Podcast / Contempt of Court / Aug 15, 2023

Can’t Reform the Court’s Power? Then Let’s Take It Away.

On this episode of the Contempt of Court podcast, a deep dive into jurisdiction stripping.

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Stripping The Court of Its Power | Contempt of Court with Elie Mystal
byThe Nation Magazine

Instead of reforming how the Supreme Court uses its power, what if we took its power away?

Harvard Law School professor, Ryan Doerfler, and Michigan Law School Professor Leah Litman join Elie Mystal's Contempt of Court podcast to discuss their perspectives on jurisdiction stripping. 

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People protest in front of the US Supreme Court on June 24, 2022, in Washington, D.C., in response to the Dobbs v. Jackson Women’s Health Organization ruling. (Brandon Bell / Getty Images)

So far on this podcast, we’ve talked about various reforms of the Supreme Court—court expansion, term limits, court balancing, and ethics reform. All of these accept the premise that the Supreme Court should keep its power over the elected branches of government. These reforms are focused on forcing the court to use its power more fairly, more justly, and with less mustache-twirling corruption.

While those are noble goals, but I’ve begun to think the underlying premise is flawed. Instead of reforming how the Supreme Court uses its power, what if we took its power away?

Harvard Law School professor Ryan Doerfler and Michigan Law School professor Leah Litman join the podcast to discuss their perspectives on jurisdiction stripping.

The Nation Podcasts
The Nation Podcasts

Here's where to find podcasts from The Nation. Political talk without the boring parts, featuring the writers, activists and artists who shape the news, from a progressive perspective.

Delegitimize The Supreme Court | Contempt of Court with Elie Mystal
byThe Nation Magazine

This is the eighth and final episode of Contempt of Court, our podcast series about reforming the Supreme Court. On this episode, we’re going to talk about the court’s only true form of power: legitimacy.

To discuss potential paths toward delegitimizing the Court, my first guest on this episode is Harvard Law School professor, Nikolas Bowie. He makes a compelling case that the people, through their representatives, should be the ones in charge, not the Supreme Court.

Afterward, Rhiannon Hamam, host of the fantastic Supreme Court podcast 5-4, has some thoughts on what’s happening on the ground, as people try to take back power from the Court through direct action.

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Imagine you are designing a system of government, one based on the ideals of self-government by means of representative democracy. In this system, you want the people—whoever you define as the people—to vote for officials who will make the important decisions on their behalf. Given that this is your goal, would you ever set up a super-council of high priests who cannot be voted on by the people, but can overrule or outright veto the decisions of the elected leaders, based on their whims? 

If that sounds ridiculous to you, you’re in luck, because it also sounded ridiculous to the people who wrote the US Constitution. That’s why they never intended for the Supreme Court to have the power it now wields over our modern society.

[Music up] 

WELCOME to Contempt of Court, a podcast from the Nation, sponsored by The New Press. I’m Elie Mystal, the Justice Correspondent for the Nation. This is the seventh episode in our eight episode series about reforming the Supreme Court—and today we’re going to talk about taking the Court out at the knees.

You see, all of the reforms we’ve talked about in the previous episodes—court expansion, term limits, court balancing, and ethics reforms—accept the premise that the Supreme Court should keep its power over the elected branches of government. These reforms are focused on forcing the Court to use its power more fairly, more justly, and with less mustache-twirling corruption. 

Those are noble goals, but I’ve begun to think the underlying premise is flawed. Instead of reforming how the Supreme Court uses its power, what if we took its power away? The US Supreme Court is pretty much the most powerful high court in the entire world: other modern democracies get along just fine without having nine unelected rulers in robes telling parliament or the prime minister what they can or can’t do. Maybe we should try listening to the rest of the world about how to run a democracy?

Or maybe—and you won’t hear me say this very often—we should try listening to the authors of our own Constitution? Because at no point did the people who designed the government give the Supreme Court the power to veto the actions of other branches of government.

Instead, that is a power the court gave to itself. The power to overturn acts of Congress, or of the president, is called judicial review, and it’s a power the Supreme Court gave to itself in the 1803 case Marbury v. Madison. There, for the first time, the court made itself the final arbiter of which laws Congress gets to pass.

Our first guest thinks that we, or at the very least Congress, should take that power back. Ryan Doerfler is a scholar and professor at Harvard Law School, and he is a proponent of what lawyers call “jurisdiction stripping.” The idea is simple: Congress, not the Supreme Court, is fully capable of determining what is, and is not, constitutional. And it has the constitutional authority to strip from the Supreme Court the power of judicial review, and, with it, the hubris of nine unelected people telling its co-equal branches of government what it can and cannot do. 

INTERVIEW WITH RYAN DOERFLER:

Elie Mystal: [00:00:00] I am joined by Ryan ler, Harvard Law Professor, sometime nation columnist, and just one of the big brains about an issue that we have talked about and touched on throughout this show. Throughout this series, Ryan is one of the stronger advocates for. What’s called in the scholarship jurisdiction stripping.

It’s the idea that the Supreme Court shouldn’t have as much power as it does, and that its power can be directly limited by acts of Congress, either in full or in a law by law basis. Ryan, thank you so much, uh, for spending some time with me today. Yeah, absolutely. Thanks so much for having me. Ryan, really first question out of the box because it’s, it’s such a jargony term, right?

What is jurisdiction stripping? What are we talking about when we say that? 

Ryan Doerfler: Yeah, so like in simplest terms, jurisdiction [00:01:00] stripping is an ordinary act of Congress, right? Ordinary statute that says courts or the Supreme Court or some specific court shall have no authority to hear such and such case. Right.

So it’s just a direct prohibition against a court or courts in general from hearing a particular type of dispute. And now we can define that class of disputes very broadly, right? Courts shall have no jurisdiction over constitutional challenges to federal legislation, something like that. Or it could be very targeted, right?

Courts shall have no jurisdiction over, uh, voting rights determinations made by, uh, the Department of Justice, something like that. But, but the basic idea is, Ordinary act of Congress that says, uh, court shall have no power to review some class of of disputes. 

