0:00:02 Leon: Hey everyone, this is Leon from Fiasco and Slow Burn. This week, Peter, Rhiannon and Michael are talking about how the Supreme Court could be fixed through Court packing and other means. They also talk to special guest, California Congressman Ro Khanna. Khanna introduced a House bill to impose term limits on the Supreme Court Justices.
0:00:22 Ro Khanna: Well, it's very simple, there shouldn't be Supreme Court Justices who are there for 40, 50 years.
0:00:27 Leon: But the hosts think it does not go far enough to reverse decades of conservative judicial activism. This is 5-4, a podcast about how much the Supreme Court sucks.
0:00:47 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have taken control of American life, like that fungus that takes control of ants' brains and turns them into zombies. I am Peter, I'm here with Michael...
0:01:07 Michael: Hey, everybody.
0:01:07 Peter: And Rhiannon.
0:01:07 Rhiannon: Hello, friends and allies.
0:01:08 Peter: You guys know about that fungus?
0:01:09 Michael: I do, it's fascinating. I wondered if COVID had that effect when Trump started talking about kissing men as well.
0:01:18 Peter: No, he got the ant fungus.
0:01:21 Michael: That's what it is.
0:01:22 Peter: He's also susceptible.
0:01:25 Rhiannon: His brain is the same as an ant's brain.
0:01:30 Peter: So today we are talking about Court reform. Amy Coney Barrett's confirmation to the Supreme Court is at this point leaving us staring at a 6-3 conservative majority, and that leaves us with the question: What is there to be done about these goddamn people? A couple of weeks ago, we had a listener Q&A episode where we talked a bit about reforming the Court, and we want to expand and expound on some of the ideas we discussed. And we'll also be talking to Congressman Ro Khanna, who has proposed a bill imposing term limits on the Supreme Court, and has openly been discussing more aggressive Court reforms moving forward, and whose PR people have made a terrible, terrible mistake. We are ringing through the halls of power, folks.
0:02:22 Rhiannon: That's right.
0:02:23 Peter: So what we want to do with this episode is yes, talk about some possible ways to reform the Court, but also provide you with what we think is a useful lens through which to view possible Court reforms. You've probably seen a bunch of proposals floating around for how to reform the Court, how to fix the Court, and it's not always easy, especially if you're not a lawyer or you're not familiar with the machinations of government to evaluate how effective they would be.
0:02:48 Peter: So we want to give you a simple framework to distinguish between two different types of reform. The first is reform that is designed to take political power away from the Court, and the second is reform designed to shift the Court itself toward the left. This is an important distinction to make, because these types of reforms are designed to address very different problems. It's true that the Court currently wields a lot of political power and probably too much, and there are reforms that can sort of serve as a valve to let out some of that pressure and lower the stakes a little bit, and that can be a good thing, but it doesn't in our review solve the real problem.
0:03:26 Peter: The real problem with the Court is that it is pervaded with a deeply reactionary ideology. And that's not the fault of a system or a procedural mechanism that can be altered, it's the fault of 6 or soon to be 6 far-right Justices who themselves are reflective of an increasingly reactionary right-wing politics in this country. So we want to provide this analytical framework, A, so you can understand Court reforms a little more clearly, but also so that you can understand that there is only one reform that we think goes far enough: Packing the Court. And we say packing the Court, we mean one way or another, adding Justices to the Court. The time for more moderate institutional reform has long passed, we're at a point where what we really need, what this country really needs is more left-leaning Justices on the Court.
0:04:17 Rhiannon: Yeah, and I think we should maybe open up this discussion by talking about the discourse around Court reform right now, because a lot of it is really misguided. A lot of the discourse is centered around the idea that the Court is kind of like too political and needs to be made less political, but that is, if you've listened to this podcast, you know we think that's just nonsense. No matter what you do to the Court, it will be a body that makes decisions about laws that affect millions of people, and as a result, there's no way to remove politics from that.
0:04:52 Michael: Right, if you wanted to describe the biggest problem in American politics, it's like huge segments of the population and their representatives are like fucking right-wing freaks who believe in QAnon et al, expressly calling for fascism in this country.
0:05:11 Rhiannon: Right, yeah.
0:05:12 Michael: And the courts are just as much a part of that problem as are the other branches of government and the fucking psychos who go to Trump rallies. But nobody's talking about reforming Congress, right? There are, I'm sure, some procedural ways that we could change the Senate to limit like Lindsey Graham's influence and power, but the problem with Lindsey Graham is that he's an amoral piece of shit, that for some reason like the voters of South Carolina continued to send to office, right? That's the problem. And the fix to that is like making him immaterial by putting him in the fucking minority, and we should be willing to talk about the Court in the same way.
0:05:56 Peter: Yeah. Yeah, I'm very sympathetic to the idea that the Court wields too much power, 'cause it's true, right, it absolutely does. It's nine unelected elites who are each more powerful than all but maybe a small handful of elected officials in this country. And it would be good to reduce that power a bit. But when the Court is composed of a supermajority of fascists, that's a band-aid on a bullet wound. It's not addressing the real problem. I feel like a lot of dorky journalists and academics like this approach because it feels like non-partisan, but I think their minds have been corrupted by notions of fairness that don't exist in the real world. And it reminds me of movies where there's a super weapon and the good guy's mission is not to get the super weapon and use it against the bad guys, but instead to just destroy the weapon.
0:06:44 Michael: Toss the ring into the fire.
0:06:47 Peter: Exactly, exactly. Like no one should hold this power, it's too much. Cool and very noble stuff, but maybe it would be a bit more meaningful in a world where we are not in the midst of a world-defining cultural, social and political battle, with immense human stakes. If Democrats seize control of Congress and the Senate this year, they need to use the power, you don't disarm yourselves when you have the upper hand, and this is an opportunity to take that power and wield it for good. So in light of this, while we are pretty supportive in general of various options for reform and we will discuss their merits, there's only one that will really work, and that's packing the fucking Court.
0:07:27 Michael: I like the super weapon analogy, because also the super weapon isn't the Court, which is the way it's being sort of put forward by some commentators. The super weapon is having a supermajority of insane fascists on the Court. And if you want to blow up that weapon, what you do is you deprive them of that majority, which means either like you remove them or you just increase the Court until they are like on the fringe. Those are the two options if you want to destroy the super weapon, pack the fucking Court.
0:08:02 Rhiannon: Right. One proposal that we're going to be talking about with Congressman Ro Khanna in just a bit, one proposal for reforming the Court is term limits, putting term limits on Supreme Court Justices so that their appointment is not for a lifetime. And the intent obviously of a term limit proposal is pretty clear. If the Justices aren't serving 30 to 40-year terms, the political stakes therefore surrounding the nomination process aren't quite as high, and you're more likely to see an even distribution of Justices across the ideological spectrum. Those are good things, but it should be obvious that they're also sort of tinkering with the institutional machinations of the Court to make them nominally more fair.
0:08:49 Peter: So the current proposals to add term limits would likely not change the make-up of the Court for another 10 to 15 years at best. Now, that's assuming that the Democrats would have political power at the time when the current Justices start leaving the Court.
