Listen to Zooming In at The UnPopulist in your favorite podcast app: Apple Podcasts | Spotify | Google Podcasts | RSS

Aaron Ross Powell: Welcome to Zooming In, a project of The UnPopulist. I’m Aaron Ross Powell. My guest today is George Mason University law professor and B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute, Ilya Somin. Ilya recently wrote an article for The UnPopulist about the state of the Supreme Court—whether it’s become more politicized than it used to be, and why many of the proposals to fix it could be counterproductive, even dangerously so.

A transcript of today’s podcast appears below. It has been edited for flow and clarity.

Aaron Ross Powell: Is the Supreme Court more politicized than it used to be?

Ilya Somin: I think it depends on your definition of politicization. I think it is more politicized in the sense that there's more polarization between Republican-appointed justices and Democratic-appointed ones than there was say 30, 40, 50 years ago. On the other hand, I don't think it's more politicized in the sense that justices’ political views play a bigger role in their decisions than they did in the past. I think there's little evidence to support that. While the justices are not now, nor have they ever been completely free of political bias, I think they are much less biased than other governmental institutions are. That enables them to play a more neutral role than we would have otherwise if we weaken judicial power.

“I think it is more politicized in the sense that there's more polarization between Republican-appointed justices and Democratic-appointed ones than there was say 30, 40, 50 years ago. On the other hand, I don't think it's more politicized in the sense that justices’ political views play a bigger role in their decisions than they did in the past.”

Aaron Ross Powell: One of the things that frustrates me about the way that a lot of people talk about the Supreme Court and its decisions is there's this sense, I think from both sides, but you see it a lot from the left that justices make a decision on what they think the right answer or the best answer or the answer they'd prefer for a given case is based on their partisan political priors. Like, I'm a conservative, therefore I want to restrict immigration. Then when there's a case in front of them about immigration, they just reason backwards from that.

It's like a disingenuous legal argument effectively when in fact, as we both know, these justices usually come in with a coherent and developed jurisprudential perspective and philosophy. They're originalists or textualists or living Constitution people, and they're often fairly upfront about what has political—it is more likely if you are a progressive that you're going to find living constitutional perspectives more persuasive than strict constructionist perspectives, but they're reasoning from that articulated theory.

When you talk about them becoming more politicized in the first way—the politics of the justices are diverging, are we seeing a growing divergence in the underlying judicial philosophies? The living constitutionalists are becoming more extreme in their living constitutionalism—more hardcore—and the textualists are becoming more textualist in theirs?

Ilya Somin: I don't think that's necessarily what's happening. I think it's simply that what we have is a greater divergence within the Supreme Court on both political ideology and also some issues of legal methodology as well. That translates into a bigger gap between the predicted votes of a Republican appointee versus a Democratic appointee than would have existed 40 or 50 years ago. Such a divergence is not completely unprecedented in American history, but it is different from what you saw in the immediate post-World War II era where, say, from the late 1940s until perhaps the 1970s or the '80s, differences between Democratic and Republican appointees were much more modest.

It's not because the justices of that era were somehow less biased or more removed from politics. It's that within the legal elite of that era, with the possible exception of southern segregationists, there was much less disagreement over big major issues, either of interpretation or of political ideology than there is now, and also I think over time, as there's been more polarization between the political parties, there's also been more in the way of divergent litmus tests on—while both Democratic and Republican presidents, they want to appoint people who have strong professional credentials, they also have a series of litmus tests on how they want the people to vote on different issues.

When they vet potential nominees, particularly for the Supreme Court, they will do what they can to make sure that they get somebody who's likely to vote the way they want on these issues. Not because that person is deliberately being political but in most cases because due to their jurisprudential and other views, they will tend to come out in that direction even if their motive is not to please the president that appointed them or the political party.

Aaron Ross Powell: Can you talk about this in the context of the nomination and confirmation process? Your essay at The UnPopulist begins by looking at the changes there. Can you tell us how things used to look, how they look now?

