Rick Hasen and Ed Whelan (EPPC) on the future of the Supreme Court and the 2016 Elections
Recorded at UCI Law event Feb. 22, 2016
UCI Law Prof. Henry Weinstein moderates an exchange of views between Prof. Rick Hasen and Ed Whelan, former law clerk to Justice Scalia and president of the Ethics and Public Policy Center (EPPC), on the future of the Supreme Court and the 2016 elections.
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Rick Hasen
Chancellor's Professor of Law and Political Science
Expertise: Election law, legislation, remedies, torts
Election Law Blog | ELB Podcast | Book: Plutocrats United -
Edward Whelan
President, Ethics and Public Policy Center and Director, EPPC program on The Constitution, the Courts, and the Culture
Expertise: Constitutional law, judicial confirmation process -
Henry Weinstein (Moderator)
Professor of Law and Co-Director, Center on Law, Equality and Race
Featuring:
Podcast Transcript
[Narrator] Welcome to UCI Law Talks, presenting bold perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter @UCILaw, #UCILawTalks.
[Henry Weinstein] For months, we have keenly anticipated today's discussion of the Supreme Court featuring conservative constitutional scholar Ed Whelan of the Ethics and Public Policy Center and UCI Law Professor Rick Hasen who is of a more liberal persuasion.
Ed and Rick actually met years ago after their second year of law school when they were both summer associates-
[RH] He was an actual associate, I was just-
[HW] I'm sorry. Pardon me.
[Ed Wehlan] An important distinction.
[HW] No offense intended.
[EW] He'd tried to please me back then.
[HW] At a very prestigious Los Angeles law firm. Both did very well in law school, Rick at UCLA and Ed at Harvard, both clerk for Ninth Circuit judges and then moved on to clerk for Justice Scalia during the monumental 1991-1992 term when there were a number of major decisions including Planned Parenthood V. Casey.
A major case about reproductive rights. I had hoped at one point that I might be able to cajole Ed into telling some personal stories about Justice Scalia with whom he was quite close.
He has told me however that the level of his grief is so intense that he would like not to do that today and I'm going to respect his wishes. Nonetheless, Justice Scalia's death has if anything amplified the importance of today's discussion.
At the very least, the country now faces the prospect that the Supreme Court term will conclude with only eight justices meaning that some of the most high profile cases may be unresolved as a result of a four-to-four vote, and may have to be reheard next term.
In addition, it appears at the moment that it could be many months before the senate approves any replacement for Justice Scalia because they sent majority leader, Mitch McConnell has said that President Obama should leave this choice to the next president.
President Obama has said he will put forth a nominee in due course but if in fact the republicans vote as a block they certainly have the ability to halt any nominee that he sends up. Whenever a successor is chosen, there seems to be little doubt that one new Justice can have a big impact.
Just to cite a few examples. Think about what happened when Fred Vincent left the court and Earl Warren replaced him. Louis Pal replace Hugo Black, Clarence Thomas replaced Thurgood Marshall, Samuel Alito replaced Sandra Day O'Connor.
The New York Times Supreme Court correspondent Adam Liptak said this choice may affect this country for at least the next three decades. Over the next hour or so, we're going to be discussing many topics, several of them are controversial.
We will leave time for some questions. Ed, let's start with one of the immediate issues at hand. Should the president nominate a successor to Justice Scalia or should he let his successor do so? Please tell us if your answer is based on the Constitution or some other source of authority.
[EW] Under the Constitution, it says crystal clear that the president has the power to nominate a Supreme Court justice any time there is a vacancy or even a perspective. I can say that no one seriously can touch that.
I discovered today some interesting advice that Joe Biden gave on the senate floor back in June of 1992. He said back then that if a Supreme Court vacancy were to arise that President Bush, Bush 41- it was back then, should follow what he called the majority of his predecessors and decline to nominate a president before Election Day.
If President Bush were to go ahead and nominate someone before Election Day, the same judiciary committee should ... I think Senator Biden put it, should seriously consider not holding a hearing before Election Day.
Since that power lay entirely in his hands, I think we should seriously consider as a much stronger statement than that. Likewise, in July 2007 Senator Schumer made a very similar statement, again, 2007 about the remaining 18 months.
The bottom line here is that what we're seeing is a clash of politics that the Constitution both allows and encourages.
This is a clash that arises now, just as it threatened to rise in 1992 and 2007/2008, precisely when you have the configuration of a president of one party making a nomination to a senate controlled by the opposite party.
We haven't seen a nomination made in such circumstances since Justice Thomas's nomination in 1991, and we add to that, that we have an election year, very intense races on both side, the Scalia's seat, the threat of transforming the court for a generation.
I'll simply say it is no surprise that the politics of this are exactly what they are. I fully support Senator McConnell's decision to hold off on confirming taking any action on any nominee.
Just treat them as dead on arrival until after this election and taking after the American people in a way that is crystallized and a way that hasn't been ... I'm not sure it's even been before, exactly who ought to make this decision.