0:09:02 Rhiannon: Right, there's also the fact, as we'll discuss with Congressman Khanna in just a bit, that term limits are fairly likely to be held unconstitutional, actually.
0:09:13 Michael: Right. The Constitution says that the Supreme Court Justices stay in office in good behavior, which basically is interpreted to mean that it's a life term, unless they do something that's essentially impeachable, so that's basically the only way to get them out of office.
0:09:27 Peter: Yeah, not good, not a good feature of a reform. There's also the idea that instead of a Supreme Court, we'd have a rotating panel of justices from the lower courts. Speaking of definitely unconstitutional reforms. This would result in more ideological diversity, and you would also get more judicial restraint; most likely justices may feel like they're not in a position to aggressively rule one way or the other because they're not full-time members of the Court. And you also might see the Court bounce back and forth on key issues depending on who is on the Supreme Court panel at a given time. Again, there's an argument that term limits are constitutional. I genuinely don't know what the argument is that this is constitutional. I guess the President could agree to it, and if the President agreed to it because the President is granted the right to appoint Justices, then maybe it's constitutional then, but what's the point of that when the next President can just get rid of it.
0:10:24 Peter: There's also another problem with it, which is Mitch McConnell stonewalled Obama appointees and has pushed Trump's appointees through at an unprecedented rate, meaning the lower courts are not ideologically balanced at all. I think in terms of the sort of reforms that add up to institutional tinkering, this is probably the best, at least in theory, because I think you could actually see a more restrained Court and one that tends towards ideological balance. That feels like a real way to lessen the Court's power. Unfortunately, I think this is like the most pie in the sky in terms of actually getting it done. And maybe we should take this opportunity, since we had mentioned lower courts, to talk about lower court reform. This is a Supreme Court podcast, but certainly if the Democrats are able to muster enough political capital to institute significant Supreme Court reform, it would be a huge mistake not to do the same thing to the lower courts, the most obvious reform being to expand them because you now have a massive number of Trump appointees, vastly disproportionate.
0:11:37 Rhiannon: Yeah, a quarter of all federal judges on the bench were appointed by the Trump administration. That's a quarter, 25%. One in four.
0:11:47 Michael: It's not right, we gotta get that number down.
0:11:49 Peter: Get that down to a solid zero.
0:11:51 Rhiannon: Yeah, I like zero more.
0:11:54 Michael: Yeah. Unlike the Supreme Court, which has been fixed at nine for a very long time, the lower courts expand all the time, like the 11th Circuit is relatively new. It's younger than me. We added I think 150 district courts in 1981 or something like that, as well as a whole new federal appellate circuit. And the caseload is huge, it's much bigger than it used to be, there should be no controversy, this is just like good governance sort of thing that needs to be done regardless.
0:12:20 Peter: Yeah, even if you took away the ideological aspect, everyone knows the federal courts are over-burdened and need to be relieved, and the only way to do that is to add more judges.
0:12:30 Rhiannon: Yeah, and I'm glad that we're talking about lower courts, because I think the entire federal court system needs to be reformed. We are hearing words like reform the Court, pack the Court, that kind of thing, but it's always sort of limited to just the Supreme Court and reforming the federal courts to the better has to take into account the lower courts as well. One aspect that I like about making sure that we're talking about the lower courts as well is that right now you see Republicans sort of using deference to the Supreme Court and respect for the institution of the Supreme Court. They're weaponizing that in the dialogue and discourse about Court packing.
0:13:10 Rhiannon: So they're saying, it's this untouchable institution, it's been nine, you can't expand it. That kind of thing, basically setting it up to look like Court packing is this radical act that shouldn't be accepted by the public. But when we make sure that we're talking about lower court reform too, you can see that Republicans have been doing just that, packing the courts, for the past few years, that's been Mitch McConnell's thing is making sure that those lower court appointments get through and blocking Democrat appointments to federal appeals courts and federal district courts.
0:13:45 Michael: And there's some real fucking monsters in the lower courts.
0:13:50 Rhiannon: Absolutely awful, yeah.
0:13:50 Michael: Just really, really awful judges, ones that like the American Bar Association has been like, they're not qualified. Not qualified to be a judge, sorry.
0:14:00 Rhiannon: And these are people denying prisoners rights, denying reproductive rights, denying immigrants rights, they're doing this all of the time, and then you think about the tiny percentage of cases that the Supreme Court actually accepts, and so these are the people, the lower courts, that's where Justice Sotomayor has said, that's where the law is me. So they're really, really important.
0:14:21 Peter: Yeah, I mean, look, the Fifth Circuit held last week that Texas has planned to have one ballot dropbox in each county, meaning like one in Houston, and then one in rural counties that have a few thousand people...
0:14:35 Rhiannon: For mail-in ballots, yeah.
0:14:35 Ro Khanna: Doesn't negatively impact anyone's ability to vote. That's one step below the Supreme Court.
0:14:43 Rhiannon: Exactly.
0:14:43 Michael: They also said, just recently, voters have no due process rights in any sort of notification or anything like that, if the state finds a problem with their absentee ballot, like if there's a signature matching issue or whatever, literally the state can just throw out their ballot...
0:15:00 Rhiannon: And you would never know.
0:15:00 Michael: Without giving them a chance to cure the issue in the name of chasing some imaginary like voter fraud.
0:15:07 Peter: It is better for a million ballots to go uncounted than for one instance of voter fraud to go uncaught. That is the official position of the Fifth Circuit. By the way, we're getting in the swing of launching a merch store, so to our listeners, if there's any interest in maybe like a mug that just has the addresses of every Fifth Circuit judge on it, let us know, reach out.
0:15:36 Rhiannon: Yeah, we can send that to the artist for a design rendering.
0:15:41 Michael: Right.
0:15:41 Peter: Absolutely.
0:15:41 Michael: Floor plans of their houses. Just decorative.
0:15:46 Peter: The weak points in their security systems.
0:15:50 Michael: All their pets' names, birthdays, kids' birthdays...
0:15:54 Peter: Their kids' school schedules and shit. Alright, so let's talk about other types of reform. Rhiannon, you told me that you were looking into jurisdiction stripping, and then I saw you tweeting that you were not doing that, so I'm interested to see whether you can dive into it right now.
0:16:12 Rhiannon: You see, some really important news dropped that distracted me, and I promise it was really, really important, like I said, really crucial that I spent time on it. Jeffrey Toobin has been jerking off during Zoom calls...
0:16:26 Michael: On Zoom, on Zoom.
0:16:27 Rhiannon: So yeah, so you know, I had to... You understand, I had to look at that.
0:16:32 Peter: That is important to us, because Toobin's a legal analyst at The New Yorker and appears on CNN, and obviously that could be us, so... It's drama, yes, but it's also a job opportunity.
0:16:44 Rhiannon: Yeah, call us up, The New Yorker. So some scholars, notably Samuel Moyn over at Yale, have been talking about Court reform proposals that could be enacted in conjunction with or in lieu of Court packing. One such option would be jurisdiction stripping. Now, this proposal would decrease the power of the Supreme Court or the federal courts in general, by basically writing into new legislation a provision that would say that the federal courts or the Supreme Court do not have jurisdiction to look at cases that come up under these new laws. So for example, if you could imagine a Green New Deal getting passed, somebody who wants to strip the Supreme Court of jurisdiction would propose that written into the Green New Deal, it would say the Supreme Court does not have jurisdiction to hear any cases that come up under this Green New Deal.
