Can the Supreme Court Be Fixed?

Zuade Kaufman: I’m Zuade Kaufman, publisher of Truthdig. Today we’re focusing on the Supreme Court in examining the question, “Can the Court’s hard turn to the extreme right be reversed or fixed?” Today’s panel discussion will be moderated by Bill Blum, the curator of our Dig titled “The Supreme Court’s War on the Future.” Bill is a longtime contributor to Truthdig and has had a rich and multifaceted career as a judge, lawyer, novelist, public speaker, college lecturer and legal journalist. He specializes in covering the important and complex relationship between the law and politics. We are also pleased to welcome our panel of experts. Jeanne Hruska is senior advisor for communications and strategy with the American Constitution Society. She’s co-host of their Broken Law podcast. She worked in the U.S. State Department and on multiple electoral campaigns. She also helped launch Legit Action, an online organization committed to protecting and strengthening voter rights. And we’re proud to welcome Chelsea Davidson, who is the policy counsel for the Take Back the Court Action Fund. She was the former senior research director of the Stanford-MIT Healthy Elections Project. She’s a progressive advocate with significant experience in election protection and environmental advocacy. And to our Truthdig audience, please feel free to submit your questions and comments during the event. Also, there will be a Q&A following the panel discussion. Thank you for being a part of this Truthdig event. I’ll turn it over to you, Bill.

Bill Blum: Thanks so much, Zuade. And thank you, Chelsea and Jeanne, for joining us this morning or this afternoon. I want to start with a little Wolf Blitzer imitation because we’ve got breaking news. It’s been disclosed that we have another bombshell ethics crisis on the Supreme Court, this time involving that cranky “Get off my lawn” Supreme Court Justice, otherwise known as Samuel Alito. The breaking news comes from ProPublica involving a 2008 vacation paid for by billionaire Republican donor Paul Singer and unreported Alito annual ethics statements that he’s required to submit under the Ethics and Government Act. I’m sure we’ll be coming back to that shortly. It’s just come over the wire, came over yesterday and Justice Alito preemptively wrote an op-ed for The Wall Street Journal to rebut the charges that were disclosed by ProPublica. But let me set the stage in a broader context. I wrote and curated this series, “The Supreme Court’s War on the Future,” to highlight the direction of the Supreme Court under John Roberts. Part one of the series is devoted to how we got to this point where the court is dominated by six hardcore, right-wing elite lawyers who are setting social policy for the rest of us. How do we get to that point? Part two is dedicated to, how do we address this situation? How do we get out of this situation? How do we reform the court? I’m always asked by people, “How bad is it at the Supreme Court from a liberal and progressive standpoint?” My answer almost invariably is, it’s worse than you think. The Supreme Court has been captured by the radical right in this country. And this is the culmination of a many decades campaign that you can trace back, say, to 1971 when Justice Lewis Powell authored an essay and memo for the Chamber of Commerce in Virginia when he was in private practice called “Attack on the American Free Enterprise System.” In that, he urged the business community to take up the challenge posed by the ACLU and others who are driving American constitutional law to the left. With the exception of a brief period, which we called the Warren Court period — which began in 1953, ended with Warren’s resignation and his retirement in 1969, and continued for years after that — in the aftermath, the Supreme Court has been an institution that has served the elites in this country. It’s utilized the tools and power of judicial review; that’s the principle by which the courts can review the actions of the other two branches of government. It’s been driven by a legal philosophy known as Originalism, which is essentially a regressive theory of constitutional interpretation that we can get into in further detail later in this hour. And as a result of our antiquated Electoral College and the election of an unpopular 45th president of the United States, who succeeded in placing three justices on the Supreme Court, we’ve arrived at where we are today. Since John Roberts took the Chief Justice position, the court has issued a blistering series of regressive rulings on subjects ranging from voting rights and political gerrymandering to union rights to environmental protection, the Second Amendment, and of course, abortion. But we’re not powerless in the face of this surge to the hard right. And that’s what the second part of my two-part Dig series is all about. It’s going to take a political movement to combat this extreme swing to the right. And that’s why I’m so pleased to have Jeanne and Chelsey join us today and to tell us what they’re doing in their organizations to reverse this lurch to the right. So let me, without further ado, ask each of them to explain the work that they’re doing in their groups. Let’s start with Chelsey. If you will, tell us about Take Back The Court Action Fund.

Chelsey Davidson: Thank you so much, Bill, for the introduction and for the opportunity to be here today. So Take Back the Court was established to do exactly that, take back the court and drive this movement to reverse the theft of the Supreme Court. Just to give a little bit of historical background, back in 2016 Mitch McConnell, Donald Trump, Senate Republicans refused to hold even a confirmation or a hearing for Obama nominee Merrick Garland. And by doing so, they shrunk the size of the Supreme Court to eight seats for more than a year. We came on the scene in fall of 2018. And at the time, when we were advocating for the reversal of that theft of the court, we could not have imagined that two years later, we would be losing the great Justice Ruth Bader Ginsburg. And we certainly couldn’t imagine that Republicans would reverse course, and push through, ram through really, the nomination and confirmation of Justice Barrett, after 63 million votes had already been cast in the 2020 election. Those two moves were insidious. They were wholly unprecedented. And they inspired us to put forth and advocate for legislation, now the Judiciary Act, that would put four new seats on the Supreme Court; the reason being because without those two acts, we would currently have a five-four moderate liberal majority on the court. And to reverse those acts we need to expand the court in order to have a narrow, liberal majority that reflects the composition of the country of around seven-six.

