Dahlia Lithwick discusses the effect the 2016 elections will have on the Supreme Court.

Why Are Candidates So Quiet When It Comes to Supreme Court Justice Nominations? Amicus Discusses.

Why Are Candidates So Quiet When It Comes to Supreme Court Justice Nominations? Amicus Discusses.

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Feb. 17 2016 12:50 PM
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The Nominations We Should Care About This Campaign Season

Dahlia Lithwick discusses what this presidential election means for the Supreme Court and why we should pay more attention.

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We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 36, in which Slate’s Dahlia Lithwick discusses the great effect this presidential election will likely have on the composition of the Supreme Court. Any changes to the SCOTUS justice lineup are sure to carry consequences for the lives of everyday Americans, and multiple new appointments now seem especially likely in the next two presidential terms. Why then have the candidates been so quiet on the issue of who they will endorse?

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

On this episode, we are joined by founding dean and distinguished professor of law at the University of California, Irvine, School of Law Erwin Chemerinsky. This episode is the first of a two-part Amicus series on how the 2016 elections could reshape the Supreme Court.

To learn more about Amicus, click here.

This is a lightly edited transcript and may differ slightly from the edited podcast. This podcast was recorded before Justice Antonin Scalia died on Feb. 13, 2016.

Dahlia Lithwick: Hi, and welcome to Amicus, Slate’s Supreme Court podcast. I’m Dahlia Lithwick. I cover the courts for Slate. This week as the court is on its long winter break, we thought we’d turn to another kind of current events, and as some of you have pointed out in your letters, there is, in fact, a presidential election upon us.

The Iowa caucuses are just behind us and, as you probably know, one of the lasting legacies of most presidencies will be the impact that that presidency has on the Supreme Court. And, so, this week we thought we’d turn to the topic of the Supreme Court and the 2016 election.

It’s the first installment in a two-part series we’re going to be doing this campaign season about how the election might shape the Court in the future. This week, to look at that question from the political left, we have as our guest one of my favorite court watchers, Erwin Chemerinsky, current and founding dean of UC Irvine’s School of Law.

Irwin is one of the most cited and most prolific law professors in the country. He’s published over 200 law review articles, and he’s argued several important cases at the high court, and is one of the few people I know who speaks in flawless outline form.

So, Erwin, welcome to Amicus. It is a delight to have you here.

Erwin Chemerinsky: Oh, it’s my great pleasure, and thank you so much for the sweet introduction.

Lithwick: So, Erwin, let’s first of all just put some facts on the table and then you react. We have three justices—Ruth Bader Ginsburg, Antonin Scalia, Anthony Kennedy—who will be 80 or over by Election Day.

Stephen Breyer will be 78. And the average retirement age for a justice is, I’m told, about 77. So, this is a really significantly aged court; right? This is a big, big election.

Chemerinsky: Your statistics are right. Let me just modify them a bit. Since 1960, the average retirement age for Supreme Court justices has been 79 years old. In 2017, the year of the inauguration of the next president, four of those justices then will be 79 or older because that’s the year Justice Breyer turns 79 and, of course, by then both Justices Scalia and Kennedy will have crossed their 80th birthday, and Justice Ginsburg is about to turn 83 this spring.

Lithwick: So, this discussion—you know, I find when I read on the left or on the right, “oh, my God, it’s the most consequential election for the Supreme Court,” it’s kind of confounded, Erwin, by the fact that it depends, of course, on who retires. In other words, if Ruth Bader Ginsburg were to step down but Bernie Sanders or Hillary Clinton is president, does it make that much of a difference, or really are we only talking about if a conservative steps down and a Democrat wins or vice versa or the, you know, nuclear option, which is Justice Kennedy stepping down and everyone going bananas?

Chemerinsky: Imagine that it’s a two-term president. In recent memory, most presidents have been two-term presidents. Then it seems almost a certainty that there will be four vacancies between now and Jan. 20, 2025.

And then whether it’s a Republican or Democrat, they’re going to get to shape the court for years to come. If it’s a Republican president replacing Ginsburg and Breyer along with Scalia and Kennedy, we can imagine what that will mean, but a Democratic president who gets to replace Scalia and Kennedy along with Ginsburg and Breyer, you think about what that means.

I think the election that’s most analogous would be 1968 where soon after being elected, Richard Nixon got to fill four vacancies on the Supreme Court. Imagine if Hubert Humphrey had won that election how different things would be.

