What should the Supreme Court’s role in our politics be?

At the Watson Institute, the beginning of summer means commencement festivities, moving trucks, and bittersweet goodbyes. In American politics, the beginning of summer means something very different: the approach of the Supreme Court's summer recess and, with it, the handing down of the Court’s final decisions from this term. This year’s cases will have profound effects on the 2024 election, gun rights, reproductive rights, and more. 

While it’s nothing new for the Supreme Court to weigh in on contentious issues in society, as our guest on this episode sees it, something profound has shifted within the Court over the last few years. The decisions they hand down are not only increasingly transformative, they’re also lining up more and more clearly with our partisan politics. And no matter your politics, that should be a problem. 

Kate Shaw is a constitutional law scholar and professor at the University of Pennsylvania Carey Law School and a 2001 graduate of Brown University. She is also the co-host of the podcast “Strict Scrutiny,” which explores the Supreme Court — the cases, the people and the culture surrounding it. 

On this episode, Dan Richards spoke with her about how the Supreme Court fits in our politics today, how that role has changed over time, and what Kate thinks its role in our society today should be.

Subscribe to Trending Globally wherever you listen to podcasts. 

Subscribe to Strict Scrutiny wherever you listen to podcasts.


DAN RICHARDS: From the Watson Institute for International and Public Affairs at Brown University, this is Trending Globally. I'm Dan Richards. From our view at Brown, the beginning of summer means moving trucks, commencement, festivities, and bittersweet goodbyes. In our politics, though, the beginning of the summer means something very different. The approach of the Supreme Court's summer recess. And with it, the handing down of the court's final decisions from this term.

This year, decisions will be made on cases that deal with issues ranging from gun rights to reproductive rights to the Twenty Twenty-Four election itself. And while it's nothing new for the Supreme Court to weigh in on contentious issues, as our guest on this episode sees it, something profound has shifted within the court over the last few years. Their decisions are not only increasingly transformative, they're also lining up more and more clearly with our partisan politics. And no matter your politics, that should be a problem.

KATE SHAW: There have always been justices who parted ways with, surprised, disappointed the presidents who appointed them and their parties. And you just don't see that divergence on the current Supreme Court. And the more you see this perfect alignment between parties and justices, the more I think the justices to the public come to look like partisan actors and understandably so. And the less justified the institution and its power, I think, come to feel. If all they're doing is politics, it's very unclear what they add to this system of separated and interrelated checking institutions beyond those that are popularly elected.

DAN RICHARDS: Kate Shaw is a constitutional law scholar and professor at the University of Pennsylvania's Penn Carey Law School. She is also the co-host of the fantastic podcast strict scrutiny, which explores the Supreme court, the cases, the people, and the culture surrounding it. I wanted to hear from her about how the Supreme Court fits into our politics today and how that role has changed over time, and also, what she thinks its role should be in our society.

We started with a recent piece of news that encapsulates a number of issues Kate sees in the court today. I'm talking about the story first reported in the New York Times in mid-may, revealing that shortly after the January 6 insurrection, an upside-down American flag could be seen flying in front of the House of Justice Samuel Alito. The upside-down American flag had by then been adopted as a symbol of the Stop the Steal Movement after the Twenty Twenty election.

We recorded this conversation just after that story broke. But just before further reporting revealed that the Alito's had flown another controversial political flag in front of a different house that they own in New Jersey. So while our conversation doesn't touch on that second story of the flag that was flown at the Alito's house in New Jersey, Kate's analysis of the issues at stake here are just as relevant, or perhaps, more than when we talked. So I started by asking Kate what she thought when she first heard the news about the upside down American flag in front of the Alito's house in Virginia. Here's what she had to say.

KATE SHAW: I thought I was a little bit beyond the capacity to be shocked by some of the ethical lapses of the current members of the Supreme Court. But I found the story. And I continue to find the story genuinely shocking. I don't quite understand why we're just hearing about it 3 and 1/2 years after the events. But we know about it now.