[HW] Rick, what do you think?
[RH] Before I answer that, let me just thank Ed for coming. We'd planned this months ago and obviously circumstances have changed. There's probably more people in this room and watching than would have been before Justice Scalia's death.
These are issues that we're going to face not once, but potentially four times in the next president's term. Justice Ginsburg will be 84 when the next president is sworn in. Justice Kennedy, Justice Breyer, both of them be coming up to 80 years old, and so the chances that we're going to see more nominations.
So just in terms of the framing I think this is one of a series of battles that we're going to see politically. I think when it comes to the question of whether there should be a hearing for a nominee, whether the president should nominate someone, whether there should be a vote, that there's a lot of situational ethics.
I agree that if it were Bush and a democratic senate we'd be hearing the exact opposite arguments made by both sides and different historical precedents pointed to than we have now. I don't think either side has a monopoly on virtual on this area or on purity of thought.
What I would say is, and this is probably a good first question because I think I agree with Ed that this is a political decision. Certainly the president should nominate someone and then it's up to the senate. The president has a responsibility to nominate Supreme Court justices and then it's up to the senate to decide whether or not to confirm.
That choice I think is ultimately going to be a political decision made by the senate. I think what's going to determine that is not how Abe Fortas was treated in the 1960s but whether Pat Toomey and Ron Jonson and other senators are going to have a hard time getting re-elected in swing states.
If they are and Mitch McConnell sees there's a chance of losing the control of the senate over this issue I think it's much more likely that there will at least be a vote than if it looks like the issue is playing well in the public.
I think it's going to be a political decision and I think that it should be. There's so much at stake here and certainly there's no reason for the president to wait till the next election but what the senate does is going to be a political choice.
[HW] Recollecting the term in review with you for a second. Now, tell us one case, just pick on in particular that's not going to get resolved this term and what its significance is.
[RH] Well, it's hard to know and one of the reasons we don't know is we can guess which cases were going to be five to four and are now four to four. There're three things that could happen with those cases.
One is that it could be held over for a new justice. I think the Supreme Court will also be watching the Senate hearings to see if there's likely to be a justice in time to be able to hold re-argument. It's possible some of the cases will be held over.
Some cases could be dismissed or otherwise disposed around a four to four tie will would leave the lower court ruling standing. Some cases ... if Chief Justice Roberts can maneuver, it might be decided on narrow or technical grounds to put the issue off for another day.
I expect we'll see more of that you might expect. But some of the cases that could go that way, there's the Fredrick's case involving public labor unions where it was seen Justice Scalia had actually perhaps changed his views on that.
The question of the Abood case and the question of whether you can require payments from non-union members to public sector unions. That one could divide. I also think United States V. Texas involving the president's power on immigration could well divide four to four.
We may have already seen that division four to four. I'll just point out something that you probably didn't hear much about over the weekend. The Supreme Court ... Late on Friday night, I think it came in about 10:00 PM East Coast time.
The Supreme Court declined to issue a stay in a Northern Carolina redistricting case, congregational redistricting case. The court doesn't give any reasons. It could just as likely been a four to four or a zero to eight but we don't know, but already Justice Scalia's absence could be having an effect on the court.
[HW] Ed, what about you?
[EW] Well, I agree with mostly what Rick said. I'll just emphasize that I think it's really highly unrealistic in any scenario to expect that there would be a nominee confirmed and able to take part in re-argument this term and to get cases decided this term.
Basically, any case in which Justice Scalia would provide a dispositive fifth vote is not going to be decided. Except, as Rick suggested, they find some narrow ground to do so but it'll either be affirmed by an equally divided vote or set for re-argument.
[HW] Okay. When John Roberts had his confirmation hearing, he used a baseball metaphor to describe the role of the Supreme Court justice. He said, "It's my job to call balls and strikes and not to pitch or bat."
A liberal constitutional law professor at Stanford, Pamela Karlan who clerked for Justice Blackmun, said that she thought that Roberts's description significantly understated the role of the Supreme Court justice.
Picking up on the baseball metaphor she said, "Supreme Court Justices determine what the strike zone is." Do you think either of those is an accurate description of the role of the Supreme Court justice or is there a better one?
[EW] Well, I think there's some merit to what each has to say. I think I understand the Chief Justice's comment to really capture the obligation of impartiality. I think it contrasts most sharp but not with what Pam Karlan said but with Barack Obama's own empathy standard.
The notion that if there are really tough cases where you can't make up your mind you indulge your own sense of empathy to decide what the constitution means. That empathy standard is one that his own two appointees to the Supreme Court purported to reject in very emphatic terms at their confirmation hearing.
I think the Chief Justice's statement is best understood as counter-opposed to that. Obviously there are differences between Supreme Court justices and baseball empires although they all dress in black. I mean it's dark blue now I guess for some empires.
I think there's a rule and baseball rules about what the strike zone is, some empires don't apply that consistently. I'm actually more and more in favor of surprisingly for baseball tradition is in favor of computer strike zones to avoid that.
