Growing distrust of the Supreme Court is a complex problem that is not entirely new. It is complicated by misunderstandings of the court’s history, and well-intentioned but insufficient reform proposals.
So argues Sanford V. Levinson, an author and constitutional scholar who holds a joint appointment in the University of Texas at Austin’s School of Law and Department of Government, in this lively discussion with Jeremi and Zachary.
For starters, Levinson points out, the “liberal era” of the court, that began under Chief Justice Earl Warren in the 1950s, was an historical anomaly. In many ways the court has returned to the conservative form that has long shaped its ideology.
He warns progressives to be careful of criticizing the overturning of precedents, despite anger that the current court has famously done just that in the last two years on issues of abortion, environmental protection, voter protections, and state gun control laws. Many of the Warren Court's rulings, including the Brown vs. Board of Education decision that ended legal school segregation, involved overturning precedents established by earlier courts. Given that history, it’s a bad faith argument, Levinson says, to argue that precedents should be respected.
Some of Biden’s proposed reforms, such as a constitutional amendment to prevent presidential immunity, are pointless, even insulting to the intelligence of the public, Levinson told Jeremi and Zachary. Further, he adds, whatever scenario might ensue with proposed term limits for the Supreme Court would surely be “grandfathered or grandmothered” to protect those sitting on the current court, meaning those reforms would have little immediate effect.
Realistically, the only solution is to immediately alter the court’s size, adding new justices, which a Democrat-controlled Congress could do with regular legislation.
“The single most anti-democratic feature of the U. S. Constitution is how difficult it is to amend it,” Levinson said. “The basic problem with the court is that it has been packed with very, very conservative judges. And if you don’t like what the court has been doing, you need to figure out a way to get different judges.”
Levinson has no shortage of other insights in this enlightening discussion: on Democrats’ passivity toward judicial issues, the need to reform the powers of the presidency, and much more. Take a listen.
This is Democracy – Episode 272: Supreme Court Reforms