And I'm still trying to wrap my head around both the underlying events and the explanation that Justice Alito offered, which he presumably thought was exculpatory. But I don't think is at all. So, essentially, what we know from the reporting is that a week and a half after the attack on the capitol, the insurrection, and a couple of days before Joe Biden's inauguration, an upside-down flag was raised at the Alito household in the DC suburbs. And we know that there was some set of disagreements between maybe Mrs. Alito and a neighbor or neighbors around the election and the events that followed it.

The altercation had to do with a sign bearing an expletive and Donald Trump's name, and then possibly another sign that referenced the Alito's personally. Although that I think remains a bit murky. And we don't really know much more. But we know that the response that the Alito household displayed and that according to Justice Alito, Mrs. Alito was solely responsible for was to take the flag, the American flag displayed outside the Alito home and to flip it upside down and to run it upside down up the flagpole.

But whatever the events that preceded the raising of the upside-down flag were, I can't get my head around the reaction, which is to raise what I gather at the moment was very much a symbol associated with this violent insurrection after the attack on the Capitol had already occurred. And it just reflects, I think, one or more members of the household being so steeped in this MAGA and stop the steal world. And the semiotics and symbols of it that this seemed like a reaction that would have meaning that it would convey, and that the meaning would be understood.

And the meaning was something solidarity with Trump, or solidarity with rioters, or Joe Biden is not a legitimate president. I mean, I think those are-- if you were to translate in words, what it would mean to raise an upside down flag at that moment in our collective history, I think those are the best translations on offer. And again, this is the home of a Supreme Court justice.

And Justice Alito subsequently did give some statement to a Fox News reporter in which he sought to explain that, yes, this happened. He didn't deny the underlying events. But again suggested that they were the result of emotions, running high, highly politicized times. Although he suggested that the really political actors here were the neighbors and not the Alito's, and that this was essentially a response and a reasonable one to a personal affront. And the predicate of that to me just is wildly irrational, illogical, and also reveals a worldview that I think is really troubling in a Supreme Court justice.

DAN RICHARDS: So this incident occurred a few years ago. But I wonder how you think the timing of this story coming to light publicly now could maybe affect some of the cases the court is currently deciding. I'm thinking specifically of the two cases dealing with issues around January 6 and the Twenty Twenty election. One regarding how prosecutors can charge January 6 rioters and the other, of course, being Trump's immunity case before the court, where they will decide if he is immune from prosecution for efforts to overturn the Twenty Twenty election. So I guess I wonder the timing of this all coming out this way. Is there a possibility that Justice Alito would consider recusing himself? Or are there other mechanisms for handling what seemed like this conflict of interest?

KATE SHAW: Recusal should be on the table I think. So there are two pending cases about potential exposure to criminal consequences for individuals who participated in the attack on the Capitol. And you have a household of one of the justices seeming to have displayed rank partisan support for the position that potentially there was nothing criminal afoot, that maybe that the individuals involved in the January 6 riot were acting out of a sense of the injustice that surrounded or the impropriety that surrounded the Twenty Twenty election.

So it's certainly raises, I think, questions about objectivity and potential bias. And at the very least, the appearance, if not the actuality of bias. I mean, you think about other cases involving major questions of presidential power. And one of the big ones, when the big antecedents to the case the court is considering now is United States versus Nixon, a case in which Richard Nixon didn't assert the same criminal immunity argument that Trump is asserting here. But he wasn't being criminally prosecuted. He was asserting a related argument, which was that he couldn't be compelled to turn over these Oval Office tapes in conjunction with criminal proceedings against his associates.

And in that case, he famously and importantly lost unanimously. But it actually wasn't a nine-member court. It was an eight-member court. And that's because William Rehnquist had been a lawyer in the Office of Legal Counsel under Nixon and thought of ordinary standards of bias, objectivity, and recusal norms required his recusal. And I think about that case a lot.

Circumstances are not identical. This is not about the previous professional activities in government or elsewhere of Justice Alito and also Justice Thomas about whom questions have been raised surrounding recusal and at least the immunity case, potentially the other January 6 case. Because his wife, Ginni Thomas, was actively involved in at least communicating around efforts to challenge the results of the Twenty Twenty election, including text messages with White House Chief of Staff Mark Meadows and others. And as to both of them, I think that there are very real questions about the appearance of potential bias or favoritism that really should cause them to seriously consider recusal, and I think, ultimately, to recuse.