Obviously beyond that, the justices unlike the empires have a great deal of authority in whole host of areas to flush out just what seeming rules mean. The strike zone is just one example of that.
[HW] Rick, what about your thoughts on the role ... on the scope of the role of the Supreme Court justice?
[RH] Well, I'm glad you asked because I was worried I was going to agree with Ed the entire time. We found something we disagree about. What I would say is that for the ordinary case that is not politically charged the justices applying eclectic methodologies often reach similar conclusions.
There're a lot of cases that are unanimous or they're seven to two or they don't divide along ideological lines. That's maybe what we would think of ordinary litigation of the Supreme Court. Some bankruptcy cases, some tax cases, cases where the stakes are not as high.
But for the higher stakes cases, the pattern is pretty simple whether you are an originalist or you are a living constitutionalists or whatever you call yourself.
If you were a justice that was appointed by a republican president you're likely to side with what is widely seen as the conservative side; Anti-union, in favor of regulation of abortion, against affirmative action.
If you are a justice appointed by a democratic president you're likely to have the opposite view on those things regardless of what methodology you use. I think in those most highly contentious cases the justices' valued judgments inevitably play into the results of cases.
I think that we talk about a strike zone or a computerized strike zone I don't believe that the court's justices whether they think they are consciously or not are applying consistently neutral principles.
I don't believe that they're deciding cases because they're trying to help the political party of the president that appointed them. I do think they are chosen because they have a certain set of jurisprudential commitments that make it very likely that they are going to be a reliable vote on those kinds of issues.
They're all think they're calling balls and strikes but they see the strike zone very differently.
[EW] If I could, I want to express ... add a friendly modification to that. I think that the perspective of looking for liberal results and conservative results obscures the deeper issues, which admittedly can cut both ways in different instances, of whether these justices are letting the democratic processes operate or overriding them.
For example, if we take the issue of abortion or same sex marriage or the death penalty or so many others, not all agree but so many others, the position of Justice Scalia consistently took was not that the constitution enabled him to impose his own policy preferences.
Not that the constitution somehow forbids permissive abortion laws or forbids states from adopting same sex marriage laws or forbids states from abolishing the death penalty, rather, it was that the constitution leaves those issues to the people to decide.
Again, Rick can come up with examples that cut the other way, I'm not suggesting otherwise. The big challenge in constitutional interpretation is to discern the line between when adjusters may properly overriding democratic enactments whether or not he agrees with those enactments and when he may not.
I think that gets us a little deeper in simply looking at supposedly conservative or supposedly different results.
[RH] Yeah. I guess I would just give two counter examples would be Shelby County V. Holder, which was the case where Justice Scalia was in a five justice majority that overturned the section 5 of the voting rights act that provided pre-clearance for jurisdictions that had history of racial discrimination of voting.
Talk about popular will that that provision was approved by the senate on a 98 to zero vote. Talk about something that was very popular and Justice Scalia rejected that and even at oral arguments in the case said, "We shouldn't even accept things that are approved on a 98 to zero vote."
He had called the Voting Rights Act a perpetuation of racial entitlements. I think that is one area, Citizens United is another where I didn't think there was a lot of respect for democratic process and that's just because Justice Scalia was brought up.
I think you could say the same thing about the liberal justices. It's not a wrap on conservative justices. I think all of the justices are result oriented. All of the justices are, I hate the term activists- activists when they want to be and restrained when they want to be.
In these cases, the fact that people can predict through fantasy scouters, if you've seen these websites or otherwise. They can pretty much predict where the justices are going to end up without reading a single brief or knowing anything about originalist arguments or legislative histories or any of these other kinds of things.
That tells you that something else is going on besides neutrality.
[HW] Since you brought up the term judicial activism, Ed, this is something you have written about regularly for the national review and other places, you also featured about judicial activism this day, this year. Tell us your definition of judicial activism and if you'd give us an example of a judicial activist's ruling.
[EW] Sure. First, like every political terms judicial activism is amenable to different meanings. Some people try to banish it from the public score on that basis but this is a very used term, conservative liberal can mean different things by them.
I don't think that's a disqualification. I use the term judicial activism to mean the wrongful overriding of democratic enactments by the courts.
Now, a lot of weight is obviously carried by the term wrongful and the invocation judicial activism invites some inquiry into what is the proper method of constitutional interpretation. I acknowledge that the term itself does not offer a theory of constitutional interpretation.
By my lights, a classic example of judicial activism is Roe V. Wade where the Supreme Court in one fell swoop invalidated the abortion laws of all 50 states and deprived the American people of the ability to legislate that difficult, contentious issue on their own in the states in different ways.
As a result, as Scalia pointed out in the Parent Parenthood V. Casey descent really disrupted and corrupted the American political system for decades since, in a way that has made the politics to this very ugly and I think very damaging to how our system ought to operate.
[HW] Rick, how about you?
