by Audrey Jung
Daniel Epps is a professor of law at the Washington University in St. Louis Law School, where he teaches criminal law, criminal procedure, and public law theory. After graduating from Harvard Law School, he clerked for Judge J. Harvie Wilkinson III and Justice Anthony Kennedy. Epps is a nationally recognized expert on the Supreme Court and his work on Court reform –– most notably a proposal to restructure the Court authored with Ganesh Sitaraman — continues to influence major policy debates. He co-hosts the podcast Divided Argument with William Baude.
What were you like as a teenager?
I didn’t totally have my act together. I went to a bunch of different schools when I was a kid, and started a new school almost every year between third grade and middle school. I went to something like seven different schools, and then I went to boarding school in Massachusetts, a place where there were a number of academically serious students. It took me until kind of late in high school to get my act together and be able to focus on being a really serious student. I think I was a little bit behind.
Did you have any mentors in high school or college?
Yeah, a bunch. In high school, I had a history teacher, JJ O’Connor, who was my formal advisor and was really great. I got really involved in the film program at my high school and thought for a while that I might be interested in writing screenplays or going into film. There were a couple different teachers there who I was really close to: Chris Rowe, Marc Fields.
And then in college, I turned towards philosophy. I got really interested and thought, “Maybe I’ll go get a PhD in philosophy,” and I had a professor named David Sanford who was really smart and taught me a lot. I got to take several classes with the famous Southern writer Reynolds Price, a man who was a wonderful, fascinating person to learn from.
That was one of the highlights of my college experience. I did try to actively reach out to people and get their advice to help guide me towards what I might be interested in and learn from them.
You mentioned that you were at first interested in film and then turned towards philosophy. What eventually got you interested in law?
Well, I have a bunch of family members in law. My father is a law professor. My aunt is a law professor. Both my uncles are lawyers. My grandfather is a lawyer. So, it was a career path that was very much on the table for me, from an early age. At one point, I thought I might do a JD/PhD in philosophy. I would get to focus on philosophy, but sort of rely on the law, and maybe go into that to become a legal philosopher.
But I ended up kind of straying away from that path and just focusing on law. I ended up applying to law school, getting in and then going up, and found that it was a really good experience. You find different ways of thinking that work for you and that you click with. Law was definitely like that for me.
After graduating from law school you clerked for Judge Wilkinson on the Court of Appeals for the Fourth Circuit. Could you describe that experience?
That was really wonderful. Judge Wilkinson is this very courtly, Southern gentleman, and he’s just really wonderful with his clerks. We would go running with him at the UVA track every day before lunch. He wants everybody to run in a line together with him, sort of keeping the same pace so he can talk to you and ask you questions and talk, like, “Hey, this thing happened in the news. What do you think of that?” And so we got a lot of interaction with him in a non-work format, which I think was really nice. He was a great mentor, very good at thinking about what kinds of career options might be good for you and giving advice in that way.
The Fourth Circuit is a really great circuit to clerk on because it gets an interesting mix of cases. There are some circuits that have a really skewed docket because of geography. The DC Circuit, for various reasons, has a ton of administrative cases with federal agencies and some of those can be interesting, but it’s very disproportionate. The Ninth Circuit has a lot of immigration cases, the Fifth Circuit too. But the Fourth Circuit has a really well-rounded mix of cases, and so I got to work on cases involving a really big mix of legal issues, including some things that I’d never been exposed to in law school.
I really got a lot of guidance in terms of being a writer. Judge Wilkinson is a really good writer. He’s good at getting to the heart of a legal dispute, taking a complicated legal doctrine and putting it on the page in a really clear way.
A year later, you clerked for Justice Kennedy. What are some key lessons you learned from that clerkship?
It was a different clerkship in the sense that it was a lot more rapid fire. There’s a lot that happens at the Court and a lot of different things you have to be doing. The clerks have to be working on the cert petitions, the cert pool –– where we get a stack of petitions and write memos recommending what the Court should do. The justices don’t always listen to those recommendations, but they take them really seriously.
One thing that was different was that Justice Kennedy was a Justice who was more interested in really debating the cases with us, whereas I think Judge Wilkinson already knew what he thought and what he would do. He would read the briefs and hear the argument and sort of say, “Look this is the right answer in this case. Here’s exactly what I want.”
