Legal analyst Kimberly Wehle on the 14th Amendment and whether it can be used to keep Donald Trump off the ballot.
It’s been nearly four months since the death of supreme court Justice Antonin Scalia left a vacancy on the bench. Republicans continue to stonewall President Obama’s nominee, saying there will be no hearing until after the election. Meanwhile, the Court has shied away from the kinds of blockbuster decisions that marked the last term. Some celebrate this as newfound judicial restraint. Others say it is a sign of dysfunction. We take the long view with two Supreme Court scholars. Both have just released books that explain the historic role of the Court in society — and how that has changed over the years.
- Linda Greenhouse Author of "Becoming Justice Blackmun" and "The Burger Court and the Rise of the Judicial Right"; professor, Yale Law School; former Supreme Court correspondent, New York Times
- Jeffrey Rosen President and CEO, The National Constitution Center; author of "Louis D. Brandeis: American Prophet"
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. This month brings to a close an historic Supreme Court term. It saw the death of one of the most influential justices of a generation, an ongoing vacancy on the bench that does not look to be filled any time soon and some blockbuster cases, some yet to be decided. Today, we talk about what's happened this term and look to history for some lessons from the past.
MS. DIANE REHMJoining me, Linda Greenhouse, co-author of the new book, "The Burger Court and the Rise of the Judicial Right," and Jeffrey Rosen, he's just written a book titled "Louis D. Brandeis: American Prophet." Throughout the hour, we will be taking your calls, comments, questions, 800-433-8850. Send your email to firstname.lastname@example.org. Follow us on Facebook or Twitter. It's good to have you both here in the studio.
MS. LINDA GREENHOUSEThanks for having us, Diane.
MR. JEFFREY ROSENSo wonderful to be here.
REHMThank you. Jeffrey, let me start with you because the subtitle of your book, "Louis D. Brandeis," is "American Prophet." And I got very curious as to why you were using that word, prophet.
ROSENWell, first of all, he looked like a prophet. He had this impressive gray hair and piercing gray-blue eyes. And everyone called him Isaiah. Franklin Roosevelt would call him, "my dear Isaiah." And that was because Brandeis had a prophetic mode. He would denounce immorality and pace back and forth and say truth is beauty and beauty is truth. And I also call him American prophet because he was the most prophetic justice of the 20th century.
ROSENHe can teach us more about the future of how to translate free speech and privacy in light of new technologies and also how to curb what he so memorably called the curse of bigness in business and government, than any other justice.
REHMAnd that got to FDR, as far as the first new deal was concerned.
ROSENWell, I begin the book with this dramatic scene where Brandeis summons FDR's advisors to his incredibly austere apartment on California Street, the building still exits and he had prints of classical ruins. And he lived very modestly. And he began to pace back and forth and he warned FDR's advisors, you've got to tell the president, this business of centralization has got to end or we're gonna stop it. It would be completely inappropriate by today's standards.
ROSENBut they didn't heed the warning that conveyed the message and the prophet made good on his threat. He joined a unanimous court in voting to strike down parts of the first new deal and FDR responded by changing his tune, embracing the ideals of Brandeis and Woodrow Wilson and in the second new deal, preferring to break up banks rather than creating big central regulatory instances.
REHMAn issue that's very much in the news today so in terms of prophecy, I mean, he's right here. Linda Greenhouse, to you, "The Burger Court and the Rise of the Judicial Right," what was happening before the Burger Court and what happened when Burger lead the court?
GREENHOUSEWell, of course, that's part of the resonance of today. So before the Burger Court, of course, was the Warren Court. The Warren Court, we know, was famously a liberal court and sought to harness the Constitution as an engine of social change, social progress and created a fair amount of turmoil, political turmoil in the country that Richard Nixon, running for president in 1968, very smartly exploited. He ran, in part, against, the Supreme Court and he was a very lucky man.
GREENHOUSEHe got four vacancies within the first three years and thereby was able to get hold of the court, change the court in some very important ways. Not necessarily in dramatic ways. I mean, Jeff just gave a very dramatic rendition of the role of Justice Brandeis, but one motivation for writing this book is that the extent to which the Burger Court really did change the Constitution has been overlooked. It's been kind of written off as the transition between liberal Warren Court, conservative Renquist Court, which is what came next.
