Eric Segall is the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law. He has written two books: “Originalism as Faith” and “Supreme Myths: Why the Supreme Court is Not a Court and Its Justices Are Not Judges.” As is evident from his book titles, Professor Segall is a frequent critic of both originalism and the Supreme Court’s immense power.
Below is his interview with Joey Schafer, a high school student from Elkhorn, Nebraska. Joey’s questions are in bold and Professor Segall’s answers are in plain text.
JS: At the very beginning of your most recent book, Originalism as Faith, you open by defining faith. Why did you choose this definition?
ES: That’s a good question. The reason I wrote the book is because I think there are a ton of talented and smart — brilliant, really — law professors who are saying things about originalism that I just think are highly unpersuasive, and these are the people who are generally very persuasive. I’ve spent a lot of years trying to come up with a theory as to why these originalists are saying things about originalism that are not persuasive. When we’re talking about the popular media, and we’re talking about politicians and we’re talking about pundits, I think originalism is often just a political label to just get ahead. But when we’re talking about constitutional law professors who I really respect, and people at the other end of the spectrum, people who kind of pay attention, but are not experts — I think they need to believe that the Supreme Court decides cases based on text and history in order to have faith that the Supreme Court is a legal institution, as opposed to a mostly values-driven institution. So, all I can think of is that they’re stretching the definition of originalism very, very, very thinly. They’re doing that because they want to have faith that the court is doing something law-like, in hard constitutional cases, when, I think many of us feel that the court is making all things considered decisions. So, I think it is a question of faith for them, I think Rush Limbaugh acts in bad faith, you know? I think politicians act, but they don’t know what they’re talking about. But these law professors know what they’re talking about, and they’re saying mystifying things about originalism, and I was trying to figure out why they were doing that. And I think it’s an article of faith.
JS: Do you ever think that there has ever been a true originalist, or could be a true originalist?
ES: That’s a very difficult question. I don’t want to use the words “true originalist.” Do I think that there’s ever been a Supreme Court Justice that decides hard legal cases based primarily on text and history rather than all things considered decisions? Certainly not in modern times and the Supreme Court as an institution has never done that. So, whether there were isolated justices here and there, Justice Black or maybe, you know, maybe I think Justice Frankfurter, wasn’t originalist, but I think he was someone that deferred to political institutions. But I don’t think there’s ever been a truly originalist court or a truly originalist justice.
I think there are scholars out there who absolutely fairly could be labeled originalist, but all of them believe in strong deference as well. My thesis has always been that, and this has always made some people very upset, originalism without very strong deference doesn’t make any sense. We’re not going to go back and resurrect the values of slaveholders and segregationists and people who didn’t think women had equal rights and so on. We’re just not going to do that. Modern culture is not going to do that. What we could say is we’re not going to overturn laws. Judges are not going to overturn laws unless the plaintiff comes into court with clear and convincing evidence that the law is at an irreconcilable variance with the constitution. That’s Alexander Hamilton’s phrase in Federalist No. 78, and if you hold that view like I do, my fantasy world, then I think originalism makes sense because all we’re saying is that if the plaintiffs don’t prove it, they lose and they have to prove it clearly and it’s a very deferential mode. But if we’re saying like Professor Michael Rappaport does at the University of San Diego, where the originalism center is, that if a judge is 51-49 percent sure that a law should be struck down, there is no way for judges and lawyers and law clerks to do that in a historical way that I think is sensible. So, the basic theory there is: if you believe in originalism and deference, I think there are people who believe in that. If you believe in originalism and not deference, then I think that doesn’t make a whole lot of sense.
JS: In your book, you said that originalism is a theory of law and politics. How do you think this theory of law and politics interact, especially with executive appointments when it comes to the Supreme Court?