Justice Kennedy would obviously have instincts, and there were cases where he would say, “Look, this is clearly the right answer.” But some of the cases the Supreme Court hears are really hard cases, and in those cases he would want to sit around the table with us. It was four or five of us because we also had Justice O’Connor’s clerk, Josh Deahl, there part of the time. It was really, “Let’s think through this. What’s the right answer here? What do we think about these cases?” And that was really fun, and kind of humbling to be doing that when you’re not even two years out of law school. I graduated in May of 2008, and it was the fall of 2010. You don’t really feel prepared for that kind of experience that early in your legal career.
I read your 2018 article “Teacher for the Nation,” where you wrote that Justice Kennedy had “a vision of the court as a teacher.” What impact did his perspective have on your view of the Court and later on, your own teaching?
I think it’s complicated in the sense that I admire Justice Kennedy’s vision, and I respect the way in which he wanted to use opinions to speak to people and explain what the Court was doing without necessarily getting too bogged down in the legal details. That’s something that I come back to a lot when thinking about teaching and the relationship between teaching and writing.
In that piece, I do criticize that vision of what the Court is doing, in part because it suggests a certain relationship between the justices and the American people, a certain kind of position of authority where the Court can tell us what we should be thinking. I don’t think that always succeeds. I think that the Court can say what it thinks and intervene in these high profile disputes that people really care about, but it can’t guarantee that people will listen or that people will hear the message or like what the Court says. It’s complicated, and for that reason, I don’t know if that’s always the right way to be thinking about what the Court’s role is.
I’m glad you mentioned that because I want to touch on it soon. Within that article I remember laughing over an anecdote describing the one time Justice Kennedy expressed disapproval of your work: when you printed your case binder out double-sided instead of single-sided.
Yeah [laughs]. Basically the point of that was that he was a wonderful boss and somebody who really appreciated where he was in the world. He worked really hard, much harder than most people at that stage in their careers would work. There’re a lot of people you could work for in the world who take it out on their employees and are hard to work for.
He was just never like that. He was a really charming person and treated us all with deep respect. Obviously, there’s a huge power imbalance. I mean, he was serving as a Supreme Court Justice, and we were just law clerks. But he treated us as professional equals in the sense that he really cared what we thought.
That doesn’t mean he would agree with us every time, but he treated us as colleagues whose views he needed to really think about, and that was really nice.
That’s wonderful. You’ve noted that Justice Kennedy may have been one of the last justices to vote “with any regularity” against his party, which helps set up the background for your 2019 article, “How to Save the Supreme Court,” co-authored with Professor Ganesh Sitaraman. Could you go over why you think the Supreme Court needs reform?
So here’s what I think. The basic version of the argument is that we have this really powerful institution, the Supreme Court, and it has these powers that can overturn statutes that are democratically enacted. How we pick who’s on that Court has a pretty big degree of randomness, in the sense that when people die or retire is unpredictable. President Trump gets to nominate and confirm three justices in one term. President Obama only gets two justices in two terms.
I think that kind of unpredictability and randomness would be fine in a world where the justices were doing technical law: reading statutes, doing stuff that’s technical, scientific almost. But what we’ve seen instead is this huge rise in judges who have methodologies that track their partisan affiliation. That seems to have gotten worse in recent decades, quite significantly as the stakes have gone up. Political parties have gotten more careful about who they appoint and very concerned with not appointing people to the Court who are going to vote against their party’s interests.
If that’s the way it’s going to be, it strikes me as very, very hard to justify having these consequential decisions turn on happenstance about whether Justice Ginsburg chooses to retire in 2013 or if she dies after staying on the Court. And I think if we’re going to have a powerful institution like the Court, we need to think of it as something other than partisan. But instead, the current arrangement and incentives are oriented around the Court being increasingly seen as a partisan institution.
I think that’s bad in a couple ways. It’s bad because it becomes harder to justify why the Court should have as much power as it does. But it’s also bad because it could in the long run undermine people’s confidence in the whole enterprise of law. If we see our nation’s highest court as a partisan court, with its decisions entirely determined by which President appointed which justice, it becomes harder for people to really buy into this project, that there is a rule of law, that there are legal rules that apply to everyone equally that don’t just turn on whether you’re Republican or Democrat. I think that’s frightening.
