Is the Supreme Court Ready for the 21st Century?

SARAH BALDWIN: From the Watson Institute at Brown University this is Trending Globally. I'm Sarah Baldwin.

In Nineteen-Seventy-Three, the Supreme Court made abortion a constitutional right in its decision Roe v. Wade. This June in a 6 to 3 decision in Dobbs v. Jackson Women's Health Organization, the Supreme Court undid that right.

The decision set off shockwaves across the country, and brought up questions not only about reproductive rights, but about the relationship between the Supreme Court and US politics at large. And Dobbs v. Jackson was only one of several wide-ranging, polarizing decisions of this Supreme Court term.

On this episode Wendy Schiller, professor of political science, and the director of the Taubman Center for American Politics and Policy here at Watson, explains these decisions and grounds them in American politics and history. At a moment when the reach of the court seems to extend further than ever, and its opinions fall on an increasingly divided nation, there's never been a more important time to assess how our judicial system works, and how it doesn't.

WENDY SCHILLER: Thomas Jefferson, after he was president, wrote lots of letters. And in those letters he complained vociferously about the scope and power of the Supreme Court. And he said, how can we call ourselves a democracy when nine people can decide what our life is like? That's not the system that we intended to build. And that's the fundamental, I think, defining question of this democracy in the 21st century.

Does it still work? And is this the moment that we figure out that it doesn't?

SARAH BALDWIN: Before getting into history and politics, I asked Wendy to help spell out in plain English what some of these decisions mean for American life. We started with New York State Rifle and Pistol Association Inc. v. Bruen, which was decided just weeks before the tragic mass shooting in Highland Park, Illinois on July 4. Here's Wendy.

WENDY SCHILLER: So the Supreme Court decision in Bruen basically took the power of government, whether it's a local sheriff's office or state law, to restrict whether people who had a license to own a gun, could carry it concealed when they left their house. But in some states in the country, an increasing number, that if you get a license to have a gun, you clear a background check, you have a gun. You can take that gun anywhere. Some states sort of argue about whether you can take it loaded or not. And you have to keep the ammunition separately.

But other states like New York had basically a process where you had to ask and get a permit, and that it was up to the local law enforcement office to decide whether your reason was compelling. Do you need it for work? Do you need it because you live in an unsafe neighborhood? Do you carry a lot of cash, whatever that reason was.

And the Supreme Court said that that's too great a restriction on individual freedom, that if you're granted a license to own a gun, that there is nothing in the Constitution that gives the government the right to tell you that you can't take it out of your house.

But so here this, the Bruen decision, it's unclear how big a deal this is, given that so many states now don't require any kind of permit for concealed carry at all.

SARAH BALDWIN: Well, the message is pretty strong.

WENDY SCHILLER: It's a reinforcement of this perceived right to own a gun under all circumstances, and bring it into public life. That is a view that the conservative wing of the Supreme Court and many, many, many Americans living all over the country have.

You can argue that the founders would have said that you never want to leave weapons only in the hand of the government, because then you have no way of revolting, which they did a long time ago. But that individuals most likely should not have a weapon of war, an automatic weapon, whether it's an automatic pistol or it's an automatic rifle, that that's extreme. Or that individuals should be able to own 50 guns.

SARAH BALDWIN: Well, in what was basically a coincidence, a few weeks ago, the federal government also passed the first piece of gun control legislation in decades. So how does that legislation compare with or interact with this Supreme Court ruling?

WENDY SCHILLER: Well, the federal gun law that passed is quite good, actually. We haven't had a real gun law reform in a very long time. In particular, giving states the funding to implement red flag laws, where the government can, upon somebody's request, either law enforcement or family member, take away somebody's gun temporarily if they are a danger to themselves or other people.

But to process that, just the man hours, just the sort of computer checking of people's backgrounds, that takes money. And so the federal government's now made I think close to $750 million available to states either to improve the implementation or to adopt red flag and implement it. And that alleviates the financial pressure and some of the bureaucratic pressures. So that leaves me hopeful.

