're looking at it from more of a cool temperament and letting the entire system of government think through whether changing the balance at all in the power between the branches is a wise move and what the implications of that would be. 

Rosen: [00:37:04] Thank you for that. Melissa, as Jen suggests, there are strong and weak versions of departmentalism. Matthew Frank, writing from the right on the National Review says that under departmentalism even if a president might reject the Supreme Court's conclusion about the scope of presidential executive powers it wouldn't give him the power to ignore a court decision interpreting the scope of legislative powers. And then on the left you have some very dramatic suggestions ranging from Mike Sachs who said if a conservative Court strikes down affirmative action I can see the feds refusing to enforce SCOTUS decrees. To Ian Samuels on a recent First Mondays episode saying if the Supreme Court is perceived as illegitimate in the wake of justice Kavanaugh's confirmation government officials might defy the judgments of the Court in cases where Kavanaugh is in the majority. That would be an extreme position indeed. What is your sense about the range of positions on departmentalism and do you find any of them appealing? 

Murray: [00:38:02] So again I think everything is on the table in this moment. I think it's an unusual political moment where there is a lot of anxiety about what is coming out of Washington and both the political branches and we've had this incredibly bruising confirmation battle that I think has left many people with doubts about the Court, maybe not a sense that the Court is completely illegitimate but certainly doubts about the Court's continued legitimacy. Departmentalism - what it has going for its favor is that there is a kind of restraint to it right? These other actors, all of them with a particular charge to interpret the Constitution in a particular way and to act in accordance with the Constitution may have a limiting effect on the other branches' work. And again it sort of checks and balances in this kind of macro system. I can understand the appeal of it. The one thing we haven't talked about at all here though is even as we've talked about structure and how to limit the work of particular branches if they're deemed to be over encroaching, we haven't talked about the question of minority rights and that historically has been something that individuals have looked to the Court to do and at a time where so many people feel that they are part of a majority whose views are being supplanted to a minority that actually is probably numerically closer to being a majority than a majority; we're more evenly divided than we have been before; the question of who's going to protect the interests of minorities whether it's racial and ethnic minorities or religious minorities or women, those questions still come to the fore and the Court at least in our generation has been the body that has been most forceful in articulating protections against majority will for those vulnerable groups. And I think one of the questions that departmentalism can't really answer is who's going to play that role? Will it be one of these other branches, will it be these individual members of Congress? The Court has been the role- the group in our lifetime that has taken on that role and if the Court is illegitimate, any protections in favor of these rights will also be viewed as illegitimate and any effort to not protect those rights will also be viewed as legitimate and again compound what I think is a looming crisis. 

Rosen: [00:40:24] Thank you for that. Jenn, we've talked about more incremental or narrow decisions; we've talked about departmentalism. Let's talk about three final possible responses to a perceived crisis of legitimacy, whether fair or not. Democrats are talking about judicial impeachment and court packing and it's not inconceivable, if the Democrats take the House, that we might see at least rumblings toward a judicial impeachment and then if the Democrats take all three branches at some point in the future, some are calling for court packing, for increasing the size of the Court to 13 justices or some such. What would the consequences of these actions be and why do you think they're a bad idea? 

Mascott: [00:41:10] Well I'll take judicial impeachment first and I believe actually I was listening to perhaps a recent podcast that you actually had participated in where you had talked about the rarity of the judicial impeachment solution and I think you had talked about attempts perhaps to impeach Justice Chase if I remember correctly and you had mentioned that the conclusion had been really that impeachment was going to be- should be reserved for problematic actions taken in- really on the bench in an official way, bad bad conduct in the role of a judge. And so I don't think you know right now we don't you know we don't have that here. Justice Kavanaugh's just sat on the Court so I don't think that is is the first place that we want to go to use that as kind of a political tool to uproot a result that you know we may not be happy with. So there should be a sort of a limited, very limited rare approach. About court packing you know I think- one thing to point out as well I believe the statistic- or maybe it's not a statistic but the history that I've read suggests that, I think it was 1869 or 1879 when we moved to nine justices and we haven't changed the number since then. So it's a very longstanding tradition that we have right now, having nine justices. It doesn't necessarily mean that that number should not ever change but it does suggest that we don't move too quickly towards court packing or adding justices. So I think that we should again with that solution like with everything be be calm and careful with that and perhaps take some time till we move away from the moment that has caused us to want to think about it and really consider whether that is is the proper solution. And I would point out, as, you know, court packing is something that both sides if they- if they have a strong view, may be an approach people want to move to. And so if one side moves to it now you know the other side may add to it and continue you know amping up the numbers or using court packing as a tool or a strategy. And we want to think through whether we think that's viable in fact, I was on a panel discussion just about a year ago at a Federalist Society event where there was an individual who suggested adding a lot of members to the federal judiciary at lower levels perhaps to make it easier to have administrative adjudication cases not be heard within administrative agencies but be heard within Article III courts. And there was quite a strong reaction against court packing at that time and that proposal saying maybe it was going to be perceived as too political. In fact people even within the same ideology or conservative constitutional background as the person making the suggestion were saying they didn't think it was a good idea. And so I don't think now- you know now it's a few months later and the idea's coming from perhaps the other side of the constitutional divide. And you know I think it makes sense to think through why it was a bad idea perhaps a few months ago, why it might still be a bad idea now. And you know perhaps if we ever decided we needed to move to a different number of justices one way to test whether we in fact thought it was a good idea would be to put it on some kind of a delay where the Congress passing the legislation providing for the new positions would make it so that those positions could not be filled by the current president in office but by a president 10 years down the line or something like that so we wouldn't necessarily know what political party was going to be filling the seats and let that be our test as to whether we just intrinsically think it's a good idea or whether we're turning to it just as a political solution. 