ES: It’s a theory of law and politics because the term originalist or originalism has been employed by the right to say: Our judges follow the law; your judges make stuff up. In fact, Justice Gorsuch just wrote that in his book. Justice Gorsuch has already invalidated state laws, 23 in one case, 37 in another, while he was making stuff up — in both Trinity Lutheran and in the Janus case, because in neither case is there an originalist justification for overturning the laws at issue. So, it’s a political theory in the sense that sometimes Supreme Court Justices, I think Scalia and Thomas do this and certainly the Senate Judiciary Committee, and the Republicans on that committee and certainly the media, the right-wing media, says our judges follow the law, your judges make stuff up, our judges are originalist, your judges are not, but the reality is that Republican judges strike down just as many laws as Democrat judges.
I think the next few years will bring a Supreme Court that is more hostile to independent agencies than any court since the New Deal. I think this court will, likely, on both the appointment end and the when can the president fire end, and I think they are going to strike down more laws than previous courts. I don’t really think there’s anything originalist about that, I don’t think there’s anything non-originalist, it’s just that’s not why they’re doing it. They’re doing it because their values tend towards the unitary executive. I think that’s probably anti-originalist, actually, but the point I wanted to make there is it’s not about originalism, it’s about their values today and their view of the government, today. It’s not about what they think happened in 1787.
JS: So, do you think that it’s good or bad that we’ve moved away from the direct text of the Constitution?
ES: We never were there. We never were there. The Supreme Court has never cared about the direct text of the Constitution, or statutes for that matter. In Marbury v. Madison, John Marshall interpreted, the first case, you know, establishing judicial review. John Marshall interpreted the Judiciary Act of 1789 in a way that had absolutely nothing to do with its text so he could pose the question: What should judges do when there is a law inconsistent with the Constitution? But there wasn’t really a law, not really in that case, that was inconsistent with the Constitution, he just made it up.
The court flip-flopped on a huge constitutional issue in the legal tender cases after the Civil War solely because two judges were added to the court. If we look at the world today, the 1954 court said that there was a Federal Equal Protection Clause when there isn’t — it doesn’t exist in the Constitution. The First Amendment says “Congress” but somehow it applies to the Executive Branch. We can’t get there with text. The 11th amendment has been interpreted by conservatives, and they said, what’s important is not the clear text, and that text is clear, it is the postulates behind the text, which is no different than “penumbras and emanations” from Griswold. There are so many examples, David Strauss wrote a foreword for the Harvard Law Review, a few years ago, where he detailed all the ways the Supreme Court doesn’t care about text. He’s from the University of Chicago and he’s great.
JS: We’ve seen all the ways in which the judicial branch can expand its own power. Do you think that means they will gain more power or lose more power over time?
ES: That’s a hard question. I am certain that the Supreme Court today is much more powerful than the Supreme Court was ever supposed to be. Going back to originalism for one minute, there is overwhelming evidence that the Founding Fathers assumed that the Supreme Court would only invalidate laws when there were clear errors or irreconcilable variances, as Hamilton said. The history of that’s pretty clear, and historians like Jack Rakove, Sylvia Snowiss and many others say that it’s just obvious if you read the early cases, and if you read the Federalist papers, they didn’t expect the Supreme Court to be this strong. Having said that, our country has grown and developed, and now we have this very strong Supreme Court. I’ve said before that because they have life tenure, they have very few limits. The first limit is what they think they can get away with. And I don’t mean that in a nefarious sense, but if they move too far away from the center left or the center right of the American people — you know, as Hamilton also said, the Supreme Court has no purse and no sword, it only has its prestige. If it gets too far away from dominant opinion, it will lose its prestige, and if it loses its prestige, it will lose its power. The other limit on the court is that there is, I think, this kind of internal idea that historically, that they should only hear cases and controversies. That idea, however, is becoming lost in cases like Trinity Lutheran, and the gun case this term might be another example of that. There is a case or controversy limit; someone has to bring a case to them. So that is a limitation on them. They can’t just pass a law like Congress. What constitutes a case, though, is becoming even more ill-defined than it’s ever been because they want to reach out and decide more cases.