0:17:41 Peter: And does this actually work? I mean, I've heard this bounced around, but the sort of alternative position is that they are not meaningful, at least at some percentage of the time.
0:17:49 Michael: Yeah, the idea is like, I don't want to get into the details of fed court shit, but it's like the Supreme Court, its appellate jurisdiction and a lot of stuff is not mandatory under the Constitution and the lower courts don't even have to exist, so Congress can definitely strip the lower courts of this jurisdiction to hear this stuff. And then the Supreme Court would have nothing to hear an appeal from, there's no avenue for it to get to the Supreme Court. But I have faith that the committed combined intellect of the Federal Society and the Supreme Court Justices, if they took aim at the Green New Deal could find a way to get it in front of the Supreme Court.
0:18:29 Peter: That's the thing, like at the end of the day, jurisdiction is, in a lot of ways, theirs to claim. And once they do, you're saddled with the same problem, and that's why this has always sort of rang a little bit hollow to me, although I do find it interesting.
0:18:44 Rhiannon: Right. Another proposal for Court reform that would decrease Court power is a supermajority requirement. And what that means is that instead of five members of the Court being required to make a ruling to overturn important legislation from Congress, requiring a supermajority. So something like maybe six or eight members of the Court, or all nine would be required to overturn big bills from Congress. And the idea behind that is that not requiring a supermajority to overturn legislation is really anti-democratic. If the people have elected their representatives and representatives enact legislation that the people want, then it's really anti-democratic and it should be a sort of huge issue that warrants overturning that kind of legislation, not just the whims of just five people.
0:19:39 Peter: Yeah... Go ahead.
0:19:40 Michael: I was just going to say, I'm just really enjoying the imagery of like this Florida law professor, Jed Shugerman, who's written about this. And he had an article a little while ago about an alternate history of how different things would look if you had a six-vote requirement to overturn legislation, and just like right now, him going back and quietly changing it to like a seven requirement. He'd be like sweating and being like, "Fuck, my big idea. It's no longer that useful at all."
0:20:14 Peter: The real problem with the seven vote requirement or an eight vote requirement or a unanimous requirement, is that overturning legislation, meaning invalidating Congressional legislation, is a very, very, very small percentage of what the Supreme Court does. What they're usually doing is interpreting legislation, so if you imposed a supermajority requirement to invalidate a law, what they would do is instead of invalidating it, just interpret it in such a way that functionally invalidates it. Roberts didn't get rid of the ACA, but he got rid of Medicaid expansion. There are all these avenues they can take to hollow out important legislation without actually invalidating it, and that's why I think that this really, at the end of the day, gets us not nowhere, but not so far at all.
0:21:03 Michael: Also of questionable constitutional character and something that I think you would get far more pushback on from the Court than even jurisdiction stripping. It would be one of the toughest sells, I think the Court would bristle at Congress dictating to it what it can and can't do.
0:21:21 Rhiannon: Yeah, I think it's important to note that both of those reform proposals, jurisdiction stripping and the possible requirement of a supermajority to invalidate legislation, both of those proposals kind of don't work without other reforms. They would need to be in conjunction with other sort of massive Court reforms, namely, again, Court packing. Even scholars like Samuel Moyn recognized that saying, with the inevitable confirmation of Amy Coney Barrett, in the short term, the necessity and urgency of Court packing is pretty obvious even to people who are saying, no, we shouldn't just be Court packing, we should be looking at decreasing the overall power of the Court and reforming the Court that way.
0:22:06 Rhiannon: I wanted to quote Samuel Moyn and a co-author, Ryan Doerfler, wrote a long piece about Court reform and decreasing Court power from that perspective in The New Republic, and they say: "We must set about reforming the Supreme Court by reducing its authority, not praying that its Justices will somehow refrain from using it. No other course of action is equal to the urgent crises and the democratic imperative of our present." And they kind of note throughout the piece the sort of perilousness and precarity of the welfare state, which has been kind of laid bare with the pandemic and economic inequality, that basically what that is going to require from Democrats as a response is massive sweeping legislation that they argue is basically unprecedented.
0:22:58 Rhiannon: And the Court in its current form is literally constructed to invalidate, it's an inherently reactionary institution, and it's an anti-majoritarian institution, so there just has to be a recognition and sort of an incorporation into Court reform measures that we are decreasing the power of the Court along with maybe changing its make-up.
0:23:23 Michael: Right, right, and I appreciate that, because one thing that I've been thinking about the entire time we've been recording is this debate in academic and legal and political circles right now about expanding versus disempowering the Court. I just feel like this is a conversation that is like 10 15, 20 years too late, like the time to have this conversation was after five unelected life-tenured politicians said in unequivocal terms that they choose partisan ideology over allegiance to democracy, and the rule of law in Bush v. Gore, literally stopped the vote counting to pick the president. That's what they did. That was the time to be like, maybe we should start thinking about reforming the Court.
0:24:10 Peter: What about this, then, Michael, tell me if this changes your mind, 'cause I just thought of a type of reform.
0:24:15 Michael: Okay.
0:24:16 Peter: Okay, alright. In both chambers and during oral arguments, they have to stand the whole time, no sitting.
0:24:23 Rhiannon: The judges do, the Justices do?
0:24:26 Peter: Yeah, yeah, if you sit, you're off the case. That's it.
0:24:26 Michael: Off the Court.
0:24:27 Peter: Well, that would be unconstitutional.
0:24:28 Michael: They have life tenure. No, life tenured...
0:24:31 Peter: No, okay, under good behavior...
0:24:33 Michael: No, life tenured as long as they're in good behavior, but you can just buy legislation, good behavior requires them to be standing.
0:24:38 Peter: I think this is a good idea.
0:24:41 Michael: They ought to be standing.
0:24:42 Peter: This was my second idea. My first was like sort of literal Floor as lava situation. I think the standing thing works, I think it's constitutional.
0:24:52 Rhiannon: You could jump these three couches to the bench, and the floor is literally lava, then cool. You get to be on the Court for life.
0:25:01 Peter: Imagine Clarence Thomas just having to stand there.
0:25:01 Michael: But yeah, so look, obviously Bush v. Gore was a big watershed. I think also 2010, Citizens United was a case that something like 70% to 80% of Republicans dislike, independents dislike. It was hugely controversial. Barack Obama was talking about it in the State of the Union, and Sam Alito was saying, "You lied." There was a time, that was a beautiful time for the academic and legal left to be like, let's talk about Supreme Court, let's have an agenda for disempowering the Supreme Court. But they didn't. And it's fucking cowardly. Nobody wants to be the person who's like first through the gate, saying, we have a real problem and we need to think about making big changes because you could be ridiculed, maybe you're not invited back on CNN, if you're saying that the Supreme Court has abandoned democracy and blah, blah.