GREENHOUSEBut we make the argument in the book that a whole lot of things happened there that really set in motion the things that changed our Constitutional landscape.
REHMGive me an example.
GREENHOUSEWell, one example, you know, Citizens United comes down from the Roberts Court in 2010 and people are shocked. You mean corporations have a first amendment Constitutional right to speak, to spend money in politics? You know, who ever heard of such a thing? Well, that came quite directly from a Burger Court opinion called First National Bank of Boston against Bellotti, that for the first time, interpreted the Constitution and the rights of corporations, gave the corporations a right to spend money, to vindicate their views in politics.
GREENHOUSEAnd so, you know, people kind of forgot about that.
REHMWhat about on social issues?
GREENHOUSESo on social issue, the Burger Court comes in, of course, in the wake of Brown against Board of Education and the civil rights revolution and is faced with a series of very, very significant choices. We know -- the Burger Court would well say we know that school segregation is unconstitutional, but what to do about it. By the time the Burger Court kind of assembled in the early 1970s, there actually had been very, very little desegregation in the south and there was a great deal of residential segregation in the north.
GREENHOUSESo what about, for instance, bussing as a remedy. And one of the most important consequential things the Burger Court held is that busing across district lines was not to be, except in extraordinary circumstance, which actually never occurred as far as I know, was not be a remedy and that really kind of shaped the history of school desegregation and also residential patterns in fomenting white flight to the suburbs because desegregation remedies were not going to reach that far and so on. And so that's certainly one big example.
REHMLinda Greenhouse, she is a Pulitzer Prize winning former Supreme Court reporter for the New York Times. Together with Michael J. Graetz, has written "The Burger Court and the Rise of the Judicial Right." Jeffrey Rosen is director of the Center for the Constitution. His new book is titled "Louis D. Brandeis: American Prophet." And if you'd like to join us, 800-433-8850. Send us your email to email@example.com. Follow us on Facebook or send us a tweet.
REHMJeffrey, how significantly do you think the Supreme Court, today, plays in people's minds as they go to the polls?
ROSENWell, I guess we will see, but it should play very centrally in people's minds because -- and I speak as the head of the only place in America that has a congressional charter to be nonpartisan. Our commission is to disseminate information about the Constitution on a nonpartisan basis at the National Constitution Center. But just speaking descriptively, the next election will determine the future of the Constitution for decades to come.
ROSENAnd Linda talked about the liberal Warren Court. Not since the 1960s have we had a liberal juris prudence. If the Democratic nominee is elected president, the court will become liberal for the first time in a generation or more, transforming aspects of law in areas from campaign finance, affirmative action, voting rights. If the Republican wins, a conservative majority will be consolidated for generations to come.
ROSENSo should cast their vote based on the nominee whose view of the Constitution most coincides with their own and there are very clear choices to make.
REHMHow in the world do they make those decisions, Linda?
GREENHOUSEWell, I'll just say I found it remarkable, four years ago, in the last presidential cycle, there was not a single question asked during the presidential debates between President Obama and Mitt Romney. That's not going to be the case this time. I think the court is front and center so how are people going to make their decision? I trust and hope that there is going to be a lot of, you know, fact-based hard analytical conversation in the media and in politics about some of the questions that are going to be facing the court and what it means to be a progressive court, what it means to be a conservative court instead, you know, to look beyond the labels and try to get people to understand the impact of major Supreme Court decisions on their lives.
REHMThat can be very difficult. I think you would agree. What decisions do you see forthcoming?
GREENHOUSEFrom the court this term. Well, I'm certainly waiting to see on the Texas abortion case, for instance, is one of the major undecided cases and here we have a situation where the state of Texas upheld by a very conservative federal appeals court, that includes Texas, the fifth circuit, upholding a series of abortion restrictions that would close three-quarters of the abortion clinics in the great state of Texas, leaving none, for instance, west of San Antonio, hundreds and hundreds of miles to the New Mexico border.
GREENHOUSEAnd the question is, does this comport with Supreme Court precedence? Is the court going to stand by its precedence under which I would argue this Texas law is unconstitutional.
REHMLinda Greenhouse and Michael Graetz, co-authors of "The Burger Court and the Rise of the Judicial Right." Short break, right back.