Or even the 2000 and 2004 elections. Imagine that Al Gore or John Kerry had replaced William Rehnquist and Sandra Day O’Connor rather than it being George W. Bush with John Roberts and Samuel Alito. We can identify so many cases that affect us all that would have come out differently.

Lithwick: Well, I actually would like you to speak to that directly because I think for a lot of our listeners, there’s, you know, some vague inchoate sense that it made a big difference to swap out Sandra Day O’Connor, put in Sam Alito, but can you tell us doctrinally just for listeners who maybe aren’t following the tick tock of what’s happened since Sam Alito came onto the court ten years ago, of how doctrine really changes when just one member of the court changes?

Chemerinsky: Of course. Pick a few examples. Start with Citizens United v. Federal Election Commission. In 2003 in a case called McConnell v. Federal Election Commission, the Supreme Court upheld the provisions, the McCain-Feingold, the Bipartisan Campaign Finance Reform Act.

Just seven years later in Citizens United, the Supreme Court expressly overrules that decision, the court declares unconstitutional the versions of McCain-Feingold that limit corporations and unions can spend in independent expenditures.

Why did the court change seven years later? Did they find some musty history of the First Amendment that led them to believe they made a mistake? Of course not. The only difference in the court was Samuel Alito replacing Sandra Day O’Connor.

Or we can pick another example in the area of abortion. In 2000 in a case called Stenberg v. Carhart, the Supreme Court declared unconstitutional a Nebraska law prohibiting the procedure that’s called by anti-abortion groups partial-birth abortion.

Seven years later, 5 to 4, the Supreme Court upholds the Federal Partial-Birth Abortion Ban Act. It’s not that the laws were different; again, it was entirely a matter of Samuel Alito replacing Sandra Day O’Connor. Or to pick an example that’s before the court this term: affirmative action.

In 2003 in Grutter v. Bollinger, the court, 5 to 4, says that colleges, universities have a compelling interest to have a diverse student body; college, universities can use race as one factor in admissions if it’s to benefit minorities.

Justice O’Connor writes the opinion for the court, but Samuel Alito strongly opposes all forms of affirmative action and is certainly a fifth vote to limit Grutter v. Bollinger and maybe to overrule it. And I could go on and on with examples. But when you think of things like this—campaign finance, abortion, affirmative action—you see how much one justice can affect all of us, often the most important, the most intimate aspects of our lives.

Lithwick: So, this leads me to the question that I’ve been puzzling with, and I’m not sure what the answer is, and maybe there’s no answer, Erwin, but all of the cases, with the exception of campaign finance, all of the issues you’ve mentioned somehow are before the court in the 2015 term, plus not just affirmative action and abortion and the contraception mandate in Obamacare—oh, and by the way, Obama’s immigration reforms—how is it possible that the court, in an election year, takes on every single hot-button issue that is guaranteed to make people, even people who are on screensave about the court for the entirety of their lives have to be thinking about court this summer when they’re thinking about the elections, why is the court wandering into this minefield right before a presidential election?

Chemerinsky: In terms of why this year? It seems that every term there’s blockbuster cases right now. Last year we had the marriage equality case, the year before there was the Hobby Lobby case about the contraceptive mandate, the year before that it was Shelby County where the court struck down key provisions of the Voting Rights Act, the year before that it was the case about the Affordable Care Act.

So, I don’t think this term is extraordinary in having blockbuster cases, and it’s not surprising that the court was going to take up these issues—affirmative action, abortion, immigration—when they came before the justices. These are issues that have split the lower courts, they’re issues of great national importance, and this is a court that really wants to have the last word on issues of great national importance.

I think it’s a good thing that the court has these high-profile cases this term if it means that people will be thinking about the court this summer and fall because I truly believe there is no more important issue for the November 2016 presidential election than who’s going to fill those likely four vacancies on the Supreme Court.

Lithwick: Right. This leads me to my next question, which is: Americans don’t really focus on the courts as a voting issue. And maybe the best evidence right now, Erwin, is that we keep having presidential debates in which we don’t talk about the court, and to the extent that we talk about the court, it’s in, you know, very, very coded language that we’ll get to in a minute.

But why is it that the court—I mean, I think you and I would stipulate right here right now the composition of the Supreme Court, whether you’re a conservative or a liberal, has got to be the most important thing on your mind, and yet, it’s not. And as you said, the last time it really was, was maybe the 1968 election when Richard Nixon ran against the Warren Court.

That’s really the last time we’ve had an election in which people put the court at the very forefront of their thoughts when they were voting, right?