Elie Mystal: Now, what’s the constitutional basis for this, right?

If you just skimmed your pocket constitution and you get to article three, which is like super short, everybody should read it. It’s not hard. Um, article three says that there shall be a Supreme Court that [00:02:00] contains the judicial power in the land. How can congress, how can Article One strip the Supreme Court of its power to be the judiciary? 

Ryan Doerfler: Right? So Article three does, uh, mandate the existence of a Supreme Court, right, in contrast to lower federal courts, which only exists at the discretion of Congress, uh, but at least the Constitution mandates the existence of a Supreme Court. But then notably, article three specifically gives what is called original jurisdiction, right?

Grants sort of mandatory. Uh, direct jurisdiction for the Supreme Court over like a very particular set of cases, right? Things like disputes between states, like sort of very, very limited and specific, uh, sets of disputes. And then beyond that, article three goes on to say that the Supreme Court shall have appellate jurisdiction except with such exceptions.

Uh, as Congress shall make. Right? So then we have a presumption, uh, of appellate jurisdiction in other cases, uh, but Congress is expressly authorized to make exceptions to that jurisdiction. And so that [00:03:00] is the really sort of explicit textual grant of authority to Congress to place constraints on the Supreme Court’s jurisdiction.

Elie Mystal: Okay. So that’s the basics of how it would work constitutionally, right? Yeah. That Congress could just. Pass a law saying the Supreme Court is not going to hear issues regarding this, that, or the other. Congress arguably could do it specific to every particular law. That’s right. Like you could have had, you know, the Affordable Care Act say that like this is the Affordable Care Act, and guess what?

The Supreme Court is not allowed to rule on whether or not it passes under the Commerce Clause. Congress is making that determination for itself. Right. So I get the argument from the perspective of how it’s. Technically constitutional, explain to people what we do about Marbury v Madison. How do we get around the fact that the Supreme Court said unto itself that it has the power of [00:04:00] judicial review, 

Ryan Doerfler: right. So there’s like a, a broad and narrow way of like understanding that question, right? So there’s like in the broad sense, I mean, interesting. I mean, so my, my colleagues, uh, Nico Bowie and Daphne Nan are, are writing a, a book largely about sort of the Supreme Court sort of. History and, and the process by which it sort of accrued a lot of power to itself.

So in some sense, like the narrative where judicial review, judicial supremacy originated with Marbury is actually sort of a, a fiction that the court itself has helped create. And really it sort of began around the time of Dred Scott. Like that’s when the Supreme Court started to really sort of, Insist on its sort of authority to, to quote unquote say what the law is and then kind of like rec conned this idea that that’s always been true since Marbury.

But, but broadly speaking, right? So at least since the Civil War period, we’ve seen the court sort of really steadily try to establish this culture of what we might call a culture of judicial supremacy, right? That when it comes to questions about what the law is generally, and, and, and what, or what our constitution means, things like that, that we just have a, a culture [00:05:00] in which courts have the final say.

Maybe other branches can share their views, but ultimately, you know, the courts have ultimate interpretive authority as to the constitution and as to laws generally. Right? So one question is like, how do we confront that culture? And that’s a sort of a challenging task. I think the Supreme Court is helping already with its various sort of, you know, egregious acts that are like steadily eroding.

Its legitimacy in the eyes of the public, right? Really like rapidly undermining this. I think like all in my view, like a sort of always false ideal of the court as this apolitical body. So in that sense, I think the court is helping, helping us along. Uh, and then I think the other side of affecting that cultural shift, I.

Is on the one hand other political actors, you know, sort of members of Congress, the President, openly treating the court as not at the ultimate authority, but just another interlocutor in this sort of debate or dispute about what the Constitution means. But also, I think it’s a part about building sort of a mass politics around this idea.

More like a, a, what, you know, earlier academics have [00:06:00] called like a popular constitutionalism. Mm-hmm. This idea that it’s appropriate not only for. Other governmental actors to interpret the Constitution, but also just for the people themselves to do that. Right. And then to demand of their representatives, right?

Demand of Congress, demand of the president, that the Constitution be interpreted in the way that the people think that it should be. So that’s on the cultural side. Then there’s the narrower side of like the sort of technical, legal sort of claims that the court makes and concerning its authority to interpret the law.

And I think there, what’s interesting is that if you look. In many ways, Congress is already doing this in like low visibility ways. Mm-hmm. Right. So there’s actually a, a paper, uh, by Laura Doba, who’s a chars wood fellow at the University of Pennsylvania Law School where I used to work, where she just does this fantastic job of like cataloging all of the specific jurisdiction stripping statutes that Congress has already enacted.

Hmm. Right. So especially in like the national security context, for example, or immigration, uh, there we see Congress already, uh, limiting court’s ability to [00:07:00] review actions taken by various administrative actors, let’s say. And so, so part of it is that, that although we have a broad culture of judicial supremacy, when you really get into the fine details, it turns out that there are already exceptions.

To that narrative. And very often there are exceptions that the right has made use of right insulating again, like things like national security decisions, uh, from uh, judicial oversight. And so in a way it’s sort of like it falls then to the left to sort of makes, make use of those of those same tools.

Elie Mystal: You mentioned the executive a little bit and most of the jurisdictions stripping arguments are hyperfocused on Congress and hyperfocused on Congress’s ability to, to legislate their way through this. In fairness, that’s probably what the Constitution contemplates as well. Congress kind of taking a more active role in limiting the power of the Supreme Court.

But throughout history, we have seen executives here or there. Um, I think the way that you just put it was treat the court as an interlocutor. [00:08:00] In the conversation of what’s constitutional, but not necessarily the final say. Right, right. That’s right. And we’ve seen that from Andrew Jackson. We’ve seen it from Abraham Lincoln, especially, uh, during some of the Civil War cases.

We saw it from Teddy Roosevelt somewhat famously, uh, uh, the Chief Justice has made this ruling. Now let him see, let us see him enforce it. So we’ve seen like pockets of this from time to time. Do you think the president of the United States should have a more active role in interpreting the Constitution through.