The other really crucial part of that new gun law is it closes the boyfriend loophole, which is essentially extending the protection against a domestic violence abuser being able to have a gun if they're a dating partner, rather than being a spouse or an ex spouse or living in the same household. And that will-- research has already shown-- that will save lives.

So these are important things. The last thing that they do is require stronger background checks, particularly for people between the ages of 18 and 21, when they want to purchase a gun. We know in the Highland Park shooting that the individual who committed the crimes, he bought guns when he was below the age of 21. So if Illinois had a law that says you couldn't buy a gun until you're 21, who knows if that could have prevented this kind of mass violence.

So those are the kinds of solutions I think that the Supreme Court will allow. I think, given that we raise the drinking age many, many years ago to 21, basically to save lives, teenagers on the road from dying in drunk driving accidents or killing other people. It's the same rationale.

SARAH BALDWIN: So this legislation is certainly a win for gun control advocates compared to no gun legislation. But I think many people find it hard to believe we can't push for more expansive legislation, given the constant news of shootings and gun-related tragedies in this country. So before we get back to the Supreme Court, what do you think makes it so hard for Congress to act on this? Is it intense lobbying? Is it just our nation's history of gun use?

WENDY SCHILLER: A lot of people argue that the gun lobby, gun manufacturers, and certainly the National Rifle Association, has so much money that it throws around. But what's really happened is that the Republican Party itself has adopted the NRA's platform on guns. It used to be the NRA was an interest group with influence over Republicans. But there were many more Republicans from urban areas in the nineteen-nineties, many more balanced delegations.

But now that is sifted out. And really mostly Democrats represent urban areas. And Republicans represent the south and the southwest, which has a traditional gun culture. And now the Republican Party has fully adopted gun rights and the Second Amendment. It's almost as if they don't need the National Rifle Association. It's become part of their political platform, where you don't have to pay them anything to say that. Their voters, their base expect them to have that position.

SARAH BALDWIN: I'd love to pivot now to Dobbs. What does it tell you about the Supreme Court? How are they approaching significant cases and treating precedent, just to pull back a little bit?

WENDY SCHILLER: I think this court, meaning the newer judges, Kavanaugh, Gorsuch was the first one to be confirmed, Kavanaugh, and then Coney-Barrett, have basically shed precedent. They don't care about precedent. They're fully ideological. They want to reverse many of the trends that they've seen over the years in social policy, obviously environmental change as well, in terms of the discretion of the Environmental Protection Agency.

And so I think this court is not afraid of being ideological. This court with Thomas and Alito, sort of the old standby conservatives, saying that precedent is only as good as the people who support the idea.

And let's not forget that separate but equal was precedent. It was the law of the land. And that was the law of the land until Brown v. Board, which is a combination of decisions in Nineteen-Fifty-Four and Nineteen-Fifty-Five. So precedent can work both ways. It can be something that sustains a right. And then it can be something that's an obstacle.

SARAH BALDWIN: There's been a lot of discussion lately about just how political or ideological the Supreme Court is and if it's gotten more political with time. Or maybe it's always been. Or just depends on who you ask. How do you see this question?

WENDY SCHILLER: I think the idea of ideology in the late 18th century, 19th century, and even all the way through probably the mid-20th century, suggests that there was a consistent set of beliefs that would generate your policy stances across a wide range of policies. But because the government was so much smaller, government did not have the role in people's lives that it does today at all, even through the nineteen-sixties.

So the idea that ideology would determine everything that you think is a sort of a misapplication of the term of ideology. Right now we can have an answer to 20 different things the government has its hands in, and your ideology will determine what you think. But the government didn't have its hands in 20 different things in Nineteen-Twenty or Eighteen-Sixty. So I think it's a misapplication.