Ilya Somin: Sure. Nominations and confirmations have looked different ways, different periods of American history. If you look at that period, say from the 1940s to at least the late 1960s, and even later, most nominations with rare exceptions weren't particularly controversial. Many senators from the opposing party, usually a clear majority, would still vote for the most nominees. Often the questioning of nominees was pretty perfunctory. I mentioned the example of Byron White who was only questioned for about 40 or 50 minutes, and a lot of that time was spent on questions about his football career because he had been a professional football player before he was a judge.

Obviously, if you look at recent years first, almost every recent nominee in the last 15 years or so, a majority of opposing party senators have voted against the nominee. The last nominee who got a majority of opposing party senators, I think, was Chief Justice Sean Roberts when he was nominated in 2005. Even with him, there was something, I think 22 Democratic senators devoted against him. Secondly, recent confirmation hearings have featured a lot of questioning and debate about controversial legal and political issues.

Obviously, this next factor is less new, but some of them have featured issues of personal scandal like accusations against Kavanaugh, though there have been cases like that in previous history as well. Those kinds of things are more charged even than they would have been 50 or 60 years ago because the fear of Republicans with Kavanaugh was not just a Kavanaugh might be defeated, but the Democrats would somehow create a situation where they could string things out until the election and then maybe the Democrats would control the Senate in its aftermath, then therefore block Republican nominees.

Just as in fairness, the Republicans in 2016 were able to block the Democratic nominee, Merrick Garland, for several months until the election happened. Then they were able to get their own nominee through instead. There has been an escalation of political conflict over nominations and also of senators voting against opposing party nominations, at least in most cases.

Aaron Ross Powell: I want to get to the Merrick Garland move because that's obviously quite significant in the narratives about politicization. Before that, I want to ask if it's the case that politicians are now picking judges who are more removed from what used to be a consensus center than they used to be. They look more distinct from the guys that the other party might be picking if they were in charge.

That's basically a demand-side change. Does that mean that we are getting less qualified nominees than we did before? Before, the selection criteria was, "I wanted to find the best possible justice" and now it is, "I want to find the best possible justice who aligns with my more extreme politics", that's going to narrow the pool of possible nominees.

Ilya Somin: It's an interesting question. A lot depends obviously on what you consider a good qualification for a Supreme Court Justice and there's not a consensus on that. If you believe that what should be a good qualification is technical expertise on legal issues with an extensive background in those kinds of things, I think the nominees in the last 20 or 30 years are actually on average somewhat better than those from earlier eras because in addition to the greater polarization and vetting, there is also emerged the norm, which some people criticize of appointing people with extensive experience in legal theory and also in appellate court judging usually at the circuit court of appeals levels.

“If you believe that what should be a good qualification is technical expertise on legal issues with an extensive background in those kinds of things, I think the nominees in the last 20 or 30 years are actually on average somewhat better than those from earlier eras.”

We have almost completely eliminated the previous tradition of at least sometimes appointing professional politicians to the Supreme Court. Some the most important Supreme Court justice of the past, there is Earl Warren, Hugo Black, we can name other examples, had been professional politicians, not people whose main background was as judges or legal theorists. That's almost completely gone. It's hard to even remember the last time a career politician got nominated to the Supreme Court. Maybe the last Supreme Court justice who had experience in elected office, if I remember correctly, was Sandra Day O'Connor, who had briefly been a state legislator, but even that wasn't her main thing that she had done.

If you look at the purely technical professional qualifications of Supreme Court justices, they actually look more impressive for the most part in recent decades than before. Though as I mentioned earlier, there is disagreement about whether appellate court judging experience is the thing we should most look for. Some people argue that there are other kinds of experience that are undervalued. I, myself, think it might be good to appoint people with experience as state Supreme Court judges and not rely as exclusively as we seem to on people with experience as federal judges.

Aaron Ross Powell: Or a hobby horse that's of a lot of people in our circles is appointing more people with defense experience to the court versus former prosecutors.