Bill Blum: Could you tell us a little bit more about who staffs Take Back the Court?

Chelsey Davidson: Yeah. So Take Back the Court was founded by Aaron Belkin, who basically spent a lot of his life’s work reversing Don’t Ask, Don’t Tell in military policy. He was a fantastic LGBTQ advocate. And we are now led by Sara Lipton-Lubet, who has spent her life’s work advocating for bodily autonomy for reproductive rights. She was the former vice president of the National Partnership for Women and Families. And both of these people saw in their own line of work the absolute importance of the Supreme Court in blocking progressive policies and in potentially reversing those gains that they had made over the course of their careers.

Bill Blum: Now there are currently some national tours that are underway to drum up popular support for this Judiciary Act, which would expand the court from nine to 13. Can you tell us about those tours? Who’s spearheading them and who is part of the coalition?

Chelsey Davidson: Absolutely. So we have a coalition called the Unrig the Courts Coalition that is dedicated to working together to raise awareness for this issue and to drum up support across the country. The Just Majority Coalition and the Just Majority bus tour is spearheaded by Demand Justice and we’re very happy to be partnering with them on this issue along with a number of progressive groups, including League of Conservation Voters, Indivisible, Stand Up America, Peoples Parity Project and so many more issue-based organizations.

Bill Blum: Planned Parenthood, too.

Chelsey Davidson: Yes, Planned Parenthood, Color of Change, Guns Down America, Greenpeace. We’ve basically… Take Back the Court started when this was not really a mainstream issue whatsoever, it was considered almost a pipe dream.

Bill Blum: And this is a barnstorming tour. It’s going from city to city and holding press conferences and events.

Chelsey Davidson: Yes, and it’s part of a movement that we’re already building. We already have over 130 organizations, progressive organizations, who have endorsed court expansion. And we already have 65 members of Congress who are co-sponsoring the Judiciary Act. The city to city tour is to raise more public awareness, get more groups on board and eventually turn that support into getting more members of Congress to sign on to the Judiciary Act so that when we have a governing window, we’re ready to go.

Bill Blum: So just to give a little context for the audience, and before I turn it over to Jeanne, the number of justices that sit on the Supreme Court is not set by the Constitution. It’s set by Congress and that number has varied from the founding of the country, from a low of five to a high of 10, during the Civil War, and it’s been at nine since 1869. So this is something that Congress has the power to do under the Constitution. We do not need a constitutional amendment to expand the number of justices and a recent study by Professor Dan Epps from Washington University in St. Louis argues that unless the court is expanded, if we keep the current nine, we have the Electoral College, etc, and so forth, that Democrats are not going to have a majority on the court until approximately 2065. So let that set in. At the earliest. So Take Back the Court Action Fund is one group that’s really working to change the court. But it’s not the only organization. And I’m very, very happy that Jeanne is with us from the American Constitution Society, because that’s a little different kind of organization. So tell us what that’s all about.

Jeanne Hruska: Thank you, Bill. And Chelsey, it’s great to be here with you. So the American Constitution Society, I’ll note at the top, we’re a 501c3 nonpartisan nonprofit organization. We’ve been around since 2001. We were launched in reaction to Bush v. Gore, if you remember that cataclysmic decision. So we’re the nation’s foremost progressive legal organization in the country. We have over 200 student and lawyer chapters across the country. And in addition to those, we have a nationwide network that includes scholars, advocates, judges, elected officials, and a lot of what we do is around the courts. You know, there’s so much angst, there’s so much oxygen in this country spent talking about Congress, talking about the president. We think there needs to be equal time and attention spent on the courts, because arguably, the courts are having a more profound impact on our lives right now, than Congress or the president are. So a couple of things that we’re doing around the courts, we have an initiative called Path to the Bench that is focused on helping President Biden and the Senate fill as many federal vacancies as possible. Thanks to our nationwide network, we have working groups in the vast majority of states who are identifying and recruiting diverse, qualified candidates for the bench. We’ve provided hundreds of names to the White House and to the Senate, and are really trying to seize this opportunity to fill as many seats with just incredibly diverse and qualified candidates.

Bill Blum: Are you like a liberal, progressive alternative to the Federalist Society in that sense?