JS: There is, I guess, a popular phrase in right wing circles and beyond that: the phrase “legislating from the bench.” Do you think that most court decisions, or all decisions, are doing this because the Supreme Court hasn’t been traditionally true to the text?
ES: I don’t know that I’d call it legislating from the bench. What I would say is, most constitutional law cases that get litigated implicate imprecise text like “unreasonable search and seizures,” or “free exercise of religion,” or “equal protection,” or “due process.” The text refers to broad commitments I hope that all Americans share: freedom of speech, freedom of religion, equal protection, protections for criminal defendants, the right against self-incrimination, double jeopardy. We all share those; everybody shares those grand ideals. Applying them to hard cases is very difficult because the text is imprecise, the history is contested, or the history doesn’t help.
One example I give is that President Obama assassinated an American citizen who was having lunch in Yemen,without any judicial process whatsoever. That American citizen was a horrible person and was most likely was a terrorist and did dastardly things. But no court had ever found him to do so. Should presidents have the power to unilaterally assassinate an American citizen having lunch in Yemen because that person is a terrible terrorist, but no judge has ever ruled that way? My answer is probably no, and I’m willing to say I could be wrong. But I’ll tell you where the answer isn’t. The answer isn’t in text or history. For us to think that we can go back to 1787 and think about the values back then and translate that to the idea that someone sitting in Washington D.C. can push a button which causes a plane to kill a person having lunch with a drone, because that person can maybe blow up New York in 10 minutes with the right technology — there’s nothing in 1787 that tells us anything about that. By definition, if that case were to be brought, or a thousand cases like it, texts and history just aren’t going to solve it. So, something else has to solve it. Is obscenity free speech? The court says no, I’m not sure. Should hate speech be protected or not? The court says hate speech should be protected, and I’m not sure that’s the right answer. What’s the proper, you know, balance between wanting to avoid corruption in elections and limit corporate wealth domination of those elections versus the corporate right to free speech? Hard questions. You’re not going to find the answer by reading the Constitution or by reading the history of the Constitution.
To resolve those cases, the court is going to have to make up its mind based on its own set of modern values. You might call that legislating from the bench, I prefer to call it all-things-considered decisions, kind of a general veto power because texts and history aren’t going to get you there. The only way to avoid that system is to have judges that are strongly deferential, and that’s the system I want, but it’s not the system we have.
JS: Back when Justice Kennedy was on the bench, he talked a lot about the calculations on what constitutes gerrymandering and things like that. The tests were all things that he came up with, or other jurists had come up with.
ES: Yeah.
JS: What does that show about the Supreme Court and how they use their power?
ES: Well, I mean the court punted on gerrymandering and Kennedy ultimately punted on gerrymandering. I think that’s the right answer. I think the problem with gerrymandering is that it’s not unique. It’s close to unique because it does go to the heart of the political process and it’s hard to imagine any remedy other than a legal one for this terrible partisan gerrymandering.
But I think the remedy would be worse than the evil, because there is no principle in the Constitution’s text or history that could possibly guide us. I am a progressive, as you know, and this drives progressives crazy when I say this, but the reality is that any mathematical formula could be evaded and any mathematical formula would be arbitrary anyway. I think gerrymandering is one of our biggest public policy problems. The court almost never saves us from ourselves in that sense. When I say things like that, people say things like: What about Brown v. Board of Education? And I say the South was 98% segregated 10 years later. It was Congress that pretty much ended formal segregation. I’m a pro-choice person. People say: What about Roe and Casey? That helped a little bit with women seeking abortions, but it was true in 1972 that rich women could get them, easily, middle class women could kind of get them, and poor women could not. And if you live anywhere outside of New York and California today, that’s still pretty much true. And, of course, Roe and Casey brought all kinds of evil upon the Left, in nefarious and terrible ways. So, I don’t think the court is very good at solving our biggest problems and gerrymandering is definitely one of our biggest problems.
JS: Do think that the Court could, I guess, move the social needle? I feel like that’s what we say after the Obergefell decision.
