Berkeley Talks: How the Supreme Court divided America

(Music: “Silver Lanyard” by Blue Dot Sessions)

Intro: This is Berkeley Talks, a Berkeley News podcast from the Office of Communications and Public Affairs that features lectures and conversations at UC Berkeley. You can follow Berkeley Talks wherever you listen to your podcasts. New episodes come out every other Friday. Also, we have another podcast, Berkeley Voices, that shares stories of people at UC Berkeley and the work that they do on and off campus.

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Henry Brady: Hi, everybody. Welcome. Great to have you here. We’ve got a great event tonight. This is about how the Supreme Court divided America, nothing could be more timely, with Michael Waldman and Maria Echaveste. I’m Henry Brady, class of 1941 Monroe Deutsche Professor of Political Science and Public Policy, a ridiculously long title, and former dean of the Goldman School of Public Policy. Dean Wilson is traveling.

This program is hosted by the Goldman School as part of our new Interrogating Democracy series. We want to learn about how we can make democracy better. And it’s part of our larger democracy policy initiative. Our aim is to connect and lead people who care about democracy. Those people who think that in order for us to have a truly more perfect union, we need to establish justice just like the Constitution says, to ensure that we have domestic tranquility. Public policy is about how we, the people, institute policies to make our society better.

Oddly, although there are all sorts of policy areas, there’s healthcare policy, defense policy, transportation policy, housing policy, there’s really not a democracy policy area. It’s time there was. And that’s what we’re trying to institute here. This is our inaugural lecture in this series. It’s our beginning of our democracy policy initiative. We want to create a field of democracy policy that asks questions about how do we make democracy work and work better, and make sure that we in fact ensure that we keep it? Which is more and more a question.

In this era of political polarization and increasing distrust in institutions, something I’ve documented in my own research and in an issue of Daedalus, which is the Journal of the American Academy of Arts and Sciences that I edited about a year ago, we have real problems. More and more political institutions aren’t trusted, but even more worrisomely, it seems to me they’re polarized. That trust is polarized in institutions. And not just political institutions, but also nonpolitical institutions. So, trust is polarized in medical care, in police, in law, in all sorts of areas where such polarization leads to the possibility that you simply can’t get agreement about how to solve problems.

We saw that with COVID, for example, and medicine and science. So, we need to do something about democracy in America. We hope our initiative will help to do that. We’re going to continue to bring experts to UC Berkeley, to raise awareness of these issues.

And we’re really so thrilled to have, I can’t think of a better person than Michael Waldman, who be first of our guests, and to have Maria Echaveste be the interlocutor asking him questions. It’s fitting that we start with the Supreme Court. Until recently, the Supreme Court had done pretty well in terms of trust. It had not really suffered the kind of loss of trust that Congress at 6%, for example, has suffered, or the presidency, partly because it’s a partisan office, and half the people hate the president and half the people love the president. But altogether that means not many people like the president. And the executive branch has had similar problems.

It’s just recently after the Dobbs decision that suddenly we’ve seen a dramatic fall in trust for the Supreme Court. This is something new, it’s something worrisome in terms of the legitimacy of the court, and I’m sure we’re going to talk about that today.

Let me do some housekeeping quickly. First, you should have been given cards to write questions on. Somebody indicate to me you have been given cards to write questions on. Yes. OK, good. So, that’s been done. So, please write your questions. We’ll have people going up and down the aisles, picking up those cards, and then bringing them up to the front here so that those questions can be asked. We’re not going to have a chance for public comment. But after this event, Michael Waldman will be outside signing books and the books will be for sale, so you can get his great new book.

So, now I’d like to welcome Nancy Beninati, who will introduce our speakers this evening. Nancy is supervising deputy attorney general at the California Department of Justice. She specialized in investigating and prosecuting civil rights cases on behalf of Californians for over two decades. While also advising the past five attorney generals of the State of California on legal matters she currently teaches, and this is great, law and public policy at the Goldman School. So, welcome, Nancy. Welcome both this evening and also it’s great to have you at the Goldman School teaching public policy and law.

Nancy Beninati: Thank you so much, Henry. I’m very excited to be here tonight and it is very topical. These are all issues. Dobbs is an issue that we are discussing with my class and I’m so pleased to see some of my students here today. Before I introduce our wonderful speakers tonight, I do want to thank Goldman School Dean Eric Wilson, and Associate Dean Hillary Hoynes, for having the vision and leadership to bring a program like this to UC Berkeley. It’s extremely important to discuss how democracy is impacting our country at this time and really appreciate their leadership on this.

Our moderator this evening is Maria Echaveste. Maria is the president and CEO of the Opportunity Institute, a nonprofit organization that seeks to increase social and economic mobility and advance racial equity. Maria has been part of the UC Berkeley community in various capacities since 2004.

She’s lectured on immigration and education at the school of law and in the undergraduate division. She’s served as program and policy director of the Law School’s Chief Justice Earl Warren Institute on Law and Social Policy from 2008 to 2012. And she’s been a senior fellow at UC Berkeley Center for Latin American Studies since 2008. In addition to all of that, she’s also transforming our nation’s food system with her work at the Berkeley Food Institute. And prior to her time at UC Berkeley, Maria co-founded the Strategic and Policy Consulting Group, NVG. She’s worked as a community leader and corporate attorney, and served our country as the assistant to the president and Deputy White House chief of staff for President Bill Clinton from 1998 to 2001. We are very pleased to have you tonight. Thank you so much.