Within that article you also discuss other reforms, including court packing and term limits, and then explain why they fall short. Could you touch on the reasons why they don’t meet the bar?
Different reform options have different things going for them. They have different things that they’re good at, and different criticisms one could make. In terms of term limits, a properly designed term limits system would create regularity of appointments, where each president gets to nominate two justices every presidential term, and so on over time. It evens out based on who wins presidential elections, but it doesn’t necessarily make the court less partisan or a less apparently partisan institution. It could in fact make it somewhat worse, and I’ve done some work on empirically simulating term limits plans with several co-authors who have really talented empiricists.
What we find among other things, is that in a world with term limits, you have a lot more 5-4 courts. That is, courts that are divided five to four along ideological lines tracking political parties. You have more swings back and forth. You might see more divisive cases, and you might see them kind of flipping back and forth, depending on how people’s term limits expire. And so, you might see a court that actually looks even more partisan than it does today, and you also might see more in the way of presidential campaigning, depending on who a candidate is going to appoint to the Court.
We’ve seen some of that already. President Trump did that. President Biden did that. Both kind of made pledges about the kind of nominees they were going to put on the Court. But in a world where every president knows, “Yes, I’m definitely going to get two nominees,” the Court might be more in the political spotlight than it is today.
With court packing, more people have objections to it, and they’re more widely agreed upon. The argument is that when you have a political party adding seats to the Court for partisan reasons, it really ratchets up the degree to which people see the Court as a partisan institution. The tactic strikes people as illegitimate and sufficiently illegitimate that it causes people to lose confidence in the Court: to lose respect for its decisions and to start maybe even ignoring their decisions.
I think both of those reforms don’t necessarily come close to fixing the problem of the Court being seen as a partisan institution and would likely make it worse.
Moving on to reforms that you think would be effective, could you explain what the Supreme Court Lottery and a Balanced Bench would entail?
Sure. With both of these reforms we were trying to think creatively about coming up with a system for putting justices on the Court that might lower the stakes of individual appointments and avoid division on closely partisan lines.
The lottery is set up so that every judge on the lower federal courts of appeals can serve as a Supreme Court Justice. They serve in randomly selected panels and the groups that select the cases are not the same ones that hear the cases. That reduces the idea that the Court is picking up cases in order to shape the law in a particular direction. The idea was that the stakes of any given appointment are much lower, because rather than there being just nine justices and you knowing exactly how any given appointment is going to shape the Court, now there are two hundred and you don’t have any idea how any particular nominee will decide any particular case.
With the balanced bench, you allocate power on the Court so that there are five seats designated as seats that Democratic presidents get to fill and five seats designated as seats Republican presidents get to fill. Then, you have those justices draw five more justices for limited periods of time from the lower courts, and they have to do it by unanimous consent, or at least something close to unanimity, the idea there being that the incentive for these sitting justices would be to look for people who are not rank partisans: people who are fair, moderate, and not ideologically predictable on the basis of party.
It seemed to me from reading your article that the lottery has three components. First, there’s the lottery system itself; second, there’s a requirement that no more than five members be nominated by one party; and third, there’s a rule that only a supermajority can hold a federal statute to be unconstitutional. Could each component remain effective as a stand-alone reform?
Possibly. The supermajority one is one that people have proposed at prior times which wouldn’t make structural reforms to the Court. The reason we included it in our proposal is because otherwise, there’s a real risk that you’re going to have pretty wild-swings because individual panels could be unrepresentative of the overall federal judiciary.
As a stand-alone reform and whether it’s a good idea or not, I go back and forth on that. It doesn’t necessarily get the Court out of the business of being partisan or change how it uses the power of judicial review. But it moves the goal posts and makes it a little bit harder for either party to capture control of the Court, in the sense that you now have to get six justices if you’re going to be acting in a really partisan way.
I mean, we have a six to three Republican supermajority right now, and there certainly would be cases where that supermajority is going to strike down federal statutes that Democrats don’t like. I don’t know if it’s a perfect solution on its own, but it does disempower the Court to some degree. It makes it harder for the Court to do things.