Their power to enforce what the Supreme Court says and the rules and regulations thereof. 

Ryan Doerfler: Yeah, I mean, I definitely do. I mean, so importantly, I think like you’re right to say that like the focus of jurisdiction stripping conversation has been about Congress and insulating acts of Congress from judicial invalidation, and I think rightly so.

Because I think like in terms of like the democratic pedigree, like at least within a well-functioning democracy, which hopefully we’re like, we at least need to like work our way towards being a more well-functioning democracy. But, but ultimately, right. It’s just in terms of. [00:09:00] It’s much healthier for democracy to be able to rely on a multi-member parliamentary type body to make its primary political institutions rather than a single figure like the President.

So in that sense, uh, it makes sense to, to focus on protecting Congress in particular. At the same time, I do think ultimately one in terms of just inevitably the president is going to be involved in. Sort of specifying the details of legislation, right. Congress legislature broadly. And then it relies on the executive and the administrative state to sort of give more precise content to the laws.

And that itself is a political action, in my view. Mm-hmm. Right. And so, and similarly, Congress will sometimes delegate to the president to sort of give content even to constitutional values, like equal protection, let’s say. Uh, and so in that space there too, I think appropriately the president should play a significant role in, again, giving content.

To that otherwise very underspecified document. And now we can talk about sort of like maybe that there should be sort of more judicial oversight [00:10:00] vis-a-vis the president than vis-a-vis Congress. I think there’s a plausible story to tell. Uh, or, or there’s a sort of plausible case to be made there. But, but at the very least, I think it’s, it’s entirely appropriate, uh, for the president, uh, to assert him or herself as, uh, at least on equal footing with the court in that conversation about what the Constitution should mean.

Elie Mystal: I bring up the executive branch ’cause I think a, uh, in my view, a lot of this kind of, It comes down to who has the power. And so often that just comes down to who has the boots on the ground, right? Like, uh, one of the arguments I’ve made is that abortion would still be available in states like Texas and Mississippi and Missouri.

If Joe Biden would send in the Army to provide abortion services, um, you’d still be able to get them right. So, like, so much of of our debates actually come down to. A sense of like, who has power on the ground. That leads me though to one of, you know, and, uh, uh, uh, for, for listeners, Ryan and I actually had the opportunity, uh, to talk about [00:11:00] this in the nation and a little bit of a back and forth.

But that brings me one to, one of my big worries about jurisdiction stripping. What happens when the court says no? Right. So you write the law, say, uh, you can’t rule on, um, the constitutionality of this federal statute or these kinds of federal statutes, let’s say in the voting rights context. And the Supreme Court just says, no.

That it’s heard your argument of why you think it’s constitutional, but we’re the Supreme Court and we have judicial supremacy, and we get to decide what’s constitutional or not. And we’ve decided that Congress, your jurisdiction stripping statute is itself unconstitutional, and so we’re just gonna rule on this case anyway.

Ryan Doerfler: Right. Yeah, so I think there is a two, two types of responses. One I think is to just make the sort of. More general observation or make a more general observation about the relationship between jurisdiction stripping and other reform proposals, and in particular, court packing or court expansion, uh, if you prefer, uh, because I think often in these conversations there’s a, there’s a sort of [00:12:00] tendency that I’ve certainly fallen, uh, prey to, but I think more generally, there’s a tendency to say like, should we do X or should we do y?

Should we do court packing or should we do jurisdiction stripping? And I, I think ultimately, I think that there’s no, like these things can sort of act as compliments rather than alternatives. And I think in particular, if I think about the sort of longer term path to jurisdiction stripping specifically, but also just sort of eroding this culture of judicial, judicial supremacy, I think it’s very plausible that a threshold or initial step towards that ultimate goal would be court expansion, would be the addition of justices who would.

Right. Not just sort of rule substantively in ways that we would like, but also in terms of the role of the court would acquiesce. To a legislative program of stripping the court of its authority. So I think one way would to be, to try to try to preempt that, right? Preempt the court’s resistance by loading up the court with justices who would, who would bless, uh, jurisdiction stripping.

But suppose, you know, that what turned out not to be the case. And so in specific circumstance, right, the court, for whatever reason, [00:13:00] Uh, you can’t get sufficiently many sympathetic judges or justices, and the court, uh, says, no. Uh, this, uh, jurisdictions dipping legislation is unconstitutional. You know, article three say what the law is, blah, blah.

What do you do then? And so I think there, there are a range of, I. Options from, ranging from sort of squarely law or squarely legal to perhaps extra veering into extralegal. Right. So, one. Mm-hmm. Uh, there are various retaliatory measures that Congress and the president could take, like, like squarely legal retaliatory measures, uh, that Congress could take.

Uh, vis-a-vis the justices, uh, whether it is slashing their budget, you know, taking away their clerks, uh, you know, uh, sort of, uh, you know, loading up the court with mandatory jurisdiction over hundreds of cases a year, hundreds of cases a year, right? Really just making life unpleasant for the Supreme Court Justices, all consistent with their sort of grants of life, tenure and salary protection, right?

They’re all kinds of things, uh, that Congress and the President together could do to make, again, so just to sort of push back against, uh, the court in that way. But even more aggressively, like right on the sort [00:14:00] of along the sort of line from sort of squarely legal to more extra legal, you could also have a situation where the president simply defies the Supreme Court.

Right? So I mean, so for example, if, uh, Congress, uh, were to protect, uh, to enact legislation, something like the Women’s Health Protection Act, right? Something establishing, uh, a federal, uh, right to abortion I, or to include as it should, uh, a, a jurisdiction serving statute. Uh, and then, you know, the, um, the Supreme Court were to say, well, you know, this violates the commerce clause.

There’s no, there’s no, uh, constitutional authority for this legislation. Uh, the president could just say like, too bad. We’re pressing ahead. We are going to, we are going to enforce, uh, this federal Right, uh, to an abortion in much the way that you, uh, just suggested. 