Ilya Somin: Yes. My Cato Institute colleague, Clark Neely, makes a big point. I think there's some merit to it. On the other hand, it's important to remember that people who have experience as government lawyers and prosecutors nonetheless sometimes have widely divergent views even on criminal justice issues, probably the most pro-prosecution justice right now, Sam Alito and one of the two most pro-defense justices, Sonia Sotomayor had experience as prosecutors, but obviously they clearly derive very different lessons from that experience or they just took in different viewpoints even before they took those jobs.

I think it is true that it would be good to have some diversification beyond people who have experience as executive branch lawyers or federal appellate judges, which is the main pipeline that we see over the last several decades, but at least in terms of conventional metrics of qualifications, these people look very impressive. You might object to him on jurisprudential grounds or in Kavanaugh's case, the accusation of sexual assault or whatnot, but it's hard to say that these people lack technical legal qualifications. They have them actually on average more than justices from past eras of American history.

I would note also, of course, that women and non-whites are in the pipeline for these nominations much more in the last several decades than any time before. We now have multiple justices who are not white at the same time, three of the nine, and we also of course have more women on the Supreme Court, than ever before.

Aaron Ross Powell: Was the Supreme Court historically accused of being politicized? I guess what I mean by that is one of the pieces of evidence that people give, or one of the things, the main drivers of the narrative that the Supreme Court right now is more politicized than it used to be, is that it is making controversial decisions on issues that the electorate views is like very important in their own personal lives; Abortion decisions, religious practice decisions, and so on. We had the court in the '50s and '60s, the civil rights courts were making all kinds of decisions that were wildly controversial. Were they accused of being politicized in the same way that we see the current court today?

Ilya Somin: Yes, absolutely. If you look in the 1950s and '60s, critics of the Supreme Court at that time, southern segregationists, but also tough on crime advocates, they certainly accused the Supreme Court of pursuing left wing ideology of various kinds at the expense of jurisprudential values. When Roe vs Wade was issued in 1973, that accusation was also made. You can also find past eras in American history where such accusations were made. Basically, any time when there's significant conflict or controversy over Supreme Court decisions, it is likely that at least some critics will accuse the court of being political in the sense of pushing their political values rather than jurisprudential values.

“Any time when there's significant conflict or controversy over Supreme Court decisions, it is likely that at least some critics will accuse the court of being political in the sense of pushing their political values rather than jurisprudential values.”

If there's a difference now compared to '50s and '60s is that those disagreements fall along more clearly partisan lines because in the '50s and '60s, the southern segregationist critics, many of them were also Democrats, even as more liberal northern Democrats had a different view, and at least for a time, the tough on crime issue also cut across party lines. Though eventually beginning in the late '60s and '70s, the Republicans became more the tough on crime party.

Ironically, Richard Nixon ran for president in 1968 on the slogan that he was going to restore law and order and appoint judges to the courts who would be less sympathetic to criminal defendants. Ironic because of course, later he himself got into serious legal trouble as did members of his administration and some of those same judges ruled against him when he tried to hide the Watergate tapes.

Aaron Ross Powell: Let's get back to Merrick Garland then.

Ilya Somin: Sure.

Aaron Ross Powell: That seems to be the catalyst or precipitating event of the current wave of accusations about the Supreme Court being politicized in an unfair, corrupt way. That's an instance where the accusations of politicization, which is a word I'm sure I'm going to stumble over a few times as I try to say it in this conversation, is not so much that the person who eventually got that spot was a partisan hack, but rather that the GOP effectively cheated in order to get a guy who represented more their views than a guy who didn't into office— not into office, onto the bench. That then delegitimizes. The politicization delegitimizes a lot of these decisions because it was a cheat.

Is there any validity to that argument that maybe the justices themselves aren't hacks, but it's become increasingly common and particularly common with the GOP, starting with Garland to abuse the process in order to influence the court in their direction and therefore de-legitimize the resulting decisions?

Ilya Somin: You can say they cheated in the sense that it was an escalation in the conflict over judicial nominations. On the other hand, it was not cheating in the sense that they violated the law or the constitution. The Senate has the power to refuse to hold confirmation hearings on nominees just it has the power to vote them down. I would also add that, what the Republicans did in 2016 did have important precursors and things that the Democrats did. I would point to two things in that regard.

