We Need To Talk About Court Expansion

Strict Scrutiny

In this episode of 'Strict Scrutiny,' host Kate Shaw and New York Times columnist Jamelle Bouie discuss the controversial topic of Supreme C

Key takeaways

• Public approval of the Supreme Court is at historic lows, driven by widespread perception of the Court as overly disruptive rather than merely overturning precedents.
• The Court's recent actions have destabilized key areas like voting rights, environmental regulation, and student loan relief, contributing to public distrust.

Main topics

• Supreme Court expansion (court packing)
• Public perception and approval of the Supreme Court

Notable quotes

"I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

"The court is this remote, distant institution that every six months they learn has suddenly overturned some right they thought they had."

Conclusion

The episode concludes with a call to action: reforming the Supreme Court requires sustained

Transcript preview

Speaker 1 (0:00) Strict scrutiny is brought to you by Americans United for separation of church and state. It's back to school season. And this year, 5 million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Yes, you heard that right. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for separation of church and state, are taking the fight to the Supreme Court. And they need you to amplify their voices before the Supreme Court gets its hands on this case. And we all know what the Fifth Circuit did. Obviously, they let Texas get away with all of this. They're going to go up, but... Speaker 1 (0:43) We're going to fight to get him taken down. That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian. And their kids are in Texas public schools. The story they tell in this video is moving, and we hope everyone hears and shares it. Look, there is a human cost of Christian nationalist policies, like these Ten Commandments laws, and the decisions the Supreme Court hands down. Every child deserves access to public education where they aren't subject to state-imposed religion or religious instruction or coercion. Public education is supposed to be open and available to everyone. It's supposed to foster pluralism, not one specific religion. Visit au.org. Speaker 1 (1:25) 10C to learn more about this case and how you can help join the fight to protect church-state separation. We talked a little bit about this case on our regular episode last week, but there's so much more to be said and to learn about the people who are fighting back. Speaker 1 (1:54) She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Speaker 1 (2:24) Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Kate Shaw, your lone host for this episode of our special bonus series, which we're calling Hot Supreme Court Reform September. And for this installment of our series, I am delighted to be joined by a friend of the show, Jamel Bowie, columnist for The New York Times, and probably the person whose columns appear more frequently than anything else in our recurring favorite things segment at the end of every show. It's like we really shout out your columns so much, Jamel. It's ridiculous. Oh, that's so nice. We really do. Thank you. And welcome to Strict Scrutiny. It's a pleasure to be here. Speaker 1 (3:00) As I just mentioned, we are doing a series about Supreme Court reform. And our goal in doing that is to try to shift a little bit from general criticism of the court and its decisions. And listeners to this podcast know that that is not in short supply on this platform. But to try to move a little bit or to include some conversations with leading thinkers about specific potential reforms to the Supreme Court. And today I want to just ask you about... Speaker 1 (3:26) one of the biggest and most controversial potential reforms to the court, and that is court expansion. Maybe we can call it court packing. We'll talk about terminology. But before we get to that, I want to just stay on the court more generally for a minute. And I do think that people, and maybe a growing number of people, understand that something is deeply wrong with this Supreme Court. There was a Gallup poll in late July that had Supreme Court approval at... Speaker 1 (3:53) 33%. Other polls have it in the mid or sometimes high 30s, but all at or near historic lows. And while I do think SCOTUS polling is quite imperfect, the change over time is still quite striking. So Jamel, I'm curious if you have any theories or thoughts on why the court is polling so badly right now. I think the two immediate things, right, are first that people who identify as Democrats, people who identify as liberals have gotten very down on the court for reasons I think all listeners know. Speaker 1 (4:20) One interesting wrinkle here is that there are many Republican-leading voters who don't think the court has been favorable enough to Donald Trump. And so that kind of structures their view. It's also the case that on the right, the political right, there's just kind of almost a tradition of court hating that stretches back half a century. It's part of the language of the political right in a way that it isn't quite yet of the political left. And I think that also shapes how Republican-leading voters and conservatives think about the court. Speaker 1 (4:47) Obviously, I think that the conservative complaint here is absurd. The complaint there is the court isn't partisan enough. And I think that the complaint from Democrats, liberals, independents is much more sound, which is that the court is extremely disruptive in a way that is overturning people's sense of what constitutes sort of like the status quo of American politics in a way that they haven't voted for, the way they haven't given their assent to. Speaker 1 (5:16) voters, it's funny, voters don't necessarily have a firm sense of the potential consequences of who they put into office. And so when voters elected Donald Trump in 2016, or at least when 48.1% of voters voted for Donald Trump in 2016, there wasn't an expectation that