PODCAST: The transition from RBG to Amy Coney Barrett

Discussion by UP political science professors

By William Seekamp | November 24, 2020 9:47pm
Illustration by Molly Lowney.

Amy Coney Barrett  0:01  

I, Amy Coney Barrett do solemnly swear.

Clarence Thomas  0:05  

That I will support and defend the Constitution of the United States.

Amy Coney Barrett  0:10  

That I will support and defend the Constitution of the United States.

Clarence Thomas  0:14  

Against all enemies foreign and domestic.

Amy Coney Barrett  0:17  

Against all enemies, foreign and domestic.

Clarence Thomas  0:21  

That I will bear.

William Seekamp  0:25  

My name is William Seekamp, I am the sports editor at The Beacon. The podcast you are about to listen to is a conversation with Political Science professors, Dr. Bill Curtis and Dr. Gary Malecha, about the confirmation of Amy Coney Barrett to the Supreme Court of the United States, and the effects it will have. They also discussed their favorite memories of justice Ruth Bader Ginsburg. I hope you enjoy.

William Seekamp  0:57

What do you think the effects of Cony Barrett's nomination will be, just not necessarily on the court itself, but that as well, but also like American life, like, what will happen with Congress, what will happen with government agencies, Roe v Wade, Affordable Care Act.

Bill Curtis  1:12  

Well I can, I'll speculate what she means on the court and you know the court is probably larger in American life I mean, Ross Douthat had an op-ed in the New York Times the other day. Basically framing, Amy Coney Barrett as as sort of a, a new a new kind of conservative in that she's so accomplished, she's sort of merging the liberal vision of feminism right when women can do everything men can do should do everything men can do, but it's also very traditionally oriented with family and so forth and that that's that's having her in that position, she probably won't get the sort of fame that Ruth Bader Ginsburg has, although Douthat says that, but I don't know. I mean who knows, she might be on the court for 40 years if she gets she gets put on there, and who knows where our culture will be later maybe she will be as famous and popular as the notorious RBG was. Certainly, so here's the thing, right, I mean, certainly there are a lot of commentators out there saying that that you know so she's an originalist textualist, she clerked for Scalia, she's written about how much she respects Scalia’s approach and has actually analyzed Scalia’s approach and she’s careful to sort of tip her hand to say that she totally agreed with Scalia on everything. There have been people who argue that she's written a lot about originalism and stare decisis, precedent, and , you know, there's a question there right, what if you run across a case, a case law and a majority opinion that has a holding that doesn't track with originalism? And so you know you're sort of, you're sort of diehard originalist is going to say we overrule it right because the Constitution is the supreme law of the land and if the court made a mistake in the past, created a precedent that is not constitutional according to your judicial interpretation, you should just overrule it. (Justice) Thomas is the most famous person currently on the court for this position Thomas doesn't care how long a precedent has been in place, Thomas will overturn it in his understanding of the Constitution, it is not compatible with the constitution. Scalia was more circumspect about doing that, he basically took into account like if society had had has relied on a precedent for a long time, and that there would be really bad consequences if you did just overrule it and so forth. He was willing to go along with, with the, with that sort of precedent of course a lot of people said that, that made his originalism unprincipled and basically, you know, didn't it didn't do his originalism didn't then do what it's supposed to do, which is supposed to not let it be your preference of how you decide in a case, it gave him more wiggle room. So anyhow, some commentators think that Barrett is more like Thomas from reading her writings and so forth, obviously she's only been on the bench in the Seventh Circuit for a couple of years, there's not a huge track record there. Moreover, trying to figure out what somebody is going to do on the Supreme Court as opposed to being on the appellate court is is not always easy either right, you can't just draw a line from Oh the person had these positions on the appellate court they'll be like on a Supreme Court, why because the appellate court is bound by the Supreme Court. When you're in the Supreme Court you're in a different, different situation right. So, when it comes to some playing Roe versus Wade, we certainly know that that personally, morally she's she's anti-abortion. However, she's also claimed that she would never let her personal views influence her, you know her legal reasoning and her crafting of judicial opinions and so forth. So, you know, then there's a question of whether that's believable or not you know obviously a lot of people say oh it always comes in and so forth. Yeah, it's just difficult to say what she means but certainly the conservative block will win more of the hot button issues, which tend to be five four, they could start going six three, right. I sort of said a lot there but that's culturally but also on the court I think some of the influence that she might have.

