A NEW Look at the Supreme Court

September 25, 2020
The NEW Look
The passing of Justice Ruth Bader Ginsburg has brought the issue of the Supreme Court to the forefront of American politics. And if the past few days are any indicator, it has also set up an intensely partisan confirmation battle in the U.S. Senate. Drama surrounding presidential nominations to the Court is nothing new -- it dates back to George Washington. But the increasingly bitter politics surrounding the Supreme Court -- from disparaging nominees to pursuing policies like court packing to delegitimize the Court -- is part of a larger, divisive trend. This leaves one wondering: how did a non-partisan institution like the Supreme Court come to find itself at the center of political gravity, and can anything be done to reverse course?
To explore these questions and more, Rep. Gallagher is joined by Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and author of Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court. Ilya is one of the nation’s leading Supreme Court scholars, and joins the podcast to share his thoughts on the evolution and politicization of Court confirmations, judicial philosophies, and future nominees we should keep an eye on. Read highlights of the conversation below, or watch the full interview HERE

On Drama Surrounding Nominations to the Court

Ilya Shapiro"There have been escalations going back decades. It doesn't really matter who started what or who is more to blame. But this battle for the courts happens because what the courts do matter. And so we have the culmination of this trend where we have divergent interpretive theories mapping onto partisan preferences at a time when the parties are more ideologically sorted than they've been, at least since the Civil War. And given that there's only a finite number of seats, you're going to have battles over this thing. And so Senators are responding to the incentives that they face and nominees are responding to the incentives that they face. But ultimately, and this goes back historically, the single biggest indicator of whether somebody is going to be confirmed, or how easily, is whether that party that controls the White House also controls the Senate. Historically, about 90% of unified government picks are confirmed, and about 60% of divided government picks."

On Placing Term Limits on Justices

Ilya Shapiro: "There's a lot of momentum for for term limits...18 years, so there's a vacancy every two years during an off year and not during the year where there's a House or a Presidential election. You know, if people would like the Court more or feel more confident in the court if that were to happen, then sure. Let's, let's talk about that. But to be clear, that wouldn't really change the ideological mix of the Court over time. In the last 50 years, there have been 30 years of Republican presidents, 20 years of Democratic presidents. So if anything, liberal voices have been overrepresented on the Court. And if you do kind of like the game theory about who would be on the Court now under term limits, it would be 3 George W. Bush appointees, 4 Obama appointees, and 2 Trump appointees. Anyway, the balance would be roughly the same...Steve Calabresi, one of the cofounders of the Federalist Society, has a voluminous, exhaustive article about this in the Harvard Journal of Law and Public Policy that convinced me. But again, it would take a constitutional amendment, and it wouldn't change how the Court actually rules."

On Calls to Pack the Court

Ilya Shapiro: "Packing the Court is probably one of the only things I agree with Bernie Sanders on. He was interviewed and he said, you know, you start packing the court, and in 50 years, there are going to be 87 justices. This is insane. And that's right. And historically, the party that has packed the court or added justices, they might gain some very short term benefits, but long term, they lose. It's not a winning play long term."

ICYMI: Last year, Rep. Gallagher introduced a constitutional amendment to prevent any party from packing the Court. Click HERE for more information.


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