Jeanne Hruska: Yeah, so we get this a lot. We get described as the progressive counterpart to Fed Soc. I think it’s an easy analogy to make. The thing that I always point out is we don’t want to be Fed Soc. One of the problems with Fed Soc is that the right essentially outsources its judicial work to Fed Soc and allows Fed Soc to dictate who gets to fill judicial vacancies and who gets to fill Supreme Court vacancies. We don’t think that’s the way the system should work. There’s no voter-elected Fed Soc. And so we don’t think it’s right that a progressive organization dictates nominees. So roughly a third of President Biden’s nominees have been folks that we’ve recommended and we’re really proud of that. We’re also really proud that it wasn’t 100% because that’s not how democracy works. So the other thing that we’re doing, though, as part of this is we do think that the Senate needs to A) ramp up its pace of confirmations right now. And then the other thing, and this isn’t Supreme Court reform related, but I will just note, the Senate needs to take steps to reform how it confirms judges, namely to reduce GOP obstruction of judicial vacancies. So we’re advocating for things like eliminating the blue slip tradition, and something as innocuous as the Senate canceling its August recess and spending that time confirming judges, which in a divided Congress is really probably the most impactful thing the Senate can be doing. But then getting to Supreme Court reform, specifically, this is something that ACS has been out front on for a while now. For us, this is about legitimacy. We see the Supreme Court as being in the midst of a legitimacy crisis, as a result of having been packed by the right by ideologues who were not put there to uphold the rule of law or to safeguard democracy. They were there to issue partisan decisions. And as a consequence of that, the public’s confidence in our highest court is tanking. And unlike Congress, and the president who obtained their legitimacy through popular elections, the Supreme Court’s legitimacy really comes from public trust, right? This is an institution that doesn’t have a way to enforce its own decisions. It relies on public trust. And right now, it doesn’t have that. So for us, the way that we think about this is the reason that we support structural and nonstructural reform is to rebuild a core that once again, that is objective, that is nonpartisan, and that is trusted by the public it serves. So we are, I really want to underscore, we’re nonpartisan. For us, this isn’t about trying to get to a specific — We want specific decisions from the court. We want a legitimate court because we have a democracy that is built on three coequal legitimate branches of government. And right now, we don’t have that.

Bill Blum: So it’s important to understand that this project, reforming the court, is not designed to do away with judicial independence. But it’s really designed to restore judicial independence, if you accept the proposition, and I think that it’s a very overwhelming proposition, that the court is now dominated by the radical right, which is beholden to Republican donors, then we don’t have a Supreme Court that’s independent. And this is extremely important to understand. One point that you made Jeanne, that is so essential, is that the court is setting social policy. And it’s not just the decisions that it’s rendered up to now, it’s going to, in the next few days, pass on affirmative action and college admissions, it’s going to pass on student debt relief, it’s going to issue a ruling on this independent state legislature theory which could really turn the tables on how we elect federal officials in this country. And it’s going to hand down another important decision on what we call religious liberty, the right of people with sincerely held religious beliefs to discriminate against the LGBTQ community, without being said to violate their civil rights. And even longer term, if you follow the opinions, the concurring opinions, the dissenting opinions of Clarence Thomas, who I see as the greatest harbinger of future change on the Supreme Court, what this court really aims to do is to return American law to the status that it had in the early 1930s. Clarence wants to do away with commerce clause jurisprudence, which would undermine the Fair Labor Standards Act, environmental protection, OSHA, the CDC, etc., and so forth. And of course, he wants to revisit privacy rights, ranging from contraception, to same sex intimacy, same sex marriage. So this is all extremely important. Jeanne, who are some of the people, some of the better known individuals who sit on your board?

Jeanne Hruska: Well, I’ll start with our president; we’re led by Russ Feingold, former senator of Wisconsin. He’s been with us for a number of years now and is really helping to lead this work on Supreme Court reform. But in thinking of our board, we have Michele Goodwin, we have Melissa Murray, we have Roscoe Jones, we have a number of just incredible progressive lawyers and advocates, we have a diverse board that we’re really proud of. So I won’t go through every one; I actually encourage folks to visit our website, which is ACSlaw.org. We have bios on all of the folks on our board and all of our staff.

Bill Blum: So it’s important, I think, for people to understand that not only are we collectively not powerless to change the Supreme Court, but each one of us individually can take a giant first step. And that is by rejecting this notion that the court is apolitical and that its decisions are sacrosanct ,that they’re handed down by these gods who sit on Mount Olympus and that their rulings can’t be questioned. We can reject that ideology. In fact, that’s the first step that’s required of all of us to take, as we weigh in on how we can change this situation. So why don’t we talk a little bit about some of the specific proposals, we talked about court expansion, that’s the biggest ticket. And that’s a long-term project. But what about ethics reform? How do we… The Supreme Court is the only court in the federal system that is not bound by a judicial code of ethics. That’s outrageous. What are we going to do about that? Who would like to comment on that?