And yet, of course, neither of them declined to participate in the oral argument. It would be rare for a justice to participate in the oral argument and then choose to recuse prior to the actual drafting and release of the opinion. I don't think we should expect it. But I do think it's important for lawmakers, members of the Senate and the public to talk seriously about the serious ethical problems with participating in a case like this.

And I think that's especially true because, at least, as to the Trump immunity case, there seemed to be a possibility that the oral argument that this could be 5-4 case. So the three Democratic appointees and one of Trump's own appointees, Amy Coney Barrett, so the four women on the court, all seemed, I thought, at least quite skeptical of Trump's arguments. So that's four votes against Trump and for allowing this criminal prosecution to proceed. And that means that either Alito or Thomas could cast the deciding vote in favor of Donald Trump and in favor of shielding him, at least, in part, from criminal consequences for this conduct. And given the real questions about their ability to be objective here, I think that should be scandalous.

And so I hope that this continues to be a story that there's a lot of attention paid to it. But ultimately, the Supreme Court at the moment is a self-regulating body. And unless and until Congress tries to pass binding ethical guidelines, these justices will continue to be judges in their own cases as to recusal and basic rule of law principles suggests that that's not a winning recipe.

DAN RICHARDS: Well, I want to talk more maybe a little later about potential reforms or measures to address issues within the Supreme Court. But before we get to that, how do you think we, the American people, people who follow politics, should think about the Supreme Court. The institution and the justices in the year Twenty Twenty-Four, are they calling balls and strikes to borrow the metaphor from Chief Justice Roberts? Are they more just political actors pretending not to be? Are they something in between? How should we be thinking about this group of people?

KATE SHAW: So a couple of things. One, I think that they have always been a combination of the different models that you just offered. So I think that they have always done politics of some sort. Sometimes people talk about them as constitutional politics or high politics. So politics in the sense is they're deciding cases and sometimes come to those cases with deep values and commitments about things like the separation of powers and the scope of the Constitution's protection for Individual Rights and the nature of the presidency and the powers and constraints that the Constitution places on the president. A million things they might have deeply held views about.

And so I think that there has always been a degree to which the court has acted and the justices on it have acted politically. So I don't think that's new. But I do think that the alignment of the political, you call them ideological or high politics of the justices, the alignment of all of that with partisan politics is genuinely new. So it is really for the first time in the last few years that we have had in the modern era and in some ways in any era a perfect alignment of most of the views and the votes of the justices on the court and of the parties of the presidents who appointed them.

So when I clerked on the Supreme Court, 17 years ago, there were Republican appointees like John Paul Stevens, for whom I clerked, and David Suter. And Sandra Day O'Connor had just recently retired, who again, had been appointed by Republican presidents and were on some, but by no means all issues were quite liberal. And there have historically been justices like Byron White, a John F. Kennedy appointee who was quite conservative on many issues wrote the fiercest dissent in Roe versus Wade.

There have always been justices who parted ways with, surprised, disappointed, the presidents who appointed them and their parties. And you just don't see that divergence on the current Supreme Court. And the more you see this perfect alignment between parties and justices, the more I think the justices to the public come to look like partisan actors and understandably so. And the less justified the institution and its power, I think, come to feel. If all they're doing is politics, it's very unclear what they add to this system of separated and interrelated checking institutions beyond those that are popularly elected. So that's one part of the answer.

And then maybe just to throw one other thing in is you have largely just because of historical circumstance, but also recently because of real constitutional hardball. You have a real asymmetry in terms of how many appointments each presidents from the two major parties have been able to make. So since Nineteen Sixty-Nine, Republicans have had the White House for 32 years and have gotten 16 justices on the court. Democrats have held the White House for 22 years, a little more than 22 years, and have put five justices.

So think about that since '69, five Democratic appointees on the Supreme Court. And so that is some of that is just chance. So Barack Obama got two nominations to make in eight years and Donald Trump got three to make in four years. But of course, that's not just chance because one of those nominations and arguably two, depending on how you think about or look at it, were not rightly Donald Trump's to make.