One is, in the early 2000s, the Democrats in the Senate pulled off a very similar move with respect to several George W. Bush nominees to the DC Circuit, which is usually seen as the second most powerful federal court in the land. They essentially sat on the nominations for years on end until the nominees withdrew, and each of those nominees, some of them were people who are seen as highly-qualified  potential future Supreme Court appointees.

Granted, the DC Circuit is still not as important and powerful a court as the Supreme Court. Doing this at the Supreme Court level, you can say is a further escalation, but it's a difference in degree more than kind. In addition, when we had the 1992 and 2008 elections, when there was a Republican president in office whom it looked like, and indeed it did happen, that he was about to replace with it by a Democrat. A number of Senate Democrats including Chuck Schumer and then-Senator Joe Biden had made noises along the lines of that they would try to block a nomination to an open Supreme Court seat until after the election happened. Now, I certainly agree there's a difference between saying you might do this, and then they never actually did do it because no seats came open and actually doing it, but what you see with a gradual process of escalation is when one side escalates in one way, the other side tends to top it in other ways.

I do think the underlying dynamic here is not that GOP senators were uniquely abusive of the rules, or for that matter, the Democratic senators were, but that both sides have temptation to use the procedural weapons more in an era when the stakes of nominations are seen as higher, given that there's a bigger gap between the rulings of a likely Republican nominee versus those of a Democratic nominee.

“The underlying dynamic here is not that GOP senators were uniquely abusive of the rules, or for that matter, the Democratic senators were, but that both sides have temptation to use the procedural weapons more in an era when the stakes of nominations are seen as higher, given that there's a bigger gap between the rulings of a likely Republican nominee versus those of a Democratic nominee.”

In the days of Byron White, as I mentioned earlier, Republicans, most of them, didn't feel like Byron White's rulings were going to be massively different from a person that might have been nominated by a Republican president, and therefore they felt little need to complain about White or to try to block him unless it was revealed there was some kind of scandal or something like that.

Aaron Ross Powell: From your perspective as someone who obviously has a lot of legal expertise, but also pays a lot of attention to the conversations happening in the broader public and the media and the chattering classes and so on, about the Supreme Court and politicization of it and so on, what are some of the things that people—one thing we can say is there's less politicization than we might think there is, but are there examples of things that people tend to view as politicization or as evidence of a politicized court that in fact just aren't, like they're mistaken about how the court works or operates, and so reading it the wrong way.

Ilya Somin: I think in recent years, and you could point to conservatives making similar mistakes in past there, but in recent years, I think one big mistake that left-wing critics of the court tend to make is that they either ignore or downplay the court's fairly significant rulings in favor of various liberal causes. We may not have time to go through them all, but I'll just mention a few. Just within the last term, the court issued a six-three decision ruling against the so-called independent state legislature doctrine, which would prevent Republican, but of course, also Democratic state legislatures from monkeying around electoral votes after the fact.

“One big mistake that left-wing critics of the court tend to make is that they either ignore or downplay the court's fairly significant rulings in favor of various liberal causes.”

The Supreme Court has several times, including this term, turned back major Republican challenges to Biden administration immigration policies this last term in an eight to one decision, US v. Texas, and some of those were very important immigration policies. In the recent Voting Rights Act decision, Allen v. Milligan, a five to four court with the support of two conservative justices gave the Democrats a big win in a voting rights case. The result of which is likely to be the Democrats getting several additional Congressional seats in the House of Representatives over the next couple of election cycles.

Of course, they turned back Donald Trump's challenges to the 2020 election. There's a number of other examples like this that I could mention. I won't go through all of them. Sometimes, the reaction is, "Well, all of these cases were easy jurisprudential issues and obviously the liberal side was right.” In one or two cases, I think that was indeed true like in the Trump election challenges, but it's still significant that Wendy Wright has a really bad legal argument. The court rules against them because when you look at how politicians behave, they're happy supporting their own side no matter how bad the argument is most of the time.