Elie Mystal: Yeah, I mean, that, that’s, that, that’s always a, an option.

But then, what about Mississippi? Right? So like, the president decides they’re gonna go ahead and act.

Congress decides they’re gonna go ahead and act. Um, the Supreme Court says no, and Mississippi says, actually, I agree with the Supreme Court. We don’t have to give women no rats. Like, that’s, that’s their, like, doesn’t that. Inevitably lead to what I kind of suggested earlier, boots on the ground? 

Ryan Doerfler: It might, but I don’t.

But importantly, I think that’s not a, that’s not a, a sort of judicial supremacy problem. That’s a Mississippi problem, right? That’s Brown V Board, right. So Brown v board, the court rule in the way that we would like, same situation Mississippi says, we don’t disagree, or, or Alabama says, we don’t agree with the Supreme Court.

Then you, you know, and then you know, what, what good is that ruling until you actually have a federal intervention? So in that sense, I just think that’s, I mean, it’s true. We live in like a, a highly polarized society and that itself presents like real political challenges. I think that’s true. I mean, now I am [00:16:00] tend to think that like the only way to deal with that is to sort of push through it and to rely on assertions of federal authority.

I mean, that’s my, I. Sort of inclination. Um mm-hmm. But, but again, I don’t think that’s a problem that’s unique to the Supreme Court or judicial supremacy that’s just unique. That’s just a, I mean, that would be true if, if Congress were to enact a federal, uh, guarantee of, you know, uh, of abortion rights and the Supreme Court were up to uphold it, you would still have that same threat of state level resistance.

Elie Mystal: part two of the, what about Mississippi Question is, okay, so Congress passes a law jurisdiction stripping, um, we’re gonna, we’re gonna protect women’s rights, and, uh, the Supreme Court can’t rule. Mississippi says, all right, that’s a good idea. We’re gonna pass the law. Banning gay people from going to restaurants.

Yep. And the Supreme Court can’t. We’re gonna jurisdiction strip the Supreme Court. Can’t tell us. ’cause we have state’s rights about what we can do about. Um, gay people in our [00:17:00] restaurants.

Ryan Doerfler: Yeah. So I think there are two, there are two possible ways to try to deal with that situation. One, I think the healthier way to deal with that situation would be for congress to spa, to pass legislation. You know, again, sort of, you know, pointed the supremacy clause that displaces, uh, that prohibition Instead, sort of have, uh, explicit guarantees of access to those sorts of public services, uh, to, uh, you know, in or, or public spaces, uh, in, in those, uh, states.

And then, and then again, you have to rely on the, is it of executive to enforce those laws and so on. But one would be to have, again, sort of have Congress just sort of pass laws that that directly negate and supplant, uh, that uh, uh, state level. Uh, discriminatory law. Uh, or alternatively you could have Congress Pac Pass, like a broad or, or just sort of rely on existing, uh, broad anti-discrimination [00:18:00] legislation and rely on some federal agency to pass, you know, through reg regulation.

But again, some sort of positive enactment either from, uh, congress or uh, the administrative state. The other option though, and this is again, sort of an option that my, uh, my colleagues, uh, Nico Bowie and, and Daphna Renan are very enthusiastic about is to draw a distinction between, uh, judicial review of federal legislation and state level LE legislation.

And to say that what congress. I mean, one is there’s sort of, in terms of the Democratic pedigree, right? The democratic pedigree of a national law is obviously much more robust than a state level, state level law. Uh, but then so, so as, uh, uh, Nico and, and Dafna argue, uh, Congress can and has in the past, uh, relied on the federal judiciary, then to effectively enforce.

Uh, federal understanding of constitutional law or just, or just federal laws more generally in those, uh, recalcitrant states? Right. So we, so we say like, no. So Congress explicitly grants, [00:19:00] uh, uh, federal courts jurisdiction over state level legislation, right? Mm-hmm. Not because of judicial supremacy or anything like that, but because Congress chooses to rely on the judiciary, federal judiciary as its adjunct.

Right to police that state level, uh, activity. Now again, so they, so you have different options, right? So you could, you can, you could rely, you, Congress can rely on federal courts. Congress can also rely, rely on federal agencies, which is probably more my inclination. Uh, but again, these are different ways to try to sort of separate out sort of state level, uh, legislation, which importantly is where.

Most of the examples where we think, oh, you know, aren’t we glad that there was judicial review or judicial, you know, judicial sort of authority? Most of the historical cases where we think that those that has been attractive have been in these sort of state level cases, right? Sort of discriminatory state laws as opposed to federal legislation where examples of the Supreme Court stepping in and invalidating, uh, repugnant federal legislation are, uh, few, if any.

Elie Mystal: Yeah. And also because there, there, there’s just a, a, a, as you mentioned, the [00:20:00] democratic pedigree. It is simply easier for us as a nation to overturn bad national laws. We have, you know, biannual congressional elections. We vote for a president every four years. You know, it, it, it’s much harder for kind of the nation wr writ large.

To do anything about Mississippi or Alabama, especially when you think about all of the kind of anti-democratic, you know, gerrymandering enhanced, um, rules that states that certain states put into play, um, specifically to, uh, uh, uh, decrease the electoral power of their minority populations.

Elie Mystal: Are you worried at all that we’re putting way too much faith in Congress?

Right, like the, like to, to, to, and I’m not, I don’t play devil’s advocate on, on the show. Um, one argument that does appeal to me at a certain level, um, for judicial supremacy is that for the most part, the Supreme Court justices are smart. And we can, we can kind of, uh, uh, debate and I will certainly rail against, you know, that they, they will use their powers for evil as opposed to good.

More often than not, I feel, but at a fundamental level, they are smart, they are well educated, they are well versed in, [00:25:00] um, many of the issues, um, that they’re talking about Congress. Is not smart writ large. There are smart people who go to Congress, obviously, but that is not a requirement for that job. Uh, um, Congress lends itself to, and you know, I’m gonna sound a little bit like, uh, uh, Socrates here, right?