[RH] As I indicated in the last section I don't find the label judicial activism all that helpful. I do think that there are decisions that follow for the precedent more than others. I think we see justices strategically ... for Chief Justice Roberts for example, strategically moving the law in a slow way so as not to be accused of activism, take two steps.
So before you overturn the Voting Right Acts, signal in the case three years before that you're going to do it. Before you strike down the major components of the McCain fine goal campaign funds, signal that you're going to do it. These are just questions of strategy.
I just don't find that debate helpful. I think the question is, as Ed says in the Roe V. Wade and those kinds of cases the question is, how does the justice looking at the text and the history and the evolution ... this is where I think Ed gets off the chart.
The evolution of our understanding and rights over 225 years what it is where we need judicial protection of people's rights and when is it that we should leave things for the political process? The same thing about I think in the same sex marriage.
I think that is a question of value judgment that perfectly splits the justices along their ideological lines.
[EW] Well, let me make a point about that if I may because ... I'm not going to contest or try to disapprove Rick's proposition about all the justices supposedly acting ideologically.
That's impossible for me to disapprove that. I will say it's a logical fallacy though to think that the fact that the court divides five-four on ideological terms shows that both sides are acting politically. You'd have the four-five divide if either four of five are acting politically, it doesn't show both sides.
Of course, you also have significance differences in judicial philosophy that may actually matter here. There's judicial philosophy that can be separate and above politics.
Obviously, for conservatives originalism I think is a philosophy that will dictate rather clear results in advance and should be no surprise that someone who believes in the philosophy of originalism would find some of these cases very easy. I haven't figured out in the 30 plus years exactly what constraints there are on living constitutionalism.
I find it more difficult to credit some line between judicial philosophy and politics when the message of living constitutionalism seems to be that you consult your inner politician to decide what the climate of the age demands.
[HW] Rick, let me ask you one pointed questions you can give us a comment but besides the term judicial activism I want to throw out the term what I'll call the reaching out doctor, which I believe is something that you've talked about.
What I mean by that is the court expanding the scope of the scope that is handed to them. I think it would be useful if you might talk about that in the context of campaign finance and Citizens United.
[RH] Sure. I'll respond to that and then I want to come back to this question about originalism. Citizens United, which was as I mentioned the case that overturned two earlier cases, which it held that it did not violate the first amendment to limit corporations spending money on elections to money they would raise in a separate political action committee.
That case started out as a very small case. Most of us thought it was going to lead to a victory for this small ideological corporation called Citizens United. I even thought that was probably the right result to expand in that area.
But then after the oral arguments in that case, the case was set for re-argument, and the court specifically asked for briefing on the question of whether those earlier cases should be overruled.
There was a very small way to have decided that case without overturning those cases, but the Supreme Court reached out to do it. What I found was most disturbing about that was Justice Kennedy's opinion for the court, which started out by saying, "We have been asked to."
He did the same thing in Bush V. Gore; our unsought responsibility. Again, you're asking me about a conservative case, the justices reach out and decide these things. I think what's most interesting is the debate that's happening among conservatives where that was happening.
Ed has been debating, his name Evan Bernick and others who will call for judicial engagement, which is basically conservatives reaching out. I think it's mostly about eminent domain and protecting private property right. If I looked at who-
[EW] You mean abolishing the New Deal altogether maybe with the position I’m getting.
[RH] But I do find the repackaging really interesting and one thing I'll say about Ed is that he has been consistent in calling for judicial restraint whether it's a conservative majority or a liberal majority, but not everyone.
I expect that the arguments for judicial minimalism that people on the left have been making for the last 20 years are going to get more adherence. If there is a president Clinton who appoints a Justice Scalia replacement it's just going to be flipped.
[EW] Wait a second, they get more adherence from the right.
[RH] From the right, yes, that's-
[EW] They'll lose any adherence from the left.
[RH] Exactly. They won't lose me because I've been coming for it consistently, so check back in 10 years let's hope. I just wanted to point the originalism point and the logical fallacy argument you made is so interesting to me because I think about this as a social scientist and I say, "What can I observe."
What I can observed are the votes. I can count the votes and I can say, "Justice Alito certainly not an originalist. It didn't have that line about Justice Scalia wants to know what James Madison would have thought of violent video games, at an oral argument he made this point."
Alito is not an originalist, Kennedy is not an originalist, Roberts is not an originalist. They dabble in originalism the same way that Stevens would I think completely so that he could hoist it upon Justice Scalia.
But yet the two originalists on the court, and I believe that Scalia and Thomas were pretty consistent to the plan originally, and the three non-originalists who were also concerns all tend to come out the same way in most cases. There's not a lot of cases where they split.
[EW] Well, I wish what you said were true about Justice Kennedy, but I think the history of the last 25 years is that in more big cases than not Justice Kennedy is with the liberals. I would classify him and I think we had a 4-1-4 court if one wants to use crude ideological terms; four liberals, four conservatives and then you have Kennedy in the middle.
He's sometimes described as a moderate but I liked to say it's like taking the highs and lows of the manic depressive and calling him stable. He has the most grandiose notion of judicial power or is ready to wield it in any direction.
