30 Issues in 30 Days: Supreme Court Reform

Brian Lehrer (0:10)

Brian Lehrer on WNYC. We're in our 30 issues and 30 days election series. Let other media focus only on the polls and the horse race. We are choosing an issue a day for 30 straight shows to help you be as informed a voter as you can be in the midterm elections for Congress and the New York State Governor's race. We're up to issue 20, which has major implications for our democracy, depending on how it turns out, should we reform the Supreme Court.

Republicans generally oppose the idea. We'll explain why. Many Democrats argue that the Supreme Court has gone off the rails from what it's supposed to be and support things like term limits, expanding the number of justices, and more. Here is one of the most high-profile Democratic candidates this year, James Tallarico, running for the US Senate in Texas.

James Talarico (1:00)

Well, I think the Supreme Court needs to be overhauled. We have seen that corruption has infected the judicial branch, just as it's infected the legislative and executive branches. And so you're going to expect that I will vote for overhaul as the Supreme Court. That'll include binding codes of conduct for our justices. It'll include term limits. And I'm open to a discussion about expanding the number of justices.

Brian Lehrer (1:22)

James Tallarico answering a question from Brooke Taylor on Fox, Term Limits, Codes of Conduct, and open to expanding the number of justices. We'll hear a different proposal from Pete Buttigieg from when he was a guest on this show coming up. University of Pennsylvania law professor Kate Shaw had an op-ed in the New York Times about this last week called A Four-Step Plan to Reign In the Supreme Court. Kate Shaw is a contributing opinion writer for the New York Times and co-host of the Supreme Court podcast, Strict Scrutiny. Kate, always good of you to join us. Welcome back to WNYC.

Kate Shaw (1:57)

Thanks so much, Brian. Always great to be here.

Brian Lehrer (1:59)

Why don't you start by making the case, briefly, for Supreme Court reform in the first place, as you do in your article. The first few paragraphs, I'll tell you, reminded me of the Declaration of Independence, a list of grievances against the king, but in this case, against the court. What are your top ones?

Kate Shaw (2:16)

Well, I love that comparison. I mean, I would say that if you're doing an election series, I think if you look around, there is so much about our electoral lives, like the mechanics of democracy that we're within, that is attributable to the Supreme Court, and it's deeply dysfunctional because of the Supreme Court. So look at the hundreds of millions of dollars that are pouring into elections, in particular, in battleground states. That is because the Supreme Court has eliminated much of the ability of Congress to regulate money in politics. Look at the mid-decade redistricting, right? The states changed their maps just months before this election in many cases because the Supreme Court freed them up to do that by striking down a key provision of the Voting Rights Act and separately by permitting this extreme partisan gerrymandering.

Look at, I think, a lot of the presidential lawlessness that we have seen in the last two years. That is because the Supreme Court basically unshackled the presidency and said the president can do almost anything. So I think that all of that is about the Supreme Court. Our democracy is in many ways deeply dysfunctional because of the court and I think genuine democratic reform requires Supreme Court reform.

Brian Lehrer (3:23)

Now let's go down the list of your four step plan for Supreme Court reform. The first two are very much like what we just heard from Talarico. Number one is term limits. Why term limits and for how long?

Kate Shaw (3:35)

I think the basic intuition here is that the Supreme Court justices wield right now enormous power and they wield it without any real accountability mechanisms and they wield it for life. So that is sometimes decades and decades, think 35, 40 years or more on the Supreme Court. You look around, there's no one else in public life who wields that kind of power for that long and the justices in many ways are outside of all of the normal accountability mechanisms. They don't stand for regular election. They either don't care or say they don't care about public opinion and impeachment right now is the only way to remove a Supreme Court justice and that requires a super majority in the Senate to actually remove someone. And so the idea is this is an outlier and it's an outlier in terms of our peer democracies. Most highest courts in other countries have term limits or retirement ages for justices. And that's also true about almost all state Supreme Courts. So I think it's an anomaly and it's one that's become increasingly untenable as the justices on the court today don't reflect the will of the people in any kind of recent time horizon. So many of them were appointed again decades ago.