0:25:54 Michael: But that moment's passed, like too much has happened in the last 15 years, and we've talked a lot about it, Citizens United, the gutting of the Voting Rights Act, just two off the top of my head that are like big issues. But it's no longer the case that we just need to fix the Supreme Court, we have to undo the damage they've done, that's going to require exercising power from the Supreme Court itself as a seat of power. We no longer just need to disempower it, we need to make use of it it. There's just no viable left project without it.
0:26:31 Rhiannon: I think that's exactly right, and I also... The lack of intellectual honesty and just intellectual engagement on this issue, I put a lot of that on law schools. I mean, the three of us went to three different law schools.
0:26:46 Peter: Yale, Harvard and Stanford for our listeners.
0:26:47 Michael: That's right.
0:26:49 Rhiannon: Not true, but okay.
0:26:52 Michael: That was me, I transferred from when I... I was never happy.
0:26:54 Rhiannon: Yeah, 1L at Harvard, 2L at Yale, 3L at Stanford.
0:27:00 Michael: I couldn't find the place that was really challenging enough.
0:27:02 Rhiannon: Right, that's right. Michael's only one on the pod for whom that's a halfway believable statement. Anyway, but yeah, I put a lot of this on law schools, we went to law school, we know how this stuff is taught, it's wholesale acceptance of the status quo, and I've only realized now looking back how intellectually lazy that is and how...
0:27:26 Peter: It's beyond acceptance of the status quo.
0:27:28 Michael: It's reification.
0:27:29 Peter: Yes, exactly, and it's treatment of the status quo as if it is sort of...
0:27:32 Rhiannon: As if it's the ideal.
0:27:34 Peter: Not just the ideal, but as if it's organic, as if it's something that pre-exists and you have to sort of work with it.
0:27:41 Rhiannon: Right, right. And that kind of abdication of intellectual responsibility in the legal education system across the board is super concerning too.
0:27:52 Michael: Yeah, I think there's a level of like... I don't know if it's cowardice or naivety or both. I'm not saying this about like Moyn, through a lot of the current clever alternatives to Court packing, people who didn't want to own up to what was going on 10 years ago, and don't really want to own up to what's going on now either, but are having to give some ground in the face of reality, kind of like, well, fuck, like the head-in-the-sand routine only works so long, but they're still not ready to fully embrace the facts on the ground, what this project has been from the right wing, from their colleagues that are in the Federal Society, and who they lunch with or whatever.
0:28:32 Rhiannon: Exactly, yeah, and I'm so glad that you brought up, Michael, that this stuff was obvious, it was obvious 10 years ago, 15 years ago, 20 years ago, and it's a simple thing that we say a lot, which is like, learn from history. When fascism comes to the country, it doesn't announce itself as fascism. It never does, right. And also, I think people assume like, well, if things were bad and this was fascism or whatever, if there's too much power consolidated in the few, then things would be really, really bad for everybody, or I don't know where the line is for some people, right, but just a reminder that fascism leads to good results for a few people, like some people are doing really well.
0:29:14 Peter: Sometimes for a plurality of the population.
0:29:16 Rhiannon: Right, exactly, exactly. And so I don't know where the line is for people to start being concerned about it and really engage intellectually and creatively in what needs to be done with federal courts, but yeah, it was obvious. The line was passed on for me a long time ago.
0:29:34 Peter: Alright, let's circle back to some reforms, and there's one that we had talked about before, which has been floated by a bunch of prominent voices on the left, that you just could ignore the Court. The idea here is that the Constitution doesn't grant the Court the final say on constitutional issues, the Court granted itself that power in Marbury v. Madison, a case from 1803, that leads to a very weird part of law school where early on you learn that the Court doesn't really have the power to bind any one on constitutional issues and its entire role in society is built on what everyone more or less agrees is a false premise. And then you just move on and do the rest of law school like that didn't just happen.
0:30:14 Rhiannon: It's like you said before, the Court sort of builds its jurisdiction and then takes it.
0:30:18 Peter: Yeah, this is very similar to jurisdiction stripping, but it doesn't require a provision in a law, it just requires that either Congress or the Executive Branch or both ignore the Court's rulings and say thanks for the tips, but no thanks. And the Court has no inherent enforcement powers, those enforcement powers rest within the Executive Branch, so if the Executive Branch isn't playing ball, that's it. The nice part of this is that you sort of side step one of the biggest problems with Court reform, because this doesn't need to be legislation, so you don't need buy-in from congressional Democrats. This can be effectively done without consensus, that's the big plus on this idea.
0:30:55 Peter: The Supreme Court strikes down a law or a regulation and people just carry on like it didn't happen, and you don't need to worry about getting every fucking centrist Democratic hack on board. I think that's very alluring, and I always circle back to the Green New Deal as an example of where it would be most effective. Like Congress passes this necessary and urgent legislation and the Court tries to invalidate it or whatever, and there's a point at which we may not have time to fuck around with trying to deal with the Court's bullshit, you need the legislation implemented ASAP, etcetera. I think that's pretty compelling.
0:31:29 Michael: Yeah, we can imagine something where the Court strikes down some regulations under the Green New Deal, and then it's hard to imagine actually President Biden doing this, but his EPA or whatever, somebody just being like, okay, and then just reissuing the regulations. And like continuing to enforce them and continuing to fine companies that were not in compliance with them and whatever, just going full steam ahead, and being like, well, what the fuck are you going to do about it, John Roberts?
0:31:55 Peter: So yeah, the problems with this are kind of varied and complex, we talked about this in the listener Q&A episode, but one conceptual issue here is that the Court doesn't derive its power from Marbury v. Madison. Power doesn't come from Supreme Court decisions, it comes from a network of norms and institutions embedded in our government and in our society, but yes, the Supreme Court technically doesn't have any enforcement power, it essentially relies on the cooperation of the Executive Branch, so if there's full-fledged consensus within the Executive Branch to ignore the Court, this could be done. If not, though, if not everyone agreed about this, there might be a lot of chaos and internal tension, etcetera.
0:32:33 Peter: And I think -- I brought this up in the Q&A episode too -- and I think it's the most important issue, signaling to state governments that they are effectively unconstrained by the federal constitution, that feels like a nightmare. Now, the federal government could try to enforce Court decisions against the states, but if it was also ignoring decisions from the same Court, that feels like an issue, and it feels like the inevitable stand-off between the feds and insane state-level Republican governments, which seems pretty high risk. Like we're talking about people who think Joe Biden is about to do communism in America. If you fucking... If Biden's administration started ignoring the Supreme Court, what would state governments do in response? I think that's something that you need to really seriously consider.
z Peter: This brings us to Court packing, or Court expansion, as we're now saying in order to make MSNBC viewers less nervous.
0:33:30 Rhiannon: Does that feel better?
0:33:31 Peter: Is our preferred reform, because it gets to the heart of the issue. The issue is the Supreme Court is comprised of reactionary nut jobs. The only way to negate their power is to add Justices who have better politics and dilute the influence of the Court's conservatives. You don't tinker with the rules, you don't try to contain the power of the Court, you make it an active and powerful force for good. It takes the power and the political significance of the Court and weaponizes it in favor of left liberal interests. That's why this is by far the best option available to us, everything else is effectively a half-measure. To use a flawless metaphor, there's a conservative Court and it's shooting at you at this very moment. Do you want to pass legislation banning guns, or do you want a Steven Segal to grab that gun and turn it around in the Court and unload? There's a clear choice here.