[RH] I think we found something else we agree upon. I like to call him hammered, but it's the same-
[EW] I have a lot more respect for him then.
[HW] The man you worked for 70 years ago, Justice Scalia, once said that William Brennet who served on the court from 1956 to 1990 was probably the most influential justice of the century. Justice Brent, as many of you know, is an appointee if President Eisenhower.
He became one of the liberal lions of the court and among other things he had a reputation, whether warranted or not, of being a great lobbyist with his colleagues, of being able to persuade people.
I was just going to ask, how important is the justices lobbying one another? Is there a lot of it? Is it in writing? Is it in conversation?
[EW] Justice Brent, whom I only met briefly, was by all accounts a very charming man. Justice Scalia liked him a lot personally. Justice Brent would explain to his clerks every year that the thing that mattered most to the Supreme Court was getting to five.
He really viewed it the way a word politician would really at the votes. My own sense is, my own belief is that's not a proper understanding of the judicial role. I clerked 25 years ago. I can't really speak to what went on internally, but I don't think the ... who knows what's going on with the justices now.
But I don't think that typically there'd be much lobbying. Sometimes courts clerks would work with clerks in other chambers to help them understand issues and see things a certain way.
How often that happens justice to justice I don't know, but I think it's more like having five ... excuse me, nine very small law firms operating in the same building.
[HW] You've studied the court pretty classy what do you think?
[RH] I did not clerk on the court, I've no insider information. I do agree that they seem to act in silos. There are stories I think back in Casey of Kennedy and Souter and O'Connor lobbying Kennedy.
I expect now that Roberts is going to do whatever he can to try to deal with the four-four cases in a way that most preserves legitimacy of the court as an institution. One thing I think you could say about Roberts is that he cares about the Supreme Court as an institution.
I think that more than any kind of liberal leanings explains his votes for example in the Obamacare cases. So he may reach out but that's just a guess of mine.
[HW] You've just mentioned law clerks and given that we've got a lot of law students here and in the adjoining, and some watching in live stream or maybe somebody in this room or in the adjoining room who some day will be a Supreme Court law clerk.
Tell us a little bit if you will without totally invading your personal experiences what the role of law clerk is and how much influence do they have.
[EW] I think it's fair to say that both in the lower court and at the Supreme Court the role of the law clerk will vary a lot by who your boss is and what he or she expects of you, how the office is organized. But essentially, you're there to analyze cases from the beginning, help guide the judge to the right result.
Most judges have the clerk do some sort of first draft. I think almost all do that and the one or two who don't such as Judge Posner I think would benefit greatly from getting a little more help than they have. I think Rick might agree with this point too.
He's notorious for his sloppiness. I actually do recall how with Justice Scalia give him a draft, which is intimidating to do especially the first time, and he always managed to take what he had and refashion it in a way that made it distinctively his.
Sure, you could see how what you gave him carried over if you did a good job but all the brilliance, all the great wording he just always had his mind going all the time in how to craft the opinions.
[RH] I would just add about Justice Scalia's opinions that he gave an interview a few years ago, I think it was to New York Magazine?
[HW] Yes.
[RH] Where he said that he wrote his descents for law students, and I can attest as a casebook editor that we had to whittle down a case. If you could include a Scalia opinion, it just makes it more bearable for the students to have to read through ... as you know in the room ... read through pages and pages.
It's a Souter-opinion, Brian is going to be a 12-part test and with Scalia, you always knew you'd be entertained, infuriated, you'd be laughing. I did a study a few years ago and found that Justice Scalia was described as sarcastic or caustic 30 times more than the next closest justice down.
[EW] Sarcastic is the liberal word , for a conservative it’s funny.
[RH] Justice Thomas and Alito did not come close in the ... Scalia was the outlier, but he was funny. They did a study of how often laughter appears in the transcripts and Scalia was a clown.
I do think he was larger than life personality at the oral arguments if you've ever seen him or heard him. It's going to be very interesting hearing the arguments today, hearing what it's going to be like.
I think a body that's of nine people that with so much power that work so closely together any time you upset the equilibrium it's bound to have all kinds of effects that we can't see.
[EW] Let me just add, it's gotten some attention recently. For someone who is so vilified, Justice Scalia did an incredible job of forming friendships with people with whom he had deep ideological divides and that may puzzle a lot of people.
I'm sure a lot of us, myself included, aren't that good at doing it. We tend in DC to be very polarized, we all can use sharp rhetoric obviously the justices did as well. I think he had this amazing capacity.
I think it was frankly rooted in his religious faith to see the best qualities of people whom he liked and respected and to understand that even though he would deeply disagree with them on matters of judicial philosophy, moral issues, things deeply important to him that he can nonetheless appreciate who they were, getting along famously with them.
His friendship with Justice Ginsburg is the most prominent example, he also had very strong ... very good relations with Justice Ginsburg, Justice Kagan and others. I would hope that we all, I certainly include myself in this certainly, can learn a lesson from that.