Our guest tonight, Michael Waldman, is president and CEO of the Brennan Center for Justice at NYU School of Law. The Brennan Center, which is a nonpartisan law and policy institute that focuses on improving systems of democracy and justice, is a leading national voice on voting rights, money and politics, criminal justice reform and constitutional law. Michael is a constitutional lawyer and writer who’s an expert on the presidency and the American democracy. He has led the center, the Brennan Center, since 2005. And very noteworthy, he’s also served as a member of the Presidential Commission on the Supreme Court of the United States in 2021. Prior to the Brennan Center, Michael also worked in the White House for President Bill Clinton alongside Maria Echaveste.

He served our country as first as a special assistant to the president for policy coordination from 1993 to 1995. And then from 1995 to 1998, he was the president’s director of speech writing. And responsible for writing or editing nearly 2,000 speeches including four State of the Union addresses and two inaugural addresses. Yes. Yes. Michael’s latest book is the Supermajority: How the Supreme Court Divided America, which is what we’re here to discuss this evening. Please join me in welcoming both Maria and Michael this evening. Thank you so much.

Maria Echaveste: Thank you, Nancy, and thank you Henry, and to the Goldman School. And welcome, Michael. I’m going to throw you a softball, which is … and I recommend, you can see I’ve marked up mine. Why the focus on history? And you spent a fair amount of time, clearly someone was doing a lot of research into how the Supreme Court, why?

Michael Waldman: Well, first of all, let me start by saying what a thrill it is for me to be with you, who my old friend, somebody I admire so much for all you have done and do, and how excited I am to hear about the Democracy Policy Initiative. This is absolutely what’s needed all over the country. And it makes a ton of sense that here at Berkeley you’re pioneering it. We really believe we’re in a great fight for the future of American democracy, that the stakes are that high, and this kind of engagement is really critical to it.

The history tells us a lot about this moment in the Supreme Court. Because we’ve been, in some respects in fights like this before. We’ve been in moments like this before. It can be a bit of a booby trap because I don’t think we should be governed solely by history. And when we talk about the Supreme Court and originalism, it can be easy to get all caught up in that. But I think when we look at the moment we’re in now, where the Supreme Court has, in my view, veered off course, and there is at the very least the beginning of a robust backlash. That has happened before. And it’s worth knowing how it happened and how the court got to its position of power today.

Maria Echaveste: Well, in reading, there are instances in which, for a long time, the Supreme Court was held, as Professor Brady said, in esteem, with respect, with trust. But you’ve outlined situations where the court was … candidates were running against the Supreme Court, someone like Teddy Roosevelt. Why?

Michael Waldman: The Supreme Court only attained the position, not even of equality necessarily, but being a super legislature over the other branches of government over time. And the Constitution, the part of the Constitution that deals with the federal courts. And the Supreme Court is only one 10th the length of the parts dealing with the presidency and Congress, these more democratically accountable branches. The court only gained this role by getting the credibility with the public. And one of the things that’s noteworthy when you look at it throughout history is, it largely reflected the political consensus of the country at almost all the time. It’s been around at least the political consensus of the elite of the country. The Supreme Court hugged the middle.

But there were a few times where it was unduly partisan, or extremist, or activist. And when that happened, and it was only a few times, there was a ferocious backlash. And it was not just a backlash by lawyers, and judges, and people with footnotes, but voters, people marching in the streets, political parties. So, the first time was in the late 1850s, the Dred Scott decision, which folks know that decision, but it was at a time of agitation, rising opposition to slavery and the spread of slavery. And the Supreme Court felt we were going to try to solve the problem. By which they meant the problem of people agitating about slavery. And this was the opinion where they said that slavery could not be barred by Congress from the territories. In other words, it could not be contained in the South. It was national. And worse than that, that Black people could not be citizens. And this was extraordinarily controversial. It was, by the way, also, not just only the second time, the Supreme Court struck down a law passed by Congress.

The first was Marbury v. Madison. It was also the very first big Supreme Court opinion to leak. It didn’t leak to Politico. It leaked to the incoming president, James Buchanan, who wanted them to do this. And he finagled and got them to go big with this ruling. And then he got up and gave his inaugural address and said, “We all know that the Supreme Court is going to make a big ruling on slavery. None of us know what it’s going to say, but let’s all just agree. Whatever they say, we’re going to go along with it, right?” And everybody said, “Oh, now we know.” And it was fiercely opposed. It led to the rise of the Republican Party. Abraham Lincoln’s election to the presidency was much about the Dred Scott case, and ultimately, the Civil War and the end of slavery. The second period where the same phenomenon of overreach and backlash happened in a big way was as you said at the beginning of the 20th century when the country was very much like now there was economic change, massive inequality, demographic change.

And the Supreme Court of that time felt that their job, the alitos of that court, felt that their job was to stop government from doing anything about it, to use constitutional theories to stop government from protecting workers’ rights-

Maria Echaveste:

Corporations, the anti-

Michael Waldman:

Taxes, and antitrust, and worker protections. And it was, again, hugely controversial, not just in an abstract way, but Teddy Roosevelt, as you mentioned, his 1912 presidential campaign, I didn’t know this until researching for this, which was when he ran as a third party candidate. And it was this epic race where he ran against Taft who had been this handpicked successor, and Woodrow Wilson was the Democrat, and there was a socialist candidate. Teddy Roosevelt’s big issue was taking on the Supreme Court for cases like Lochner and other cases because of its reactionary rulings. He had some very dramatic proposals. He didn’t win, but it was what people fought about. It was what people voted about and organized about. All leading up to his cousin, Franklin Roosevelt’s, war with the court on the same issues. You don’t want to get in the way of those Roosevelt’s, in the 1930s. It didn’t just start during the New Deal.