REHMAnd welcome back. Here in the studio, two constitutional and Supreme Court scholars, Jeffrey Rosen, he heads up the Center for the Constitution. He's just written a new biography of Louis D. Brandeis, and the subtitle on this book is "American Prophet." Linda Greenhouse is Pulitzer Prize-winning former Supreme Court reporter for the New York Times. She and Michael Graetz have written together "The Burger Court and the Rise of the Judicial Right."
REHMOur first email, from John in St. Louis, who says, there is not a vacancy on the Supreme Court just as much as there is always a vacancy on the court, since the Constitution does not specify the number of justices to be seated. Couldn't the Senate decide it likes the number eight or that it wants to see the number decline to seven? Jeffrey, that's a total shocker to me.
ROSENIt's a great question, and the answer is yes, the Senate has changed the size of the court based on pure partisan politics from the very beginning. In the election of 1800, the outgoing Federalist Senate is so determined to deny Thomas Jefferson the chance to make an appointment that it reduces the size of the court and eliminates a seat. And the Senate responded to Lincoln during the Civil War by changing the size of the court. And then of course President Roosevelt famously tried to pack the court and change the size to serve his partisan ends, as well. So the truth is that the Senate could, as a body, if it chose, formally change the number.
ROSENBut simply refusing to confirm a justice is not the same as changing the number of justices, and therefore I don't think that this would -- this does indeed count as a vacancy, unless the Senate acts in a more formal manner.
REHMLinda, what is your thinking about the Senate's refusal to even hear the nomination of Justice -- of Judge Merrick Garland?
GREENHOUSEWell, to be clear there's no historic precedent for it. You know, they claim that there is, but there isn't. It's just an amazing piece of political theater. I've told my students that they'll be telling their children about 2016 and the crazy business with the court. So, you know, the question is how much does the public care, and will the Republicans for this kind of obstructionism pay any kind of political price.
REHMTake Justice Burger. If a vacancy like this had come up on the Burger Court, what influence might he personally have exerted, both on the president to name a person and on the Senate to confirm such a nominee?
GREENHOUSEWell that's an interesting question, and I don't think I know the answer, but I take -- I take the implication of your question to be is there anything that Chief Justice Roberts currently ought to be doing or saying about it. And he's been very careful, as one would expect because he's a very careful person, not to say anything very much. And the justices who have spoken about it have basically said, you know, we're doing fine, there's really not a problem, not kind of -- not our business, we don't get into politics.
GREENHOUSEYou know, what Burger would have said, now he was -- he was chief justice while Nixon failed, famously failed, to fill the vacancy created by the departure of Justice Fortas. He nominated Haynsworth and Carswell, and the Senate rejected them, and so Harry Blackmun, old number three, was finally confirmed to that seat. But I don't believe that Warren Burger himself said anything publicly during that period.
REHMPublicly. We don't know what he may have said privately.
ROSENI have to channel Brandeis on this question, may I?
ROSENSo Brandeis waited 125 days between his nomination on January 28, 1916, and his confirmation on June 1, almost 100 years ago to the day. Merrick Garland will surpass that record around July 19, if my math is -- if my math is right. So so far no one has waited longer than Brandeis. But Brandeis did get a hearing. He didn't appear personally because justices didn't in those days.
ROSENThe opposition to him, though, there was some strong anti-Semitism, people accused him of Old Testament cruelty, and President Taft, who he'd embarrassed in a congressional hearing, said he was an emotionalist and a socialist and a muckraker. But the main opposition to him was political, that he was a champion of the small businessperson against oligarchs like JP Morgan, and business interests united to try to oppose him. In the end, though, it was a Democratic Senate and a Democratic president, and the vote wasn't close.
ROSENIt's -- there was much more interaction between the justices and the president in those days. Justice Brandeis summoned FDR's advisors to warn them that he was going to strike down the New Deal, so he advised FDR, encouraged him to appoint Felix Frankfurter, who was Brandeis' protégé. President Taft, who was just yearning to be on the Supreme Court, actively lobbied both Wilson, who he probably thought would appoint him, and then President Harding, who finally did.
ROSENSo the norms then were different, and there was more interaction between the court and the president, and now of course I don't think we're expecting that the justices are talking to the White House.