0:34:29 Michael: I metaphorically want to unload the gun.
0:34:35 Peter: That was a good metaphor, right?
0:34:36 Rhiannon: Yeah, yeah, yeah. Total metaphor.
0:34:38 Michael: Yeah. And I think sometimes the divide... We've talked about it this way, and I think it's sort of framed this way often by people on both sides as a divide between people who are interested in sort of like a good governance perspective, like, I want government to work right, I want the Court to work well, I want this to be whatever, like things to function well versus like I want robust left power. But I don't think that those two things are mutually exclusive, and I think actually the Court functioning well is thinking about this too myopically. If you want the government to function well, if you want good governance, that also requires things like campaign finance reform, we need to get money back out of politics, and that means like we can't run away from Citizens United, right? Fixing our elections, re-passing the Voting Rights Act, passing a better, more robust Voting Rights Act. What would make the federal government work better requires a Supreme Court that has good politics that is ready to back your Voting Rights Act or campaign finance reform, all your other good governance shit. We're dealing with a Court that has been slowly tilted to the right bit by bit for 40 years, and if we want good government and we want just outcomes, it means filling the Court with people with a clear vision that aligns with ours, and who are willing to act on that vision.
0:36:10 Peter: So let's talk about the politics of this a bit. I think the big open question is pretty obvious, can Democrats rally the political support necessary to do any or all of this? Obviously, it'll probably take a bit more to get Court packing through than it would Ro Khanna's term limits proposal, and there's something to be said for a reform that can actually pass, but this is the moment. Republicans openly and shamelessly strong-armed a seat on the Court. They held up Merrick Garland, they put in Neil Gorsuch, they didn't extend the same favor to RBG's seat, so it should be considered fair game to at least get that back. And I think that mainstream Democrats see that, that's a good sign that Biden hasn't ruled it out, though I'm not confident about him driving an openly partisan power grab. Another good sign is that Republicans seem to be incredibly nervous. And I think they've proposed legislation to stop this, which wouldn't work, by the way, it could just be repealed or overridden by subsequent laws.
0:37:09 Michael: I do want to say, I think the Republicans are fucking up the politics of this, I know political punditry not our lane.
0:37:15 Peter: No, it's not anyone's, it's a fake lane, so let's just hop right in.
0:37:19 Michael: It is, so let's fucking do it. Let's do it. Court reform is not something that Joe Biden was excited to get behind. He was comfortably nursing like an 8 point, 9 point lead in the polls and trying to keep the race steady. Court reform was sort of thrust on him in part by circumstances by Amy Coney Barrett and activist Democrats. It doesn't poll that great, it polls roughly when you pair it next to confirming Amy Coney Barrett the same, like people don't think that they should confirm her, and they don't think that they should expand the Court. It's the Republicans are trying to tie Democrats down into this right now, trying to get them on record and harassing Joe Biden about it, 'cause they think maybe it'll help them on the margins electorally, but all they're doing really is putting Democrats in a position where they can't fucking depress their base right now.
0:38:14 Michael: So they have to at least nod towards it, they have to at least say it's on the table, if not, come out and be like, you know what, yeah. And they're pushing Democrats into this corner where they have to at least be open to it, and they're creating a situation where Democrats might end up with a very large electoral win because of COVID, because of a recession, because of a lot of things that have nothing to do with the Supreme Court, but nonetheless will have a mandate for reforming and possibly expanding the Court. Like they are putting it front and center in the election right now because they think it might help them on the margin, but all they're doing is creating a situation where there's going to be a mandate for this. I thank them for that.
0:38:54 Peter: Yeah, I agree. One thing we can expect if talk of reform gets loud enough is that you may see the Court and Roberts especially try to protect itself by moderating a bit, they side with the liberals on a few key issues, and essentially they say, look, see, nothing to worry. We are the fair and impartial Court that you always dreamed about. Now, a couple of things on that. First of all, it is to some degree obviously a bluff. The vast majority of the Court's rulings will still be conservative and they'll tack harder right if they get the opportunity. Second though, this is why the sincere threat of Court reform is so important, even if it doesn't come to pass, the Court is pressured to start moderating. A lot of people tout the independence of the Court, as if it's like this inherently and unequivocally good thing, but this is an example of how beneficial it could be for the Court to be susceptible to political and institutional pressure. The law has political implications, so some matter of responsiveness to the body politic, no matter how indirect, makes sense.
0:39:53 Michael: A perfect example of this, I think, is the case that just at the time of this recording just came down, which was the appeal the Supreme Court heard from the Pennsylvania State Supreme Court. And so this was an issue that had to do with deadlines related to mail-in ballots, and Pennsylvania law required that mail-in ballots be received by election day, and because of delays with the mail and because of the influx of mail ballot requests because of COVID, the Pennsylvania Supreme Court said, you gotta extend that, this is burdensome on the right to vote. And so instead of receiving the ballots by election day, what the Pennsylvania Supreme Court said was our state constitutional right to vote requires that at the very least they have to be able to send their ballots by election day. Anything received within three days of the election, we'll say was mailed by election day.
0:40:48 Michael: And Republicans challenged that 'cause they said that this was an intolerable risk that people will cast ballots on Wednesday or Thursday after the election and have it received on time and counted.
0:41:01 Peter: That is the greatest offense to democracy when you cast your vote a day late.
0:41:07 Michael: The biggest fear.
0:41:07 Peter: After the shock Glock.
0:41:11 Michael: And so they were very concerned about this, they appealed it to the Supreme Court, and they put a lot of arguments forward. The most extreme one was that this was an unconstitutional erogation of the legislature's power to set the terms of the election, because the Federal Constitution delegates the power of the time, place and manner of elections to state legislators, and if the Supreme Court came down and put their thumb on the scale and accepted this argument going forward, it would allow for a lot of malfeasance from state legislatures, which are like often gerrymandered to shit by a bunch of craven careerist assholes or idiots, both parties, but especially Republicans, so like putting them in a special place in the constitutional order.
0:41:56 Michael: It's very scary. This case, the Supreme Court, they split 4-4. So it's a pretty strong indicator of just how eager Gorsuch, Kavanaugh, Alito and Thomas are to step in at the most extreme reaches of their power to help out Republicans in this election. And Amy Coney Barret is ripe to join the Court. But Justice Roberts joined the liberals and realizes that if they had come out right now 5 to 3 and invalidated a Pennsylvania State Supreme Court ruling based on Pennsylvania State Supreme Court grounds over Pennsylvania State Law, to make voting more difficult, essentially telegraphing to the Democratic Party that there is no limit to the degree to which the Supreme Court would be unwilling to go to help Republicans win this or any other election, you could basically guarantee that Court reform and probably, I think, Court packing would be happening if Democrats win. There's like no way that you'd get around that.
0:43:06 Peter: Right, we've mentioned before, Roberts on voting rights is Roberts at his most conservative, so him deviating here, like immediate red flags, like he's doing something. He's telling people and politicians who may be considering packing the Court, look, don't worry, the Court as it is, is eminently reasonable and moderate.