the consequences of that choice would be the end of Roe v. Wade, right? But it was. That was the direct consequence of that choice. And I think that for a lot of voters, they are perturbed. by the idea that this institution, which is remote and opaque, most people cannot name more than a handful of members of the court. Most people do not know how the court works. I spent a lot of time talking about the court in various forums, and the level of just baseline knowledge about its basic operations is not that great. The court is this remote, distant institution that Speaker 1 (6:13) every six months they learn has suddenly overturned some right they thought they had. And I think that is driving a lot of the discontent among Americans broadly. They just don't like that idea. It strikes them, even if they could articulate it in these terms, it strikes them as inimical to how they think the American system is supposed to work. Yeah, and I think the disruptiveness is a good way to characterize it. I mean, just back up for a second. Like, I think you're right. You make a good point about the polling, which is that they're strikingly low numbers, but obviously you disaggregate them. And it is a combination of, I think, really sound criticism of the court and then some. Speaker 1 (6:55) pretty baseless, like they're not Trumpy enough. But regardless, this is an institution that is not commanding a lot of support and confidence in the public writ large. I think that's a really nice point. But the disruptiveness, I think, is also critical because I think it's such a mistake to focus on how many Supreme Court opinions this Supreme Court has overruled. That is a metric, but it is a wildly under-inclusive one if we're asking about just the disruptiveness of the basic operations of government. I mean, the court thankfully did Speaker 1 (7:24) not, but came very close to upending the way that a lot of states do mail-in voting in the upcoming midterm elections. Like it didn't do that, but if it had done that, that would have been wildly disruptive to dozens of states that let people cast votes by mail and then have those votes counted, even if they arrive a couple of days after the election. And that's not about like overruling a prior precedent. That's just about a court being willing to. to invite chaos and into elections, I think in particular, but obviously it goes way beyond elections, destabilizing the way that federal agencies have been able to regulate, you know, pollution of the air and the water, undermining the ability of the education department and the president to give debt relief to student borrowers. I mean, obviously the list is long, but I do think that it's kind of united by this disinterest in. Speaker 1 (8:14) allowing other institutional players to make important choices and the settled state of affairs in terms of how we do governance to sort of rest if the Supreme Court, and it's often very idiosyncratic conception of like the separation of powers, doesn't like the way things have been going. And I do think there's one other thing in this connect to the kind of disrupting elections and democracy piece, which is that obviously there is wild dissatisfaction for lots of different reasons in. Speaker 1 (8:41) kind of how government is working for people. And I think some of it quite justified and some of it less justified. But I do wonder whether in different ways people are beginning to understand that the court actually is an important player and bears a heavy dose of responsibility in their dissatisfaction with the way government is operating. And I don't know if anecdotally in your conversations about the court, you're seeing that kind of shift in people's minds. Speaker 1 (9:06) as remote and distant as the Supreme Court is compared to other branches of government, it feels like, to a degree, the presence of the court in a lot of court choices that people are allowed to make in ways they live their lives is becoming a little bit more evident to people. Does that seem right? No, that seems right. And, you know, one of the things I have learned in being a journalist and just like talking to people, both in my capacity as a journalist and then, you know, in the past when I would... Speaker 1 (9:33) volunteer for campaigns and stuff and just talk to people. Ordinary people don't necessarily have a precise language for describing things. And they will latch on to basically like signifiers that kind of are getting at what they want to express, even if they can't say it. And so I would say that the signifier for like, I am upset with the court is Citizens United. It is a stand in for someone, there's this unaccountable power that is allowing bad things to happen. Speaker 1 (10:01) You know, legal nerds might say, yeah, you know, Citizens United don't really agree with it. But like, it's hard to see how they could come to a different outcome. Like legal nerds will have their discussion about the case as a case. But for like the typical person, what Citizens United means is the Supreme Court let billionaires buy our elections. And when you hear people talk about their discontent with the Supreme Court, first words on their lips are Citizens United. And I think that kind of captures it. Sort of these people who are. unaccountable, practically speaking, and also don't feel themselves to be particularly accountable to the democratic process or to ordinary people who feel themselves and who often express this outright, that they are basically Speaker 1 (10:44) floating above the entire political system as like a guardian council to whom they have no responsibility. I think a lot of voters, a lot of Americans perceive them to be like this. And Citizens United, the sense that there is all this unaccountable money in politics, that's the thing that I think. captures the discontent more than anything else, more than honestly even Dobbs. It's Citizens United is on the tip of people's tongues. That's really interesting. And that's, you know, 16 years. It is really interesting to