Second, I think in many of these cases, the right did have at least a reasonably plausible argument. They certainly did in the Voting Rights Act case even on independent state legislature. The court got it right, but the argument that the word legislature just means the legislature narrowly defined and that therefore all the power over electoral votes and other things rest in the hands just of the people in the legislative branch of state government, that's a plausible legal argument. It's wrong in various ways we could talk about, but it's not ridiculous and stupid. Ruling against it was not just something that any minimally competent jurist would always do.

You can make similar points like this about other things including for instance that the Supreme Court has already signaled that it's likely to rule against the Texas and Florida social media laws, which require social media firms to host speech of various kinds they disapprove of, and which the left is not like because it prevents the social media firms from blocking what they see as disinformation and there are other examples like this. I think ignoring all of that or downplaying it as just this are just obvious cases, I think that's a mistake. I think also when you view cases like the affirmative action case and the abortion case and the like, in every era, there are some cases where there's just deep disagreement over them.

It's reasonable to expect that when you have high profile issues where there's disagreement that different justices are going to rule different ways. I think when you look at both of these areas, it is simply not the case that Roe vs. Wade was so rock solid that you couldn't reasonably reject it. On the affirmative action side, I think when you look at the types of racial preferences that were being engaged in, it is simply implausible to say those were obviously constitutional.

“It's reasonable to expect that when you have high profile issues where there's disagreement that different justices are going to rule different ways. I think when you look at both of these areas, it is simply not the case that Roe V. Wade was so rock solid that you couldn't reasonably reject it. On the affirmative action side, I think when you look at the types of racial preferences that were being engaged in, it is simply implausible to say those were obviously constitutional.”

Even if you believe, which I do to some extent  grant, that the constitution doesn't call for 100% colorblindness in all instances, still the rationales that were being used and the policies being adopted were sufficiently problematic and flabby that if you were going to uphold them, you would have to have either a very severe double standard between different kinds of racial preferences or you would have to have a lot of deference to government agents when they discriminate on the basis of race of a kind that many on the left would not like in almost any other context like they certainly wouldn't say that should be acceptable in areas like racial profiling and law enforcement.

Aaron Ross Powell: Is there also an aspect of misreading things when it comes to the court's decisions in what cases to take in the first place? Because one thing you'll hear is when a potentially controversial, like a case that could deal with existing rights or seems to be very, very relevant to people's individual lives, gets taken up by the court, there's a sense in which they took it up in order to overrule that or change things like they're basically shopping for cases in order to advance their conservative now, in the past, maybe liberal agenda.

In a lot of cases, it seems like the court faces its own set of rules for when it needs to take up a case and that sometimes feels like it gets lost in the conversation. They couldn't reasonably have turned down this case.

Ilya Somin: In most cases, the critics do have a reasonable point in that unlike virtually any other federal court, the Supreme Court has enormous discretion over what cases it takes. It is true if the Supreme Court rules, there are certain guidelines they have for what cases they take, but they're not actually required to follow those guidelines with rare exceptions that we can talk about having to do with the so-called original jurisdiction of the Supreme Court, where the Supreme Court is the court that hears the case in the first instance, and even that the Supreme Court has made discretionary.

With the exception of that, the court has near total discretion over which cases they take. It's essentially any cases that four out of nine justices want to hear if there's a petition for certioari that's being filed, a petition to get the court to hear it. It is true that there are some cases that they take, not because they partake interest in the issue, but just because they feel this is an important disagreement in the lower courts and it has to be resolved. I think some cases in commercial or business law that they take are like that.

I also think that there is a significant component of cases that they take because the Supreme Court justices themselves think the issue is important or because they see an opportunity to move the doctrine in a direction that they like. If you want to change that, the solution would be to give the Supreme Court less discretion over its jurisdiction, and there are ways Congress could potentially do that. For the last 100 years, ever since they passed a so-called “judges act” in the 1920s, which gave the court even greater control over its docket than it had before that, Congress has been unwilling to intervene in that area.