0:43:25 Rhiannon: Right, exactly. We should also though be taking seriously that the four conservatives on the Court, and certainly Amy Coney Barrett when she joins them, are so not concerned with the politics of this moment and the Supreme Court losing power, that they are willing to do something this extreme, right.
0:43:42 Michael: Right, I already consider myself like somewhat of a Court packing maximalist, right, who's like, we should expand it to 15, so it'll 9 liberals to 6 conservatives. I was thinking about this today before this case dropped, and I was like, man, if they overturn the Pennsylvania Supreme Court, fuck like 15, it should be like 21, 25, like, fuck these guys, they should be nothing. I was literally like, should I write a Medium post about it, like what should I do to circulate this idea? And I think that Robert gets that, this could be very galvanizing moment.
0:44:19 Peter: Yeah, so to wrap this up, these are all the reasons that we side with Court packing, right. It's not about tinkering with the institutional power of the Supreme Court, it should be about gaining power for the left and utilizing it to the best of our ability. So we'll leave it here for now and move on to our interview with Congressman Ro Khanna. We're going to talk about his bill as well as some of these other reform ideas we've been discussing. One quick note about this interview is it was recorded after the confirmation hearings were over, but while the confirmation process was still very much under way, so you might hear some of that in how we talk about the Democrat strategy. So I think we're probably going to take a quick ad break and then we're going to talk to Ro.
0:45:07 Rhiannon: That's right.
0:45:07 Peter: Alright, Congressman Ro Khanna, thanks for joining us, man.
0:45:15 Ro Khanna: Great to be on.
0:45:15 Rhiannon: Yes, thank you for being here.
0:45:17 Peter: We do this podcast with the broad goal of critiquing the Court from a left progressive perspective and sort of demystifying the Court and its role in society, and we view the Court as it's currently composed as a very ideologically conservative institution. So we were pleasantly surprised to see calls for reform coming from the halls of Congress. You've proposed an 18-year term limit on future Supreme Court Justices. So first things first, we want you to tell us a little bit about the bill, what it says, and what you're hoping to accomplish with it.
0:45:54 Ro Khanna: Well, Peter, thanks for having me. Our Framers never intended people to be on the Court for 30 or 40 years, and what we currently have is a previous generation making laws for a contemporary generation, it's actually quite anti-democratic. The Framers' intent when they said people should be there for life was an assumption that people would go on the Court at the end of their careers for five years, 10 years as sort of a capstone to their service, not that there would be gaming in terms of getting people on at a very young age so that they could have a long tenure. And the Constitution says that a judge has to be there for life so that you don't have the whims of politics influencing them, but the Constitution nowhere says that a judge has to be on the Supreme Court for life.
0:46:43 Ro Khanna: So what our bill says is that a judge can be a Justice for 18 years. After they've done their service, they can then go on to a circuit court or a lower court and continue to be a judge. They just don't have to continue on the Supreme Court. And every president would get two appointments in their term, so you wouldn't have this oddity where some presidents get zero appointments and other presidents get three appointments, and you wouldn't have a national drama every time we have a Supreme Court vacancy. The idea is actually not to be partisan, it's just to be common sense and to restore the Court to what its original purpose was.
0:47:22 Peter: Right, and so I want to talk about the constitutionality of it just a little bit, at least. So the Constitution says that they shall hold "their offices during good behavior," meaning essentially for life. I think when you read that, it seems to imply a single office. I imagine that your argument is that because the bill applies only the future Justices, the term "their office" is a little more flexible than that, that it could mean something that involves them stepping down to a lower court at a given time. We don't have to get into the details of the constitutionality, but there is sort of a tension here, because this might have to get 5 votes at the Supreme Court.
0:48:00 Ro Khanna: It might be 7.
0:48:04 Peter: I guess my question is, is there a real concern in your mind that the five Justices of the Supreme Court just strike this down?
0:48:10 Ro Khanna: Well, there is a concern, of course, about what the Court would do. Your point about the office, one other option is that you could have someone go senior on the Supreme Court, not be able to actually adjudicate on the Supreme Court decisions, but from senior status get to choose what circuit court they want to sit on, so there are ways of framing this that would, in my view, pass constitutional muster.
0:48:33 Ro Khanna: Now, John Roberts, the Chief Justice, in 1983 actually came out for term limits, and here's my view, I think many more people on the Court would be amenable to term limits then they would to the expansion of the Court, so you could see the pressure building on them to say, okay, let's take this option, this option is better than the calls for expansion. And maybe that leads to them holding it constitutional; though, no one knows what they would find until it was actually litigated.
0:49:06 Rhiannon: Right, yeah. And Congressman, I'm going to jump in, I think, I'm glad that you brought up the proposal of term limits sort of decreasing the political whims and the politicization currently of Supreme Court nominees. A big benefit, I think, in the idea of term limits is that it creates predictable institutional norms. Right now, lifetime appointments mean that there's literally life and death urgency sometimes around appointments to the Supreme Court and the confirmation process being this politicized and frenzied, it leads to a lot of norm breaking. Predictable vacancies definitely cut against that, but I'm also thinking about a potential pitfall that the term limit proposal actually might have, which is increased politicization.
0:49:48 Rhiannon: We can foresee then, for instance, a Supreme Court Justice planning to run for political office after the end of their term. For example, former Supreme Court Justice Peter plans to run for governor, right? So towards the end of the Justices' terms, we would need to be looking out for campaigning in their decision-making, conflicts of interest, that kind of thing. What do you think about the potential of creating this whole new moral hazard in politicizing the work of being a Justice?
0:50:16 Ro Khanna: Rhiannon, that's actually an excellent point, and one could look at whether you could prevent someone from seeking political office after being on the Court. Of course, nothing would prevent someone from doing that today. You could see Justice Roberts saying, I want to resign and run for governor or president, so you would have that option today. I guess you would aggravate it if people didn't think that being a senior status would allow for sufficient prestige, you'd want to have a culture where that was very much frowned upon. And then if people really were doing it, then one could look at some legislation saying you have to have some time of separation before doing that and being on the Court, and you would have to look at the constitutionality of it.
0:51:10 Michael: Right, it sounds like what you're saying is that these are political questions that demand political answers, legislation and congressional involvement, which I think philosophically we agree with.
0:51:22 Peter: Yeah, our general position on term limits is they would be nice, but they don't solve a larger and more immediate problem, the immediate problem being that we're right now on the verge of a 6-3 conservative majority with the six conservatives ranging from young to not particularly old, and your bill proposes that future justices would have the limit applied to them. But the conservative Court right now and for the next 10 to 15 years or so is poised to undo reproductive choice protections, continue to assault voting rights, undermine progressive legislation like a potential Green New Deal, dismantle workers' rights, on and on and on. So I think term limits are a very viable and sensible reform, but even if you snapped your fingers and pass edit, we're saddled with this Court.
0:52:10 Peter: So there's a question of what reforms could actually tackle that issue more directly. Are you sort of supportive of other options and the big one that you mentioned is Court expansion. Is that something you consider to be on the table in your view or is that a step too far?