You’ve touched on benefits that might come with these reforms. Do you foresee any disadvantages that might come with a lottery or a balanced bench?
Absolutely. The one thing to put aside for the moment is that there are very significant constitutional objections. There’re a lot of people who think that there’s not a lot of flexibility here, and you can’t tweak the Court structures in the way we’re proposing. We have arguments for why our reforms resemble things that we already do and are not that different from things that are already considered appropriate in our system.
Putting that aside, are there other downsides? I mean, absolutely, and I don’t want to say these are perfect solutions. Our goal in proposing these kinds of reforms was to get people thinking creatively, not necessarily saying we’ve got it all figured out. In terms of the lottery, there is this real risk of the Court flying wildly back and forth because there would be some potentially high variance between different panels. If you think about the most conservative judges in the federal judiciary and the most liberal judges in the federal judiciary, and just randomly sort it, you might see some pretty wild swings that might cause doctrine to be much more unpredictable.
With the Balanced Bench, what we’re doing is a little bit complicated in that we are sort of embracing judicial partisanship in order to stop the effects of judicial partisanship. We’re sort of having some justices who are the “Democrat Justices” and some who are the “Republican Justices” formally, and I think a lot of people really are uncomfortable with that. They think we shouldn’t be labeling justices in that way because that causes them to maybe think about themselves as more partisan than they already are.
Let’s say that you got to implement any reform of your choice. Which would you choose: a lottery, a balanced bench, a mix of certain components, or something else?
Oh gosh. Does it matter whether I think there’s going to be a constitutional objection to it?
Let’s pretend there isn’t.
Ok. The Balanced Bench is one that is near and dear to my heart, in part because it’s the one that Mayor Pete Buttigieg during the presidential primary process really got behind and pushed up. So, I think that that one is always one that I’m going to really feel good about for that reason.
In terms of things that are more feasible, there’s a proposal by Daniel Hemel, who’s a professor at UChicago. He’s proposed two appointments per presidential term, but no term limits. Basically, you don’t have vacancies in the sense that when somebody retires, the Court shrinks. There’s no spot to fill, but instead each president gets to appoint two people every term. It means you could have 12 people on the Court. You could have 11 people in the court. You could have a bigger court. You could have a smaller court. As far as I can tell, there’s no constitutional problem with that, and it does seem like it would be better than the current system in which you could have presidents who have no nominations, and you have presidents who can have three or four.
Running with minor reforms, you’ve written that there are other smaller steps the Court can take, like ethics reform and increased transparency. What would these look like put into practice?
There are a bunch of different ones. I think that the Court is a very secretive institution and often unnecessarily so. I think that doing some things to bring the Court a little bit out into the light would be healthy, and then also kind of remind the justices that they’re not all-powerful rulers.
We’ve already seen some things. The Court wasn’t live streaming the audio of its arguments up until the pandemic. And all of a sudden, we’re seeing that happen. I think the Justices were worried there were going to be bad consequences from doing that, but there haven’t been any. It’s been great as far as I can tell, and it’s gotten people more engaged with the Court.
There are other things. I think most people think it’s kind of ridiculous that there are no ethics rules that apply to the Court. The justices sort of claim that they voluntarily follow ethics rules, but I think having Congress do something with that might give the Court a little bit of a reminder that there are some democratic controls on what the Court does.
Switching gears to your work on criminal law, what is it that most interests you about that field?
A lot of things. I think the stakes are very high in the sense that you’re really talking about whether people are going to have their lives destroyed, whether they’re going to be in prison for the rest of their lives, whether they’re going to be executed.
But on the other hand, the stakes are very high in the sense that these are the disputes in society that most trouble us and that we’re most scared of: murder, serious crimes, terrorism, things like that. And so, the stakes are very high on both sides, and there are really hard questions. How do we constrain state power? How do we prevent this immense power that the state has to punish and to incarcerate, to lock people up and to execute people, from being abused?
I find it interesting because there’s a lot of different things that come into play in terms of criminal law and criminal punishment. There’s kind of high-theory philosophy in terms of theories of punishment, but there’s a lot of very practical questions about what punishment is really like. For example, what does it mean to really be putting people into cages?