REHMAnd what kind of connections did Burger have with President Nixon?
GREENHOUSEHe didn't really have much of a personal connection, and of course the decision that he regarded as his most important decision, U.S. against Nixon, was the one, the Watergate decision.
REHMHe couldn't believe it came down that way.
GREENHOUSENixon couldn't believe it, yeah, a unanimous opinion that basically forced Richard Nixon out of office. But no, and Burger was appointed by Nixon to succeed Earl Warren. Burger had been a Republican activist earlier in his career, and he was rewarded by getting a high position in the Eisenhower Justice Department and then was put on the D.C. Circuit, the Federal Court of Appeals in D.C., where he kind of led a conservative bloc against the kind of liberal dominance of that court and was very outspoken on criminal justice policy and so on and really was running, running for the Supreme Court for quite a while.
REHMAnd when we see four-to-four decisions possible on the current court or decisions simply not taken on the current court, what do we make of the power of the court in that four-to-four situation, Linda?
GREENHOUSEWell, one ting, this may be worth mentioning, you know, we're so used to these past years, when there have been four justices on the left, four justices on the right and Justice Anthony Kennedy in the middle, so we're used to -- we've come to the assumption that any major controversial matter is going to be decided by a vote of five to four.
GREENHOUSENow back in the Burger court and then through American history, that really hasn't been the case. This court has been an anomaly. In the Burger years, there were three, maybe four, justices sort of who anchored the center of the court, and so anybody making an argument to the court or framing a case that they hoped would get to the court, couldn't target their argument to one individual. It was much more open season for all kinds of arguments.
GREENHOUSEAnd so the fact that we're now facing the prospect and already have had a couple of cases, four to four really reflects the polarization of this court, and of course the court reflects the polarization of American politics.
ROSENThere's another model, and that's the Taft court, which Brandeis served on. And then there was a norm of unanimity, and Chief Justice Taft, who was Brandeis' rival, and Brandeis embarrassed him in his congressional hearing, believed in massing the court, and Brandeis cared so much about the legitimacy of the nonpartisan court that he would join a series of unanimous opinions by Taft, even ones with which he disagreed.
ROSENNow Chief Justice Roberts has embraced Chief Justice Taft and their mutual hero Chief Justice Marshall as a model and came to office saying that he wanted to promote these narrow, unanimous opinions. I think it's so striking to see last month we did have that nearly unanimous decision in the contraception case, involving religious objections to the contraception mandate, where the court finally did what Taft and Marshall promised and avoided a four-to-four split by encouraging a kind of compromise.
ROSENIt will be very interesting to see -- imagine Merrick Garland or another Democratic nominee is confirmed, will Chief Justice Roberts have gotten the court into the habit of unanimity and be able to persuade the new liberal justices to join narrow, unanimous opinions? If he doesn't, it's completely fascinating to speculate that Chief Justice Roberts' power will be dramatically diminished because the chief only has the power to assign opinions when he in the majority, and if he is on the losing side of a series of five-to-four liberal decisions, then his entire capacity to mass the court and promote (unintelligible) will disappear. So his incentive will decrease.
REHMAnd do you want to add to that?
GREENHOUSEYeah, I guess I'm a little bit less sanguine than Jeff is about the habit of compromise that the court may be adopting because if we look back through the 10 years, 11 years now, that John Roberts has been chief justice, I think you'd be a little bit hard-pressed to find much signs of that. You know, we had not only the five-to-four Citizens United, which went further than the parties had actually asked the court to go, we have the Shelby County case, five to four, that gutted the Voting Rights Act of 1965, I can name quite a few other cases, so that, you know, maybe some new day has dawned at the court, or maybe the outcome in the contraception case was a sign not so much of compromise but of failure, of dysfunction, of just inability to get their act together on a very important matter.
ROSENIf I could I think that the -- Linda's absolutely right that the chief has had mixed success in getting unanimous opinions, to say the least, because of the dramatically polarized decisions that she mentioned. But much of that is reflective of the fact that Justice Kennedy has been in the driver's seat, and he prefers sweeping, broad decisions to narrow, unanimous ones.