0:52:26 Ro Khanna: Well, Peter, first, there are other proposals on term limits, for example, Jamie Raskin of Maryland, who's a constitutional scholar, was working on term limits that actually would apply to the current Justices, and he has an argument for why he thinks that could be constitutional. I think it's a harder argument, but a possible argument, and I haven't studied it enough, but that could be one way of going, is to say then, no, it should apply to the current Justices. And again, you could see a Justice Roberts who cares so much about the legitimacy of the Court preferring that to potential expansion. I think Court reform has to be open to all considerations, but I don't think that that means Court packing, I don't think that you just have a Democratic president get in and then say, okay, we're going to pack the Court with ideological people who we like.
0:53:17 Ro Khanna: I think that what a Democratic president can do is appoint a commission to study all of the different Court reform options and look at the different scholars who have proposed different options for Court reform, and then should make a decision that could lead to a more legitimate depoliticized Court that also is capable of dealing with the increased caseload and see where things lead. But I think that's very different than the Court packing that Roosevelt tried in the 1930s.
0:53:46 Peter: Yeah, I think there's a distinction to be made here between different types of Court reform. Some, like term limits, are sort of tinkering with the machinations of the Court to make them fairer and maybe less susceptible to politics in the general sense. But I think that's separate from reforms that address the fact that as it stands right now, the Court is too conservative. I think in our view, in my view, the only real fix to that is one way or another, more left-leaning Justices. Now, that doesn't necessarily mean Court packing, but it certainly would mean either Court packing or the replacement of current conservative Justices with left-leaning Justices. I think the question is, when it comes to more timid institutional reforms is, do we have that kind of time in the next five years if Roe v. Wade is really at stake, which it seems like it is.
0:54:37 Peter: If we have a Green New Deal that has the potential to be gutted by a conservative Court, we don't know exactly how yet, but certainly it's something that could happen, do you think that we should be looking to increase the number of left-leaning liberal Justices on the Court? Is the real problem in your view that the Court is inherently institutionally unfair or is it that the Court is too conservative?
0:55:00 Ro Khanna: Well, they're two different issues. One is that it's institutionally problematic, and that needs to be solved, and the second issue is, as a person of my own political persuasion, what do I think of the Court? And obviously, I think that the Court is too conservative. I guess the one thing I would say is that with the Lochner Court in the 1930s, there was a change in the Court, and that change came because the Court itself didn't want to lose its legitimacy and be deeply out of step with public opinion, and that they realized where the New Deal was going, and they did not want to be an anti-majoritarian body. And so the question is, if you have a conversation about Court reform and making sure that the Court is legitimate and responsive in some sense to the popular will, though, of course, adhering to the Constitution, does that give sufficient pause to Justices that they would blatantly exercise anti-democratic unconstitutional interpretations?
0:56:02 Ro Khanna: I think it's an open question, 'cause you've seen with Roberts that he has been unwilling to strike down the ACA, unwilling to take the certain measures, very much concerned about the legitimacy of the Court. So could it be that you would have a Court totally indifferent to being anti-majoritarian? You could, and in which case, you may need to have other remedies. But I guess I would first approach things with a genuine effort at Court reform that did have commission, that did have a bipartisan buy-in or some sense of fairness that was beyond ideological, and see if that works and see where that leads us.
0:56:43 Michael: So when I hear that, I get kind of flashbacks to 2009, which to me was like a time when Barack Obama just won this big convincing victory, Democrats had the supermajority in the Senate and massive majorities in the House and spent months trying to convince a few Republicans whose whole legislative platform had been resoundingly rejected at the polls to get on board with their healthcare plan and give it some bipartisan support and make it look legitimate and make the process seem fair, and in the process, diluted the bill, made it less strong and less faithful to what the party had run on, and the result was a weaker bill with benefits that were delayed, it hurt the party politically. We didn't get a single Republican vote for it. So the lesson I took from that was, when you have power, you gotta use it, you gotta use it to do things to make people's lives better.
0:57:42 Peter: Right, if I can build on this, 'cause I think the Court in the '30s is kind of instructive here. It's true that the Court saw the risk of really aggressive institutional reform and then sort of moderated on FDR's New Deal policies, but that came with the real serious and sincere threat by FDR of packing the Court. Isn't there a risk, if you go at this with an approach of sort of starting from a non-partisan perspective, that the Court doesn't really feel that same pressure, they're not at the barrel of a gun like the Court in the '30s was.
0:58:16 Ro Khanna: Both very thoughtful counter-arguments, Michael and Peter. Let me say a couple of things. First, I agree with you, Michael, in terms of that we should have gone bigger in 2009, we needed double the stimulus, and Paul Krugman was screaming about that, Christina Romer was screaming about that, and Rahm Emanuel saying, well, find me the 60 votes in the Senate was a mistake, we should have just done that on 51 votes. I have no doubt that if we win and we can get policies passed on 51 votes, we should do that and we should go bold and we should try to get the American people the help they need. And of course, I'm for Medicare for All and free public college, and for the Green New Deal and bold policies.
0:58:52 Ro Khanna: I think, though, that is a different question than the question of the Supreme Court, because the Supreme Court, I think people see that as not just ordinary politics, but to the interpretation of the Constitution. And the question is, okay, well, are we going to have an FDR-like victory? Perhaps if we have an FDR-like victory, and then the Court is acting in an anti-democratic way, the argument becomes very clear. But let's say we have a victory where you have a 20-person majority in the House, and a two-person majority in the Senate and a president, that's not quite an FDR landslide, I guess my inclination would be pursue a policy that could get Court reform with the buy-in of a larger number of people, so you just don't have the loss of that reform four years later.
0:59:45 Ro Khanna: Let's see if that works. If it doesn't work, and if you have the Congress passing Medicare for All, or the Congress passing some policy that the Court is striking down, or the Court over-ruling Roe v. Wade in a way that strikes people as totally unjust, then you can always look at other options.
1:00:04 Rhiannon: I'm glad that you brought in sort of the buy-in from the party, 'cause I'd like to zoom out maybe just a little bit. We know how you feel about this, we know about your bill, but just thinking about the party maybe a little bit more. It's clear that Republicans have played what is most politely described as hard ball with Supreme Court seats. And I think there's a lot of concern on the left that Democrats just don't have the same level of gamesmanship in them. Between the Merrick Garland debacle, the Kavanaugh hearings, and Ruth Bader Ginsburg's rapid replacement now, a lot of people seem to be eyeing more aggressive response from Democrats. Do you have a sense that there's really an appetite among the Democrats for Court expansion, for the whole host of options on the table for aggressive Court reform?
1:00:52 Ro Khanna: Well, first, I definitely think we need to be more aggressive in the opposition of Amy Coney Barrett. Senator Feinstein is giving Judge Barrett a hug at the end of the hearings and asking her to speak about her family. I just don't think that that's reflective of the sentiment in our country, it's not that I... Look, Judge Barrett is a perfectly decent person and probably a very thoughtful professor, but she's coming to the Senate in a process that most of us believe is illegitimate, and those kind of gestures I think legitimize her presence, and I believe we should have either boycotted the hearing or done things to make it clearer that this was an illegitimate power grab.