But like, this is, Congress is not a meritocracy. Congress is a popularity contest, right? And so you have the potential that, you know, just the most powerful, uh, most popular, and certainly in part because of the Supreme Court’s own rulings in cases like Citizens United, um, either the most popular or the most well-funded person, um, can kind of buy themselves a congressional seat.

Um, they might not have a great understanding of how laws work or how rights work, you know, for every kind of high-minded Katie Porter’s whiteboard person, you’ve got a Marjorie Taylor Green. So are we at the risk of kind [00:26:00] of putting too much power and too much faith, um, in, in Congress, given all of its kind of somewhat obvious problems with corruption and, and, and just general lack of knowledge as opposed to having some of these issues.

Decided by, for lack of a better term, a group of elites. 

Ryan Doerfler: Yeah, no, I mean, but I think that that’s, that’s precisely the, the, the, the, the, the question, right?

So we have a, a deeply, deeply flawed. Uh, and unrepresentative Congress, but importantly in this space, what I always emphasize is that like the question that we’re presented with is always a comparative one.

Right. It’s not a, is Congress good? The question is, is it better than the Supreme Court? Is it better than the judiciary? And there, I wanna say like even, you know, Congress, as bad as it is, uh, I think even in its present form, I trust more than I, than I trust the judiciary in its present form. I. Moreover, I have more optimism about, uh, the ability of the population at large.

So to push Congress to be better than it is. And, and that’s another thing, too, to point out, that, that this project of judicial reform should not be understood as to the exclusion of congressional reform or senate reform in particular.

[00:28:00] Right. what’s critical if, if this country is gonna survive is that we have a sort of. Much like a, a broader sort of democrat like democracy reform program, right? And that’s gonna involve partly reform of the, of the judiciary, which is what I focus on, but also definitely it’s gonna involve reform of Congress and the Senate.

It’s gonna involve re reform of the electoral college, uh, and so on. So that’s just sort of his background, but in terms of, right, but okay. But you say like, okay, look like Congress is corrupt. Uh, correct. Uh, these people are, uh, in many cases, like very like, Unsophisticated uninterested, just sort of incurious, uh, sort of often bigoted people, right?

Like, aren’t you worried about that? Wouldn’t you rather have, uh, you know, people who went to Harvard, Yale Law School making these decisions? And I still think the answer I would say is no. And I think the reason is the premise there is that, I mean, so, so I guess a few reasons. So one is the justices that we’re talking about, importantly, [00:29:00] This because you said like Congress is not a meritocracy.

Absolutely. Right. Guess what? Neither is the Supreme Court. Right. Supreme Court is selected by whom? Well by politicians. Right? They’re selected by the president in consultation with this political party and obviously, but, and have to get past the Senate, right? So those same people are the ones who are proving these justices, right?

It’s not just the people who are like the president of the Law review, who get to these Supreme Court justice, right? It’s people who, politicians, you know, people like Donald Trump and, and, and, uh, uh, uh, uh, Mitch McConnell. You know, deem, uh, appropriate to, to serve on the Supreme Court. So that’s, so that’s one is to, to bear in mind.

Like, those are those people, and of course they have credentials, right? They, they, they know how to sort of like put together a CV that looks sort of classy, uh, but ultimately, right, they’re being selective as political agents to effectuate, uh, a political project. So in that sense, I don’t think there’s any reason to think that ideologically somehow that these justices are, uh, better or more enlightened than the people who picked them.

Moreover, I really think about this in terms of class politics. Right, so, so as you [00:30:00] said, like, look, do we wanna have decision by elites or do we want to have decisions by sort of less refined individuals? But I also, I would say individuals, and also importantly, these people are also elites, like most, you know, most of them.

I mean, they may put on sort of like a sort of more like populist affect, but you know, it’s like, Most of these people also went to Harvard and Yale. Right. Even if they’re sort of like, you know, I mean maybe not, maybe not all of them, 

Elie Mystal: but many of these people, Louisiana, Senator John Kennedy, he might talk like Foghorn Leghorn.

Exactly. But he might talk, I’m just out with the craw dad. But he went to Oxford. I mean like this is not exactly, this is not the guy that he seems to be. Right. 

Ryan Doerfler: Exactly. Ted Cruz, you know, I mean, there are a million, million examples like this, and so then the question becomes, okay, so we have, on the one hand we have elites selected by other elites.

Who are now insulated from popular pressure, insulated to some degree from mass politics versus elites who at least are subject to electoral pressure. Again, I. Limited the pressure that we can place on them given partisan gerrymandering, senate, you know, [00:31:00] allocation and so on. You know, so again, so we live in a highly imperfect democracy.

But if I’m asking like where can unions apply pressure effectively? Where can. Advocates for where can, like, you know, sort of anti mass incarceration advocates, like best apply pressure. I think they can much more effectively apply pressure at the congressional level than they can at the Supreme Court level.

And so for that reason, I think just in general, I would rather have rely, I would rather have power vested in elites subject to democratic pressure than elites deliberately insulated from democratic pressure. 

Elie Mystal: Do you have any sense that this idea, your ideas, the ideas by Steven Moys, you know, the, the scholarship around this issue, um, is gaining, uh, uh, uh, popular, uh uh, Acceptance, specifically within the halls of Congress.

And I asked that question from the standpoint of, one of the things that has been honestly frustrating to me and honestly surprising to me, um, as I have gotten deeper into the rabbit hole of Supreme Court reform, is that so many of the reform ideas involve me or you or people like us telling Congress, Hey guys, here’s some more power.

And Congress saying, no, no, no, no, no, no, no. We don’t want, we don’t want such, and it’s like, what? What? Like these people will in other contexts, grab any shred of authority [00:37:00] they can find. Here we’re saying that one branch of government has kind of gotten completely outsized and it’s actually limiting your relevance.

As a congressperson or senator do something and they, they recoil, they won’t. So like, what’s been your experience with that? Are you seeing a, a change in that at all? Like, um, um, when you, when, when you talk to the politicians, if you, and, um, if you do have to talk to them, I’m sorry. Um, um, you know, what’s your sense about both why they’re not grabbing this power and whether or not there’s any kind of movement for them to take it?