Rosen: [00:44:53] Very interesting. Melissa so Jenn has argued against both court packing and impeachment. On court packing, she notes that the number has been fixed at 9 since 1869. You're absolutely right. A quick Google has confirmed that, as well as confirming that before that, the size of the Court was intensely political, with the number going up and down with the judiciary acts of 1801 and 1802 and then it was fixed at 7 in 1866. And finally at 9 under the Grant presidency in '69. So you argue that it would be wrong to allow Congress to change the size of the Court for political reasons. And then on impeachment you notes, and thanks for listening to that podcast, that the president has suggested that justices should only be impeached for serious crimes and not for disagreement with their judicial decisions. So Melissa what are your thoughts on court packing and judicial impeachment? 

Murray: [00:45:55] Well if you thought I would weigh in in favor of it that you may be sadly disappointed. 

Rosen: [00:46:01] I'm crushed. Absolutely. 

Murray: [00:46:01] Sorry. 

Rosen: [00:46:01] No trouble. 

Murray: [00:46:05] I agree with Professor Mascot that this warrants really careful consideration. You know we've seen these things escalate. I mean we might think about the filibuster debates of the last 10 years- like the constant question over whether or not judges would be confirmed to the bench or whether we would have to remove the filibuster in order- because the partisanship in the Senate had gotten so bad. And eventually the filibuster was removed for lower federal court judges and then eventually for Neil Gorsuch's appointment it was removed for Supreme Court justices and I think that has only increased the level of partisanship that we've seen and I think the debacle that was the most recent confirmation hearings reflects the partisanship that was stoked by that fight over the filibuster. So I'm in no hurry to continue stoking those flames but I will say that the fact that these proposals are even being floated because these are truly nuclear options I think, suggests how broad the concern and anxiety about the Court's legitimacy is. The idea that the Court does not reflect a kind of moderate position in American politics but rather is deeply deeply partisan as an institution. I think this has been exacerbated by the conflagration over Merrick Garland's stolen seat. I mean we haven't talked about that but that is certainly part of the backdrop against which this confirmation hearings took place and certainly part of what is stoking the interest in the what I think are quite extreme views in terms of packing the Court or otherwise impeaching sitting justices. 

Rosen: [00:47:45] Many thanks for that. We have one final potential solution and we'll see whether we are going to end on a bipartisan note or not. It is term limits. On our wonderful We the People podcast last week Adam Liptak and the great Richard Epstein agreed that term limits might make sense at least in theory even if they might be hard to implement in practice. And they talked about various ways of implementing them. 18 year terms, giving each president the chance to appoint two justices and so forth. We'll begin with you Jenn, what do you think about the idea of term limits for justices? 

Mascott: [00:48:23] Well I think term limits is something that I personally would want to give a little bit more thought to before weighing in as a personal policy preference one way or the other. I mean certainly I think that's again another solution where we would want to take the time to to consider it as a- as you know system wide and determine if that's really what we think is best because we do have the 200 plus history of lifetime tenure for the federal judiciary and that- I've been doing a lot of research for a project, I'm working on looking back at the ratification debates, and you know life tenure and the independence of the judiciary were seen as going hand in hand and that's a really important value. So before we give that up even though there might be some really good reasons for it, we want to think it through carefully. I mean the one thing that I find a little bit better about that idea than the Court packing one is just that to make that change, I think you'd need to have a constitutional amendment. And so at least going that route, that would require a national debate at many different levels which I think would be much more likely to lead to a really well thought out solution about the way in which we'd implement it. That may not happen from a change that we can just get through federal legislation. 

Rosen: [00:49:35] Thank you for that. Melissa we're all breathless to see whether were going to end on a bipartisan note or not. Do you as a policy and constitutional matter, do you think term limits for justices are a good idea or not? 

Murray: [00:49:47] I'm going to again be the fly in the punchbowl. I don't think they're a good idea. I think they would certainly lower the heat in the confirmation process. I mean the stakes wouldn't seem quite so astronomical if each justice were term limited. But I think as a practical matter for judging they would create their own problems. You know Justices views as Andrew Martin and Kevin Quin and Lee Epstein have shown in their work, don't remain fixed. They evolve over the course of their careers and that's not surprising you know it may take time to develop a particular judicial philosophy or an interpretive approach and that might take longer than the 18 years that has typically been proposed as the ideal frame for term limits. More importantly I think if you are a term limited justice you might recognize that your own time on the Court is limited and that your time with a particular group of justices is limited. And that might shape decision making in ways that we might find problematic or alarming. So a justice who is eager to initiate a particular shift whether to the left or the right or to reverse a particular precedent might worry about the changing composition of a term limited court and might be inclined to make the kind of lurching shift from left to right and back again within a relatively short period of time and that kind of volatility I think is the absolute antithesis of the Anglo American legal tradition which is sort of staked on this idea of slow and incremental change. 