And then the third period I would say, and this is a little we’ll agree that Justice Brennan and Chief Justice Warren will give us a pass to talk about this, was the period when of the Warren Court and especially the aftermath of the Warren Court, which I regard as the greatest period of the Supreme Court, and in the sense that I think that rulings were so extraordinarily valuable and important starting with Brown v. Board of Education. But over time they came so fast and so furious and engendered their own backlash. And we are living in that backlash to this day, which brought us to this point. So, to me, the history is not just of academic creative interest, but it actually tells us how we got here and how there were other times like this.

Maria Echaveste: And that there are ways potentially for responding. But I want to probe a little. I had the occasion a few years back to teach a course with Professor Jonathan Simon on morally complex issues than the law. And one of the things that we were looking at is why in this country some of these really difficult issues like abortion, the right to abortion, or the death penalty, or immigration, why the Supreme Court, whereas in other countries, those might be more a result of political action? And so, were we asking the court too much?

Michael Waldman: It’s a great question. Look, I think some of this is baked into the structure of our system in the sense that we have a written constitution. Great Britain, for example, to this day, it does not. And it was a very unusual thing and a new thing to have a written constitution. We also to Tocqueville when he came to the United States in the 1830s, and he was both intrigued by and thrilled by this very bumptious new democracy, but also terrified of the kind of excesses that he felt could come. And he said in Europe where he was from, we have the masses, but we also have the aristocracy in between the public and the king. Here, there’s no aristocracy. So, lawyers are the aristocracy. And Thomas Payne and common sense said here, the law is king. So, from the beginning we sort of embraced ideologically this idea that it’s not … those founding documents when you go of course to the national archives, it’s kind of like a religious experience to see them there.

But I also think it is a more recent and more potentially misguided phenomenon, too. Especially among progressives, especially among liberals, those of us who looked to the court to ride in and save the day. That is, to a certain extent, a function, I think, of this period in the mid 20th century. And it was a really limited period where the court for the only time was ahead of the country on advancing equality and promoting rights. Usually the courts protect property and are a small C conservative force. But that was not so much the case then. And there was a generation of people who grew used to the idea that when there was a social problem to be addressed, you would go to court. And that would be a remedy, or a routine, or a solution. And that is a glow that has lingered on now more than half a century since the Supreme Court. Even if it was true back then, it’s been half a century, but we still kind of have that hazy glow in our minds.

Maria Echaveste: Well, I’m hearing a glimmering of we should blame our current state on the fact that lawyers kept litigating important issues. Is that …

Michael Waldman: One of the things that happened, I mean I think that’s a little bit true in the sense that the reaction to that period on the right, they organized. They worked to win in the court of public opinion. I wrote a book on the history of the Second Amendment. And they spent decades. The NRA spent decades trying to change what people saw the Second Amendment meant.

The result of Roe v. Wade was similarly to spur, eventually, a very robust grassroots political movement against abortion rights. And those who support abortion rights, those of us, I would count myself in this number who believe in reproductive freedom as we see it, relied to a certain extent on the courts to be the bulwark and lost a muscle memory of how to really do real politics. And this is something interestingly that people including Barack Obama when he was a young law professor, talked about this, Ruth Bader Ginsburg … This has not gone unnoticed, but it is something that I think people got very used to.

Maria Echaveste: Well, you write that in addition to the litigation, is that the discourse on the liberal side became one focused on rights. And it seemed to me that, well, when we talk about rights, they’re individual rights. And you say, instead of looking at social systems or equality … So, two part question. One, is that focus on rights now got us to this cul-de-sac, there’s no way out? And what’s the intellectual capital? What’s the theory framework?

Michael Waldman: Yeah, I do think that there’s some truth to that. And I think first for starters, when you think about rights, that means it’s something that really adheres to more or less to an individual. And that we think, oh, you go to court to get somebody to uphold your rights.

But if the remedy that really makes a difference is redistribution, economic redistribution, or structural change on antitrust, or other things about the structure of the economy, a bit of a lost tradition of American progressivism and social action, it’s just never going to be particularly doable by pursuing rights in the courts. And there are a number of wonderful young scholars who are making these arguments now. Nico Bowie and Jamal Green and others who don’t have the received glow of the Warren Court era quite as much.

And it’s also worth noting that in the half century since that heyday, rights have been used and in some ways co-opted by very reactionary forces. The most significant use of rights very often now is the striking down of our campaign finance laws using the First Amendment rationale, the poking of numerous holes in the human rights laws and equality laws pertaining to LGBTQ rights, claiming religious freedom. In other words, rights can be used for all different kinds of stuff.

So, the thornier side of the question, we talked about this a little bit before, is you can’t beat something with nothing. And there’s a lot of emotional power to talking about rights. There’s a lot of emotional power to talking about the original meaning of the constitution and originalism, and the kind of reverence for the framers and their wisdom, those documents in the religious aura of the National Archives. And this is something, too, I think, where those who are not sympathetic to the Federalist Society’s vision of the Constitution, have been silent and have not done the work of framing an alternative to their approach. I mean, there was a time when Justice Brennan talked about the living constitution. And people came to think that was a little too loosey goosey, that it didn’t have enough of a framework.

And the ideas of the right now are all still in reaction to that. And they’re saying, “Well, we are being originalist and there’s no conservative. There’s no political content to it at all. We just want to have a fixed point in time.” It’s just a coincidence that we’re saying the social views of property owning white men from the 1700s …

Maria Echaveste: Still apply.