ES: Alright, this is going to get hard — are you ready? (laughing)
JS: Yep. (laughing)
ES: I’m going to make a baseball analogy, ok? I live in Atlanta. I moved back here in 1991. And I think the Atlanta Braves won 14 division championships in a row. 14. They only won one World Series. They lost a second World Series in 7 games, in the bottom of the 10th inning, in the closest World Series in history. The seventh game decided by one run. The Braves legacy was kind of mixed. They were very consistent, they were very good, and they only won one World Series in those 14 years. If that closest World Series goes another way—I’m getting to a point here—if that World Series goes another way, if instead of a one-nothing loss, it’s a one-nothing win, the Braves themselves didn’t change. Right? It’s the same team.
JS: Yeah.
ES: History would absolutely look at them differently if they had two championships instead of one. I really believe that. Now, the only reason we have Obergefell, there’s one reason, and one reason only. The one reason we have Obergefell, and not just Obergefell but Windsor and Lawrence v. Texas, and Romer, the four gay rights opinions in history that ruled for gays and lesbians, all written by Justice Kennedy, the only reason we have any of them, is because Justice Kennedy grew up in Sacramento and he had a very close mentor who was a gay man, in the closet back then, of course, and Justice Kennedy personally saw the indignities this man had to suffer, which is why he talked about dignity, I think, in Obergefell. So, it is true, I think that the Supreme Court led the way a bit on same-sex marriage, but that’s only because of Justice Kennedy’s mentor. And only because Judge Bork didn’t get that seat, and only because then, Judge Ginsberg, the second guy to get that nomination, didn’t get that seat. It took a perfect storm of luck for Obergefell to happen.
One more point about that: When the Prop 8 Case from California came up in the same term as the Windsor DOMA [Defense of Marriage Act] case, the Court ended up dismissing the Prop 8 case for lack of jurisdiction, therefore validating the federal DOMA but saying it was a state issue for lower courts. The only reason they did that, as Justice Ginsburg knew, is that if they decided Obergefell two years earlier or whatever it was, the same time as Windsor, there would have been a horrific Roe v. Wade-like backlash. It’s no coincidence that Justice Ginsburg ran around the country in the months preceding the Prop 8 case, saying of course that she’s pro-Roe v. Wade and pro-choice, but that we did too much in one swoop and we shouldn’t have done it that quickly. She then voted against standing in the Prop 8 case, in a way that was very anti-her-general-philosophy because she did not want that case decided then. So, the court decided Windsor, it goes back, the state issues go back to lower courts, and then virtually all of them strike state same-sex marriage bans down. By the time it gets back to the Supreme Court, the American people are ready for it. Again, that was fantastic strategy by Justice Ginsburg, it worked, and I think those two combinations of things might make same-sex marriage not a lesson that should be generalized from. I think Brown and Roe are more lessons we can generalize from, and Brown and Roe at the end of the day, neither did very much for segregation or abortion.
JS: Do you think that with the current composition of the court, with justices saying they’re originalist, but their jurisprudence not really reflecting that, do you think that right now people should have faith in the court?
ES: I mean my first book, Supreme Myths: Why the Supreme Court is Not a Court and Its Justices are Not Judges was written in 2010 and 2011 and published in 2012. I had lost faith in the court back then. And plus, when Justice Scalia passed away and everyone thought Hillary Clinton was going to win, and everybody, my friends, my good friends, who I could not respect more, were writing op-eds talking about all the great things liberal judges were going to do after we have a liberal Supreme Court, I was saying no, no, no, freeze the Court at 8 justices, 4 Republicans, 4 Democrats for the rest of time and that would make the Court less powerful. I lost my faith in the court long before the current personnel.