ROSENNow that he no longer holds the balance of power, both sides have more of an incentive to compromise, and that's why it'll be interesting to see if the next justice shares a taste for polarization or for unanimity.
REHMHere's an email from Nick in Baltimore, who says I think the justices should become political by refusing to hear any more cases until a new justice is nominated and placed on the court. It would give Mitch McConnell something to seriously consider. Linda?
GREENHOUSEOh, probably Mitch McConnell would think that's a dandy idea. I mean, for a while it almost looked like the court was taking that kind of advice because between Justice Scalia's death in February until about two weeks ago, the court had only taken 13, I think, 12 or 13 new cases, leaving looming gaps in the fall argument calendar. They've picked up the pace a little bit. The court took two death penalty cases this week. So I think they're kind of catching their breath and moving on.
REHMSo you're saying Mitch McConnell would just as soon have fewer decisions coming down from the court?
GREENHOUSEWell yeah. I mean, if you take the Republicans at their word, they basically believe, I think, that the court should, you know, fold its tent and go away. So I don't think that -- I don't think that's a scary prospect to the Senate Republicans.
ROSENI think that both sides want to win, and the Republicans like decisions that favor Republicans and vice versa. It's not the worst thing in the country for the court to reduce its profile a bit. The questioner said the court should be more political. Actually Justice Brandeis viewed it as less political for the court to avoid constitutional decisions whenever it could. He was the author of the famous decision called Ashwander that both Republicans and Democrats like to cite.
ROSENAnd the norm in those days was if you can avoid striking down a law on constitutional grounds, you should. So we've gotten so much in the habit of the court weighing in on everything, maybe it's a good thing that it's pulling back.
REHMAnd you're listening to the Diane Rehm Show. Edward in Springfield, Virginia, says is an activist justice simply one we don't agree with, Jeffrey?
ROSENYes, I think that's a good definition of activism. Both sides use the term to describe exactly what the questioner says, decisions they don't agree with. Now there is a neutral definition of restraint, and that is it's restraint not to strike down laws, and it's activist to strike down laws. It's not saying whether activism or restraint is good or bad, it's just describing what it means when the court invalidates laws. And it is important to hold up Justice Brandeis as someone who genuinely believed that the states especially should be what he so memorably called laboratories of democracy and should give rise to social experimentation that the court should generally defer to, unless clear constitutional values were overwritten.
ROSENIt's striking, though, that I -- I concluded in this book that Brandeis was not a consistent advocate of judicial deference or abstinence or restraint. He tended to strike down centralizing federal laws that he didn't like, like the New Deal, and to uphold the state regulations that he did like. In that sense he had a very strong vision of political economy rooted in his Jeffersonian hatred of business and bigness in government, and he kind of imposed that from the bench.
REHMI'm sure your students at Yale offer the same kinds of questions.
GREENHOUSEWell, there's one very interesting thing that's going on now. So there are various doctrines that bring about judicial restraint, one of which for instance is a doctrine called standing. So if somebody doesn't have a concrete case with a concrete dispute that can be resolved judicially, they don't have standing in federal courts.
GREENHOUSEAnd this, for a long time it was conservatives who believed that standing really should mean something, should really be a strong gatekeeper. In recent years, that's flipped, and all of a sudden we think -- we're told that the state of Texas has standing to challenge the Obama administration's immigration policies, which P.S., I don't think they do, that a young woman named Abigail Fisher has standing to challenge the affirmative action policy at the University of Texas, even though she long ago went to and graduated from a different university, and there's no remedy that a federal court can give her.
GREENHOUSESo the flip on standing is really a very interesting and I think under-observed twist on this whole question of judicial activism and who are the activists.
REHMAnd how do you teach standing at GW, Jeffrey?
ROSENThank goodness I don't teach standing. I teach all the fun cases like constitutional law and criminal procedure.
GREENHOUSEOh, standing is a lot of fun, Jeff.
ROSENWell, I envy your sense of jollity because I really get excited by the First Amendment and the 14th Amendment, and what I love to teach in those cases is the substance of the decisions, so trying to relate technical issues of standing to the First Amendment, the greatest free speech decision ever written was Justice Brandeis' beautiful decision in the Whitney case.