Chemerinsky: Certainly. Richard Nixon ran against the Warren Court and made it an issue, and yet, you think of other presidential elections that were so pivotal with regard to the court—like 2000 and 2004—and it was barely discussed.

And it tends to get discussed more by Republicans than it does by Democrats. I think you ask a great question: Why isn’t the composition of the court a more salient issue? And I don’t think there’s a simple answer to it. Part of it is that I think that people still have this belief that law exists apart from the justices and, so, they don’t fully appreciate how much the identity of the justices makes all the difference.

The cases that come to the Supreme Court are ones that could come out either way—often involve balancing of competing interests. How that’s done is so much a function of the justices who are there, their life experience, and their values, but I don’t think that people realize that.

I also worry that people don’t realize how much what the court does really does affect them. I think of the right to abortion, I think of affirmative action, I think with regard to campaign finance in the long term, how much it affects all of us, but people often aren’t focused on that or maybe they don’t realize that.

Lithwick: And yet, you pointed this out, and it’s worth reinforcing this—certainly I think the Republican Party, the Republican nominees are more vocal about this. You know, famously, Supreme Court litigator Michael Carvin said at a Federalidt Society event last year that, quote, if the election goes wrong, we will all descend into a hellish existence from which we will never emerge, end quote.

This is what the Washington Times reported at the time. So, it does seem as though the American right is at least more organized and more thoughtful on this issue than the American left; is that fair?

Chemerinsky: I think so.

I think that the Republican base has just cared much more about the composition of the Supreme Court and the lower federal courts than the Democratic base, and I think that’s translated into something that really does affect all of us in almost on a daily basis, and that’s that the Republicans have tended to appoint much more conservative individuals to the Supreme Court and the lower federal courts than Democratic presidents appointed liberals to the Supreme Court and to the lower federal courts; that if I was to do an ideological lineup of, say, federal appeals court judges, overall the Republican appointees are much more conservative than the Democratic appointees are liberal, and I think that’s because the Republican base cares more about it than the Democratic base cares about it.

Lithwick: So, this, of course, leads me to the nuts and bolts of John Roberts. Why? Why has John Roberts become the whipping boy for the GOP nominees? We can play for you Ted Cruz, we can play for you Donald Trump.

Donald Trump has tweeted that John Roberts is a liberal, and Ted Cruz has made it his personal business to go after John Roberts as being a wussy, you know, weak-kneed, nonthoughtful conservative.

Why is John Roberts getting all the heat here?

Chemerinsky: It’s absurd to the extent that they say that they have to assume no one’s paying any attention to the Supreme Court. This is John Roberts’ 11th term. John Roberts votes in the conservative direction 95, 98 percent of the time.

Think again of the issues that conservatives care most about—abortion. He’s with the conservatives in upholding the Federal Partial-Birth Abortion Act. Affirmative action—no one has written a stronger opinion in recent years against affirmative action than John Roberts and Parents Involved in Community Schools v. Seattle School District No. 1. In 2007 we said the Constitution requires color blindness, and the government has to stop all discrimination based on race, and he sees affirmative action as discrimination based on race.

Guns: District of Columbia v. Heller, the most gun rights–protective decision in American history is with John Roberts in the majority. Campaign finance, Citizens United and the cases like that. There’s only one area where John Roberts has disappointed the conservatives, and that is he upheld the individual mandate of the Affordable Care Act, and this past term uphold tax credits for those who purchased insurance on federally created exchanges.

But based on that one example out of so many, the conservatives have turned against John Roberts. It’s absurd what they’re saying. Why are they saying it? My guess is because Republicans like to run against the Supreme Court, that they like to accuse the Supreme Court of judicial activism and, so, they’ve turned on John Roberts in this way based on the Affordable Care Act.

But instead, I think anybody who watches the court knows that John Roberts has been overwhelmingly conservative. And just to mention one more example, marriage equality. John Roberts writes a powerful dissent last spring and a couple years earlier in the marriage-equality cases, yet the conservatives want to forget that.

Lithwick: So, I want to talk just for one more minute about the Affordable Care Act cases because that’s clearly the coding—I agree with you. Let’s listen: This is Donald Trump just last week on ABC News, and let’s play the quote and talk about it.

Donald Trump: Justice Roberts turned out to be an absolute disaster.

He turned out to be an absolute disaster because he gave us Obamacare.

Lithwick: Erwin, I guess I want to ask: What does the ACA signal? Why is Obamacare singled out as the issue on which because Roberts defected on this, he’s basically Brennan?