Ryan Doerfler: Yeah. No. Good. Um, so. I wanna say, as with a lot of Democratic party politics, I think there’s a generational divide here. I do think that some younger electeds get it, so I think like, like A O C, for example, has said like some very sort of like, [00:38:00] Bold, make some very bold statements in terms of Congress’s need to like, and, and the president also to sort of like, take authority away from the court.

Right. Not, not merely to add, uh, sort of, uh, sympathetic justices, which again, like is a, is a sort of important task. But, but again, sort of realizing that that. That, that’s the beginning of the project, not the end. Um, I think, uh, sort of, uh, other people like Madre Jones, who now unfortunately has, uh, exited Congress, but now that he was another, uh, figure who I think understood, uh, the sort of like ultimate need to, to sort of strip authority away from Congress by contrast.

Right? So I think older, uh, older, uh, electeds within the Democratic party, uh, I think. Are much more reluctant on this front. I think partly, uh, it is because they are much more institutionalists. Uh, I think President Biden, for example, I think really believes that like, you know, the sort of just the, just the stability of the nation, like the nation would collapse if not for, uh, the, in, you know, these sort of like historic institutions, uh, [00:39:00] sort of, uh, being in place to, to hold, to hold things, um, together.

And so partly I think that is like an honest belief. And the importance of institutions. I think part of it is a pessimism about the public, about citizens. I think people for whom their formative political experiences were during the Reagan revolution. Right. I think view it as like, look like, you know, I don’t know, the people are, you know, bigoted and need to be sort of, you know, again, sort of held in check by elites.

Right. Even if, even if even conservatively, elites are sort of more enlightened than, uh, the sort of like, Uh, these sort of, uh, uh, the masses, uh, uh, and that’s a particular picture. It’s a, this very pessimistic understanding of the, of the American population that I think was an overreaction to what happened on the ground even in the 1980s.

But I think like for younger people, that just doesn’t resonate, right? Younger people, uh, see Republicans maintaining power through militarian institutions. Right. They see, they [00:40:00] see Donald Trump taking the presidency despite, overwhelmingly losing the, you know, without losing the popular vote. Uh, instead of republicans rely relying on, uh, both federal and state level gerrymandering and so on.

So I think like there’s much more of a sense among like younger and more progressive Democrats that actually the public’s on your side. On a lot of things that you care about, right? Things like abortion rights, it’s not the, the lack of public support. It’s the sort of, it’s these anti-democratic, anti majoritarian institutions like the Supreme Court, uh, or the Senate, uh, that are getting in the way.

So I think partly there’s that, it’s just, it’s a, it’s a, there’s sort of like, what is your sort of mental picture of like, what is the public like? I think you have a generational, uh, difference there. The last thing I’ll say though, that’s a little bit more critical. As you say, Congress wants to grab all the power that it can, and I, you know, I wanna, I don’t think I wanna accept that.

’cause I think like very often you see again, more sort of centrist Democrats. Say like, oh, woe is me. Of course, you know, I would love to, I would love to enact, you know, [00:41:00] Medicare for all. I would love to, uh, sort of, you know, enhance social security. We’d love to, you know, uh, have really aggressive, you know, gun legislation, blah, blah, blah.

We’d love to do all these things. Oh, but we can’t, right? There are all these, there are always barriers that, you know, it’s not that I disagree with you, it’s just that it’s not, it’s just not possible. And, and I, and at some point, like I just wanna call bullshit, right? This just seems. Like a sort of ideological disagreement, masked as a sort of strategic, uh, or sort of a, a assessment of sort of what’s possible, a difference in, in an assessment of what’s possible.

So I think partly this institutionalism is a convenient excuse not for Congress not to take bold action, right? Not to pass federal, uh, abortion legislation, not to pass, uh, federal, uh, gun regulation and so on. And so I think partly it is just, again, there’s this ongoing dispute. Within the Democratic party about like, what is the future of the party?

Is it gonna sort of go with the sort of younger progressives or are we gonna stick with the older institutionalists? And so I think this is just one manifestation of that larger, uh, dispute. 

Elie Mystal: I love that you said that because I feel like that story that [00:42:00] you just told about how Democrats, um, some sometimes like to blame.

The Supreme Court or other institutions for their own unwillingness, um, to, to take bold radical change. I feel like that story is actually part of the story of how Republicans won the Supreme Court in the first place, because for a generation, you have Republican politicians kind of going home to their bases and saying, oh, I would love to do something about abortion rights.

I would love to do something about gay rights, but oh, the Supreme Court just won’t let me vote for me. So we can have better Supreme Court justices, but don’t hold me accountable for bringing your culture war policies to bear on the nation. I’m just a Congress person, right? Mm-hmm. 

I guess my follow up and then promise you, last question then is, is, is with that as the i, if you lay laying out the ground as you have, um, and I think in a really smart way, I.

I asked, are the politicians getting it now? I’ll ask finally. Do you think the people are starting to get it? Because I just, just from the, from, from the perspective of, of doing this podcast series, I feel like I’ve heard more about jurisdiction stripping than I thought I would. Right. And, and, and I feel like more people are interested in that, um, um, than I could have possibly, uh, thought they would be 2, 3, 4 years ago. 

Ryan Doerfler: Yeah, no, I think that, I mean, I think on the, on the one hand I think yes, we’re making progress. Like it’s like this idea of stripping the court of authority went from sort of like unthinkable to a totally sort of like, if not [00:45:00] main, I mean at least it’s something that people have like heard of.

On the other hand, I think that one, failing on the part of advocates like me and other people writing in this space. Is that I do think our advocacy has been too elite focused.

and where I think we’ve fell short. And I think what we’re trying to remedy now is, I think as the court reform project becomes a, at least a medium term, uh, or long-term project, I think unfortunately, um, I think that we need to do more sort of base building.