Gary Malecha  5:42  

Yeah, well, what implication might her nomination and confirmation have with regard to American politics I mean certainly I think one of the things we're going to see is it's going to harden the division between the political parties, I mean there's no question about it. And we've already, you know, seen, you know, in this case, you know a number of Democrats talking about well look, if this happens, and if we get power what we're going to do is we're going to change the number of the court, you know they're already bad you know some Democrats who have speculated about that. And indeed, this is one of the questions that Biden was asked in the last debate that didn't answer that specific question and many people thought that this is a key question that you know he's going to need to address at some point in time. And that would require a dramatic change in terms of the institution, I mean that would require for example, you know not only, you know, you know, you just have the elimination of the filibuster for, like, executive branch appointments in the court, but I would also include just simply getting rid of the filibuster completely. And that would have a dramatic change in terms of the Senate, you know, as a result of that the Senate would look a lot more like the House of Representatives, specifically the ability of a minority to delay to slow things down to force compromise by a majority would be abandoned as a result. And, and many people worry that, you know, once we go down this road is is going to lead to a full scale war between the political parties, you know on The Hill and and and what would certainly have thing lead to even greater politicization when it comes to the court, you know, in terms of the nomination process and in terms of filling slots on the court. You know, I think it would do great damage to the court, because it would be the perception that if you don't have enough folks on the court that when you get into power you're going to be able to move it around, you're going to be able to stack the court in your direction. So, I think that any movement in this direction I think it's going to have, you know, a lot of could have a lot of impact in terms of the politics now that will require the democrats gain control of the House, the Senate as well as the White House, and certainly they're probably going to retain control of the House. They certainly have had a considerably increased chance of winning control in the senate looks pretty good. And right now, the odds are that Biden will win, not only a popular vote but in the Electoral College, and you know what would need to happen to avoid going down that road is that the parties would have to start thinking about exercising some restraint, they’d have to started thinking about what what are the consequences of taking on this kind of a strategy, what are the implications what might the implication of that be for the institution and for relations between the parties and between Congress and the White House, and what might that do to the perception of the court if we get involved in this kind of a battle. And, you know, it's certainly what we require that the Democrats think “wait a minute here, is this really what we want to do?” They have been rather restrained in terms of not taking on the filibuster and eliminating it completely. I think a lot of senators and both parties are rather reluctant to do so because they know — many of them having been in the house — they know they've been in the minority and it is no fun. And when the majority has all the cards, which we don't have, you know, in the senate absent a filibuster proof majority of 60 votes. You always have to give in a little bit to the minority. That could be taken away and so you know I think that this could lead to an escalation of greater partisanship on The Hill than we've seen in probably in more than a century.

William Seekamp  10:16  

Maybe if it's not getting rid of the filibuster, putting limits on the court's power is or you know getting rid of the filibuster and packing the court maybe it's putting term limits on you know justices. Is that possible first of all without a constitutional amendment? And what would that look like second of all?

Bill Curtis  10:37  

Yeah, actually, Stephen Calabresi who is a law professor of law at Northwestern these days. He's actually one of the founders of the conservative Federalist Society which has provided President Trump with his with the list of of judicial candidates that he's that he promised to go off of and they got a lot of conservatives who pay attention to law and the courts to, you know, happy, it made a lot of them happy. So Stephen Calabresi you just wrote an op-ed in the New York Times last week saying that he actually think which is fascinating because this is somewhat radical, saying that he thinks every presidential term, there should be two, two new nominations two new picks right every president should have two to two picks per term, which would effectively make a, you know, an 18 year term limit. You know if you stay the entire time and so forth. And it's interesting a conservative would would say that because if it is true that the courts are becoming more politicized and personnel is mattering more. That means that the court will swing to reflect public opinion, more, and that's you know one of the arguments is like it for life terms right is that the court is not supposed to do that. However, we'll keep it more in touch with, you know, the democratic, you know, opinions of the public and so forth. They could do it. right. Is it Congress that would do that, yeah, right, Gary? This is Congress, I'm trying to think here

Gary Malecha  12:11  

Well Congress, you would need to eliminate the lifetime tenure record, that would require an amendment. Yeah, that would require an amendment, but Congress controls the size of the court, I mean the fact of the matter is that Congress can shrink, it can increase it, it controls the appellate jurisdiction of the Supreme Court. So that, I mean, Congress has a lot of tools in its arsenal, but again to get to go down that road, it would be a rather extreme position taken.