Jeanne Hruska: I’m guessing you both have a lot to say. Yeah, so I can start. It is shocking, and quite honestly embarrassing that the most powerful justices in the country, arguably the most powerful people in the country overall, are the only judges not bound by a code of ethics. And the way I think about this, I worked for the State Department for a number of years and as a federal employee, even as a low-level federal employee, I was bound by very strict ethics rules, including really tight restrictions on what kinds of gifts we could accept. So again, as a low-level federal employee, I was bound by stricter ethics rules than the nine most powerful judges in the country. And that’s either scary or laughable. It’s one or the other. I’m not sure which. So the court absolutely needs to have a binding code of ethics. Every other judge in the country is bound by a code of ethics. The Supreme Court needs to be as well. And I’ll just note, Bill, as part of this, it goes to that point that you raised, which is that the court cannot be this kind of angelic godlike institution on a hill that is beyond critique. It also can’t be an institution that is beyond the reach of Congress. The whole point of having our system of government is that every branch checks and balances the other two branches. So this argument that Congress can’t touch the Supreme Court, including that they can’t require the court to have a binding code of ethics is a really anti-democratic, dangerous notion. Congress impacts the court in all sorts of ways. It improves money for one thing to pay the justices and keep their lights on. But as we’ve noted already, it decides the number of justices. It’s in the past decided whether the justices are required to travel or not. It can change the jurisdiction of the court. It can absolutely require the court to have a code of ethics, and it needs to do that.

Bill Blum: Just one point before Chelsey, you weigh in, the Supreme Court owes its very light workload —- I worked as a judge for 20 years — the Supreme Court this term is going to hand down about 50 merits decisions. Prior to the Certiorari Act of 1925, which sets the standards for how most cases get to the Supreme Court today, the workload of the Supreme Court was about 680 cases a year. So these guys… I’m sorry, you know, I read Supreme Court decisions, these are bright people, even the ones on the right; they put a lot of work into each decision. But I just, I can’t buy the idea that they’re overworked. They owe it to Congress, which passed this Certiorari Act for their light cushy jobs, Chelsey.

Chelsey Davidson: I think, to Jeanne’s excellent point earlier, like “what gives the Supreme Court legitimacy?” and it is public trust. Public trust involves not only, you know, not doing breaches of basic ethics, it involves avoiding an appearance of that. And when you have a Supreme Court stacked with these people who are taking free vacations, whose parents live in houses paid for by these people whose, you know, relatives are going to school funded by mega corporate oligarchs, there cannot be an appearance of legitimacy and appearance of ethics and an appearance of right-doing. One of the many reasons that we founded our Supreme Court Accountability Project is to just sort of document the egregious pace at which we are seeing these ethical violations. And when it comes to a code of ethics, I think it’s absolutely necessary. I also think it’s very unlikely to happen with the current court composition and without other reforms, like court expansion going first. From a very scary perspective, like I’ve read some of the documents that Harlan Crow’s lawyer has written, and there’s already the beginnings of Republican doctrine, right-wing conservative doctrine, on why Congress cannot check and balance the Supreme Court. None of this has any basis in reality and isn’t how a constitutional democratic system should run. But we’re already seeing the seeds of what may eventually become a Supreme Court decision being laid now and that scares me. It also scares me that whether or not it’s constitutional, it may not matter to this court because they are not incentivized to in any way check their own power, check their own privileges and check their own access to these people. When you then look at the analyses of how often the court rules with major corporations, I believe it was 83% in the last year; we have data for which was 2020. This is the most pro-business pro-corporate Supreme Court we have ever had. It is no coincidence that they dismantled the Bipartisan Campaign Finance Reform Act in Citizens United. And it’s no coincidence that we are seeing this influence permeate the Supreme Court today. And we will continue to see it permeate the Supreme Court today until we’re able to get a binding code of ethics.

Bill Blum: So the Chamber of Commerce, if you look into it, is the most successful litigator before the Roberts Court overall. And I think that the idea that the Supreme Court won’t agree to a code of ethics was clearly articulated by Chief Justice Roberts in his 2011 annual report on the judiciary, where he says the Supreme Court is an independent branch of government and can’t be regulated by Congress. That’s unlike the lower courts, which the Constitution says are created by Congress, but the Supreme Court is the only court that the Constitution creates. So Chief Justice Roberts extrapolates from that, that Congress can’t regulate the court. And of course, we know that is false. Whenever Congress passes a law that the Supreme Court likes, like the Certiorari Act, the Supreme Court goes along with that, and to Jeanne’s point with the declining legitimacy of the court, these ethics scandals only exponentially expand that crisis. The revelations around Harlan Crow and Clarence Thomas and now around Paul Singer and Samuel Alito are only going to further drive down the court’s standing in the eyes of the public. So what else is on the burner? What about term limits for Supreme Court justices? Jeanne, what about that?