Michael Waldman: … should govern our country now. But to me, at this moment, there is no coherent and publicly accessible, not just to lawyers, but to people, the voters, way of talking about the constitution, about democracy, and about the structure we want that can do battle.

When you listen to the hearings for confirmation for judges, Supreme Court justices, but not just them, all the judges, to me it’s kind of painful. Because the Judiciary Committee, which we all sometimes watch, the Republicans say to judges who are nominated, Are you now or have you ever been living constitutionalists? Do you believe in originalism?

Justice Kean Brown Jackson said, “I pledge to only enforce those rights that are deeply rooted in history and tradition.” It is kind of a blunt instrument, but they’re making a philosophical argument. And the Democrats say, “Tell us about your family. Did you love your parents? Did they give you lessons in hard work that you want to share with us?” And they affirmatively duck jousting with the Republicans on philosophy. And I do think that’s a mistake.

Maria Echaveste: Well, before we get to now and how we got here, OK, you’ve highlighted the court, the veneration or reverence for the law. But we use that belief in the rule of law, not just to help manage things, peaceful transfer of power until January 6th, 2021, but how can you figure out a way that we still respect the law when we disagree, but also when … I mean if you throw that out and say it is …

Michael Waldman: It’s all just politics.

Maria Echaveste: Right. Aren’t we at risk of losing something very, very important?

Michael Waldman: I think one of the challenges is to maintain and uphold the reverence for the rule of law and the ideals of the Constitution without fetishizing the Supreme Court as the body that will tell us all what to do. I mean, it is an unusual thing that we sit around every June and wait to find out what country we’re going to live in.

The book talks about the first full year of this supermajority of the six very conservative justices moving largely in lockstep. And then in three days, they did the Dobbs case, which as you know, was overturned Roe v. Wade and half a century of federal constitutional productions for reproductive rights. But also did so in a way that really put at risk all the other privacy rights in the constitution. The day before that was the Brewing case, which was by far the most extreme Second Amendment ruling in the country’s history.

And the day after that was the case of West Virginia v. CPA, which is less dramatic and vivid in some ways, than in guns or abortion. But with the beginning in a significant way, it was about climate change, but it was the beginning of a constitutional assault on the ability of government to protect the environment, to protect the public regulatory agencies. All in three days. A decade’s worth of social change in three days.

And when you think of the topics also for the first two years of this supermajority, guns, abortion, affirmative action, the interest of the fossil fuel industry, that doesn’t sound like a court. That sounds like a political caucus. And so, I think disentangling our reverence for the constitution and the rule of law, which is vital to the country and deeply embedded in who we are, with this specific role of the Supreme Court and especially this Supreme Court, is a challenge. But I think we have to find a way to do it.

Maria Echaveste: So, how we got here. And I think you’ve been in Washington, we were there at the beginning of the 24/7 news cycle.

Michael Waldman: There was one cable channel.

Maria Echaveste: There was one cable channel. So, one criticism that is often leveled to the Democratic Party including members of Congress, is that they so believe in government and aren’t willing to go to the mat, and just throw a monkey wrench into the works. Whether it’s, we got it, I remember we are confirming what people were going to send up to serve on the bench. We try to find the moderates. We’re not willing to go. I say we because …

So, my question is in this, how we got to this six to three, norms were broken in ways that left most people sort of dumbfounded. It was like, “No, you’re not going to give Merrick Garland a hearing and you are going to confirm, Amy Coney Barrett in less than 45 days?” How do you respond to that? I mean, what were we missing? We just got caught. People aren’t going to do that. And then they did.

Michael Waldman: And I think that as people look at this moment politically, but even thinking also about what could happen in 2025, Democrats and certainly the administration of which we were a part, were endlessly looking over their shoulder at what they thought the market political market would bear, what the swing voters would tolerate. And part of what Mitch McConnell taught us is most people aren’t paying attention most of the time. And if you have something you want to do, do it. And don’t break the law. But there was no law. I mean, it was absolutely mind bogglingly unexpected and extraordinary that he did not give President Obama’s nomination the chance to even be heard.

Maria Echaveste: A full year.

Michael Waldman: But it also wasn’t illegal. There was nothing that required it. And part of the lesson, it’s an interesting thing. So, one of the reasons, as you correctly note, the judges that were appointed by democratic presidents before President Biden, including President Clinton, they were qualified. They were more diverse than the judges the Republicans appointed. But they were very cautious and they were very often prosecutors or corporate lawyers. And they were not the leading intellectual lights of progressive law and that sort of thing. And one of the reasons was because they needed 60 votes in the Senate to break through the filibuster.

And in recent years, they’ve ended the filibuster for judicial nominations, both for lower courts and the Supreme Court. And in a way that is smashing up the system. But it has also meant that a lot of the judges, on the one hand, you get ideologues, like the judges were all learning about scattered all throughout the country ruling on some of these cases. But we also now have this administration said, “We want voting rights lawyers. We want public defenders. We don’t want the same old people.” And so, in a sense, that was a willingness to break the norm, and it turned out it had some downsides, but it also has some upsides.

Maria Echaveste: Well, here we are about to have another election.

Michael Waldman: So I hear.

Maria Echaveste: Yeah, it’s going to be hard to escape it. And so, the question we are where we are, you did a terrific job of documenting the ways in which this court is an enact social policy. So, the question going forward, you served on the Presidential commission on the Supreme Court. Reluctant to make recommendations or expand the court was one of the ones that was floating.

Michael Waldman: It was floating. It floated away. But so part of what’s happening, and I think this is really good, is that again, we are in a period I think where there’s a backlash to the court and it’s helping to shape our politics. And you see it in the response to Dobbs, you see it in all the ballot initiatives and constitutional amendments being passed all over the country. It was emphatically a big issue in the 2022 midterms.