Bill Curtis  12:46  

It didn't for FDR.

Gary Malecha  12:48  

It didn't and it actually backfire and, you know, and that's, that's another thing is that, you know, right now one of the things about the court is the court despite the fact that many people believe that you know it's waded into a number of controversial issues and rendered some decisions that are better in the minds of some extraordinarily popular, the court manages to have in terms of all of the institutions, an extraordinary amount of support, in terms of the American people. I think that trust in all institutions. The court always ranks considerably higher than any other institution. Congress is always at the bottom. And the President will fluctuate often times depending upon the individual occupant of the office. But, but I do think that, you know, as you start to politicize the institution. I think that, that creates a problem in terms of perception in the minds of the American people with regard to the court.

Bill Curtis  13:57  

I mean, clearly if you did a turn, if you did the Calabresi plan, maybe maybe a better point would be maybe one justice return which is something I've thought about a lot, but the problem would be is that Supreme Court would definitely be a focus of the entire electorate, rather than just, you know, the few people who really pay attention to that sort of thing, but other people are going to say it's been going that way. Anyways, and I in fact I didn't get a chance to read this article I just saw the headline of an article that said, is the supreme court losing its legitimacy in the eyes of the American people so maybe we're already going that direction. That is an argument right that the courts already politicized. We're not going back to 1986 where Scalia was confirmed with a 98 to zero vote we are so far beyond that. Now, one one argument is as well it is more transparent. That's the way it really works. And we should all be aware of that and take that into account in our politics and so forth. There's another argument, though that says that “no you need, we're not that rational right you need you need institutions that you know people aren't simply analyzing in terms of their interests, institutions that they accept as a matter of, you know, what national pride loyalty taken on faith, etc.” And that's a longer, larger theory. I was gonna say one other thing to something that Gary said. But now it's escaping me. Yeah, I've got, next, next question.

Gary Malecha 15:31  

Just to follow on Bill's point I think that's, you know, been one of the things that John Roberts has been interested in is trying to sustain the position of the court, you know that many people refer to Roberts, as, as much more of an institutionalist and in fact he's come in for a lot of criticism. You know in conservative circles because of decisions that he made, and in fact he's been criticized by Cony Barrett for his decision with regard to the Affordable Care Act. And you know many people are saying well look he's just making, you know, political decisions he's he doesn't operate from a certain set of principles. But, you know, based on what we know about him is that his vision is at the core is an institution that that that really should try whenever possible to to remove itself from these hot button issues that would undermine its legitimacy in the country and that he will he will take what, you know, as far as he can go in, in terms of rendering and decision to to defer to what it is that, let's say, Congress had decided to do or the president opted to do in this case, not to interject a court in making a decision. So for example like the Affordable Care Act, his inclination was look we'll go ahead and read this one as instead of a mandate as attacks and Cony Barrett criticizes that but you know his view was look you know I'm going to try and do whatever I can to uphold, you know, the validity of this legislation thats been enacted by this popularly elected assembly.

William Seekamp  17:33  

Last question. What's your favorite RBG memory?

Gary Malecha  17:37  

I mean I like the picture of Scalia and RBG on the, on the elephant. You know I sort of liked that. And RBG said about Scalia, is that you know he was on the front, you know, sort of in a balanced way, you know, in this case. Incidentally, one of the things that's really, I think, I think it's really important when we think about Scalia, and Ginsburg, you know, when I recall this from a number of people who we've written up the relationship that the two had. And if you think about it, the two of them that the partisans the people who support those two justices would probably have a hard time sitting down together in a room with one another. You know that basically, the people who were Scalia supporters and the people who are RBG supporters would have a hard time having this conversation, and from all accounts, is that they managed to have not just simply a civil relationship but in a relatively warm relationship you know in which you have one point. You know that somebody is recounting the story in which Scalia was bringing Ginsburg two dozen red roses and Scalia's clerk says “you’ve never even bought your wife two dozen red roses, what's going on here?” and Scalia says

Bill Curtis  18:48

You’re going to start a rumor here, Gary. 