Rosen: [00:51:15] Thank you so much for that. And you were not a fly because in fact I detected some skepticism by both of you about this which was a helpful and illuminating on which to end. But our final end is our closing statements and this is the chance to tell our listeners as intensely and succinctly as possible what your answer to the questions we've been discussing are. So Jenn the first closing statement is to you, is there a legitimacy crisis on the Supreme Court? And what if anything should the Court Congress and citizens do about it? 

Mascott: [00:51:49] And I'll just reiterate what I said at the beginning. I don't think there's a legitimacy problem. I hear some of the statistics about poll numbers being lower and you know as was also mentioned in this podcast the poll numbers for Congress are low as well. And you know Congress is making decisions it's legislating it's appropriating we're abiding by those decisions and so I don't think negative poll numbers or public concern needs to have any kind of definitive statement on the legitimacy of the Supreme Court. I think that the legitimacy of the Supreme Court hinges in large part on the justices continuing as they have for hundreds of years and for decades to continue to try to uphold their oath to the Constitution, their oath to apply the law fairly, for liberty, for all citizens at every level and that each individual justice and then the justices together as a court should continue to try to do that to the best of their ability. I mean there's also many many lower level federal judges who are involved day in and day out in preserving rights for individual citizens and in helping to ensure that the law's administrated fairly and as those judges continue to follow their Constitutional oath that will also bring protections to individual citizens and strength to the democracy. And then I do think that Congress and the president and people who work within the legislative and the executive branches also should be you know routinely as all of us should as citizens aware of our you know what the Constitution says, aware of their constitutional duties, and the role that they can play as well in making sure that there is fairness and equity for all and that jobs are really being administered for the best of the public interest and citizens' interest and not just for one's own individual particular preferences. And then also as Professor Murray mentioned as well I also agree that there is room to think about more of a role for states and I like Professor Murray's suggestion about trying to think through ideologically neutral ways to encourage federalism and states having a role within the policy areas that they are designed within the constitutional system to play. And I thank the listeners very much for participating and listening in this- in this conversation and for the National Constitution Center for hosting it. 

Rosen: [00:54:14] Thank you for those generous words. Melissa last word to you. Is there a legitimacy crisis at the Court? And what if anything should Congress the Court and citizens do about it? 

Murray: [00:54:27] Well first let me say thank you as well for having me. This has been terrific and it's been great to speak with your audience. I don't think that there is the kind of crisis that we imagine. I don't think individuals think that the Court is illegitimate. But I do think that public faith in the idea of the Court as a neutral nonpartisan body has been deeply deeply hobbled after this last round of confirmation battles and I think a lot of work will have to be done to restore public faith in the idea of the Supreme Court as a neutral body. And in the meantime I think for citizens. I've said this for years. But I think we need to think beyond the Court when we're thinking about what it means to live in a constitutional democracy and we've so come to rely on the Court for so many things, for making all of these changes when I think there are lots of other venues in which we can direct, in a very direct way, our own attention. So you know if you're concerned about the state of reproductive rights you should be concerned about what's going on in state legislatures. Those cases don't get to the Supreme Court if those laws aren't passed and if they aren't signed into law by governors at the state level so there is a very concrete place where people who are interested in these issues can actually direct their attention and should direct their attention. And I'm always reminded of the great Learned Hand quote “Liberty lies in the hearts of men and women and when it dies there no constitution no law no court can save it. No constitution no law no court can even do much to help it. We will save ourselves.” 

Rosen: [00:56:00] Thank you so much to professors Melissa Murray and Jenn Mascott for an illuminating, thoughtful and deeply civil discussion about this divisive and important topic. We the People listeners it's so important in these polarized times to convene these civil discussions among people who agree and disagree respectfully and with so much intelligence and depth and civility. So thank you to professors Murray and Mascott for spreading constitutional light and hope to have you both on again soon. Melissa, Jenn thank you so much for joining. 

Mascott: [00:56:35] Thank you. 

Murray: [00:56:36] Thanks for having me. 

[00:56:43] Today's show was engineered by David Stotz and produced by Jackie McDermott and Scott Bomboy. Research was provided by Lana Ulrich and Jackie McDermott. Please recommend We the People to your friends and colleagues so they too can spread constitutional light and educate themselves about the Constitution and remember to rate review and subscribe to we the people on Apple podcasts Google or wherever you listen. Remember dear We the People listeners despite our congressional charter the National Constitution Center is a private non-profit. We must engage citizens across the country to support our work so that it can continue and we can continue to spread constitutional light and can convene more important civil constitutional dialogues. There's few places in America for these discussions to happen and the Constitution Center is so honored to fulfill its mission in this way. So please support us. Go to the website ConstitutionCenter.org and become a member. On behalf of the National Constitution Center, I'm Jeffrey Rosen. 

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