There was a seat held open when Justice Scalia died that Obama nominated Merrick Garland to fill. But Mitch McConnell refused to hold hearings. And so Trump was able to fill that seat. And then Justice Ginsburg died at the very end of Trump's term. And rather than wait, there was an accelerated consideration and then confirmation of Amy Coney Barrett.

But then there was chance. Jimmy Carter just didn't get a vacancy. And so had no made no appointments in four years. So that's, I think, a big part of it. So you have the partisan alignment and then you do have this the last half century has just dealt a very different hand to Democratic presidents from Republican presidents. And it's resulted in this overrepresentation of Republican appointees on the court. And in recent years, this very tight alignment between the party preferences of the Republican party, which has nominated the majority of the justices and the justices.

DAN RICHARDS: The processes you're describing have been going on for a while. How do you think the Supreme Court has changed just in the last few years when it seems like there's something more explicitly like what people call a 6 to 3 conservative majority. And I know it hasn't always been so perfectly able to split between R's and D's. But if that's what we have now, how did that change the behavior of the court, the types of decisions that are being made?

KATE SHAW: I mean, I think that the two cases that best illustrate, I think the ethos on the current 6 to 3 court are Dobbs, the case that overruled Roe v. Wade and ended constitutional protection for the right to terminate a pregnancy. And Bruen, a case that dramatically expanded gun rights under the Second Amendment and dramatically constricted the ability of government, local, state, or federal to meaningfully regulate guns.

And both of those cases approached, I think, precedent and settled practices with this burn it all down attitude, which basically, I think says that we're not that bound by decisions of prior courts it is to us and in our infinite wisdom to read what the Constitution is best understood to say and do and protect. And we're not going to put too much stock in the accrued wisdom of the justices who came before us. So that's very much, I think, how I would characterize Dobbs, the case that overruled Roe.

And Bruen wasn't overruling a prior case because there just isn't much in the way of case law on the Second Amendment because it was not until Two Thousand Eight that the Supreme Court even decided that the Second Amendment protected an individual right to own a gun. But what Bruen did, I think, do is just unsettle a lot of settled practices and understandings about the permissible limits of firearm regulation. And it also announced a totally new and I think quite in administrable test for how to evaluate the constitutionality of firearm regulations, which is basically you have to look to history.

And if there is a close historical analog of a gun regulation you're trying to pass or trying to defend today, then maybe it's constitutional. And otherwise, it's not. And that's just like a profoundly backward-looking inquiry, as is the inquiry in Dobbs, which basically says rights are protected only if the right is deeply rooted in our history and in our traditions.

And so there is a very backward-looking and historically oriented quality to the reasoning in both of those cases. But there is also this really, I think, oversized sense of the court's both wisdom and judgment in today's court, not the court as an institution, but this particular court as presently constituted. And I think a contempt for constitutional understandings and views that held in previous moments.

I don't know if that's just because it's a court. But I do think that the 6 to 3 court has led to this acceleration of ambition, I think, both in speed and in scope of the cases that the court is deciding. So I think when you have a court in which you're constantly involved in negotiating around getting a fifth vote, that tends to result in narrower and more modest decisions. And with a 6 to 3 court, you don't have to do that as much. And you can afford to lose a vote.

And so you can go as big and as quickly as possible. And it's not just the number of cases that they've overturned or even the number of cases they've decided they're actually deciding very few cases compared to previous eras in which they decided many more cases. But the cases that they are deciding have seismic consequences for the power of government, the nature of our individual rights, things like the health and safety of our families. So they're deciding enormously high-stakes cases, even if the number is actually pretty small in historical terms.

DAN RICHARDS: I want to go back to something you said earlier. You were talking about how the Supreme Court has become so closely aligned along partisan politics, especially in its most current form. And you said something along the lines of it calls into question of what exactly they add to our system of government and our politics that the more elected, clearly partisan parts of our government don't already provide. And so I guess my question is, in an ideal world, what should they add to the government? What should the court's role be?