So in more, more direct engagement with, you know, at more like advocacy groups, like, like unions, uh, or, you know, environmental activists and the like. 

I think that’s sort of more direct engagement with, uh, sort of, uh, groups on the ground, I think is something that we need to, we need to continue, uh, to, to do more and, and to sort of build up that, build up that support.

Elie Mystal: Harvard Laws Ryan Doer, thank you so much for joining me. Um, fascinating conversation. Um, I love your [00:47:00] work and, and this is to, to me, this is the, this is the vanguard of, of where we go. If you, if you’ve listened to this series and you’re not, Sold on any of the court reform arguments, then maybe you need to think a little bit more about massively stripping the power from the institution.

Maybe the institution can’t be reformed, um, so much as it needs to be stopped. Ryan, thank you so much for joining me. 

Ryan Doerfler: Thank you so much, Elie. This was great. 

***

Earlier in this series, I talked with Michigan Law Professor Leah Litman about the increasingly popular idea of applying term limits to Supreme Court justices. She was down to do that, thought it had constitutional merit, at least in the case of future judicial appointments. But she recognized that term limits are not an immediate answer to the extremism of the current Supreme Court. Instead, Professor Litman argued that jurisdiction stripping is key to putting the Supreme Court back where it belongs. 

***

INTERVIEW WITH LEAH LITMAN:

I am joined right now by Michigan Law Professor Leah Litman. she’s one of the co-hosts of the strict scrutiny, uh, podcast, which is for my money, um, the best podcast about the Supreme Court out there in a kind of rolling, [00:01:20] uh, uh, basis.

Mm-hmm. So, What reforms do you think would work? 

Leah: So, I want a package deal. Um, [00:27:00] maybe this is the lawyer or law professor in me. Um, but I think. And I want a package on two fronts. One is I want a package of reforms about the Supreme Court, but because part of that package of reforms, which I’ll lay out in a second, would involve disempowering the Supreme Court in some respects, I think we [00:27:20] also need to reinforce the democratic legitimacy of other institutions.

Specifically. If you decrease the power of the Supreme Court, you are increasing, right, the power of Congress and state legislatures. But those institutions, are subject to partisan gerrymandering, racial gerrymandering, senate, malapportionment and whatnot. And [00:27:40] so if you are going to be relying on those institutions more, you know, you need to do things that address those democratic deficits with those institutions as well.

So that’s like one part of the reform. And I think that’s part of court reform because again, I, part of my solution is disempowering the court, but in order to disempower the court, you need to reinvigorate the institutions that will be empowered. 

Okay, so now my [00:28:00] package of court reforms, um, in addition to Term limits, uh, expanding the court. Um, and then some jurisdiction stripping proposals, specifically jurisdiction stripping proposals that limit the Supreme Court’s ability to strike down federal statutes on the ground that they are unconstitutional. In my preferred world, um, if the Supreme Court thinks that a federal statute is [00:28:20] unconstitutional, it essentially remands it to Congress and Congress can decide whether to reenact it.

Um, and so that would be kind of like my version of jurisdiction stripping, coupled with expansion, um, and. Uh, uh, term limits as well. 

Elie: How did you come to embrace court reform as [00:29:40] a thing that needs to happen? One of the things that I’ve been been saying a lot on this show is that you know, very few people kind of like Uh, you know, show up, you know, three L year law schooling, like, you know what? We need to burn it down. Like very few people kind of start off as court reformers. They get, you know, experience life, watching the [00:30:00] Supreme Court actually do what it does, kind of brings them there. How were you brought to a, a, a, a position of reform, um, over your kind of personal experience?

Leah: Yeah, so I think, um, most people who knew me in law school and afterwards, um, Uh, are a little surprised that I have [00:30:20] embraced this so strongly. Um, you know, I was kind of a typical law student, um, center left, um, who, you know, was very, uh, interested in institutions and laws and wanted to see them work. Um, and then I clerked on the Supreme Court when they heard the [00:30:40] first constitutional challenge to the Affordable Care Act, and I thought, This is not a sensible way to run a constitutional democracy.

I mean, that year the justices came within one vote of dismantling the entire Affordable Care Act [00:31:00] because they were fixated on the idea that one day the federal government would make you buy broccoli, and they almost took away health insurance from like millions of people for that reason. And so that was I’d say like a significant turning point in my orientation to the court and [00:31:20] legal profession in general. 

And I understood at that point that things were happening, they were not good and they were probably going to get worse, uh, just based on some observations. Um, and then, you know, seeing what has happened in the decade since, you know how Mitch McConnell has played unilateral, asymmetric constitutional [00:31:40] hardball, um, and the Republican party.

With him as well, right? To seize control of the federal courts and then seeing who they’ve been appointing to the federal courts and what those appointees have been doing, and all of that, I think is fundamentally inconsistent with core aspects of being a multiracial democracy. [00:32:00] And because, Right. I would prefer to live in a multiracial democracy where women are not forced to give birth to children against their will and are not forced to become mothers against their will.

Um, I came to embrace court reform.

Elie: That’s a, that’s a fairly standard story actually. 

Leah: I mean, like, exactly. Like, [00:32:20] it’s not that shocking. Right. And I, I, I, a, a part of me. Um, believes it to be true, though a part of me is also hoping it to be true, um, that republicans, uh, conservative legal movement vastly underestimated how [00:32:40] radicalizing their actions over the last decade have been to people who were normies, right, who were institutionalists and who were not exactly.

Fire breathing, right. Flame throwers. 

Elie: I mean, I, I, I think if they’ve underestimated it, it’s [00:33:00] only because that the institutional establishment, democratic Normies that they actually interact with every day. Have not been radicalized. Right. Dick Durbin, not RA radicalized. Chris Koons not radicalized.Most of the Democrats on the Senate Judiciary Committee are there because they are not radicals, um, in, in terms of, of these issues. And so if you are a [00:33:20] Republican looking at this, you’re all you can possibly think is like, wow, I’ve punked these people and they’re too cowardly to stand up to me. I’m gonna do it some more.