Two things I think dominate the 20th century of the Supreme Court. And that is slavery and civil rights, per se, and economic equality and the concentration of economic wealth. So we have a couple of decisions that the Supreme Court makes that are bad, that support monopolies and oligarchs, economic oligarchs. And then Congress passes the Antitrust Act, which is a major thing to do when they were all getting money from all these really wealthy corporations. But they did it anyway.

And after that, the court shifts a little bit because Congress took action. So part of the emphasis on the court, not only in fundamental rights, but also policy like climate change, is because Congress has ceded all this power to both the Supreme Court and the presidency. They always say power fills a vacuum.

And absolutely, when you don't legislate, then we leave it to the courts. That's a common refrain now. And the Republicans have been much better over the last 50 years of using the court system to either undo or block policy they view as either not specified by Congress or an overreach by the federal government. They've just been much better at it.

SARAH BALDWIN: So why have they been better at it? It's not that they've been doing this in secret. Why have moderates or progressives not also adopted the Supreme Court as a tool for their beliefs?

WENDY SCHILLER: Well, there's a couple of things. One is Republican conservatives understood that abortion would not only draw Catholics in particular, but evangelicals, to the Republican Party. And they want to keep that alive. So they were constantly suing to limit, suing to do things, because they didn't really have the majority position. And Republicans in those days, and maybe today, tend to have more concentrated wealth.

Those lawsuits are funded by conservatives who understand, not just about abortion, but that if they keep going on this, they can keep-- they can elect more Republicans. And so that started in the nineteen-eighties and has continued.

The last thing is Republicans who care about abortion vote. They vote in midterm elections more than Democrats do. And they just tend to turn out. They're reliable voters. The progressives, the Democrats, the liberals are less reliable voters, particularly in midterm elections. And midterms are really important because midterms frequently determine the control of the United States Senate, which then confirms or rejects presidential Supreme Court nominees.

SARAH BALDWIN: So how do you see this Supreme Court, either through their individual decisions or how the public is viewing them, playing into the midterm elections coming up?

WENDY SCHILLER: This is what we used to say the $64,000 question, when $64,000 was a lot of money. The Supreme Court decision, some people are expecting it to motivate people who may be between the ages of 18 and 35, particularly women, but young people in general, who have not typically voted in midterm elections. So I think Democrats are hoping they'll get out the door.

Suburban Republican women or independent women who abandoned the Republicans in Twenty-Eighteen and Twenty-Twenty, they seem to be going back to the Republicans. Democrats want to pull them. They want to say, wait a minute, this is what they're going to do. They're going to take-- they're going to pass a national ban on abortion. Biden will have to veto it. If they get an override majority, they can override it.

So they're trying to get that group really to come back to the Democratic fold. That's a big question mark because abortion is still legal in a lot of states. And that means women of means, typically suburban, typically better-off, better educated, typical voters, they can plan to take care of a termination of a pregnancy, there's medical complication, or whatever for whatever reason. Poor women aren't going to be able to do that.

But we know that voting tracks income levels. So as the income level goes down, the voting rates go down. So it's unclear that this will generate some mass wave of voting in the Democrats' favor, because there are a lot of issues that people are concerned about.

I think the combination of gun violence, even though the government did something on guns, you can argue that the Democrats can say, if you put us back in, if you let us keep the government, we'll do more than we've already done. And certainly you'll protect whatever right to abortion remains, either virtually by controlling the Senate so that you make sure Biden can replace people on the district court, appeals court, and Supreme Court, or by legislation.

Whether that works on a cohort that does not get out the door is everybody's guess.

SARAH BALDWIN: So for people who are disappointed with these recent Supreme Court decisions, are there steps that can be advocated for, taken, urged? How likely are we to add more justices, set term limits? Is any of that on the table?

WENDY SCHILLER: I think the macro challenge going forward is not just the Supreme Court. Clearly getting out the door to vote in key states like North Carolina, Ohio, Arizona, Pennsylvania, in those Senate races, which are theoretically, except for maybe Ohio, winnable by the Democrats to keep the Senate, Georgia in particular also.