I will say that I think that Thomas and Gorsuch and Kavanaugh’s commitments to Originalism are politically inspired, not reflected by their votes. With Kavanaugh and Gorsuch, I think it was part of how they were raised, but they don’t vote that way. But that’s when I say that’s not surprising for politicians. I think most people have a sense that politicians speak out of both sides of their mouth. They just do. Even when they don’t have to get reelected. Second term governors, second term presidents, when they know that there is a not another time they’re running, they still talk out of both sides of their mouth. People won’t accept me criticizing Supreme Court justices for doing the same thing. I’m not just blaming the originalists. I think they are politicians with a lot of power and they’re going to do what politicians are going to do. My point here is: if one is skeptical of politicians, as most Americans are today, one should also be skeptical of Supreme Court justices.
JS: You mentioned freezing the court at eight justices…
ES: Or any even number.
JS: Or any even number?
ES: Or any even number. Back then it would’ve been easy, because there would’ve been four Democrats and four Republicans.
JS: We’ve seen presidential candidate Pete Buttigieg advocate for adding more justices to the Supreme Court, especially liberal justices, liberal justices that could help promote liberal initiatives. Does this concern you in expanding the power of the court?
ES: So, I wrote a piece for Salon, sometime in the last year, where I said that the Left is coming around to reforming the court for all the wrong reasons. All of the court restructuring plans, including ones about tenure, and everything else, the idea is to weaken the court. Not just balance it, but weaken it, I think, and you know, I’ve been arguing that for a very long time. I think a lot of the Left is doing that now because they know they’re going to get a conservative court for the next 20-30 years. That’s the wrong reason. It’s a flawed institution. No other country in the world has our tradition of strong judicial review which then you add to that, life tenure, and you get an incredibly powerful political institution, by far and away the most powerful court in the world, and I think we should weaken it. Even though I’m a progressive, we shouldn’t weaken it so it will do more progressive things. We should weaken it so it will do less things on both sides.
JS: So, would your dream court look like, you know, however many justices deciding to overturn Marbury v. Madison?
ES: (laughing) I would not overturn Marbury v. Madison. I think that judicial review was contemplated by the Founding Fathers. I think in a system of checks and balances, and separation of powers, some very limited, deferential, clear error-rule judicial review is not a bad thing. And I think it has some advantages to it.
When you think about Court of Appeals judges in the federal system, they only reverse factual findings by the district court if they are clearly erroneous. They don’t do it very often. That’s the kind of deference we should have. I’m in favor of that kind of Supreme Court. I don’t think we’ll ever get there so I haven’t decided whether this Supreme Court or no Supreme Court would be better. I’m pretty sure no Supreme Court would be better, but I’m not positive about that.
My dream Supreme Court would be, in realistic, non-fantasy standards, nine moderate justices who thought that their job was very limited and should only step in when things really go awry. I think this would be very, very rare. Now nothing I’m saying has anything to do with the 4th, 5th, 6th, and 8th amendments. I want to make that clear. When we’re talking about what is double jeopardy, what is self-incrimination, what confessions get into court, what searches are unreasonable, I’m not talking about deference there because judges are the experts on evidence and criminal procedure. It’s their courtrooms, they get to run them how they see fit according to broad parameters. That’s a whole world away from abortion, guns, affirmative action, campaign finance reform, separation of powers and things like that.
JS: Do you think that, this type of Supreme Court can happen when you have the President making judicial appointments to the Supreme Court?
ES: I think it’s theoretically possible. It’s not going to happen in my lifetime, my children’s lifetime, or their children’s lifetime, unless, unless, there’s a court crisis. So now Barry Friedman, a professor at NYU, is probably the expert, or at least the most well-known professor, who has said that traditionally the court usually follows dominant public opinion. It wavers a bit, here and there, but he wrote a whole long book about it and I think he’s right. He has said recently that he is concerned that this court is going to go several standard deviations to the right of the median right-wing voter and is going to fall out of step with public opinion. I think that happened maybe in Dred Scott; it may have happened in the Lochner era. When this happens, there is usually a correction of some kind. I think that, I’ll put it this way, if the House and Senate both go Democrat, and the President is Democrat, they will restructure the court. I have no doubt about that. And they’ll end the filibuster to do it. I have no doubt about that. How that restructuring goes, I hope, would be, not to make the court more progressive but to make the court weaker. Whether that will happen or not, who knows. I think the Garland thing was a bridge too far. And I think the Democrats are not going to forget that. And they shouldn’t.