That said, with these issues that people complain about, it's not easy to claim that these issues are so insignificant that the Supreme Court shouldn't have heard them. Abortion surely is an important issue and it's reasonable for the court to hear cases on that even if people don't like the results. I think the court may have over time overestimated the significance of the issue of affirmative action in higher education, which only affects selective universities, which are a minority of all universities in the country, and certainly a minority of where college students go.

This may arise from the fact that the Supreme Court justices, most of them also graduated from various elite selective institutions. They travel in circles as you and I also do, where these things are considered to be very important. You could have a reasonable beef saying maybe they should have looked at more other kinds of cases. That said, the more general issue of race discrimination is certainly an important one in American society.

It's not easy to argue that the Supreme Court should have just left racial discrimination issues alone, though I personally think it may be the court over the last several decades should have spent less time on affirmative action, higher education, and more on maybe some other racial or ethnic discrimination issues. I think here there's not so much an ideological bias, it's perhaps a class bias that relatively affluent, highly educated people are much more focused on what goes on in elite higher education institutions than the rest of the public may be.

Aaron Ross Powell: The trendiest proposed solution to politicization is effectively court packing. There's no reason we have to only have nine justices, we can put more on there. If the court through reasonable means or through "cheating means" has become unbalanced in one direction, then the answer is the next time our guys are in control, we will simply confirm more justices to shift the balance back in the other direction. We'll add two or three or four more people to the bench. How reasonable is that?

Ilya Somin: In fairness, most of the people who advocate court packing, the real problem in their mind is not so much that this will solve politicization but that this will solve, in their view, the fact that the court is making decisions in what they think is the wrong direction. If they change the balance of power and the court will make them in the right direction, it certainly will not end politicization in the sense of justices being appointed by ideology or justices voting in a polarized way because as Joe Biden, among others, has pointed out at various times, if one side packs the court, in this case in the near future more likely to Democrats, then of course the other side will do the same thing next time. They simultaneously control the presidency in both houses of Congress, and the end result will not only be further politicization but in the medium to long run, it would be the destruction of judicial review because a practical matter, the Supreme Court would then be unable to effectively make rulings that go against anything that the president and the majority party in Congress wants because, if they do do it, there'll be another round of court packing. The court either would be deterred from making such rulings or those rulings would swift we be overturned the next time there's an opportunity for court packing. If you look around the world, court packing is a standard tool of authoritarian regimes undermining democracy.

You'll have cases like Turkey, Hungary, Venezuela and others where it has happened. Those who advocate it—I can understand if you just generally don't like judicial review and there are some legal scholars who have that view, then absolutely court packing then makes sense if you just want to destroy the institution of judicial review. If you're unhappy this is simply that you just don't like particular decisions that the court has made in recent years, then you should ask yourself is getting rid of those decisions really worth it if the price is destroying judicial review across the board, especially if you're talking about decisions that limit the political branches?

“If you look around the world, court packing is a standard tool of authoritarian regimes undermining democracy. You'll have cases like Turkey, Hungary, Venezuela and others where it has happened.”

If your goal is that you want to restore Roe v. Wade, for example, court packing is not going to do that. It might do it briefly but in the long run, it would simply destroy the ability of the judiciary to function as an effective check on the other branches of government whether it comes to abortion or anything else.

I would finally add that there is a range of issues where because of polarization on things like abortion, guns, affirmative action, and some other stuff, there's a range of issues where judges do systematically check the other branches of government that is lost sight of. I mentioned before them ruling against Trump's dubious election challenges, than turning back attacks on freedom of speech including some from the right. There are other examples.

If you lose that, the end result would be political branches, particularly the executive branch that is more out of control than before. Even if you, for instance, trust Joe Biden with that power, you should ask do you trust Donald Trump? Should he come back to office or whoever the next Republican president might be? Having an independent judiciary with a real power of judicial review does serve as a check on that even if the check isn't perfect. Even if obviously we wouldn't want to put all our eggs in that basket, we want to have other constraints as well

Aaron Ross Powell: Then what are more reasonable, workable, advisable, solutions because we're not saying that the court hasn't become more politicized, you're saying it's not as bad as people make it out to be, but it still seems if we can have a less politicized court, that's better than having one that's more politicized both in terms of maybe the rulings that are coming out of it but also it matters a lot that the public accepts the court as legitimate and its decisions as legitimate and narratives of politicization corruption, et cetera, undermine that. Are there things that we could be doing to help right the course that don't open us up to these profound worries that you just articulated say in the instance of court packing?