And I think also there needs to be a focus not just on the specific rulings, but on the court itself, and on its role and the corruption that has enveloped it. And so, the easiest of these things, I think should be a code of ethics. We all learned about the Supreme Court until quite recently was the only court in the country without a code of ethics. Now it is the court with the weakest code of ethics.

They issued something. They said, “This is just to clear up the misunderstanding that there’s a problem.” But you know that what we are seeing with Clarence Thomas in particular and Harlan Crow, the right wing billionaire, who turns out to have subsidized his lifestyle for decades now, they don’t all do that. And it’s really quite extraordinary. And it’s not just he took a trip here or a steak dinner there, Harlan Crow bought Clarence Thomas’s mother’s house with her living in it, and renovated it, and paid for his surrogate son’s education. If this was Albany, New York or Springfield, or Illinois, or Sacramento …

Maria Echaveste: It’d be corruption.

Michael Waldman: … and it was some state senator with the local business person, we would all say, oh, we know what that is. That’s just corruption. Garden variety. But that’s what we’re facing. So, that’s kind of the easiest thing is an ethics code.

Maria Echaveste: A code of ethics.

Michael Waldman: I think in the Brennan Center, which I lead thinks as well, there needs to be something a lot more. I think there ought to be an 18-year term limit for Supreme Court justices. The basic premise is that nobody should have too much public power for too long. And in a sense, George Washington taught us that when he stepped down after two terms as president.

And what’s really interesting is it’s actually … I learned this on this commission. So, the commission was appointed by President Biden in 2021. And you know these government commissions, they’re sometimes set up to deflect action. And we were actually instructed at the outset not to reach conclusions publicly. And we didn’t. It was a government agency that worked as intended.

But what was so interesting is we heard from dozens of public witnesses from left and right, not just Democrats, conservatives, Republicans, independents, and they on so many things. Some were for court expansion, some were against, some were for changing the jurisdiction of the court, some were against … over and over again they said, oh, but I’m for term limits of course. There’s actually, it’s usually popular across party lines, poll after poll.

And we’ve at the Brennan Center, we’ve just done a bunch of public opinion research. It’s actually, there’s a strong majority for it in the country hiding in plain sight. Now that doesn’t mean it’ll be some big group hug if it starts to move. We think you can do it not just by constitutional amendment, but by statute. You could make the justices become senior justices after 18 years. And would really make a difference in bringing the court in line with the country they serve. They’re staying on the court a lot longer than they ever did before.

Maria Echaveste: Yes, they’re being appointed at very, very young age. Well, that brings one side question because you made this point. And I certainly remember when Obama nominated Sonia Sotomayor. Very excited, but I actually like, could you appoint a former AG, a governor? I was thinking Ken Salazar, for example, who became senator. Someone who has political experiences. So, that notion that the only people who can be on the Supreme Court are people who go to the three law schools and our academics or former justice.

Michael Waldman: Right. And right now, eight of the nine are former appellate federal court judges. And as you know, that is really unusual. It’s this idea that it’s this technical thing that you need, this technical expertise. And through most of the country’s history, people who sat on the Supreme Court were former governors, secretaries of state, senators, a former President of the United States. And as you may remember, Bill Clinton, who went to fancy law school.

Maria Echaveste: Yale.

Michael Waldman: Yale. As he may have mentioned, he was really ardently hoping to try to appoint a non-judge to appoint. And he kept trying and it kept not working. He offered this Supreme Court seat twice to New York, Gov. Mario Cuomo, who he felt would’ve been eloquent and a match for Scalia. And Cuomo, as you know, had a reputation as sort of the hamlet of the Hudson. They called him, he dithered around and he finally said no twice.

He tried to appoint George Mitchell who had been a federal judge who would’ve been great. He had been a federal judge and then was the democratic leader of the Senate. And he tried to appoint Bruce Babbitt who … and that’s just the worst story of all. He was going to appoint Bruce Babbitt who was the interior secretary and had been the governor of Arizona. But the environmental groups were fighting with the western senators over who would be the replacement interior secretary. So, they didn’t appoint him. So, I think they’re missing a lot by not having people who’ve had to make arguments to the public, who’ve had to make compromise, who’ve had to lead institutions.

The last elected official to be on the court was Sandra Day O’Connor. And actually, she was the republican leader of the state senate of Arizona. And you can see it in her jurisprudence. She crafted on affirmative action and on abortion rights, these two rulings that at the time felt like principle free compromises. But actually were about finding the spot in the country where she could preserve those things with public support. And it actually I think had something to do with her strengths as a justice.

Maria Echaveste: So, we know the court is going to be hearing some pretty important cases. One of our audience questions, the Federal Circuit Court issued an opinion rejecting Trump’s presidential immunity claim. A, do you think SCOTUS, the Supreme Court, is going to grant cert? And if so, where are your money?

Michael Waldman: So, it’s interesting because they as far to the right as they have veered in my view, and as much of a political move as they’re making, they stayed out of Trump’s troubles in the past. They did not bail him out on these kinds of things relating to his wrongdoing. They batted away the cases in 2020 that he brought to try to overturn the election. They upheld him having to comply with subpoenas and that sort of thing. They felt like in a way they had a bigger project than bailing him out. They have no choice with some of these cases right now, but to engage. So, this is one of the two big cases that of course are happening right at the same time and right as we meet. This relates to the prosecution, the federal prosecution by the special counsel Jack Smith of his effort to oversaw the constitution and the peaceful transfer of power.