JS: I’m going to turn away a bit from this topic to talk about the field of law in general.
ES: Sure.
JS: I think a lot of the people who read our blog are high school students who are interested in law. How do you recommend they get into the field?
ES: Well, I think the rule of law is under threat in this country, I don’t think that’s a controversial thing for people on the Left to say. Right now, I think the rule of law is as threatened as it’s ever been. Part of that shouldn’t be surprising to anybody. This is the first president in American history, I’m pretty sure, with zero government experience, and/or zero military experience. I think every president has had one of those two things. He didn’t; he was a businessman. That’s probably the best thing, if I can say anything about him. He is running his presidency as if it is a corporation and not a government. So, the rule of law is really important, and I think lawyers, you know, all the litigation in the lower courts, even when they get to the Supreme Court and lose, slows the attack on the rule of law and mediates it. The Travel Ban went from a terrible thing to a slightly less terrible thing, it was modified a little bit, thanks to the hard work of lawyers.
I think one of the benefits of being any kind of lawyer, even if you’re a big expensive corporate lawyer, is that you can take a pro bono case and find someone out there who needs your services. Helping one person — one person’s life gets better because of you — can be an incredibly rewarding thing. I hope that that idea of going to law school, becoming a lawyer, and picking, you know, you can be a government lawyer, you can be a state or federal or local lawyer, a big corporate lawyer, defense lawyer, public defenders, whatever you do you affect people’s lives. If you do so in a positive way that is an admirable thing, and of course if you want it to be, and if you’re good at it, it can be a very lucrative profession, So, I think there are a lot of good things about being a lawyer.
On the other hand, there are major problems with the profession that I think we shouldn’t close our eyes to. I think big-time corporate lawyers work much too hard; it’s very hard to have a family and so on. But overall, I have faith that it’s a noble profession by and large. If you quote me on that, which you can, it will surprise people that I’ve said this. I’ll give you another example. I have not once in my life, not for a second, wanted to be a defense attorney. Because, to me, I’m glad guilty people have representation, they should. I don’t want to do that job. That’s not how I want to go to bed at night. I don’t want to be a prosecutor either; putting someone in jail is not like, YAY, I put someone in jail, that’s not what floats my boat. But thank God there are people who want to do both jobs. And both of those jobs are noble, if done correctly. Both of those jobs are incredibly noble and make our system of justice better.
JS: If we were to take teens, young people, from across the country, and we were to put them on the Supreme Court and make them the nine justices, do you think that would be more effective or less effective?
ES: Are you asking me if we should put high schoolers on the Supreme Court?
JS: As opposed, to legal professionals, random people, yeah.
ES: Justice Scalia famously said, in the Cruzan case, involving end of life issues, that there is nothing about the question in the Constitution and that nine people could be picked from the Kansas City phonebook, at random, because the Constitution doesn’t talk about end of life issues. I don’t think he’s right about that, in a very important sense. If we’re going to have a Supreme Court that is going to second-guess legislation, which we do, and if we have a Supreme Court that’s going to strike down laws without being based on clear texts and history, which we do, then what we really want on the Supreme Court are very smart people whose judgement we trust. Unfortunately, the nomination process doesn’t really get us that, because to get to the Supreme Court, you have to run the gauntlet of political left and right. I love the idea of having really, really smart people; many countries that have judicial review have a constitutional court. I wish we had a specialized constitutional court, where we just put our smartest people who we trust the most.