1:01:46 Ro Khanna: Going forward, I think there are going to be many, many people in the party, moderates, progressives, even centrists, who are going to be committed to Court reform. Now, what that looks like, I think remains to be seen. I believe one of the key voices on this question is going to be Eric Holder, he's done a lot of thinking about the issue, he's highly respected among progressives, he's highly respected amongst people who served in the Obama administration, he doesn't have any particular agenda, he's sort of already served at the highest levels of government, and I could see someone like him, I can see the Vice President Biden tasking him with presenting options for Court reform and seeing how he can build broad consensus among the party.
1:02:29 Peter: Yeah, we don't agree that Amy Coney Barret is a great person.
1:02:33 Michael: But otherwise, preach.
1:02:35 Peter: Otherwise, we're right there with you, yeah.
1:02:39 Michael: So something you mentioned about personalizing this to Donald Trump and Mitch McConnell especially, and the hypocrisy and just this conversation in general has me thinking about, is that talking about term limits and reforms in general, sometimes we talk about the legitimacy of the institution, and I think that's right, but it also seems like we're also talking about Republican reform in a way, like how can we get them to stop acting like insane assholes about the Court. That's what it feels like this conversation is about, at least at some level. But isn't the answer to that just that you gotta just beat them really, really resoundingly and lock them out of power until they're... Find a better way? I don't know.
1:03:18 Ro Khanna: Michael, it's not an irrational response of why the Republicans are so focused on the Court. If you believe that we have demographic change in this country, which I do, if you believe that we're moving towards a multi-cultural, multi-racial democracy, which I do, if you believe that young people are for progressive policies like Medicare for All, like the Green New Deal, and you're a conservative and you see that coming, what can you do? You know that you're probably not going to be able to win presidential elections on a conservative platform, you're probably not going to be able to win the House or Senate on a conservative platform, so the one check to progressive advancement is the Court, and I think that that is why they have been so focused on that to try to entrench the current ideology of the nation, or even an ideology going back 20, 30 years, for this century, despite the Democratic will.
1:04:18 Ro Khanna: Now, I believe, I guess I have enough faith in American democracy that I think it would be very, very hard for a Court to have legitimacy if they actually start striking down popular legislation, and so far, they haven't done that with the Affordable Care Act, though they may with a 6-3 vote. And I do think that a crisis could emerge and we have to be prepared for that.
1:04:40 Michael: Yeah. I think for us, we look at something like Shelby County and the Voting Rights Act and see already the start of striking down a different sort of popular legislation, maybe one that doesn't hit people's pocket books in the same way.
1:04:53 Peter: And maybe this goes to another issue, which is just that if you leave the conservatives on the Court and hope that they will be influenced by reform, there's a risk that what they do is rule in such a way that functionally guts, for example, a lot of progressive legislation, but optically isn't so bad. The Shelby County decision is hard to explain to the average person. What they have done to undermine the ACA without dismantling it entirely is hard to explain to the average person and has given John Roberts a lot of leeway and maybe the ability to say that he's operating in good faith to a degree that he might not be. This isn't really a question as much as I will say that if what seems to be happening in the next year or so, over the next term, especially if Biden wins, is at the Court shifts center very nominally in a way that it appears to be designed by John Roberts to be for optics. Please don't buy that, please.
1:05:49 Rhiannon: Begging you.
1:05:49 Ro Khanna: No, I hear that, no I hear that. And you're right. Look, the gutting of voting rights is a huge deal, because again, this is part of the effort to forestall the emerging new majority in this country, and you have, I think, strategists who understand that issues of getting people off the voter rolls that these are essential strategies to hold on to power.
1:06:17 Michael: Absolutely. So we're a Supreme Court-focused podcast, and we've been talking about Supreme Court reform, obviously, but would be remiss if we didn't at least ask about lower court reform. It's been about 40 years since the lower courts have been expanded last. I think it was 1980 and 1982. It seems like they're due... It seems like it's both good housekeeping at this point, given the loads a lot of these district and appellate courts have and good ideologically, given how much, like Mitch McConnell, how many vacancies he held open at the lower levels. Do you have any sense that there's any appetite for that sort of reform as well, adding a new circuit or two and expanding the district courts, adding 100, 150 district courts, that sort of thing?
1:07:01 Ro Khanna: Yes, I think that there's an administrative need to look at the caseload on district courts, to look at the case load on circuit courts. That's something that happens all the time in Congress. Frankly, some of the scariest appointments in this Trump administration have been to district courts and circuit courts, where you have people who are literally cronies, who have not had any academic background, though that's not always as important as your moral compass, but you literally have political hacks in some of these positions, which is a real, real concern. And so I definitely think that we need to look at where that expansion makes sense, and we also have to keep an eye on judges who are blatantly lawless, if they are not doing their basic jobs. It's one thing to disagree on interpretation of case law, and we should fight that, it's another thing if people are just not applying the law.
1:08:02 Michael: Right, yeah, absolutely. It's hard to explain the current Affordable Care Act case to the layman, but it is... I think it's like lawless. I think it's crazy that any judge has signed on to it, and the fact that there probably will be at least be a few conservative Supreme Court Justices who set out to is frightening.
1:08:19 Peter: Okay, so before we wrap up, I've gotta float this to a government official here. So I've got a proposal. Obviously, there is some concern about the constitutionality of term limits, the Constitution mandates lifetime terms, so my proposal is simple: Instead of term limits, lifespan limits on Justices, mandatory death around 75. I'm not committed to a given number, you don't have to commit to it, alright, I know you're a politician, but I just want you to think about it, something to float to your colleagues, see if there's anything for it.
1:08:53 Ro Khanna: Well, I just have to formally say I'm opposed to that, 'cause I don't want to be a clip on a late night tomorrow.
1:09:01 Peter: You're on Tucker Carlson after that, right, in that clip, I apologize. But I think that's it. We really appreciate you coming on, Congressman, and...
1:09:09 Ro Khanna: Appreciate your podcast, appreciate the depth of discussing these issues. One of the things I think your podcast is really doing is helping our side realize the stakes of the Court. For some reason, we have never realized that, and the conservatives for the past 40 years have realized that. I remember when I was in law school, how seriously people took the Federalist Society and how they were recruiting people back then in my law school class, grooming them on their ideology and their career path, and there was never anything really like that on the liberal side. So the fact that you're now making people realize that this is an equally important fight as who controls Congress or who controls the presidency, arguably the most important fight, I think is a real public service.
1:09:55 Peter: Thank you, we appreciate that.
1:09:56 Rhiannon: Thank you so much, we love that.
1:09:56 Michael: Thank you so much, that means a lot.
1:09:57 Ro Khanna: Thank you.
1:10:02 Peter: Next week is... Next Tuesday is going to be election day, so rather than make your election day more stressful than it's already going to be, we're going to re-run our first episode, Bush V. Gore. No special meaning, don't read into it. We just thought it'd be a fun idea. Follow us at 5-4 pod on Twitter.
1:10:29 Michael: We expect all of you. Every single one of you to.
1:10:35 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.
1:10:58 Leon: From the Westwood One Podcast Network.