Jeanne Hruska: Yeah, so term limits are another way to kind of structurally impact the court. And I’ll now kind of talk about the partisanship, it’s easy to think about this in partisan terms. Term limits are not a partisan issue. Actually, there’s overwhelming bipartisan support for term limits. And there’s actually, I think, building support generally for Supreme Court reform because of exactly what we’re talking about, because the public is so appalled by the behavior of this court. But in terms of term limits, there are a number of proposals in terms of how you do this, in terms of what the number of years should be, in terms of how you roll it out; whether the current justices should be grandfathered in or not. But the point that I’ll note is that there’s a divergence in thought of whether term limits require a constitutional amendment or not, because the Constitution says that justices shall serve, you know, so long as they have good behavior, basically, they have life tenure. And so there is an argument that says you need a constitutional amendment in order to create term limits. And you certainly can do this by constitutional amendment. But there are plenty of scholars who don’t think you need to go that route. That Congress could impose term limits through statute. And the way that you would do that is lower courts have what’s called a senior status system, right? A judge can retain their title, retain their position, but take what’s called senior status. They stepped back, they have a lower case load, they don’t sit on as many cases. It’s retiring without retiring but they retain their status. And so you could implement that for the Supreme Court where say, after 18 years, a justice on the court takes senior status. So they’re no longer sitting on every case, perhaps they could sit on lower court cases. That’s been used in the past. In theory, they could be available if there’s a recusal or if there’s an unexpected vacancy on the court, they could sit in for the temporary window of time. But they would remain, in theory, like a justice, but they’re not an active justice on the court. And there’s plenty of scholars who think that that can be implemented through statute. So it could be implemented right now. And it’s certainly something that we support. The reality is, when the Supreme Court was designed, people were not living well and reliably into their 70s and 80s. Justices weren’t serving 30, 40 years on the court. That’s now standard. And in fact, the expectation when a justice is confirmed is that they’re going to continuously work until they die, which is just, it’s a scary notion to think that when somebody gets appointed, they’re going to shape the laws in this country for the next 30, 40 years. Term limits would be a way to kind of create safeguards around that.

Bill Blum: So Chelsey, is Take Back the Court promoting term limits?

Chelsey Davidson: I think that there’s a number of things that we need to do to restore balance and integrity to the Supreme Court. We are definitely… While we are the only organization that is dedicated primarily to Supreme Court expansion, we do endorse other proposals, including term limits and regularized appointments, and ethics proposals. You know, blue slips reform, filibuster reform, all of those things are pieces of this very complicated puzzle to have a court that works for us all. I think that regularized appointments are very important. But again, I am less concerned with the question of whether it is constitutional as I am with the reality that the Supreme Court as it currently stands is unlikely to accept term limits as constitutional when it does not benefit them to do so.

Bill Blum: One of the things that your co-founder, or maybe he was just your founder, Aaron Belkin emphasized to me when I interviewed him a few years ago, is that all of these ideas, to reform the court are going to require a political movement, which joins with other kinds of movements, environmental movements, women’s movements, civil rights movements, trade union movements, that merge the issue of court reform together with  other items in a progressive agenda. That’s what’s needed to place the idea of Supreme Court reform at the forefront of every American’s idea of good governance. Another idea that’s kicking around is the idea of jurisdiction stripping. And that refers to and is based on a clause found in Article Three of the Constitution. I think it’s section two, paragraph two, which or is it section four? You’ll have to check it. This is the section that outlines the jurisdiction of the Supreme Court. It defines both the original jurisdiction, which refers to cases that start in the Supreme Court and the appellate jurisdiction of the Supreme Court, which refers to cases that get to the Supreme Court after a lower court renders a decision. It says that the Supreme Court has jurisdiction in both areas except where Congress passes a wall and limits the appellate jurisdiction of the Supreme Court. And believe it or not, one of the early proponents of jurisdiction stripping was… drumroll… Chief Justice John Roberts when he worked in the Reagan administration as a young lawyer. He wanted to take the issues of busing out of the hands of the Supreme Court. He also wanted to take the issue of abortion, after they could get rid of Roe v. Wade, out of the hands of the Supreme Court. So this is another idea that’s kicking around. What do you think of that, Jeanne? Jurisdiction stripping?

Jeanne Hruska: Yeah, I mean, I think it’s a topic of conversation. And again, certainly something within Congress’ realm. I think the issue there is, I think people talk about wanting to restrict the court because of the court that we have. The fear is this court issuing decisions on certain topics. And so the thought is like, could you remove voting rights from this court? And the concern is, because this court is decimating the Voting Rights Act, can you somehow protect what is left of it, and protect any future voting rights legislation by removing it from the jurisdiction of the court? To me, this really goes back to the first issue we talked about, which is what needs to happen, first and foremost, is you need to add seats to the court. Before you do anything else. That’s what needs to start. And so if we can add seats to the court, if we get back to a legitimate trusted court, then you have an honest conversation about what should the jurisdiction of the court be as opposed to having it kind of be fear based, which is, what do we need to protect from this court. And so I think first and foremost, you need to add seats.

Bill Blum: Okay, so let me ask a question, then. What about the argument that if the Democrats were to succeed in adding seats, the Republicans, when they regained the majority, would just add even more seats? You know, we had the Biden commission, there was a blue ribbon commission of many, many brilliant scholars left, right and center that looked at all these ideas of court reform, they came up with absolutely no recommendations. But what about the response, and this is to Chelsey. If we succeed in doing this, we’re just going to do a tit for tat, never ending expansion of the court.