ROSENHe avoided concurring for technical reasons having to do with standing, but you've got to read Whitney. This is a homework assignment, listeners, check it out, Whitney versus California, the best free speech decision ever.
REHMShort break, we'll be right back.
REHMAnd welcome back. We are here with two wonderful guests. Linda Greenhouse, Pulitzer Prize-winning, former Supreme Court reporter for The New York Times. She and her co-author have written "The Burger Court and the Rise of the Judicial Right." And we also have Jeffrey Rosen. He's professor of constitutional law at George Washington University. His new book is titled, "Louis D. Brandeis: American Prophet."
REHMWe've got lots of callers. 800-433-8850. There was a follow-up question from an emailer on the number of the sitting justices, saying could there be a benefit to an even number of justices. I think you talked about a little bit, Jeffrey.
ROSENJustice Ginsberg did give a statement about this recently. She said that the Court needs an uneven number because the reason to avoid an even is number is 'cause ties are not useful because…
ROSEN…they create no settled law. They merely affirm the lower court decision without establishing a settled precedent. So for that reason, even though the Senate has changed the numbers of justices, they've tended to be uneven numbers and no one expects the Court to function well with even numbers for a long time.
GREENHOUSEWell, of course, all 50 states, each state has its own high court. And I don't believe that any of them have an even number of judges. So I think, you know, we voted, through experience, that an odd number is best.
REHMAll right. Let's go to Al, in Pittsburgh, Pa. Al, you're on the air.
ALYeah, my question is the Supreme Court, in the Citizens United decision, has said that corporations have the same rights as individual citizens, at least as applied to free speech. What in the corporate -- the laws establishing corporations creates them as an individual entity, rather than a separate than a separate taxing entity? And secondly, does changing that require a Constitutional amendment or an act of Congress?
GREENHOUSEYeah, there's kind of a lot of loose talk about this. I don't think the doctrine is that corporations are exactly the same as individuals. Corporations, as a legal fiction, are deemed to be individualists for certain purposes. And that's not really a Constitutional matter. I think the deeper -- I think the thrust of your question is would it take a Constitutional amendment to overturn Citizens United. And no, I don't think that it would in the sense that the kind of fulcrum of Citizens United in Justice Kennedy's opinion was, what's the definition of corruption.
GREENHOUSEThe Court held that the First Amendment cannot block the government from imposing restrictions on money and politics, on corporate spending, money and politics as long as the effort was to prevent corruption. The question is what does the Court mean by corruption. The Citizens United Court said it's limited to quid pro quo corruption. That is to say, basically, out and out bribery is the only thing that you can -- that the government can stop.
GREENHOUSENow, it seems to me that the Court could simply, could easily redefine corruption in the way that I think most of us understand it, which is a lot broader than, you know, here's a million dollars, now give me your vote.
ROSENLinda's absolutely right, that that would be one way to overturn Citizens United. But the Court could also resurrect Brandeis's crusading anti-corporate tradition, which Justice Stevens cited in his Citizens United dissent. One of the most inspiring part of that dissent cited Brandeis's opinion in Liggett and Lee.
ROSENAnd that's another great decision for listeners to read, where Brandeis said, "There's a widespread belief that existing unemployment is the result in large part of the gross inequality in the distribution of wealth and income, which giant corporations have fostered, that by the control which the few have exerted through giant corporations, individual initiative and effort are being paralyzed, creative power impaired and human happiness lessened."
ROSENIt goes on, but Brandeis gives nothing less than an entire history of the efforts to curb corporate power, beginning with Thomas Jefferson's introduction of an anti-monopoly amendment that would have prohibited Congress from establishing corporations with exclusive privileges, continuing through the Jacksonian era and then in the Progressive era where the laws that Citizens United called into question were passed.
ROSENSo Brandeis, like Thomas Jefferson, viewed American History as a clash between corporate interests and small business interests, between oligarchs and farmers and producers. And that Jeffersonian tradition, which was repudiated in Citizens United, could be resurrected by a future court. And therefore, I hope that if Citizens United is overturned, that Brandeisian vision might be at the center of the decision.
REHMLinda, how realistic do you believe it would be to expect that the Court, say under a Democratic Senate and White House, would again take up Citizens United?