KATE SHAW: It's a great question and it's a hard one. I mean, I think that I'll offer you a couple of thoughts. But I'll probably be thinking about the Constitution and the Supreme Court for my whole career. And I'm not sure I'll ever settle on an exact answer to it. But one is that the court does have, I think, an important rights protective function, that majorities don't always protect individual rights.

They don't always protect groups that have a hard time prevailing in majoritarian processes. And so protecting individuals, individual rights and liberties, and minorities in both the numeric sense, but also in the racial and religious and other kinds of senses that we often associate with the idea of a minority, that the court largely exists to protect those kinds of individuals and groups, and also rights from a majority that might be hostile to the protection of those individuals and groups and rights.

And look, I don't pretend that it's an easy thing to decide what those rights are and how the court should and how the court should protect those rights. I mean, that's what the court thinks it's doing in the gun cases. And I happen to think it has an overly inflated sense of the scope of the Second Amendment and a wildly insufficient sense of the scope of the liberty and equality protected by the Constitution. But those are hard questions. But that's a first cut at one of the key functions, I think, of the court.

And then I think the other key function is most of the time I think we do want the Democratic process to run the show. But democracy needs, sometimes it needs someone to make it function. So if you have the Democratic process being thwarted or manipulated or throttled through extreme partisan gerrymanders or laws passed by legislatures that really obstruct access to the ballot, all of those kinds of things that democratically chosen representatives can sometimes do undemocratic things. And this is where I think courts.

And in particular, the Supreme Court, the federal courts, they're not elected. They're appointed and they serve for life unless they're impeached or stepped down. They should be able to stand outside of that to perceive if there are efforts afoot or even just results that end up impeding the functioning of democracy and step in to fix democracy. So to make democracy work, so that's usually the way that policy choices get made and decisions about how we're going to live and govern ourselves get made.

So that, I think, ideally is how the court should function. And in some ways, I think we've seen it doing exactly the opposite. So the court has been not only, I think, derelict in protecting the functioning of democracy. In some ways, it has actively subverted it. So it has blessed partisan gerrymandering, even of the most extreme sort.

It has blessed, things like voter ID requirements. It has thrown out. It personally affirmatively threw out in some ways the crown jewel of the Voting Rights Act in the Shelby County case just over a decade ago, which previously required states with egregious histories of discrimination in voting to get their voting changes approved before implementing them. The court decided that it knew better than the Congress that had just reauthorized the Voting Rights Act. And it threw out that part of the statute and opened the door to all kinds of discriminatory measures that impeded access to the vote.

And it is in the process, I think, of whittling away the remaining provisions of the Voting Rights Act. So it has acted, I think, again, directly contrary to that democracy facilitating function that I think properly understood that the role of the court is to serve that. And I think it's also acted to undermine and to roll back individual rights. It obviously did that in Dobbs. And I think that in some ways, that there could be more cases like Dobbs where the court looks at previous cases that had expansive conceptions of liberty, that looked to our evolving and current understanding of the components of a meaningful and fulfilling life and said sometimes those look different today than they did at the time of the founding.

And those may also be components of liberty that the Constitution protects. And so if the court, I think, uses the reasoning that it used in Dobbs, in other cases, that could throw into question previous constitutional cases announcing rights to access contraception or to marry someone of the same sex or to marry someone of a different race. These are all cases that the court in a different era decided and I think could well be up for revisiting by this court.

DAN RICHARDS: It's like a disorienting combination of ideas. Sometimes I feel like you're describing where it's a court that is both really backwardly reverential and also, in some ways, wanting to burn it all down. The past can mean two very different things to this court.

KATE SHAW: I think that's right. And look, I think there are contradictions internal to the professed method of these justices. But I do think that burning down the precedent handed down by previous iterations of the Supreme Court that did not properly understand the one true method and exalting the history that the justices decide is the real history.

Those two, I think, can coexist. But I think you're right. There is deep tension in broad terms and the fetishization of some history and the contempt for the court's own history.

DAN RICHARDS: The Supreme Court today is also just facing historically low approval ratings among Americans. Multiple polls have shown that just over half of adults disapprove of the court, which is historically high. What do you make of that?