Chelsey Davidson: Well, I will first note that a lot of those commissioners who are disappointed with the outcome of the commission ended up joining our board pretty quickly after going through that exploration of reforms. I think the tit for tat argument is definitely something that we should be aware of and be aware of when we, you know, actually go to implement an expansion proposal. I think that an expansion proposal that pairs well with a term limits and regularized appointment proposal would ensure that together, once we have a court that is balanced, once we have a court that has that legitimacy, it has a much better chance of staying there and staying in a regularized appointment schedule where presidents get X number of appointments when they are elected, per term. The country knows that when they’re electing the president. It’s not tied to simply when someone retires or passes away. So there are certainly ways to create a package of reforms, which we definitely support, that would reduce the likelihood of that happening. I will also say that, that hypothetical doesn’t scare me as much as the reality of what we are dealing with right now, in this moment, in actuality. For 50 years straight, Republicans have had a majority on the Supreme Court. And as studies have shown, they will hold a majority on the Supreme Court till at least 2065. So that is more than 40 more years of terms that look like last term and this term. Of terms, where we see the overturning of well established, 50 years worth of precedent on topics where the American people already have a mandate. There’s a mandate on environmental protections, we want more of them. There’s a mandate on bodily autonomy and access to abortion. There is a mandate on gun violence prevention, and then just basic rights. We don’t want to live in a theocracy, and we are headed towards a fascist theocracy without immediate reform to the Supreme Court. So that reality scares me a lot more than anything that the Republicans could do in retaliation.

Bill Blum: So how do people join in this fight? Let’s start with Chelsey. How do they interact with Take Back the Court?

Chelsey Davidson: Well, we have two great websites where you can learn more about specific cases. You can engage with our Substack, you can engage with us more directly. But I think the most important thing for people to do is look at your communities. Look at the groups that you’re already involved in. If what you really care about is environmental protections, you care about the Supreme Court. If what you care about is LGBTQ rights, you care about reforming the Supreme Court. For every issue area, you already care about the Supreme Court. And that’s why we have spent so much time talking to groups. That’s why we have 130 organizations now on board with expansion in almost every issue area, from unions like SEIU to environmental groups like the Sunrise Movement to, you name it. Groups are strongly coming on board and endorsing court expansion because they realize that our rights and our liberties and our democracy are not safe until we expand the Supreme Court. And then call your representatives. Call them frequently. Call them repeatedly. There are tons of senators and representatives who are in very, very safe seats, who will say in private that they’re on board, but they’re not quite ready yet. Get them ready, because we need to make this movement happen now and this momentum happened now so that we are not trying to start this movement when we have a governing window.

Bill Blum: And Jeanne, the ACS, the American Constitution Society is a membership organization. So how do people get involved?

Jeanne Hruska: Yeah, so we are, but I will say this, you do not need to be a lawyer to be a member of ACS. As we always say, our laws and legal systems impact all of us. All you need to do is listen to this conversation to know just how true that is. So anybody can be a member of ACS. Just go to our website ACSlaw.org. We also have a podcast; it’s obviously publicly available. It’s called Broken Law. It’s on all major podcast platforms. We host a number of programs that are open to the public. So I strongly encourage folks to just check out our website to learn more. I also just want to expand on this point about how people get involved and make it as easy as possible, which is just talk about it. One of the biggest hurdles right now is normalizing this conversation. It is so common to talk about the president, to talk about Congress, to criticize Congress, to criticize the president, it is part of our popular vernacular as part of popular culture. It is still so often either a taboo topic to criticize the court, or it’s just something that people don’t think about and don’t follow. So if this is an issue you’re passionate about, one of the most important things you can do is talk to your friends about it. Say I’m really concerned about this court, did you see the decision that it handed down last week, make the Supreme Court something that you talk about as frequently as you talk about any other political issue, because that’s how you build a popular movement. You build public awareness. And I think there’s been incredible momentum built behind Supreme Court reform in the last couple of years, because more and more people are talking about it. So if you have a social media platform, if you have a podcast, if you have a group of friends, if you go with your friends for trivia night, it can be the most innocuous setting, talk about the court and talk about the need for Supreme Court reform.

Bill Blum: So we’re getting a bunch of questions now. And this is the time when we’ll take the q&a session. So one of the questions is: Where does the Democratic Party stand on court reform? You know, we can talk about this from a progressive perspective, and all support expansion of the court. But what about the party as a whole?

Jeanne Hruska: Do you want to cover that?

Chelsey Davidson: I mean, of course, there’s going to be different opinions from different folks within the Democratic Party. And I think that one of the greatest places where we can have an impact is making sure that this is not just a progressive issue, that this is an everyone issue. I was very pleased to see with the reintroduction of the Judiciary Act that more moderate voices in the Democratic Party are endorsing it. And I think that, you know, it’s going to become more and more common. The fact is, this court is not going away on its own, it is not suddenly going to police itself. It is not suddenly going to do the right thing on issues where the American people have said time and time again, you know, this is where we stand. These are our values. And so I think that as much as I can be an advocate for court expansion and court reform, there is no greater advocate for court expansion and court reform than the Supreme Court itself.

Bill Blum: That’s true. It’s like, Donald Trump’s his own worst enemy and his litigation, the Supreme Court is its own worst enemy in terms of its own legitimacy crisis. Another interesting question that’s come through is “Do you think that corporate media adequately conveys how deeply in trouble we are in regards to the extremism of the Supreme Court and what do we do?”