GREENHOUSEI think there'd be a fair chance of it. I think much more along the lines that I suggested than…
GREENHOUSE…some, you know, great anti-corporation Brandeisian, as Jeff puts it, campaign. But, you know, the devil is in the details in a lot of these things. And I think the Court would deal with it on a fairly detailed granular level, rather than a very high-pitched level.
REHMAll right. And to Mark, in Orlando, Fla. You're on the air.
MARKHi, Diane. Thanks for having me on.
MARKI have a quick question that may sound naive, but not so in today's terms. I wonder what's to inhibit a future Congress from continuing to stonewall a Supreme Court nominee for the next four years.
GREENHOUSEI think politics is all that would inhibit it. I mean, the Court exists within our political framework, always has, always will. And if Congress engaged in a ploy like that, I think, I would certainly hope, that they'd pay such a heavy price in politics that people wouldn't stand for it.
REHMWhat would the outcome be if indeed they did stonewall for the next four years, as far as important legal decisions that need to be decided, Jeffrey?
ROSENWell, we could have 4 to 4 splits on the kind of issues that we've been talking about, ranging from race to affirmative action to corporate power to abortion. And that could lead to a great deal of unsettlement in the law. Now, it's possible that some might challenge Congress' stonewalling as an attempt to thwart the Court's functioning that threatens the separation of powers.
ROSENAnd I'm not gonna plug our phenomenal "We the People" podcast series at the National Constitution Center, where every week I call up the top liberal and conservative scholar in the country to debate the Constitutional issue of the week. We had a great podcast where Erwin Chemerinsky of the University of California at Irving said for Congress to stonewall in a way that paralyzed the Court and prevented it from carrying out its functions would challenge the separation of powers in a way that would violate the Constitution.
ROSENMike Ramsey, on the other side, disagreed. But regardless of who you are persuaded by, it is true that getting a court to challenge Congress' inaction would be difficult. The Supreme Court itself would almost certainly refuse to hear the case on the grounds that it's a so-called political question that threatens a clash between the branches.
REHMGoing right back to Linda's point.
ROSENYes. And therefore she's absolutely right that in the end only politics could stop this.
REHMWow. All right. And to Wynn, in Durham, N.C. Pardon me, you're on the air.
WYNNGood morning. It's an honor to be on your show again.
WYNNA couple quick points. You know, it always riles me when statements are made, like Professor Rosen did, regarding whether a court's activist or not. There are things called rules of decision, where courts, which I'm sure the professors are familiar with. Things like, you know, claim notions and things like standing, stare decisis, jurisprudential authority, that type of thing. These things are commonly ignored of late by the Roberts' courts. Citizens United, excuse me, I've been running, is a great example.
WYNN(unintelligible) you know, judicial issues weren't even before the court that they decided on. It's like it's all dicta. I mean, it's ridiculous. And my last point is why can't presidents nominate men of intellectual honesty, of high integrity and of good faith?
REHMAnd I'm sure our caller meant to include women as well.
ROSENAbsolutely. And the caller is absolutely right that there are doctrines of standing and muteness and rightness and all these wonderful -- they sound so juicy. But, in fact, they are doctrines of judicial self-restraint. And there was not greater exponent of them than Justice Brandeis. So if you want to learn more about them, read his decisions in cases like the Ash Wander case, that talks about the need for the Court not to decide.
ROSENHowever, it is my opinion, for it's worth, that both sides, Democrats and Republicans, have tended to slight these doctrines in cases that they really care about. And therefore, neither side has a monopoly on restraint when it comes to avoiding decisions on basis of standing or of -- this is an error when most of our Constitutional questions are decided by the courts. We've really gotten out of this Brandeisian habit of not deciding. And that's why this brief moment -- and maybe it won't be so brief -- where neither side has a majority is so striking. 'Cause they have no alternative but to talk to each other and compromise.
REHMHere's a tweet from Chris, who says, "If the next justice is progressive, is that going to be polarizing or corrective?" Linda?
GREENHOUSEI think it's hard to answer that question in the abstract. You know, there'll be decisions that'll come before the court that'll come out differently, certainly than ones we've seen lately. And is that polarizing or does that, you know, ratify Constitutional settlements that we actually thought we had. I mean, just for instance, Shelby County, which I mentioned earlier, the decisions, 5-4 Roberts' court decision that struck down the -- or that cut the heart out of the Voting Rights Act of 1965.