Right. Yeah. Like they’re, that’s exactly, that’s the, the feedback loop from Congress has been affirming. If you are a Republican playing hardball with the, with the Supreme Court, [00:33:40] nothing, you never lose, right? Yeah. When, when you take that stand, Democrats never make you pay for it. Um, but, but that’s another show.

I think you raise a really important point, um, that I haven’t talked about enough on the show that if you disempower the court, you are by necessity Re-empowering other institutions of government. One of the things that I have said is that the, the, especially when we talk about ethics is that the, the only, uh, um, group of people I can think of that are less ethical than the current Supreme Court. Is the wretched hive of scum and villain that is [00:34:40] Congress.

Like, there’s just, there. I am not blind to the fact that having Congress be in charge of deciding what ethics are for the Supreme Court. It might be the right solution, but it’s not, it’s not a fun solution, right? It’s [00:35:00] not a, it’s not an obvious solution, um, given what Congress is.

And I think that when you talk about, uh, uh, uh, disempowering the court through various means, um, you’re absolutely right to point out that that means that congress and especially rando state legislatures yeah. Um, become way more powerful. So how do you. [00:35:20] So talk to me about those reforms, because what do you do about that?

Leah: Right, exactly. And you know, this is part of where I think the importance of court expansion comes in, because those reforms are probably going to happen in part by statutes, and we actually need courts that would be willing to enforce those statutory reforms. So I’ll just list [00:35:40] two. Uh, you know, imagine a federal statute that prohibits partisan gerrymandering, right?

It doesn’t allow. States to draw legislative districts in ways that allow, you know, one political party to retain control even though a majority of voters vote for the other party, or it doesn’t create a bunch of safe districts where you can right elect Marjorie Taylor’s Green right [00:36:00] across the country because Right.

They’re just. Super majority Republican districts that are never going to elect Democrats. Um, and I think that a federal statute prohibiting partisan gerrymandering would go right some way toward reinvigorating both state legislatures as well as the House of Representatives. Um, and also [00:36:20] right, helping turnout in statewide elections like for senators, because when you have more competitive districts, then people know their vote counts and they’re more likely to go out to vote.

Um, and so I think that a federal statute that prohibits partisan gerrymandering right, is helpful. And the reason why court expansion is necessary to that is I’m not confident that this Supreme Court would [00:36:40] one, Uphold a federal statute prohibiting, partisan gerrymandering or two, even if it did, right, meaningfully enforce it right according to its terms.

A second component would be, uh, prohibiting vote dilution. [00:37:00] Um, and essentially diluting the voting power of racial minorities. You know, we in some ways have a statute that already does this, the Voting Rights Act, but you know, that’s again, uh, back to the importance of court expansion. Right. The Bo Roberts court blew part of it up, um, and it has whittled down the other by refusing to interpret it according to its terms. Um, and so I [00:37:20] think that those two provisions, right, in a world with courts that were actually willing to allow.

Congress to facilitate democracy. And multiracial democracy included. Um, those would go at least some of the way toward reinvigorating both [00:37:40] state legislatures as well as the House of Representatives. 

You know, Senate malapportionment, right? There are, you know, some things you could do like, uh, creating the opportunity for DC statehood, Puerto Rico statehood that would, you know, address some of the Senate malapportionment.

But the, you know, there are others as well, addressing the filibuster in ways that only allow a majority of. Or a super [00:38:00] majority of senators who represent, right, a majority of the country or a super majority of the country, to filibuster legislation. That’s another way of kind of addressing senate malapportionment.

Um, so those are some possibilities, um, all of which I think would take important steps to allowing us to put more trust in institutions that would [00:38:20] be empowered in a world and where the court would be, you know, disempowered.

Elie: Professor Litman, thank you so much

***

I have to confess: Until recently, I had generally been skeptical about jurisdiction stripping, because I’m Black. Congress is a majoritarian institution, with no inherent protections for minority rights, viewpoints, or political power. In our particular system, I thought, we need an institution that can check Congress’s power.

It’s a different situation in modern parliamentary systems. In those systems,the minority party (often, parties) is still guaranteed to be represented. If your party gets 49 percent of the votes, your party gets 49 percent of the seats in the legislature. But the US Congress is a “win-or-go-home” system: if your party gets 49 percent of the vote, it could still end up with 0 percent of the seats in Congress, if the districts have been gerrymandered correctly. 

As a Black person who is painfully aware that Black people only make up around 14 percent of the population, I spend a lot of time worrying about the tyranny of the white majority. So the idea of a Supreme Court removed from political will of whatever tortures and petty insults white people can dream up to visit upon my people, holds a certain appeal to me. I want there to be some body, some institution, that can tell white political majorities “no.” In an ideal world, the Supreme Court should be that legal, institutional check on the worst instincts of white voters. 

The problem is: it’s not. With the exception of a few years in the middle of the 20th Century, when the Court momentarily remembered that the South had not accepted the outcome of the Civil War, the Supreme Court has functioned as the handmaiden to white power. It has misinterpreted and reinterpreted the Constitution and its Amendments in the most narrow ways so as to maintain a white supremacist status quo. It’s not a check on white voters, it’s a license for them to do their evil under the color of constitutional law. 

I still don’t have great faith in the democratic promise of Congress. I do not relish trying to convince a majority of white voters to share the rights and privileges this country has always given to white people with everybody else. But at least I can use all of the normal tools of political organization and persuasion to nudge them and the people they elect towards justice. The justices on the Supreme Court are immune to such pressure. They are not representatives, but rulers, and they are cloaked in power until they die.

Maybe it’s time to take away their robes, and try this democracy thing on for size. Can’t be any worse, right? 

NEXT WEEK, if Congress won’t act on jurisdiction stripping, we’ll talk about what the people can do to take away the power of the Supreme Court justices: ignore them. 

This podcast was produced by Conor Gillies, Ludwig Hurtado, Babette Thomas, and Lizzy Ratner. Our original music was made by Ellington Peet. 

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Elie Mystal

Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.

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