[HW] I'd like to ask a question about accessibility to the Supreme Court. It's one of the three branches of government but in recent years we've gotten to listen to oral arguments but there's no televising of Supreme Court proceeding.
Tell me what you both think about the idea of televising Supreme Court proceedings and is there some reason that you think that that branch of government is so different that the other two branches that people shouldn't be able to watch it.
[EW] Well, the branch is not so different say from Congress. Members of Congress decide that it's in their political interest to be televised so they can have little clips that they show on their local news back home.
Members of the Supreme Court I think ultimately think in part that it's not their interest. There's an anonymity to the job that I think they like but beyond that I think this is actually a serious factor.
I think that they fear that televised arguments would dramatically change not just the behavior of justices, not just the behavior of those argument court rooms but the behavior of those in the audience who suddenly have additional incentive to engage in some big protest.
Look, I respect different views on this but I'm inclined to say we have much bigger problems out there. We can leave this as it is. The reality of the matter is that we live in a golden age of transparency at the Supreme Court.
Technology has made it so that we have ... not just technology, Supreme Court internal decisions have made it so that we have same day access to full transcripts of every argument. We have, I think, same week access. I don't follow closely to audios-
[RH] Friday afternoon.
[EW] Of all the opinions. We have tons of reporters who are there, we have specialized websites that someone who really wants to go learn more about what was said can go to.
I don't think in the grand scheme of things that we're missing much by not having Supreme Court arguments televised. I do think there's a serious downside risk of televising.
[HW] Rick.
[RH] I disagree with everything but one thing.
[EW] How did I say it?
[RH] I do worry about the risks of outbursts but I think the Supreme Court is by far the least transparent institution that has so much power. I think that it decides cases using legal jargon months after argument that people don't understand, they don't understand the implications.
Anything we can do that can educate the public about what the court is doing should be out there. If you've ever watched the Ninth Circuit on YouTube or you've watched the Florida Supreme Court as I have on television it's not scintillating television, but it is educational.
If you care about the issue it should be there. Sure they'd be made fun of on the Daily Show but so what, they're public officials doing public business. It's just one example of the lack of transparency.
When the court took this recent North Carolina redistricting case nothing appeared on the docket for days. When the court issued its decision dividing four to four or dividing zero to eight or dividing three to five, we have no idea because the court doesn't tell us their votes.
In all of what Professor Will Baude has called the shadow docket where the court decides emergency cases they never even later explain later to us why they've reached their decision.
Their financial disclosures are inadequate. Justice Scalia when he passed away was at the ranch of someone who had a case that was pending before the Supreme Court last year and if-
[EW] Last year, yes.
[RH] Last year, not the current. But if it's lodging ... again, I'm sure this is not just Justice Scalia this probably applies to many of the justice, if it's lodging it doesn't have to be reported on the disclosure report.
I think the court is a terribly non-transparent institution that's doing really important work. I don't care if it makes the justices uncomfortable to have to be on television.
[HW] I'd like to just go back before we open up the question to another question, big picture question about the role of the court.
Robert Jackson, who was a distinguished American, he was on the court from 1941 to 1954 after he'd been the Attorney General and Chief Prosecutor at Nuremberg, once said of the court ... this is a great line I think.
"We are not final because we are infallible, but we are infallible only because we are final." What do you think he meant by that and do you think he was suggesting that there needed to be some greater accountability for the court?
[EW] I hate that quote of Jackson. Justice Scalia really admired Justice Jackson. The fact of the matter is the court is not infallible. Maybe he was invoking the idea that maybe somehow it needs to be treated as though it were infallible because it's final, but that also is I think a serious falsest.
We have this mythic judicial supremacy that suggests that the Constitution means whatever five justices say that means. A lot of people think that this myth dates back to Marbury, but it's a gross mystery to hear Marbury.
This myth was first promulgated by the Supreme Court in Cooper V. Aaron. It's deeply hostile to the understanding through our history. Abraham Lincoln did not say, the Supreme Court has spoken in Dred Scott, so I must abide by the rationale of that opinion.
Had he taken that position he would never have signed into law a later abolishing of slave inter-federal territories. I read that went headlong into Dred Scott. He would not have allowed his administration to issue passports and patents to free blacks thus confirming they're citizens as he did and so on.
I don't know what he meant. I think it's a very bad quote from a very bright man. Although, I'd one last point about Justice Jackson and may bear a little on this Scalia vacancy. As you noted, Justice Jackson went off to Nuremberg for a year to be the war crimes' prosecutor there and there was a controversy at the court at the time.
Could the court survive with just eight justices? I think it's Frankfort who said, "Of course. The trivial inconvenience of having eight justices for a while is nothing."
[HW] He might have thought the court could have just survived with him.
[EW] It might well have.
[HW] Rick.
[RH] I would say that we have a very bad combination of two things; life tenure for justices who are increasingly appointed because of their ideological views that line up with party views and a very difficult if not impossible taste of amending the United States Constitution.