GREENHOUSEThat law had recently, at that time, been reenacted by a huge majorities of both, bipartisan majorities of both the House and the Senate and had been signed into law by President George W. Bush. But the Supreme Court said that wasn't good enough. So was that polarizing? You know, it's in the eye of the beholder.
REHMWell, here's a follow-up from Jeffrey, in Indianapolis, who says, "The politicization of the Supreme Court is despicable and disastrous in the long run. Do you agree?" Well, from what you've said, Linda, the Supreme Court is always acting in political, at least within the realm of politics.
GREENHOUSEYes, yes, totally. I mean, you know, we really have to understand that. And the -- we can't understand the Supreme Court in a vacuum. The Court doesn't exist in a vacuum. It's the product of our politics. And its actions then turn, resonate in our politics and, as with -- as I mentioned at the top of the hour, you know, Richard Nixon running against the Warren court and having the importuning to create the Burger court, that was part of the ongoing dialogue between the Court and the political branches of government and the country. And it's always been and always will be.
REHMAnd you're listening to "The Diane Rehm Show." But, Jeffrey, don't many of us wish to understand the Supreme Court as being above and apart from politics?
ROSENWe do and we should. There's one thing I say whenever I teach Constitutional law. On the first day of class I say to the students, don't assume it's all politics. You can think that afterward or you can recognize the connection between the Court and politics. But if you think that all the justices are doing is voting five Republicans against four Democrats on political grounds you will miss everything that is beautiful and meaningful and constraining about Constitutional law.
ROSENYou will fail to see the many cases where the judges are motivated by their Constitutional philosophies, not by their partisan politics. And you'll misunderstand the unanimous cases, like those beautiful privacy opinions, where all nine justices have stood up for electronic privacy and many other cases involving unexpected alliances that are based more on shared judicial philosophy than on politics.
ROSENSo without denying the political component of the Court, I entreat you -- because this is what the National Constitution Center exists to promote -- educate yourselves about constitutional philosophies. Learn about the difference between originalists and living Constitutionalists, between judges who care (technical) precedent and those who care about pragmatism. And then you will begin to understand the Constitution in constitutional terms. You'll realize there are good arguments on both sides and you can make up your own minds.
GREENHOUSEWell, I mean, part of this comes to how we define politics. There's partisan politics, which we certainly want or expect our courts, any of our courts to engage in. And then there's, you know, the politics at large, how we govern ourselves in a democracy. And that's the kind of politics that I think we have to understand when we look at the Court's function within our democratic system.
GREENHOUSEThat whoever is on the Court at a given time, is the result of a nomination by an elected politician, confirmation by elected politicians. And it's not divorced from politics, but Jeff is certainly right. We expect our justices -- and I think they largely do -- to act out of a motivation from judicial philosophy, political philosophy, if you will, and that's not an epithet, that's just an effort to understand.
REHMAll right. And final question from Nara, in Little Rock, Ark. Very quickly please.
NARAVery quickly, thank you. Very, very quickly I just wanted to say that the American ideal, the great American ideal of government for the people, yes, by and all as well, but first you say for, I think it's been hopelessly corrupted. I mean, we're looking at a society where there is dreadful injustice, both internally and externally. America's got one of the largest prison populations in the world. And much of it now is under private corporate businesses.
REHMAll right. Now, I need your question very quickly please.
NARAWell, my question is how can we have a proper judicial system where, A, the judges are all being handpicked by political megaphones for big business.
ROSENWell, Brandeis was concerned about the effects of big business on society, but I am encouraged by the bipartisan consensus about the dangers of over-criminalization. It's great that the Koch brothers and the ACLU and President Obama are joining to try to stop the scourge that the listener identifies. Brandeis would have been proud.
REHMAll right. And with that we'll end our conversation. Jeffrey Rosen is professor of constitutional law at George Washington University, the author of "Louis D. Brandeis: American Prophet." Linda Greenhouse is a co-author of "The Burger Court and the Rise of the Judicial Right." She is a professor of law at Yale University. Thank you all so much.
ROSENThank you so much, Diane.
REHMAnd thanks all for listening. I'm Diane Rehm.
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