KATE SHAW: I never know if approval is the right way to ask people about the Supreme Court. I'm not sure. Given what we were just talking about, sometimes when the court issues rights-protecting decisions, those are unpopular because a majority has decided to do something and the court undoes that. And sometimes those are popular decisions and sometimes they're not popular decisions. But that's not the measure of the correctness, whether the public approves or doesn't or certainly not the sole measure. I don't think it's irrelevant, but I don't think it's the sole measure of the correctness of the decision.

But given that we've been asking the question in a very similar way for decades and that the court is at or tied with, the lowest approval rates since the question started being asked is really striking. I mean, I think a couple of things. One is Dobbs seems like an inflection point. Approval ratings start really to plummeting. Actually, in some ways, if you dial the clock back a little bit further to the SB8 case in which the Supreme Court allowed this Texas Bounty Hunter law that essentially nullified Roe in the second most populous state in the country, Texas, while Roe was still on the books.

So Roe was a decision that said you had a constitutional right to end a pregnancy. In Texas, passed a law that made that impossible, the exercise of that. And the law was clearly unconstitutional. And the court let it go into effect regardless. And so I think you see some of the decline begin there. But what Dobbs is also really important.

And I think if approval aligns with the public thinking, the court acts like a court and decides based on law and not pure partisan politics, I think they think Dobbs suggests that's not how the court is proceeding, that you had nearly a half century of debates around abortion. And whenever a new Republican appointee ended up on the court, there were cries to overturn Roe.

And in Nineteen Ninety-Two, in the Planned Parenthood v. Casey decision, the court there looked like there were a couple of new Republican appointees. The court looked like it was potentially going to reconsider Roe. It was being asked to do that. And instead, it reaffirmed Roe although it changed the test.

There was a long discussion about the importance of the court standing firm against public pressure lest the public come to view the court as an unduly political institution and thereby, lose its legitimacy. So this is something the justices have been thinking about and grappling with and even writing into opinions. It seems as though that claim in KC that it would be bad for the court. And its standing with the public for it to appear to change course whenever there's a personnel change on the court is being borne out in some of the polling numbers that we are seeing.

So that I think is key cause one. And then I do think that the investigative reporting that we have seen around Justice Thomas, in particular, and his receipt over many years of unreported largesse from a billionaire benefactor to a lesser extent. But some of that with Justice Alito as well. I think that those are probably also related to the plummeting approval numbers.

It's a precarious position for the court to be in. And for the country to be in as we're heading into this, I think, really contentious presidential election cycle. I mean, we're in it, but as we get closer to the actual election. And so it worries me a great deal to see the approval numbers looking the way they do. Which is not to say I think that the public should unquestioningly approve of the court.

I think complicated. But I do think that this democracy be facilitating function that I just described is an important one. And it can be really important around elections. And I think that the court loses enough of the public's trust. It might become impossible for it to serve that function when really needed.

DAN RICHARDS: What do you think could be done to help-- I don't want to say rebuild approval for the Supreme Court like it's a PR move. But what do you think are either pieces of legislation, or reforms, or ways of changing how the work is done at the Supreme Court that could help it rebuild its legitimacy?

KATE SHAW: So a couple of things. I mean, to my mind, I think that there is a genuine difference between something I think is really good, and healthy, and constructive, which is demystifying and demythologizing the court and even maybe disempowering it. I think that the court has too much power.

It doesn't view itself as subject to meaningful checks by Congress or even by public opinion. And that I think is deeply unhealthy. And delegitimizing the court, which I worry about. I mean, I think that the court looking and being because the two are essentially inseparable. Illegitimate in the eyes of the public is potentially quite dangerous. Again, if we are in a position in which we have an election dispute or there are other matters that it's very difficult to see any institution other than the Supreme Court resolving.

So that's I just wanted to tease apart those two things because I think the court has too much power. And when I say I worry about the court's legitimacy, I think finding ways to reduce the power of the court and to increase the checks upon the court is really, really important and actually, maybe critical to rebuilding some notion of legitimacy. But I think a less powerful and legitimate court should be the goal.