The trial had been due to start March 4 and Trump said, “Oh, I’m immune from prosecution.” And he appealed basing this on the idea that a former president could not be prosecuted for acts he engaged in while in office. And it is an absurd argument. It is a legally easy case. It has been understood for most of the past century that while it was generally thought you couldn’t prosecute a sitting president, of course you could prosecute a former president. Gerald Ford when he pardoned Richard Nixon, the pardon said, “He’s about to be indicted and go on trial and that’s going to be really disruptive and bad. So, therefore, I’m pardoning him.” And Nixon said, “Thank you. I’m about to be indicted and go on trial. So, thank you for the pardon.” It’s always been understood that former presidents could be indicted.

But because no former president ever had been indicted, the Supreme Court never ruled on it. So, it’s an easy case, but it’s still a question of first impression. The DC Circuit, as you say, issued a very, very strong opinion saying that whatever the limits are on whether former presidents can be indicted, he can be for this. This was the ruling. The argument in the court was one of the judges asked, could the President order SEAL Team Six to assassinate a political arrival and be immune from prosecution for that? And Trump’s lawyer said, unless he had been impeached and removed by the Senate, the Senate presumably hiding under their desks because SEAL Team Six is coming after them, that yes, he cannot be prosecuted for that. And then this is one of the reasons it was particularly noteworthy that his reaction to the murder of Navalny in Russia was to say, this is just like him, literally a president murdering his political rival.

So, Trump lost. The Court of Appeals took its time. They could have ruled on this in about a day, but they waited a month or two and wrote a 58-page ruling. Now it’s been appealed to the Supreme Court. We’re waiting day by day and minute by minute, will they take the case? I have no doubt that if they take the case, they will rule that he’s not immune. But when are they going to do it? The key thing is the trial is frozen. There’s a stay of the trial that the lower court judge issued. And if the Supreme Court says, “We’re going to act really fast, but we’re going to keep the stay in place,” then they’ve given Trump a massive gift because it pushes the trial later and later in the year, and makes it harder to do it.

And so, to me, they could reject. They could just say, “We’re not going to take the case. The lower court did a good job. We’re not granting CERT as it’s called.” They could say, “We’re going to hear this case, but meanwhile we’re lifting the stay. You have your little trial. We’re going to think these things through.” The worst thing to me would be if they said, “This is such an important matter, we’re so wise and important, we need to really chew on it for a while.” And that would be, even if they did a great ruling, it would be an absolute gift to Trump and his wrongdoing.

Maria Echaveste: Well, and this question of stay, I mean you described sort of before Dobbs, how the shadow docket worked. Which I think supports the possibility that in … you want to explain that?

Michael Waldman: So, the shadow docket is this really evocative name for something that has a longstanding history, which is the court making important decisions sometimes without hearing a full argument of a case. And they decide what cases to take. Or if you think about them stopping an execution or something like that or other things, it’s called the motions practice. But increasingly it’s been used on really big matters when they don’t want people to notice what they’re doing.

And so, it’s called the shadow docket. They use the shadow docket for ill. They allowed Texas, for example, to ban abortion a year ahead of their ruling on Dobbs and never made a ruling on it. They just used the shadow docket and said, “Oh, you could go ahead and do that. We’ll figure this out later.” So, that is the question is it weird to make such a big ruling like the president’s can prosecuted in a one paragraph order? Does that require eloquence and pompousness.

Maria Echaveste: And accountability.

Michael Waldman: And accountability. Yeah, you want them to actually …

Maria Echaveste: Articulate the basis.

Michael Waldman: … articulate. So, this is where they could, if they could again, lift the stay, but say, “We’re going to hear this in normal order.” And of course it comes at the same time as the other big case, which is the 14th amendment case about what Colorado Supreme Court did. And there’s a lot of conjecture that they’re trying to craft a compromise that will encompass both cases.

Maria Echaveste: And your prediction?

Michael Waldman: I think that’s …

Maria Echaveste: I know we shouldn’t be in that business.

Michael Waldman: The baseball great, Yogi Berra, said, it’s hard to make predictions especially about the future. So, we’ll do our best. As you know, that’s the other big case. This was the 14th amendment of the Constitution, which was enacted in the wake of the Civil War as part of reconstruction, has a provision that basically nobody had noticed for a long time, that said that if you have sworn an oath and engaged in insurrection, you are not eligible to serve. And it lists a bunch of offices. And it does not actually say the president. But a lot of people would assume it would be weird to not include the president. And I think a lot of hopes have been poured into this case.

I should start by saying I believe he’s guilty. I believe he was an insurrection and he engaged in the insurrection, and it was one of the worst things, perhaps the worst thing any president has ever done. The question is who makes the decision about that? And it was pretty clear from the argument. So, the Colorado Supreme Court barred him from the ballot based on this. Other courts in other places have said otherwise. It’s pretty from the argument at the Supreme Court that there are probably eight and maybe nine votes to overturn what the Colorado Supreme Court did.

And Justice Kagan said, look, whether this is a good idea or not, you really can’t have one state making this decision for the whole country. This is the kind of thing Congress should pass a law about or something like that. If that is true that that is what they’re going to do, then a lot of people think that John Roberts, who is certainly well aware that the credibility of the court has collapsed to the lowest level ever recorded in poll after poll. That if it is true that they’re going to rule nearly unanimously that way and that Trump can be prosecuted, we’d be in their interest to do it at the same time. And then everyone would say, “Oh, we love them again. They’re so wise.” But they have to juggle the timing of these things. One can assume they’re thinking about this.