If they keep the Senate, the Democrats can withstand some of this. And if there is a vacancy on the court, or if they want to expand the court, they can try to do that. They'd have to get rid of the filibuster to do that. It's unclear to me that's a good idea, because when the Republicans take over, which they inevitably will, because we always veer back and forth, they'll just put more conservative justices on the court.

We have an 18th century system of government-- getting back to your original question-- that is outdated for the scope of government itself, how government affects our lives. The founders did not set up a system that works that way. I mean, we have states that have very strong sub governments.

All the countries that you can talk about, Australia, New Zealand, Great Britain, France, any country that's enacted really strict gun laws, for example, or changing the right to abortion, as Ireland did, those countries, they have a different system. They have mostly a parliamentary democracy.

And a parliamentary democracy is if your party wins the majority of votes, your party gets control of the legislature and the executive branch all at once. And the executive branch simply passes all of its legislation through a friendly legislature. And if people like it, they keep the government. And if they don't, they vote the government out at some appointed time.

So you can have very quick policy change. And you can have majority party policy that applies not just the federal level, but all throughout the country, because you don't have these really strong sublevel state governments.

SARAH BALDWIN: And how does our judicial branch compare to ones in those countries?

WENDY SCHILLER: Ours is the strongest four mostly in our history, at least in the 20th century, that we have the strongest sense of individual rights and the strongest reliance on the judiciary to preserve those rights, vis-a-vis government. All the other countries in the world do not have as strong a judiciary as we do. And some countries, you can't even sue the government.

So we are the strongest in that way, in our reliance on the judicial system to guarantee rights. The problem is that we have the Constitution itself separates out those rights from federally guaranteed rights, to everything is otherwise left to the people or the states in the ninth and 10th amendments. And that's become a governing nightmare for even just basic equality and human security across the country.

And so you just don't find any court in the world, even the international tribunals, international courts, any court in the world that has the same kind of power that our courts do. And for a long time-- let's not forget that these courts [INAUDIBLE] same sex marriage, but also Brown v. Board and a number of other-- Loving, that struck down prohibitions of interracial marriage.

These are monumental civil liberties and civil rights decisions that the court made that forced a whole part of this country, a big section of this country, at least you could argue the traditional south of 13 states and everywhere else, to take down or start to break down structural racism and barriers to equality. That's powerful.

So if it swings in the other direction, you have to ask yourself, what is the trade you're willing to make? Are you willing to say let's forget about all the things that the court has done to promote equality? That's a very important question for the 21st century.

If you had a different court, would you be comfortable with all the decisions they were making with the power of the Supreme Court, if you're progressive or liberal? why would we be more comfortable with a dominant liberal court versus a dominant conservative court? The issue is, is the court itself too powerful?

SARAH BALDWIN: And how might the court itself respond to that kind of accusation? How do they frame these monumental decisions?

WENDY SCHILLER: The court itself, in their opinion and their justification, particularly Kavanaugh's opinion concurring in the Dobbs case, is that this is different because some people believe that there's a life at stake that is not protected, that pregnancy creates a life. And that whatever stage of that pregnancy is, there is a life. And that life is also entitled to 14th Amendment protection.

That's not the case with structural racism preventing people from going to school or getting a job or living or buying a house. That's not the same thing. And so remedying a violation of the 14th Amendment is not the same thing as you could argue Roe v. Wade, which is to say that a woman's right to privacy and her own body triumphs over the right to, quote unquote, life that's at some stage of the pregnancy.

So that's the argument that they made. And that's one of the reasons Kavanaugh says, we're not going after same-sex marriage. We're not going after contraception.

Although, I don't know if anybody believes that some people in the court-- Thomas wants to go after those things as if they are the same kind of activism as Roe, because you can argue same-sex marriage certainly-- and they did argue, Kennedy wrote the opinion-- that it's the 14th Amendment. That it's due process of law and equality for two equal beings. And that's the uniqueness of the Roe case.