Chemerinsky: Well, there’s no doubt that the Affordable Care Act has been the most politically divisive federal law adopted probably since the 1964 Civil Rights Act. It’s perhaps the most important social program created by the federal government since the war on poverty and maybe even since social security in the New Deal.

Every Republican in Congress voted against it, almost every Republican lower federal court judge voted to strike it down and, so, it is used, I think, by Republicans as a litmus test, and they use it to evaluate John Roberts.

But again, it’s taking it so much out of the context of the rest of John Roberts’ record as chief justice. Even John Roberts’ career as a lower court judge, a lawyer, and going all the way back to when he was a law clerk for William Rehnquist.

Lithwick: So, let me posit this and you react and tell me why I’m wrong, but one of the things that Ted Cruz has been doing in his attacks on John Roberts is suggesting that the problem is that Republicans defect—they don’t stay true to the cause.

Here’s Ted Cruz saying the Republicans have an abysmal record. We bat about .500. Half the nominees Republicans have put on the court have not just occasionally disappointed but have turned into disasters. So, is there something about control going on here where there’s a feeling that if you’re not in lockstep with the GOP and Republican values, then you’re a disaster and you’ve defected? Whereas there’s somehow an expectation on the American left and certainly among the leadership on the American left that justices are going to justice.

They’re just going to kind of free range out there and sometimes Justice Breyer disappoints and Elena Kagan disappoints, but we don’t have that litmus test where we say, if you just one time get out of line, we get to code you as a disaster. What going on there do you think?

Chemerinsky: I think that’s right, but I think we have to also remember that this is political rhetoric, and Ted Cruz or Donald Trump are saying what they think will appeal to the conservative base who votes in Republicans caucuses and Republican primaries. Running against the court is something that is useful.

Now, I think empirically, Ted Cruz is wrong, but I think that most Republican nominees—like most Democratic nominees—have voted as one would predict. And, so, on the current court, certainly Justices Scalia, Thomas, and Alito are everything that the Republicans could have hoped for.

Now on the other hand, Justice Souter wasn’t what the Republicans hoped for, Justice Kennedy has been more of a disappointment to Republicans, obviously, than, say, Scalia, Thomas, Alito, or even Roberts, but we could do the same thing with regard to the Democratic appointees.

Byron White was President Kennedy’s appointee, but he was one of the more conservative Justices on the court in his era. Got to remember, he was one of the two dissenters in Roe v. Wade, one of the dissenters in Miranda v. Arizona. So, most justices are what the political party that appoints them want, but there will always be justices who are not quite ideologically as pure as the base wants.

That’s, I think, why you hear Ted Cruz, Donald Trump saying the things that they’re saying.

Lithwick: So, now I want to ask you the analogous question on the left, which is, in effect, why Citizens United? It seems that Hillary Clinton, Bernie Sanders have been certainly less voluble about their loathing of the court, but boy, get them wound up about Citizens United, and they can talk all day.

And Bernie Sanders recently made some news by tweeting, “Any Supreme Court nominee of mine will make overturning Citizens United one of their first decisions,” which he got shellacked for because you don’t get to just overturn things the day you’re appointed.

But help us understand, if you would, what Citizens United signifies on the left that’s akin to the outrage directed at the Affordable Care Act on the right.

Chemerinsky: Citizens United is the case that means that corporations can spend as much money as they want under the corporate treasury to get people elected or defeated.

The fact that corporations can do this is something that outrages the left, but there’s also something else going on here. I think Citizens United is a case that’s unpopular more across the political spectrum than many Supreme Court cases are.

I’ve written a lot of op-eds. I don’t think I’ve ever written an op-ed that got as much response that was favorable as when I wrote the day after Citizens United criticizing the case. Usually, as you know, op-eds draw negative emails at a ratio about 10 or 100 to 1.

Almost every email I got after I wrote about Citizens United was tremendously critical of the decision, including from many who identified themselves as conservatives. So, I think what Bernie Sanders or Hillary Clinton are doing is picking an example that certainly appeals to their base but may also have a much broader appeal to voters in saying the Supreme Court just got it wrong here.

Lithwick: I’m going to take you away from the election for one brief second because I feel that we need to mark on this show that when the court returns from the winter break at the end of February, it is going to stumble upon, as Adam Liptak points out this week in the New York Times, an anniversary which is that it will have been 10 years since Clarence Thomas asked a question at oral argument, and I wonder if you want to reflect on what it means that one of our nine justices literally hasn’t spoken at an oral argument in 10 years.