Maria Echaveste: You alluded to a recommendation from the Brennan Center. And I know we’ve got a few minutes left. And in our earlier conversations, we can’t get despondent. We have to think about the future. And you referenced maybe 18-year term. What else can be done? And the reason I am asking in particular in a college setting, is climate change is on people’s minds. And the Gen Z, but older people like us are also deeply concerned about climate change. And that EPA case and another couple of cases that are pending. So, how do you organize around like Teddy Roosevelt did, given the issues, the dismantling in essence of the administrative state and what that means for efforts in this country on climate change?

Michael Waldman: It’s a great question because you’re exactly right. So, this case that I mentioned from 2022, that was just the first one of these cases. And what they said in that case was that even if the Congress had passed a law, in that case, the Clean Air Act, that gave the EPA the right to do this rule on climate change, it was just too big an issue. And so, they couldn’t do it. And they for the first time, unveiled something they called the Major questions doctrine. And they were very vague about what counts as a major question. And it seems like whatever one of these conservative justices doesn’t like is a major question. But that was just the beginning.

What you’re going to see this term is three or four cases that in different ways, chip away at and try to use constitutional or legal theories to stop from acting in ways that we have grown accustomed to government being able to act. And this goes back many years also. When FDR tried to expand the court, the court packing fight, it was catastrophic for him politically. But the Supreme Court did back down and say that we’re not going to use these theories to stop regulation anymore. We’re going to let the government do its thing. And that’s how the country grew. That’s how we developed a modern country.

And this was part of the progress of the country. But there was a handful of people who thought this was a great tragedy. They call it the Constitution in exile. And they want to go back to before 1937 and have the court block regulatory agencies, environmental protection. And it sounds like a kind of a fringy kooky idea, but there was a New York Times article in 2003 that talked about it that said, well, there’s one young judge named John Roberts. He seems to really like this. Few years before he was appointed to the court. This is a long-term drive for him for some of the others. And the challenge is, it’s technical, it’s arcane, it’s not as vivid and dramatic as guns or abortion rights.

But of course, if you care about climate change, then making an issue out of the capture of this institution of the Supreme Court by fossil fuel interests, by people who want to stop climate change regulation. But it’s a political fight. We have to be able to explain it, not in legal terms alone, but in political terms as they did back then. Teddy Roosevelt didn’t just rail against the Supreme Court. He talked about the Lochner case, which was this case that was one of their regulatory cases. So, I think it’s a challenge. But I think that if people care about climate change, the greatest threat right now is not just the Congress, or this lobby, or that lobby, but the Supreme Court and those who follow it.

I do think that there’s a moment for optimism. The thing that gives me optimism right now and hope is that these issues are so hot and heavy. The issue of democracy, and the shape of democracy, and the health of Democracy, poll after poll now shows it’s a top top voting issue for people. And not just hard left voters, but independents and Republicans, some Republicans as well.

So, the thing that people can do is vote about it, ask politicians, what are you going to do as conservatives did for decades, say to Democrats, what are you going to do about the Supreme Court? What kind of judges do you want? What are you going to do to stand up on this stuff? There are specific reforms as we discussed, like term limits. There is a movement that we at the Brandon Center have been very excited to try to help spur and foster. State courts are potentially, an independent bulwark for protection of rights, and democracy, and freedom. 49 of the 50 states have a stronger protection for voting rights in their state constitution than the US Constitution does. They just haven’t really enforced it. And this is true on a whole bunch of different things including environmental protection.

And so, we need to say to people, take these state courts seriously. And we had a conference the other day at the Brennan Center at NYU Law School to our sort of astonishment. 300 people showed up and stayed for two days. Justice Goodwin Lieu of California spoke and was a national leader on this. And you could just see the excitement of Republican and Democrat 15 justices from courts saying, “This is our moment to really stand up here.” And so, there’s things like that. It’s not going to be immediate. There needs to be patience, as well as passion. Again, the people who fought for this version of the Second Amendment taught us that.

And I think again and again, we have to go back to these core issues of democracy, of voting rights, of the structure of our government and make sure that when politicians get elected, President Biden, for example, says democracy is the issue. But what matters is not just that, but when people have power, are they going to actually enact things that uphold democracy, and expand democracy, and make the country’s promise real? And so, there’s a democracy movement. We’ve all been terrified by, at least I have been, by the rise of the election denier movement. But now there’s a democracy movement that is deep, and wide, and diverse. And that could be the story of the coming few years.

Maria Echaveste: We’ve been around politics campaigns, and in the Latino underperforms in terms of voter registration and voter turnout. And one of the issues is like if you just try to talk to Bill, you should vote just. you should vote. For a lot of people who are busy with their lives, that’s just not a good enough reason. And it builds on a couple of questions. Does this moment, this Supreme Court, what it’s done, what’s about to do, will it result in a fierce pushback from the left, from the center even? And the other part of the question was how do we move the Supreme Court to the center even? How do you make those legal issues, the Supreme Court, often this ivory tower actually something that motivates people because it affects their lives?

Michael Waldman: Yeah. Look, I think this is one of the great challenges. And as you know in politics, so often the consultants tell the candidates, “Oh, nobody cares about this stuff. It’s too arcane. People want kitchen table issues. They want stuff. They want things that tangibly affect their lives. And this doesn’t.”

One thing I think that’s true, and we’ve seen this in the last few years relating to Dobbs, people get particularly incensed when something is taken away from them, when they have an expectation as people did on reproductive rights, and it’s taken away. And when something can be done about it. So, when you look at the electoral response to Dobbs, it was quite significant. As you know, the President’s party usually does badly in the midterms. And a lot of the issues were really cutting against Biden. But because of Dobbs and fear over democracy, the Democrats had the best midterm election in decades for a president’s party in power.