Jeanne Hruska: So I think part of the struggle with the media is two things. I think the media too often only talks about the Supreme Court when some sort of giant national headline case gets decided. So there was a ton of national media around the Supreme Court when Dobbs was decided last year. But that’s rare. That doesn’t happen in response to every decision. And you certainly don’t see the media covering the Supreme Court on a day-to-day basis, the way it covers Congress and the president. So part of it is just the quantity of press. We need the press to think of the Supreme Court as a beat, as a day-to-day topic for coverage. The other thing is, I think that too many members of the media still have this kind of hands-off approach, that the court is this illustrious institution to be respected and covered, but not critiqued. And so I don’t think the media hesitates to criticize Congress and to call members of Congress out when they lie or when they act inappropriately, when they violate ethics, all of that. And we don’t get the same level of scrutiny on the Supreme Court. The Supreme Court is acting like a partisan branch of government. It should be covered and critiqued like any other partisan branch of government. I think you’re seeing some reporters kind of pick up on this and really trying to cover the court honestly and critically, but we need more of that. We need the Supreme Court to be covered, just like Congress is and the public needs to see it in that same respect.

Bill Blum: So one of the people I cite in the second part of my Dig series is a Washington Post columnist who’s not as well known as some of the others. Perry Bacon Jr, advocates a concerted campaign of shaming the Supreme Court. That’s the term he gives to it. You know, it’s critical coverage, so that when we refer to Chief Justice John Roberts, he suggests Republican Chief Justice John Roberts, etc, and so forth. So you don’t see very much of that in the corporate media. But we do see it in the independent media, in places like ProPublica. So how do we generate more coverage by those groups, by the independent media, any thoughts on that?

Chelsey Davidson: I’ll just start with a note that, you know, it’s important to recognize that their first name is not justice, or Chief Justice, these are six politicians in robes. They are six people. They’re very mortal. And I think that you’ve, you know, very much detailed just how sort of dishonest corporate media can be when they cover the Supreme Court, or at least not fully giving us the truth. I think that supporting independent journalism is really, really important for everyone to do. And I think that, you know, when we think about the fabric of our democracy much more broadly, an independent media is really, really, really crucial to that. I did want to just insert a little anecdote about dishonesty in the media as it relates to the Supreme Court that happened very recently. After the Allen v. Milligan decision, which was the Voting Rights Act case this term, we saw a lot of headlines and op-eds about how if Democrats retake the house, they’ll have John Roberts to thank and I think that that sort of framing is fundamentally dishonest. It takes individual Supreme Court decisions away from the broader context. The reality is that since 2013, John Roberts has systematically dismantled the Voting Rights Act, both in Shelby County v. Holder and then section two decisions, like Abbott v. Perez, which made it far more difficult to prevail on discrimination claims in voting. And so when we take that sort of framing at face value, we’re missing the larger story. We’re also missing things like the fact that in two shadow docket decisions in February and June, the Supreme Court left this exact racist map in place for the 2022 midterms. And it, plus another decision and the precedent that set probably made Democrats lose between seven and 10 of House seats, which means the Supreme Court stole the House of Representatives, just this year. So I don’t think that there’s a better example of “justice delayed is justice denied” than what is currently being framed as a win for Democrats and liberals and proof that the Supreme Court isn’t corrupt at this very moment.

Bill Blum: Jeanne, do you want to weigh in on that decision?

Jeanne Hruska: Well, I also wanted to go back in terms of outlets and just say, given that we live in a world of subscription media, you can actually impact this in terms of which outlets you subscribe to. Outlets like Slate and The Nation do really good critical coverage of the Supreme Court. We have our Broken Law podcast. There’s also Strict Scrutiny and Amicus and Five, Four. There are some incredible podcasts out there who do take a much more critical stance towards the Supreme Court. And trust me podcasts pay attention to followers. It’s how they gain support. It’s how they gain sponsorship. Outlets require subscriptions. And so you can actually impact coverage in terms of where you get your coverage. But then just on that decision, I agree with Chelsey. I think that we have been so conditioned to fear this court, for good reason, that any decision that isn’t catastrophically bad, is described as like, oh my god, that was a good decision. What a relief. And so in Allen v. Milligan, the court left intact a very tattered Voting Rights Act. It didn’t restore the VRA. It didn’t say, “Oh, oops, we made a mistake in all of those previous decisions.” It basically said, “You know what, this isn’t the case for us to strike down section two of the VRA. Try again.” And so I fully expect there to be another case pushed to the court that would enable it to strike down what remains of the VRA. And so, Allen v. Milligan most likely bought time. That’s what it did. And so yes, it was a win for Black voters in Alabama, who now will get their maps redrawn. But as Chelsey noted, they lost a district for an election. They lost representation for two years because of the court. And we’ll see how long Allen v. Milligan remains the law.