Gary Malecha  18:50

And he said some things are much more important, much more important than opinions. And I think there's. There is something to take away from that and there's also something to recognize that, you know, it's good to Ginsberg said having Scalia on the court made her a much better thinker, ended up with much better opinions, you know, she said that because he was there and because of the character his opinions and, you know, the reasoning that she had to work extra hard. You know I know Breyer has made the same comment about that you don't want to have an echo chamber, what you want to have is you want to have this clash of views, this, this, airing of positions to confront one another's positions from the arrive at a much better result. That's the goal of deliberation is not not to make sure that everybody agrees with you and it kind of like a knee jerk reaction, but to be able to make the argument to principle argument that that can overcome an extraordinarily strong opposition, you can have a much better result. And I think you're going to get much better decisions on the part of the court when you have that, as opposed to just simply an echo chamber and I don't know if Dr. Curtis would agree with that or not but you know that's that's one thing that I would take away from this.

Bill Curtis 20:28  

I like those two points you made at the end I was gonna comment that you know while Professor Malecha, you know, has paid attention to sort of the popular pop image of Justice Ginsburg sitting on the elephant with Justice Scalia I was going to say that my favorite memory of her was actually her dissent in the, and it was and NFIB versus Sebelius, the first Obamacare case, which I'll get to in a minute, but Professor Malecha, then went on to make a couple of great points first that that more sort of politically just something for all of us to think about, here you have two people on opposite sides of just about everything, and yet they resemble each other even friends right there now there's a an example that we can all all, you know, agree, you know, provide some hope for our polarized politics or at least I hope we can draw some hope. The second thing he said was that, you know, you, you, you want that class in the in the venue of the Supreme Court, right in the venue of the adversarial system of law that we have in America in America. You want the two sides to present the best arguments, and that way you get the best, the best results right because you take into account all the different reasonings, and if you and nothing's left out, it is less likely that there's some relevant info so relevant reasoning is left out as John Stuart Mill famously said, “he who knows only his side of the case knows little of that.” You have to know both sides to understand what's going on and make an intelligent decision right, and indeed I should, you know this made me think of Noah Feldman of Harvard Law. He recently wrote a op-ed in Bloomberg supporting Barrett. Now, he's a liberal and he clerked with Barrett, he was clerking in Ginsburg's chambers or was it Breyers, I can't remember he was in a liberal justices and Barrett was was clerking for for Scalia, and he said that the group of clerks, you know and there was like 50 of them or whatever with all the justices. He said the two smartest ones were Jenny Martinez, who is now a dean of Stanford Law School and the other was Amy Coney Barrett, and that Amy Coney Barrett's, you know, approach to law, textualism, her professionalism, you know, her generosity and everything he said when he was trying to figure something out you'd go to her and she always was just brilliant at setting out what the issues were and helping him understand what was going on. This is a Harvard, a famous Harvard law professor saying that oh she helped him and no doubt he's being very generous but again it is true that he totally disagrees with her with her approach and is probably and he said in the, in the op ed that he's probably going to disagree with a lot of her opinions, maybe most of them, but that exactly what profesor Malecha just said, you want the smartest person on the other side, right, it makes you better it makes the arguments better it makes the court better it makes the results, arguably better, right. All right, so what my, not my favorite memory of my favorite memory was reading her dissent on the commerce, this is, this is good I'm geeking out on you, this is where professors are supposed to do, right? Her dissent on the Commerce Clause and Necessary and Proper Clause part of the Sebelius case via the Affordable Care Act Obamacare case, dealing with the individual mandate whether the Congress could act could use its commerce power to pass the individual mandate right so. So, you know, obviously the Obama administration was arguing yes, the the health care market is an interstate market. And, and the mandate is is regulating how people are going to you know afford to purchase and pay for healthcare right so and that has an effect on interstate commerce obviously so it's very clear that that is within Congress's power to pass the other side the conservatives conservatives course we're saying it actually won on this part of the opinion right they were saying you can't, you can't use the commerce power to force people to engage in commerce right because the deal with the individual mandate is if you didn't purchase health, health care insurance, you would have to pay this penalty, which then, in order to preserve the individual mandate Roberts, of course refashioned it as a tax, but to get in the tax a tax and spend power, rather than the commerce power. Roberts agreed with the conservatives, that this was beyond the commerce power of of Congress right. In her dissent Ginsburg, and I tend to agree with her that I think the commerce power. I mean, is can justify anything, especially following the Wickard v Filburn case back in the day, all the way through Gonzales v Raich which was the California Medical Marijuana case, you know, everything affects how much sleep you get at night affects interstate commerce right and that that's kind of where the liberals now of course the liberals and Justice Ginsburg actually addresses this argument in her dissent, you know, during the during the oral arguments. You know one of the, one of the sort of points that the, that, you know, I think was Justice Roberts maybe Justice Scalia as well made was okay, say, you know, people eating broccoli makes them more healthy making them more healthfully helps them be more productive, whether they're productive or not has an effect on interstate commerce, therefore does the commerce power reach, making people eat broccoli, right, and ginsburg pushed back and said, Come on, you know we're not going to go that far. Here's the thing, though she does say that the only check on the Congress power is politics right that the court shouldn't basically shouldn't ever step in and say oh Congress that's beyond your commerce power. And I have a problem with that my own. You know, constitutional thinking. But here's the thing, her opinion was so good, she practically had me convinced against my own ideas and the reason that she's so good here's the thing with with Ruth Bader Ginsburg is that she's basically, you know, sort of a post new deal. You know her jurisprudence is basically sort of post new, new deal Warren court type jurisprudence, right. So her side arguably has been winning since you know 19, what it was in 1937 when the West Coast Parrish was was, was issued from the court that was an opinion with the famous switch in time, time where Owen Roberts justice Owen Roberts switched from being against New Deal policies to being for new deal more or less than being for New Deal policies, and that that ended up that ended FDR’s need to pack the court right which was already going badly for him politically but in any case, since that time, there have been very few, few court opinions that struck down congressional legislation of this sort, right, especially not on the commerce commerce clause right. I don't know if there'd been any I mean I guess, Lopez.