Ilya Somin: I don't think there's any short-term solution to the problem of, if it is a problem, of justices appointed by one party being very different from justices of the other and therefore there are being more conflict over judicial appointments. That can only be resolved if we reduce polarization in American society more generally which may be there are ways to do that. That could be a whole separate podcast but is not something that can be done quickly.

“I don't think there's any short-term solution to the problem of, if it is a problem, of justices appointed by one party being very different from justices of the other and therefore there are being more conflict over judicial appointments. That can only be resolved if we reduce polarization in American society more generally.”

There might be incremental reforms that can help some problems at the margin, though even those will not be easy to enact. One that is actually quite popular across the political spectrum with both experts and the general public, is term limits for Supreme Court justices. Instead of serving for life, they could serve for 18 years. That's the most common proposal but you can imagine other lengths of the term.

This would reduce the extent to which the random events create opportunities for one president or another to have a lot of nominations in a short time, or on the other extreme, you end up with a president like Jimmy Carter who didn't get to make any nominations. It was kind of a bummer for him. Also, it would reduce the issue of justices staying on until senility or mental problems arise in their old age and the like.

It would also regularize the process of Supreme Court appointment. Each president would get to make two appointments during their term and reduce the extent also to which a justice could enjoy vast power simply through longevity by staying on the court for 30 or 40 years. I think this reform would probably require a constitutional amendment. There are some people who think it would not but I think it likely would. We can talk about why if you're interested.

In the short run, it would not change the balance of power on the court most likely. Therefore, if your main concern is simply that the current 6-3 majority is making conservative decisions or too many conservative decisions, this would not immediately fix it. It would take some time to address it. I think you could also potentially either through Congress or the justices themselves, enact some ethics code for the court to the extent that people are unhappy about things like Clarence Thomas taking a lot of expensive vacations at the expense of Harlan Crow, who's a big right of center billionaire, and you can enact limits on the gifts that they're allowed to take and other restrictions like that.

I think that may be desirable to do, although Justice Alito recently said he thought Congress had no power to enact these rules, I think they do have the power. They could do it. I think it would be desirable to have some limitations there. I also, again, even if this was done and the rules were strictly enforced, it would not change the fact that the Supreme Court voted to overturn Roe v. Wade or made other decisions that many people don't like.

I think also it's worth noting that while the Supreme Court's approval rating has declined somewhat, that is in parallel with declining approval ratings for other governmental institutions. Even at its worst, the Supreme Court's approval rating is still a little bit better than that of Joe Biden or Donald Trump, the likely presidential candidates.

If you look at Congress's approval rating, Congress could only dream of the kind of lows that the Supreme Court has when the court bottoms out at maybe a 40% approval rating with Congress, which is down most of the time in the 20s or even lower than that for the last 15, 20 years or more. The increasing level of polarization in American society and political conflict leads to bad approval ratings. If you want to call it, problematic legitimacy for a lot of institutions. Again, if there's a way to fix that, it would have to do with reducing the overall level of polarization and political conflict in society, rather with a fixed specific to the structure of the Supreme Court.

Aaron: Thank you for listening to Zooming In at The UnPopulist. If you enjoy this show, please take a moment to review us in Apple Podcasts. Also check out ReImagining Liberty, where I explore the emancipatory and cosmopolitan case for radical, social, political, and economic freedom. Zooming In is produced by Landry Ayres and is a project of The UnPopulist.

© The UnPopulist 2023

Follow The UnPopulist on Twitter (@UnPopulistMag), Facebook (The UnPopulist) and Threads (@UnPopulistMag).

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit www.theunpopulist.net