The Supreme Court is incredibly important, and how it rules on abortion, affirmative action, death penalty, etc. matters. So, I don’t like the idea of putting high school students on it, solely because it is a job that requires judgement, experience, maturity, and humility. I think one has to be out in the world for a little while before they fully develop those skills, which is not in any way meant to demean high school kids. But I really think humility and modesty, character and judgement are what matters the most. For example, one of my favorite justices is Justice Souter. I didn’t agree with everything he did, but I think he had a lot of humility, I really do. I think he was a humble man. I think in some ways, Justice White was a humble man. I mean he was a great football player, but I think in some ways he was humble. It’s almost all we can ask for these days. By the way, I do not read Gorsuch, Kavanaugh, Thomas, or Alito as humble. Roberts I’m not sure. Nor, do I think Kagan, Sotomayor or Ginsburg are humble, or Breyer then. I don’t think we have any humble Supreme Court justices right now.
JS: You said you wanted to have the Supreme Court be the smartest, best qualified people for that job. How would you pick those people, just in theory?
ES: Right, so that’s why I came up with what many people thought to be a crazy idea of having four Republicans and four Democrats. Let’s say that there are four Republicans and four Democrats on the court. An even number of both, and a Republican dies or retires. Whoever is the president has to put a Republican on the court. If the president is a Democrat, the president is going to have to put a Republican on the court, and he’s going to look for a moderate Republican. And the same is true for a Republican looking to put a Democrat on the court. Some kind of structural change like that is necessary. Without that, what we’re going to get is justices who the president thinks will strongly support whatever agenda the president has. In Trump’s case it’s deregulation. In Bush’s, the second Bush’s, it’s executive power. In Obama’s case, I think it was also executive power, to some degree. In Nixon’s case it was law and order judges who would be tough on crime. Unless we change the system that’s what we’re going to get, assuming they can get them through the Senate. The post-Garland world of the president with a Senate of the other party is like a dystopia. I don’t know what’s going to happen with that. This would surprise me, but we could live in a world where presidents only get a nomination if his party controls the Senate. And that’ll make everything worse. The other side of that is, there are smart law professors out there, Jonathan Adler of Case Western who I’ve debated on Twitter now for a decade. He would say no, it’s been both sides tit-for-tat, for a very long time, going back to Bork and maybe before that, and the Garland thing was just one more move in that chess game. And I disagree, I think holding the spot open on the Supreme Court was different in kind, not degree. It paid off. I think it’s going to change all the rules.
JS: I’ve noticed that in this conversation, you’ve referred to them as four Republican justices and four Democratic justices, while most people use the term liberal or conservative. Is that because you think most justices ascribe more to the beliefs of the party that appointed them rather than to jurisprudential principle?
ES: Well, I think that obviously, famously, there have been justices that have veered leftward, Blackmun, Souter. There have been justices that have veered rightward; famously Justice White, who was appointed by John F. Kennedy and ended up being pretty conservative. But I think those days are over, and that the Republican Party had a rallying cry for a very long time, no more Souters, no more Kennedys. And Kennedy was very conservative, but on some issues he went left. No more Souters, no more Kennedys. So, I think the Republicans have learned their lesson on that, and Republican presidents are going to appoint justices who tow the Republican party line. If Democrats ever get the presidency again, and the Senate, they’ll confirm their justices, and they’ll do the same thing. I don’t think we’re going to get very many more moderates, and I think that’s going to make things much worse, and that makes me pessimistic about the future of the Supreme Court, absent structural change.
JS: Do you think there will be any presidential candidate in the near or far future who would campaign and advocate for that type of structural change, and do you think that would be a popular thing to say on a campaign?
ES: You would think someone could stand up and say I’m tired of the confirmation wars, I’m tired of the Supreme Court, on both the left and right, having such a big role in our country. Let’s either vow to only appoint very moderate justices or change the system so they count less. Gosh, I think the American people would like that. But I don’t know. (laughing) I think right now it’s our judges versus your judges.
JS: Do you want to run in 2020 on that message?