But you can argue with guns that people ought to have the right to go to a movie theater or a grocery store or 4th of July parade and not be shot. But certainly people, particularly, most recently, people of color, particularly men of color, who get shot by police in traffic stops, they argue they have a right not to be shot in a traffic stop.

This idea, the right not to be shot, particularly if you're progressive and liberal, I think there are two really important streams in that conversation. We've seen both of them in the last couple of weeks.

SARAH BALDWIN: So looking ahead, are there any changes we can make to the court that you think would benefit our country, and maybe even benefit the court?

WENDY SCHILLER: I think term limits on the court are a good idea. And here's why. I think you should govern in terms of your generation. So you sit on the Supreme Court for 20 years. That's a generation, technically. And then, you are a product of your generation. Roberts was only in his 50s when he was appointed to the court. Now he's pushing 70.

So same thing with senators, by the way. That's what the Supreme Court justices say, you can't kick us out because senators-- but senators are up for re-election. I mean we have Chuck Grassley in Iowa is running. And I think he's 88 or 89 years old. He's running for re-election.

So I think that would be appropriate, because you get a sense of where the country is. You get a sense of new conceptions of life, for example, or rights, or technology and gun weaponry. And you are present. And then you have to go back and live under the laws that you adjudicated.

And that's what Madison always said about the House of Representatives. The most important part was that every two years you had to go before the people. And either you got reelected, or you had to go back and live under the laws that you had passed.

And if Supreme Court justices knew that they were off the bench in 20 years, they had to sort of be accountable for their decision making in their society, I think it would be a more moderated place. And I think that's reasonable. And that, by the way, can just be enacted by Congress. Congress can put-- Congress created the Federal judiciary, federal judiciary acts in Seventeen-Ninety, Seventeen-Ninety-One, and '92. And they can put term limits on Supreme Court justices.

SARAH BALDWIN: Well, let's talk about what Congress can do. That's not all they can do, right? Can't they--

WENDY SCHILLER: They can impeach Supreme Court justices as well. So they can certainly do that. We've seen that impeachment has been diluted somewhat. I think ever since certainly Bill Clinton and the Monica Lewinsky sex scandal. I think that was not really what the founders thought impeachment should be used for. Richard Nixon avoided impeachment. That was what the founders thought it should be used for, abuse of power.

Certainly Donald Trump, in terms of his second impeachment proceedings about inciting violence, that seems to be playing out in different legal arena now, at a public arena. We'll see where that takes us.

But certainly they put the power to impeach judges in for a reason. They thought it was financial corruption that they had to worry about, not abuse of power. But the fact that one of the justices' wife was actively involved in the attempted coup, obstacle to certification of the presidential election, that's worrisome. So I think you do have that right. The Senate can do that. The House and Senate can certainly do that, initiate impeachment and convict.

I think the better solution is if you care about what's happening in terms of preservation of rights, vote. And voting is hard. We don't make it easy to vote in this country. There is no question about that. But if you register to vote and you vote, and you always vote-- the reason that I urge it is not just now. It's because politicians make decisions based on who they think is going to vote.

They like certainty. They take they track who votes. They buy those voter rolls from the electoral election boards. And they know who votes. And they'll tailor what they'll do towards that population. If you have, as Trump did in Twenty-Sixteen, you bring in a whole new set of voters, rural voters in particular, or in this election, young voters, that upends things. That introduces uncertainty.

And you would have more political power to get done what you want to get done if you vote and you vote repeatedly, because you become part of that audience that politicians pay the closest attention to.

SARAH BALDWIN: Wendy, I thought this was going to be the most depressing conversation. And somehow I feel so energized and quite enlightened by everything you've said. Thank you so much.

WENDY SCHILLER: It's my pleasure.

SARAH BALDWIN: This episode was produced by Dan Richards and Kate Dario. Our theme music is by Henry Bloomfield. I'm Sarah Baldwin. Trending Globally is a podcast from the Watson Institute for International and Public Affairs at Brown University.

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