And then on criminal procedure, it’s kind of a branch of constitutional law. Constitutional criminal procedure is where you’re interpreting the Constitution, and courts are making rules to govern policing and to govern criminal trials using the constitutional test. I like it a little bit more than regular constitutional law because there are some clear rules. It doesn’t always feel quite as much like politics to me in the way that talking about abortion cases or affirmative action cases does, and for that reason, it feels a little bit more like law to me, and I enjoy teaching it more. I enjoy teaching things where you are teaching rules more than something fuzzy.
You’ve written a forthcoming article with Danielle D’Onfro titled “The 4th Amendment in General Law”. What’s that about?
Danielle and I are actually married, and so this is the first time we’ve worked together on something in that way. She’s a professor who teaches property law and she’s interested in private law: the rules that govern property and financial transactions between private partners. I’m interested in public law, constitutional law, and criminal procedure.
We figured out a way to combine those two interests, and she had written about the law of bailments, which is this really old doctrine of property law going back hundreds of years that regulates what happens if you have property and you lend it to somebody else for a while. What are your rights and what are their rights?
And interestingly, Justice Gorsuch in an opinion just a few years ago in Carpenter v. United States had said that we should start looking at the positive law and the law of property to help figure out what the Fourth Amendment means. In doing that, he was drawing on some recent scholarship by my friends Will Baude and James Stern and some other people, and he sort of said, “You know, what about bailments?”
We saw that and Danielle sort of said, “Look, this is something the Court is interested in. Let’s try to give them something they can work with in explaining how bailments might be relevant.” We started working, and the project metastasized. It grew a lot bigger in the sense that we thought, “Well, this isn’t just a bailments paper. This could be a paper where we can explain how property law and concepts of private law are relevant to the Supreme Court’s work more generally in Fourth Amendment cases and should be part of Fourth Amendment analysis.”
In doing that, we had to figure out why. And we came up with this theory that we think is pretty different from other theories that have been laid out, though it draws inspiration from other people’s theories. We take it in a different direction where we say the way to interpret the Fourth Amendment is through common law analysis.
Traditionally in common law analysis, judges are trying to figure out the rules by drawing on a rich body of cases and concepts like bailments. But what we’re contending is, they should figure out the Fourth Amendment’s meaning by looking to precedent and cases that govern private property. Is this something under the common law that a private party couldn’t do? Would this be a travesty?
We have various reasons why we think this is a better way to think about it. It ends up being an approach that provides a combination of flexibility that gives justices and judges enough flexibility to shape the doctrine to deal with modern problems, but also isn’t just telling them to make it up entirely.
That’s cool! What questions surrounding criminal law would you most like to see clarified by the Supreme Court?
The Court has changed a lot in recent years, and there may be some areas that I don’t agree with. There’s a number of doctrines that I see as promoting fairness in criminal justice that I think some justices might want to get rid of. They might think they don’t have a good basis in the Constitution.
But I don’t think that’s true in every area. We’re in a world where everything you need to know about somebody can be found on the cloud — your personal diary, your personal messages between you and other people, pictures, all that stuff. The Fourth Amendment was designed for a world where you kept your private papers locked up in a trunk in your house, and now all that exists on a cloud, somewhere in a big warehouse hundreds of miles from where you live. If we care about maintaining the values that we think the Fourth Amendment is supposed to protect, we need to figure out how to apply it to that context.
Out of all the criminal law cases, the Court has heard or will hear this term, which are you paying the most attention to?
That’s a good question. I was actually up this morning, sitting down to try to read the Ramirez case carefully. It’s sort of a criminal case, but also sort of a religious liberty case. That’s the case about whether the death row prisoner can have a pastor lay hands on him in the execution chamber. Coming out of the oral argument, I didn’t totally know what the Court was going to do there. That was one I was definitely paying a lot of attention to.
Let me think about what else might fit into that context. [pause] I mean, we don’t necessarily think of them that way, but the abortion cases are at bottom, criminal cases in the sense that if there’s no constitutional right to an abortion, there’s really nothing stopping states from criminalizing abortion. Many of these statutes that are at issue are not civil prohibitions. They’re criminal prohibitions, and so what we might see if the Court does overturn Roe v. Wade in Dobbs is a real expansion of criminal law. States are already talking about making it a crime to travel from a state where abortion is illegal to a state where abortion is legal to get an abortion, and that would be an unprecedented use of criminal law. It’s not clear whether the Court would do anything about it in a world where they have concluded that there is no constitutional right to abortion.