ES: (laughing) I was born in Canada. I’m disqualified. I was about to say I’m too old, but based on the ages of many of the candidates, I may be too young, I’m 61. I think that message would resonate, but maybe I’m just being naive. I do a lot of radio, and I speak to non-lawyers a lot. When I was given time — and it was really generous to be given time from several radio shows, to really explain my proposal — and I gave a ton of speeches about it, to smart, engaged non-lawyers, they really understood and agreed with my proposal, because first of all, it would take the randomness out of the political nomination process. You know, if God forbid two of the Republican or two of the Democratic justices got killed in a car accident the next month, the whole structure of the court would change out of randomness. Or politically timed retirements. That’s just a dumb system of nominating judges, and life tenure is really dumb. My system is designed so that every result they would reach, one Democrat would have to agree with one Republican, and vice versa. And, I think, whether that proposal is doable or not, and I had a whole legislative way of doing it, the idea is to weaken this institution which is very badly distorting the political process. 20-25% of people said that the Supreme Court was the most important issue for them to vote, for the last election; of those, 56% of them voted for Trump. That is my understanding of those numbers. That’s a distortion. We shouldn’t be voting for presidents because of the kind of Supreme Court we want. We should be voting for presidents for economic reasons, for leadership reasons, foreign policy reasons, not for what judges you’re going to appoint.
JS: Yeah, I think that’s right. Just going back to originalism, because I have one final question on that.
ES: Yeah, sure.
JS: Let’s say that we have an originalist court that was interpreting the Constitution directly on what it says, and we haven’t done that until now and I don’t think we could. But, in theory, do you think that would be good or bad? Because I think that it would make the court a kind of high-stakes debate club over the meaning of words. Are the moral judgments that we include now good?
ES: So, the answer is not originalism, the answer is deference, and those aren’t the same thing. I do not think we should have a court that addresses issues today by the values of our country in 1787 or 1868. I think that that’s insane. I do. And by the way, going back to the very first question you asked me, I’ve just written a few pieces, quoting some of the most famous originalists like Larry Solum at Georgetown and Ilya Somin at Antonin Scalia School of Law, who claim that women are protected by the Fourteenth Amendment in terms of gender discrimination, when we know that this wasn’t the original public meaning of the Fourteenth Amendment. We know this. It’s not debatable.
In 1872, the Supreme Court upheld an Illinois law that prohibited women from being lawyers. Everybody, all originalists say that law would be unconstitutional today. And yet they say they’re originalist. So I’m trying to figure out why these smart people are saying that. It makes no sense, and what they say is, what Larry Solum and Ilya Somin say, is of course we’re not bound by erroneous factual assumptions that people living then made, even if we are bound by the text of the Constitution. People in 1868 didn’t think women had the skills to become lawyers. We know that was wrong, so now we can overturn that, even though it’s inconsistent with the original public meaning, and say we’re Originalists. Well, no we’re not. That’s just living constitutionalism. When facts change, the application of the texts changes. It has to.
No one thinks, except for maybe Justice Thomas (laughing), that we should have 1868, 1787 society again. It doesn’t make any sense. So, the key to reforming the court, or thinking about reforming the court is not originalism, it’s deference. I think we could live in a world where we interpret our Constitution extremely narrowly, and say that voters are going to decide most issues, and only when something is flagrantly and obviously unconstitutional will judges step in. That’s rational, I think. People could disagree with it, but its rational, its coherent. That’s the key. There’s no one that believes that we are going to run our country based on the values of segregationists and misogynists and the world that’s technologically completely different from the one that we have today. No one believes that. They may say they do but they don’t.
In Trinity Lutheran Justice Gorsuch wrote a very broad opinion to invalidate 37 state laws that say no public money can go to a religious institution. Most of those laws were passed in the 19th century. And most originalists, if not all originalists, say they don’t violate the original meaning of the Free Exercise clause. Either in 1787 or 1868. Because all of these laws were passed in 1870, 1880, 1890. I think that a state law that says no money can ever go to a religious institution raises very hard issues. I’m not even sure how I feel about that kind of law. What I do know is that we can’t analyze that based on the 1870s, we have to analyze that based on 2020. And they know that too, which is why Gorsuch voted to strike them all down, even though there’s no originalist method of doing so.
JS: Alright, thank you so much for your time!
ES: Thank you. Very smart questions, very impressed.