If we could more easily amend the constitution easily as we could amend the constitution in California, which basically take $2 million to get something on the ballot and then voters can vote on it more likely or not. If we could amend the constitution, then the Supreme Court wouldn't be so final.
Or, if justices didn't have life tenure but had maybe fixed 18 year terms, which Steve Calabrese of the federal society has proposed and I think is a great idea, and we rotated justices in every two years.
We'd say it is a political institution but there's going to be change and it's going to slowly reflect political views. If we'd any one of those things so the court would not be final more of the time I think we'd be better off. I'm saying that whether we end up with a liberal Supreme Court now or continue with the conservative Supreme Court.
I think the ability of the people to overturn the Supreme Court is something that we deeply need but we don't have because you need to get through the current polarized congress with a two-thirds vote and then get three-quarter of the states to agree.
Pick anything besides term limits is hard to imagine getting through a vote of popular initiative in this country. Anything else it's hard to imagine it even getting out of the legislature.
[EW] Well, I agree with much of what Rick says there. I believe the Constitution is too difficult to amend. I also think that that difficulty in amending it is what has led to some of the activist decisions overriding limits on congress's power.
I'll just add one note. There're two way by which amendments can be proposed for ratification. The first, the one that's been used for every amendment for far is for congress to send it to the states, but there also is the application as a state.
I believe it requires two-thirds of the states to make an application to congress at which time, as I read the constitution, congress is required to issue this proposal for a convention. A convention would simply propose amendments, which would still need to be ratified by the three-forth of the states.
[HW] I think it's time to open up for questions. I'll take some hand. Mandy?
[Audience Member] I have a question on the legitimacy of the court and how much this possible appointment is going to affect if it's appointed by a liberal role the American people who view the court as a political movement now? Is that in the court's responsibility to retain the legitimacy or does that rest on congress?
[RH] All I can tell you is the public opinion about the court in the last 10 years has been going down. I attribute that to the fact that we are, for the first time in recent memory, a court where all of the liberals are appointed by a democrat president and all of the conservatives are appointed by a republican president.
You can criticize the republican Supreme Court, the democrat Supreme Court, so I do worry about the court's legitimacy. I think that the justices worry about that. Chief Justice Roberts recently gave a speech, we're simply not a political institution.
I think they're increasingly going to be seen that way whether they see themselves or not.
[EW] So it'd be a great solution then I think you'd agree for President Obama to nominate Miguel Estrada or Fred Calvina to the Supreme Court in order to break that perception. I think another factor is that law schools for two or three generations now have taught that law is nothing more than politics.
Indeed, it can be nothing more than politics. Again, a lot of this is dressed up in the language of the living Constitution but ultimately it just collapses into that notion that law is politics. I think we're reaping what law schools have sown.
[RH] It's our fault.
[EW] No, just scratch that.
[HW] I'm going to prove you're not guilty by taking the next question. Yes, sir.
[Audience Member] In Cheney V. ... for District of Colombia when this year Colombia was trying to get Justice Scalia to recuse himself to force Vice President Cheney to release his visitor logs when discussing national energy policy.
Justice Scalia refused to recuse himself saying that, "When the court perceives injustices it raises for possibility that by reason of a tie vote it'll find itself unable to resolve the significant legal issue presented by the case."
He goes on to say that even one unnecessary recusal impairs the functioning of the court. My question is, how is allowing a seat to be open for a year not in August to a year's long unnecessary recusal.
[EW] My recollection was maybe mistaken as you're extracting one snippet from an opinion in which he goes on to explain at length why he has no obligation to recuse. The principle is that if you're not obligated to recuse you're obligated not to recuse.
Sure, there's some potential downside but I think it's trivial in the grand scheme of things and I don't think that that snippet captures the broader significance of his opinion, which I'll not many folks across the ideological spectrum accept the same.
[RH] I would just point out just another potential reform that would improve the court. I don't know how Ed would react to this, which would be what we do at the California Supreme Court when there is a recusal or an absence for some other reason is we pick another justice at random ... a Court of Appeal justice at random to serve on the court.
If we could actually assure a random draw, I think that would be ...
[EW] Judge Reinhardt again, how did that happen?
[RH] I say that because there has been some controversies over random draws in both circuit courts and also on three judge courts. Now there are claims that Chief Justice Roberts has been stacking the FISA court with republicans, there's all kinds of ...
If we can assure that it was truly random, we get the same people around Powerball would be the ones who are picked then we could fill those vacancies and that might ... or recusals in those cases. I don't know how you feel about something like that.
[EW] I haven't given it serious thought. It has some attractions. Obviously, as you pointed out it has a random element to it as well but there are worse ideas.
[RH] I've articulated many of them.
[HW] Next question. Yes Ben.
[Audience Member] You mentioned Justice Scalia's deep religious views and feeling. I wonder, do you think that the justices who don't bring that into their view of the Constitution's textual meaning, their view of what originalism is, isn't that all coming from a deeper religious background? Isn't that kind of a slant on the view?