But it wasn’t universal across the country. In states like Pennsylvania, Michigan, places where they thought, “Oh, how I vote is going to determine whether we have abortion rights in my state or not,” Wisconsin, it was determinative. In places like New York or California where people didn’t really think it was going to be at risk, or Texas where they didn’t really have hope then it wasn’t such a voting issue. So, I think it’s the sense that something is being taken away and that you can do something about it.

I think in terms of voting issues, it’s often been the case that African American voters who fought so hard through the Civil Rights Movement, and know that in places like Georgia and North Carolina, it’s their rights that are being targeted more than anybody else, that’s been a mobilizing issue. But again, because it’s something that they have that’s taken away or potentially being taken away, one might hope that aspiration for something good and new would motivate people enough. But people get really mad when something that they believe they fought for or that it’s theirs or they’re right, or the right as an American is taken away. So, that I think can be a motivator.

Maria Echaveste: OK. One last, you spend some time talking about voting rights. And I think it’s one of those issues where folks, they thought it was all settled. And what you described reflects like on so many issues, patience, slow playing the long game. So, both on voting rights. OK. You described maybe state constitutions. State courts can step in. But do you believe the center left has the discipline to organize itself for the long haul? And how is the Brennan Center helping Pat?

Michael Waldman: Yeah, no, it’s a great question. And look, it’s partly, it’s not just in discipline. It’s that we see a fight, we see an injustice, we want to rush in and do something about it. And sometimes you have to play that longer game. I think that one of the things that, again, we at the Brennan Center are encouraging, are pushing, are demanding, is that people in power focus on these structural institutional reforms to enhance democracy. So, the system works better when they have a chance to do something. So, as you know, there’s been considerable progress on this in the last Congress, not this current one, HR1 and S1 was a broad democracy reform and voting rights bill that would set national standards on voting, ban gerrymandering, deal with dark money in politics, and restore the Voting Rights Act. And Speaker Pelosi was the champion of this in Congress when she was in that leadership position.

And it came achingly close to passing. It passed the house. Biden wanted to sign it. It had a majority in the Senate. But as you know, two senators, Manchin and Sinema, didn’t want to change the filibuster rules. Now every Democrat running for the Senate says, I will change the filibuster rules for voting rights. They need to not just, in my view, give lip service to this. But when they have a chance, change the rules to make it so that the rules are more fair and empower more people. In the same way that a lot of the problems we’ve had have been the opposite. You’re so right that when we were in the White House, voting rights was kind of for the history books, it was really a settled matter.

In the first week or a couple of weeks, President Clinton signed the motor voter bill, but after that, it was basically compared to many other things, a settled matter, it seemed. It turns out that’s not the case. We now know. But I think that insisting that people in power don’t just lunge for the immediate deliverables, but to understand the significance of this stuff for the long term. I think that what we at the Brennan Center do, the role we try to play is we are partly a think tank, and partly a legal advocacy group, and partly a communications hub.

We believe very strongly that if you want to win in a court of law, if you want to win policy, change the court, you have to win is the court of public opinion. And this is something Lincoln said. He said, talking about slavery in the first Lincoln-Douglas debate, he said, “With public sentiment, anything is possible without public sentiment. Nothing is possible. Therefore, those who mold public sentiment have more power than judges or legislators because they make it possible for them to do what they do.”

That’s the kind of attitude I think we need to have about how to change the country. So, we are trying to do our part. One thing I would encourage you all to do is we have newsletters that share our work every week. We now have 350,000 subscribers. They’re very nutritious. There’s no spam, there are lots of footnotes. But you can learn about what’s going on in the fight for democracy. And you all have platforms. Everybody in this room and anybody watching in any other venue, we all have platforms that are much more vibrant than anybody ever had before. Spread the word on all the ways you communicate and we can all make this work out. I hope.

Maria Echaveste: I know I have to ask this question because I think … and then we’ll close because you’ve got books to sign and sell.

Is your perspective on what do we do about the lack of young people involved in our democracy? We all know the information, sort of the data. It’s like you’re more likely to vote if you own a house. You’re more likely to vote if you are highly educated and you’re older. And so, what is Brennan Center doing about reaching those young people?

Michael Waldman: I mean, we do our part in a whole bunch of different ways. Give you an example. We have a website, Brennan Center in Espanol, that is a full Spanish language website on all these issues and combating disinformation, which is very frequently targeted at non-English speaking communities and Spanish language communities. We see a tremendous interest in these issues in young people. They sometimes see the structural issues better than anyone else. They’re just skeptical that anything can happen. And I do go back to the climate change issue. If people care about that as they should. If it is seen as the existential threat as I think it is, we are where we’re at because of the distortion of American democracy.

The Citizens United case, which was in 2010, which effectively deregulated money in politics, what impact did it have? The thing I always point to is before 2010, the Republicans had a climate change bill. It was deregulation and other things, but they had a climate change bill. After 2010, they became the only major political party in the world to deny the existence of climate change. And that is because with this new regime that was ushered in by the Supreme Court, in that case, what they worry about is having dark money from the fossil fuel industry dumped into their primaries and defeating them. And the impact on the world is extraordinary. And so, I would say to young people, you know what the problem is, and you can do something about it. And vote yes, but organize and see the connections in ways that the older people are too burned out sometimes to see.

Maria Echaveste: We’re a little tired. I want to say thank you on behalf of Berkeley and the Goldman School and great conversation.

(Applause)

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