Chemerinsky: I would say this whether it was a conservative or a liberal justice. I think it shows tremendous disrespect for the process to never ask a question during oral argument. I understand that some justices are going to be more vocal and some are going to be more quiet.

I find the same thing in teaching law school classes—some students are more vocal, some more quiet. But the idea that a justice on the Supreme Court would go 10 years without ever participating in oral argument is something that we should be outraged about. Oral argument is the opportunity for the lawyers to get the answer to questions that are of concern to the justices.

As you’ve mentioned, I’ve argued several times in the Supreme Court, I’ve argued dozens of times in lower courts of appeals, I want the judges, the justices to ask me the questions that have greater concern. Can it really be that in 10 years—and that’s probably over 800 oral arguments—not once there’s been a question that Clarence Thomas has needed an answer to?

That’s inconceivable. And, so, that’s why I say whether it be a liberal or a conservative, I think it shows disrespect for the process to never, ever ask a question.

Lithwick: Erwin, my last question, I want to give you a moment to talk about your book a little bit.

The Case Against the Supreme Court came out last year. It was really a tremendous, one of the most important books I read last year, and it’s, in effect, a kind of paradoxical book insofar as deeply, deeply critical about the Supreme Court; not just the current Roberts Court, which you’ve criticized in other places, but deeply critical about the Supreme Court as an institution over centuries, more or less saying, you know, for the most part the court has always—unerringly almost—sided with the wealthy and the privileged and the powerful, and that even if at its high-water marks of what it was doing to support the poor and the underprivileged and the people who are disenfranchised, you know, at the apex of the Warren Court, for instance, it still did so much less than it should have.

So, help us to understand as listeners who maybe aren’t familiar with your work how it’s possible that you, who have devoted your lifetime and more than 200 law review articles to engaging with this institution, can feel so disappointed in it and how it is that you can argue at the same time that the court matters so much in this upcoming election, even though it is so deeply flawed?

Chemerinsky: You’re so kind to ask about it. I realized as I’ve been teaching and writing about the Supreme Court, I’ve often been making excuses for it. And then when I look at the court over the course of American history, it’s so often failed, often at the most important tasks, often the most important times.

When we look at the Supreme Court and race over the course of American history, when we look at the Supreme Court in times of crisis over the course of American history, when we look at the Supreme Court in so many areas where the Supreme Court didn’t do what it was supposed to do.

And, so, I deeply care about the Supreme Court, but I think it can do better in the future, and I think the only way that we can hope for that is to point to its failures and offer suggestions for its improvement. I think it was Winston Churchill who said that democracy is a terrible form of government, but it’s so much better than whatever else there is.

I think judicial reviews often fail, but I can’t imagine not having judicial review. When I think of the kind of people who I represented—people on death row, a Guantánamo detainee, a homeless man, and I can go on—for them it’s really the courts or nothing, I would just like to see the Courts do a much better job of upholding the Constitution.

Lithwick: Erwin Chemerinsky is the current and founding dean of UC Irvine School of Law. He’s a prolific writer about the law and an arguer at the Supreme Court, and it is a pleasure and a joy, Erwin, to have you on the show today.

Thank you so much for joining us.

Chemerinsky: Thank you. It’s been my pleasure and joy. Just so much fun to do this with you.

Lithwick: And that is going to do it for this episode of Amicus. Thank you for joining us. As we mentioned at the top of the show, later this spring we’ll circle back to a lot of these same themes we discussed today but from a conservative perspective.

But in the meantime, do let us know what you thought of this episode and what else you’d like to hear from us in future shows. Our email is amicus@slate.com, and we really love your letters. If you are among the devoted friends of this podcast who’s not yet had a chance to share your feelings about the show with the iTunes masses, it’s not too late to do it.

Search for Amicus in the iTunes store, and when you find our show page, look for the ratings and reviews tab. A few kind words there will go a long way to help other people learn about this podcast. If you’d like to catch up on past Amicus episodes, you will always find them at slate.com/Amicus.

And if you’re a Slate Plus member, you’ll also find transcripts there. If you’re not, you can always sign up for a free trial membership at slate.com/amicusplus. Thank you as always to the Virginia Foundation for the Humanities where our show is taped. Our producer is Tony Field, and Steve Lickteig is our executive producer.

Panoply’s chief content officer is Andy Bowers. Amicus is part of the Panoply network. Check out our entire roster of podcasts at iTunes.com/panoply. I’m Dahlia Lithwick, and we will be back with you in a couple of weeks with another edition of Amicus.