Gary Malecha  27:14

What about Lopez?

Lopez v Morrison too. The violence against women's act. There was also in New York too.

Gary Malecha  27:34  

But there was really very, I mean, you're talking about a small number.

Bill Curtis 27:37  

Right, right. So, but anyhow so it's been a long time a couple of cases and the interesting thing is those those two cases were in the 90s and there was a lot of fanfare about oh the court is going to start pushing back but then after those couple of cases, basically kept ruling on accepting all these uses of the including in gets Gonzales v Raich which was the regulating is as a medical marijuana case in the way that the federal government could reach you know the California Medical Marijuana was, there's a federal act in terms of Controlled Substances Act that regulates the interstate commerce of drugs by prohibiting it right trying to prohibit it. And that's, you know, and so, once again, in that case it a fun Congress's reach with the commerce power. Right. Um, so here's the thing right so so Ginsburg, did a masterful job of laying out the precedents, and and you know making making making Lopez and Morrison seem very small, but but also showing how she's the one she's the moderate, she's she's being completely, you know, continuing the continuity she's relying on stare decisis precedent so forth. And it was just it was such a reasonable well argued well supported opinion that I you know after I read it I was like, God, you know, that's really really good and 

Gary Malecha  28:54

That convinced Professor Curtis.

Bill Curtis 28:56

Just about, just about.

Gary Malecha 28:58

Back to the idea of Congress as John Dingell former member of congress, well, dead, passed away his, his wife, succeeded him in Congress, he started in 55 and you know was there for 50 years, said about the Congress and Energy Committee an people asked him well “what does this mean?” and he showed them a picture of the world and he said, if it moves it's commerce if it doesn't, it's energy. Right.

Bill Curtis  29:35  

I mean it's it's a big guy, you know let you know as I always tell as you know as you know, William, as I always tell my, my con law classes you know a lot of people don't know that you know they just think Congress can do all this stuff. Well, technically it can it's it's it's restrained you know by these enumerated powers right. Although then you have the Necessary and Proper Clause which kind of expands those powers, but also that the commerce power is used for a lot of stuff, a lot of stuff and people know that.

William Seekamp  30:05  

Dr. Curtis, Dr. Malecha, I really appreciate you taking the time to sit down, virtually, and talk with me about the courts. Thank you. 

Intro audio sample by C-SPAN.

William Seekamp is the Sports Editor at The Beacon. He can be reached at seekamp22@up.edu.

Bill Curtis is a Political Science Professor at The University of Portland. He can be reached at curtisw@up.edu.

Gary Malecha is a Political Science Professor at The University of Portland . He can be reached at malecha@up.edu.