And so Congress, I think, needs to remember that it does have power to regulate the Supreme Court. And it needs to use that power. So I think that it needs to require the justices to adopt a binding ethics code or to legislatively enact one. That is much more explicit about the need for recusal. And there's already a federal statute that requires recusal when there's a personal financial stake in a case. But that's pretty limited. Beyond that, it's very much to the justices and their discretion.

And to basically say, and if they won't do that, then the Congress has the power to reduce the budget of the justices. So the Congress could decide that the justices non-security related budget is slashed. They could take away their law clerks. They could require the justices to, God forbid, write their own opinions.

These are things that the Congress has. And even if that feels too aggressive to drop from 4 to 2, the number of law clerks to which each justice is entitled to eliminate their ability to receive outside income from book sales, which they are able to do essentially without limits. So they have these big book deals.

There are ways, I think, to exercise some control over the court. You could also remove cases entirely from the jurisdiction of the court, or you could require the court to hear more categories of cases. So those are, I think, on the margin, things that could be done, more dramatic existential maybe are things like actually implementing term limits, which there's a real question about whether this could happen through just a statute or would require a Constitutional Amendment.

Increasing the size of the court would definitely not require a Constitutional Amendment. So it could be that if there's a Democratic president and a Democratic majority in both houses of Congress, all you need to do is pass a statute to add a bunch of additional seats. Increasing the size of the court, I think is something that it was actively being considered and debated in the early days of the Biden administration and is much less present. I feel like as a topic of serious debate and consideration now in Twenty Twenty-Four. And I think that's a mistake. And there should be more thought given to that prospect. So that's a range of possibilities.

DAN RICHARDS: A less powerful, more legitimate Supreme Court is an interesting way to think about it and is a more promising vision to you also. Perhaps one where it's not every May and June, the entire country is on the edge of their seat, waiting to learn about so many essential aspects of our society.

KATE SHAW: It's not healthy. I mean, when you put it that way, I think it's really clear. It is 9 of them. It is 5 or 6 of them. If you crunch the numbers, it is if it's the Republican appointees, Brett Kavanaugh gets confirmed by a bare majority of senators who represent only a minority of citizens because of the distorting effects of Senate representation.

So there's lots of ways in which the court itself, a majority of votes on the court does not reflect even historically, but certainly not today majority sentiment on the court. But there are many, many ways, I think, to illustrate how anti-democratic the court is. But then for the country to be on the edge of its seat, and I think you described it accurately in may.

But in particular, in June, as the court is handing down decision after decision that are going to fundamentally affect the way we live our lives. I think it's illustrative, and I think it very much demonstrates the point that you were just making about how excessively, in my view, powerful the court has become. And this, I think, really drives that home.


DAN RICHARDS: Well, Kate Shaw, I could keep asking you about the Supreme Court for a long, long time. But we'll have to leave it there. And I think you've given our listeners so much to think about. And it's just one of the most important things for our politics is to think more closely on the Supreme Court. So thank you so much for coming on to Trending Globally and talking with us.

KATE SHAW: Thank you, Dan. I enjoyed the conversation.

DAN RICHARDS: This episode was produced by me, Dan Richards and Zach Hirsch. Our theme music is by Henry Bloomfield. Additional music by the Blue Dot Sessions. If you liked the show, please leave us a rating and review on Apple Podcasts, Spotify, or wherever you listen. And if you haven't subscribed to Trending Globally, please do that, too.

If you want to hear more from Kate Shaw about the Supreme Court, we'll have a link in the show notes to Strict Scrutiny, a podcast that she co-hosts about the Supreme Court. If you have any questions or ideas for guests or topics for the show, send us an email at trendingglobally@brown.edu. Again, that is all one word. trendingglobally@brown.edu. We'll be back next week for a regularly scheduled episode of Trending Globally. Thanks so much for listening.


About the Podcast

Show artwork for Trending Globally: Politics and Policy
Trending Globally: Politics and Policy
The Watson Institute for International and Public Affairs

About your host

Profile picture for Dan Richards

Dan Richards

Host and Senior Producer, Trending Globally