Bill Blum: So just for context, further context for the audience, we’re dealing with the most recent decision on the Voting Rights Act of 1965. And that decision dealt with section two of the Voting Rights Act, which basically outlaws discrimination in voting practices. Despite that decision, and I’ll get into a little bit more of a moment, the backdrop to it is that the court in 2013 destroyed sections four and five of the Voting Rights Act, which were the real heart of the Voting Rights Act that required jurisdictions with a history of racial discrimination in voting to obtain preapproval or pre-clearance from the federal government before they implemented any further changes. Now that that pre-clearance regime was scuttled, we were left only with section two. And what this decision did by the slimmest of margins, and I explain this in a column for The Progressive, is maintain section two as to racial gerrymanders. That is gerrymandering on the basis of race for the purpose of diluting the voting power of racial majority of minorities. Chief Justice John Roberts, who authored the majority opinion, couldn’t even join in the full majority opinion. He did not join in the most liberal section of the majority opinion, section 3B1, where the Democrats on the court pointed out that the dissenters want to do away with remedies for racial gerrymandering. Roberts invited future constitutional challenges to section two. So this is a really narrow victory. It’s very important to understand that the corporate media tends to venerate the Supreme Court. It continues to do that and it continues to frame these issues accordingly.

Chelsey Davidson: And I’ll also point out that when the court, as you’ve noted, has power to decide which cases it hears under that appellate jurisdiction, it gets to grant cert on the cases that it wants to hear. And as we’ve shown in dockets, studies and other groups have shown, the Supreme Court is taking up cases that can almost universally only move the direction of the country to the right. So even if you had a miracle term where, you know, half of the major cases went the right way, you would still have incredible movement to the right overall. So while individual cases, sure we’re left sometimes guessing and predicting without 100% certainty, we know with 100% certainty the direction this court is taking us and the general trends that are happening. I think that’s really important to remember when our listeners are hearing from media on a particular decision, that does not mean that the court is balanced. It doesn’t mean the court is fixed. It doesn’t mean that the court is neutral. It doesn’t mean that it’s working.

Bill Blum: So one other point on the remedies to fix the Supreme Court that people on the progressive left and many Truthdig readers might be concerned with is the simplest of all, and that’s voting. We have to vote in elections. That doesn’t mean that we support in the primary season the ultimate Democratic nominee for president. But when it comes time to cast your ballot in November, it’s important to understand that you are also casting a ballot in favor of future Supreme Court appointments. The election of Donald Trump in 2016 by a margin in swing states of about 20,000 votes led directly to Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, and among many other things, to overturning Roe v. Wade. And we have to keep that in mind. So it may be a hard pill to swallow for some people on the far left, but voting is important. Your thoughts?

Jeanne Hruska: Can I just add on that one of the other things that is really important, even before you get to voting, is asking your candidates about their position on court reform. It’s another way to make this a mainstream issue and to make the corporate media cover it. In a candidate forum say what is your position on adding seats to the Supreme Court, especially if it’s a Senate or congressional candidate. If it’s a gubernatorial candidate, in a lot of states, governors appoint judges, including on their state Supreme Courts, and so some of the same dynamics are at play. One of the most important things that we can do in this next election cycle is put the courts on the ballot and make candidates take public positions on the issues we’ve talked about today. 

Bill Blum: Chelsey?

Chelsey Davidson: I agree wholeheartedly. I think that one thing that I’m really proud of in our organization is just how far we’ve come since our founding just four years ago. To give an example on how those questions really, really matter, Jeanne, we’re now entering a California Senate election where all three major candidates are endorsing court expansion. And that is absolutely huge. It’s because of people asking them questions at these town halls and making their voices known that we got them there. I think that that’s possible throughout the country. I don’t think it’s a California anomaly. This is important to every single voter. More central to your point, Bill, I think that one of the most important things that I learned through legal education is just how important courts are. Beyond the Supreme Court, when you’re electing a president, you’re also electing a lot of judges in lower courts throughout the country who have a huge impact on people’s lives, whether it’s in the criminal law context or the civil law context. A lot of what stays law happens in the circuit courts and in the district courts. So yes, you ,of course, want to in the primaries push for progressive candidates, you also want to make sure that in the general, you are pushing whatever candidates win those nominations to be more progressive, and to make sure that your voice is known on these issues.

Bill Blum: So just one final thought to put it in broad historical context. Americans have been debating the nature and power of courts since the founding of the Republic. If you look at the Federalist Papers, the argument in favor of judicial review, Alexander Hamilton writing as Publius in Federalist 78. And then on the other side, the neglected other side, the anti-Federalist Papers. In particular, the papers written by Robert Gates, who was a New York state judge, writing under the name Brutus, who said that I’m worried about this power of judicial review because the Supreme Court’s power under the constitution will be unchecked, and that sooner or later, and he used the term “men,” who have this power would be accountable to no one, not even to heaven itself. And that, unfortunately, is where we’re headed. So I think it’s been a great discussion. I was so happy that you joined us, Jeanne and Chelsey, and I think we’re at the end of our hour. So I’m going to turn it back over to Truthdig and Zuade Kaufman, publisher of the Truthdig website.

Zuade Kaufman: Great discussion everyone. I want to thank you, Bill, Chelsey, Jeanne. You brought many thought-provoking ideas for all of us to consider. This event and links to the organization’s mentioned will be posted on Truthdig. And as our guest said, get involved, follow the work at Take Back the Court and ACS. Visit us at Truthdig.com for Bill Blum’s Dig, “The Supreme Court’s War on the Future.” Thank you so much.