I read the transcripts to a couple episodes of “Divided Argument,” which you co-host with Professor William Baude, and liked how you were able to disagree while still maintaining a very hospitable atmosphere. In a similar vein to a question I asked Professor Baude, do you have any principles for having conversations with people you don’t agree with?
So, it’s hard. It’s hard because the stakes of what we’re talking about are very, very high. They’re not just philosophical disputes, right? They actually are about real people with real lives and interests that are really important. Whether someone can get an abortion is one of the most important things for that person in life, and the stakes are incredibly high. People who are against abortion also see it as the stakes being very, very high for the life of a child. You can’t just turn it into a debating society.
At the same time, if you were talking to someone who you believe is working in good faith, you have to try to really understand their arguments and why they think what they think, and also try to help them understand why you think what you think. Sometimes it’s going to be very hard. I find it very hard to see the other side’s arguments –– I’m a liberal –– as proceeding in good faith.
But it’s wrong and certainly counterproductive to say that everything that people you disagree with are doing is motivated by bad faith. It’s much more complicated than that. I think that if you’re trying to figure out how to work with people that you don’t agree with, trying to at least understand why they think what they think is a necessary first step. But it’s hard, and there’s a lot of people who don’t share my views that I have difficulty talking to about issues. Will is very open-minded and very thoughtful. But not everybody on my side is, and not everybody on Will’s side is.
Do you have any book recommendations for teenagers interested in law?
One place to start is with books about what happened, rather than diving into legal philosophy, which can be hard to read. Getting a sense of how these institutions work could be a good starting place, and one book that’s very fun to read is “The Brethren,” which came out in the 70s and basically spilled a lot of gossip about what was really going on behind the scenes at the Supreme Court at that time. You have to take it with a grain of salt, but there are a lot of fascinating stories, and it’s not just gossip for gossip’s sake. You come away with a little more understanding about oral arguments and legal decisions and how cases actually come about. There are going to be things that make you think, “Wow, this is a really great institution,” but there are also going to be things that might make you raise questions.
More generally, reading about history is important because a lot of problems that we confront today are actually versions of things that have happened in the past. They expose some of the same fault lines. It can be easy to think what we’re dealing with now is totally unique, but seeing how problems like these have arisen in the past can help inform things and help you avoid making the kinds of mistakes that people made in the past.
I tend to listen to audiobooks. I just listened to Steve Luxenberg’s book “Separate,” which is about the background of the decision Plessy v. Ferguson, a case that established the doctrine of separate but equal in racial discrimination cases and was ultimately overturned in Brown v. Board of Education. You get a sense of the different people making these decisions, and it’s kind of fascinating. There’s also a great book by Jeff Shesol about President Roosevelt’s court-packing plans called “Supreme Power.”
If I were interested in law and trying to wrap my hands around things, that’s where I would start, rather than reading stuff that just talks about the content of law. You have plenty of time to learn that stuff and figure it out, but the one thing that law school doesn’t necessarily do perfectly is giving you the deep background about really understanding how our country works and how we got to where we are. I think that kind of background knowledge is really, really helpful.
What advice do you have for teenagers interested in law?
I’d say first, don’t feel like you have to have everything figured out today. In terms of what you think and know about the law, don’t feel like you have to have everything figured out. I still feel like there are a lot of things I don’t understand and I’m still thinking about.
But the most important thing you can do is try to learn stuff, and you don’t necessarily need to do that in any systematic way. Go to SCOTUSblog and find some legal case that you’re interested in. And don’t just look at the opinion. Look at the briefs people wrote. The first time you do that most of it is not going to make a ton of sense, and that’s totally OK. With most things in life, they only really become interesting once you have a deep understanding of what’s going on.
Like with sports, I didn’t really enjoy watching various kinds of sports until I actually did the work figuring out how the rules work in basketball. And then I was like, “OK, well, this is actually pretty interesting.” And so with law, there are a lot of things that you don’t know and you don’t need to have it all today. But the more you can start filling in the pieces, even if in a totally random order, the more interesting you’re going to find it. It all kind of builds on itself.
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