[EW] I think I can prove that it doesn't in fact. Justice Scalia said that the one obligation that his religious belief impose on him as a judge was do not lie. Take Roe V. Wade, if you assume that Justice Scalia was ardently pro-life, how strange that he would take the position that the Constitution leaves this matter to the political processes to be decided on way or another?
There're plenty of folks out there who are developing this notion that person, the 14th Amendment ought to be construed to protect the unborn. He never took that position, likewise on marriage, likewise on so many other things.
I'm not going to claim that anyone is fully above the danger of indulging his own strongly-held views. There are measures to take against that but the notion that he was imposing Catholic morality from the court is demonstrably false.
[HW] Next is Bob.
[Audience Member] I was wondering, do people who say that we should defer the nomination of a new Supreme Court justice to let the people decide in a presidential election and a new senate, I've never heard anybody talk about whether that view would alter the standards for confirmation of a new justice were that decision to be deferred to a new president or new senate.
Are they implying somehow there should be a more lenient standard once these people have spoken and a president or new senate is selected or is it just the same standard that individual senators would have?
[EW] The basic message here is the same one the New York Times set forth in an editorial in 2008. I don't think it implies anything at all about the standard that the next senate ought to apply.
Again, the reality of it is, and I was hoping we could get more into this. The reality is when you have an opposite party senate has tremendous power overt the confirmation process and it's going to exert that power. We haven't seen that situation in decades, we're going to see it now.
I agree with Rick that if the situation reversed things would be pretty much the opposite way except I hope they wouldn't be conservative making the stupid argument that somehow opposing ... saying that I can confirm a nominees is denying the right of the president to make a nomination.
That's a non-sequitur, we have the clash of branches that the constitution contemplates.
[RH] Let me just make a prediction that we can go back to this tape in a few months to see if somehow. If Hillary Clinton becomes president and there has been no filling of the vacancy of whoever president Obama has nominated and it's a democratic senate but it is a democratic senate that is not a filibuster-proof majority, I think democrats will kill the filibuster for Supreme Court nominations and that would be the end.
I think republicans would do the same thing but it's less likely that we'd end up with a republican president and a democratic congress.
[EW] I agree with you Rick but I want to emphasize that it is nonetheless the majority who control the senate that is a huge lever even in the absence of the majority using the filibuster authority of 41 of its members.
The democrats were quite clear in the New York Times report on this back in November 2013 when they went nuclear and abolished the filibuster for lower court judicial nominations and executive branch nominations.
They said, the New York Times reported that they did not do it for Supreme Court nominations because the abortion groups were afraid that eliminating the filibuster would make it easier for a republican president to get anti-row nominees confirmed.
Of course, if they're in the moment and they have a situation where they don't have to worry about that and they need to boss the filibuster of course it'll happen right away. I think everyone on both sides recognizes that. If republicans need to do so in order to get a good nominee confirmed I think you'll see that disappearing as well.
[RH] I think that's the biggest change that we're going to see is we're going to be ... and I think it's very unlikely that Obama gets a nominee through who actually gets a vote and gets confirmed.
Even if that happens, I think there will be more nominees over the next four to eight years and whoever's in charge if they need to get rid of the filibuster to get somebody through they're going to. Justice Alito had 42 votes against him but the democrats didn't filibuster.
[EW] Well, they did filibuster and successfully at 25 votes Barrack Obama votes against closure. I agree with what you're saying, I just think you're overstating its importance. The filibuster is not a very powerful tool against Supreme Court nominees because filibustering senators are likely to face a high political price.
It's a lot easier to filibuster lower court nominees because who's ever heard of Miguel Estrada for example? That stuff doesn't get attention. I think having majority control of the senate is a far more powerful club than whatever in criminal advantage the filibuster gives you.
If you're going to get confirmations proceeding expeditiously, if you decide that's what you want and I'm sure for most of us our own preference will depend whether it's a president we like or when we don't. What you want to look for is to have same party control in the senate.
[HW] I think you got final question, close to one.
[Audience Member] My question concerns the role of the Supreme Court in encouraging civility in the legal profession. One thing that I've noted that need the tone in some opinions in recent years has it's not as simple as it has been in the past or as simple as it could be.
Do you think that justices have a responsibility to control the tone and how they write their opinions?
[EW] I would say a much higher obligation is to write coherent opinions. When justices fail to do that, when they write idiocies I entirely understand other justices calling out those idiocies.
[RH] I take a contrary view. I think that you can respectfully disagree and not say that if I had to sign this opinion I would put my head in a bag, which is what Justice Scalia had said in one of his opinions.
I know that the dean feels more strongly about this than I do that this is causing law students and lawyers to write in a less civil way.
I would rather look not to Justice Scalia's writing but to his personal friendships and relationships that Ed talked about as the model that we want of civility across that.
[HW] I regret to say that I have to call this to an end because student have to go off to class. Thank you both very much.
[Narrator] Thank you for joining us for UCI Law Talks produced by the University of California, Irvine School of Law.
