Jim Zirin & William Baude, "The Post-Election Future of the Supreme Court after Scalia"

Jim Zirin graduated from Princeton University with honors and received his law degree from the University of Michigan Law School where he was an editor of the Michigan Law Review and a member of the Order of the Coif. For three years, he was an Assistant United States Attorney for the Southern District of New York and served in the criminal division under Robert M. Morgenthau.

William Baude is Neubauer Family Assistant Professor of Law at the University of Chicago Law School, where he teaches federal courts and constitutional law. His current research projects include papers on originalism, historical practice in constitutional law, federalism, the Supreme Court, and conflicts of law.

Presented on November 28, 2016, by the American Constitution Society and the Federalist Society.

Transcript

Speaker 1 (00:02):
This audio file is a production of the University of Chicago law school. Visit us on the web at www.law.uchicago.edu.

Jim Zirin (00:21):
Well, first I'd like to thank Chicago Law School and and Will Baude for inviting me here and it's a great honor, as always, to talk to law students. And particularly to talk to them about the Supreme Court and the reference was made to the time of your graduation, it's certainly preferable to have a law degree if you aspire to be a lawyer or aspire to hold judicial office. But actually there's no requirement that a judge have a law degree. And one of our greatest justices, Robert Jackson, was considered by many to be the greatest writer on the court did not have a law degree. However, I encourage you to stay in school, to graduate and proceeded in the conventional fashion. My book is called "Supremely Partisan," and it is about politics and partisanship in two areas: one, the area of judicial selection on the Supreme Court and secondly, whether partisanship affects how they decide the cases before them. And when I wrote the book, I became intrigued with the whole development of the Supreme Court jurisprudence, which I learned about in law school and followed throughout my career, but I began to look at it more closely. And particularly, it starts with one of the founding fathers whose name is in great currency these days-- that's Alexander Hamilton. Hamilton thought that the judiciary was really the least dangerous branch of government because the judiciary had no army which was something Hamilton knew a lot about having served under George Washington. And the judiciary had no money which Hamilton knew a great deal about having been our first secretary of the treasury. He and Madison wrote a constitution, however, that creates a Supreme Court--

Jim Zirin (02:38):
it doesn't say how many justices, it doesn't say how it's to be organized, and doesn't really say what its powers are. It says that the judicial power shall be in one Supreme Court and such lower courts as Congress shall ordain and establish. Having done that, he left it to further development and further events to chart the course for the court. Interestingly enough, nowhere in the Constitution does it say that the Supreme Court or the judges have a power of judicial review that they can declare acts of Congress unconstitutional or that they can declare acts of the president unconstitutional. I suppose it's implicit since they told the Supreme Court that they could reverse judgments in the lower courts, but it doesn't even say that. And Hamilton thought very strongly that there ought to be judicial review, it appears in the Federalist papers. And Madison did as well.

Jim Zirin (03:46):
Why didn't they say it? They did probably didn't say it because Jefferson thought that gave too much power to the judges and they couldn't get the thing through unless they were silent on it. But it had a great path. He was our fourth chief justice and his name was John Marshall and Hamilton did live long enough- he was killed in a dual, as we all know, in 1804. But in 1803, his pal, John Marshall, decided the case called Marbury v. Madison, which you know about, where they said it was up to the judicial department to say what the law is. So it was to be really the work of lawyers, not politicians. If you wanted political judgements or political decisions, you could have-- if it were nine-- nine politicians in rows. If you wanted ethicists, you could have nine ethicists. If you wanted historians, you could have nine historians, but no, they had nine lawyers. And even though there was no requirement that they be lawyers. Now, what is a lawyer supposed to do? A lawyer's work is to read the text of the statute or the text of the Constitution. The lawyer would look at precedent, as this was the way it was done in England, find out how other judges had approached similar problems, and come to a judgment as would resolve the problem. So my book doesn't really deal that much with the doctrinal difference between what I call Originalism and Evolutionism-- the living Constitution versus the dead Constitution. I deal more with outcomes. And in talking about outcomes, we look to see that we're, in recent years, probably starting in 1986 or perhaps even before, that we have a lot of five to four decisions and six to three decisions and where they're five to four decisions, we have five conservative justices in many cases, deciding the case and for liberal justices who were dissenting in the case.

Jim Zirin (06:04):
Now, who were the conservative justices? It just so happens that they were all justices appointed by Republican presidents. And who are the liberal justices? And these are just easy terms that the media use in describing them, but the four liberal justices are invariably justices who have been appointed by Democratic presidents. It doesn't always work that way. And in fact, the great liberal era of the court was the court where the chief justice was Earl Warren, a prosecutor from California who was a Republican, had run for Vice President of the United States on the Republican ticket. Eisenhower appointed him and he became not only one of our most liberal justices, but became the chief justice who was responsible for the unanimous decision in Brown v. Board of education, landmark decisions, decisions establishing right of the indigent to council, right to be worn by criminal defendants and a host of new rights that he and his colleague William Brennan-- who was kind of his intellectual muse, just as Story was John Marshall's intellectual muse-- William Brennan saw a new rights that was sewn in the fabric in the Constitution even though they weren't expressly set forth.

Jim Zirin (07:33):
So Eisenhower said his two greatest mistakes in office were Earl Warren and William Brennan. So presidents have often been surprised-- they might even argue, misled and deceived-- as to how justices are going to decide cases. What is interesting is that for lawyers like me and lawyers like Professor Baude, particularly constitutional scholars like Professor Baude, the interesting thing is how the judge gets to the decision, the reasoning, the doctrine that drives a judge to the decision. To the media, to the body politic, to the man in the street, ,t's all the outcome. it's all the judgment. Does the court create a right of gay marriage? Does the court create an abortion right? Does the court strike down a statute of Congress establishing certain procedures vindicating voting rights in the South? And of less interest to the the body politic is how the judge got there.

Jim Zirin (08:53):
So then we see now- and what happened to me was I had written this very interesting book and last February, the book was submitted to the publisher and my iPhone buzzed and I looked at the screen and it said that Justice Scalia died. And I realized that I couldn't let the book go in the form that it was in, that I had to make certain adjustments. So I have a contract with the publisher that said, I couldn't make any changes, but I called the publisher and I said, look, this is a supervening event not contemplated by the contract. I made all of the arguments I've learned to make in your neighboring Michigan and the publisher said, yes, I think you've got to make some changes. So I changed it. And then after I submitted those changes, every time I had a sentence that started out with "Scalia thinks," I had to change it to "Scalia thought."

Jim Zirin (10:04):
But when I had submitted all those changes, the next thing that happened was that President Obama appointed Merrick Garland to the court. Oh, well maybe that's something I would include. And no sooner did Merrick Garland appear in the in the Rose garden with the president to be nominated to the court. Then the Senate majority leader, Mitch McConnell said "no way, Jose--" the Senate was going to block his appointment. So I had to deal with that and it seemed destructive, it seemed frustrating. And insulting, really, to lawyers because it further intensified and exacerbated what I saw as a politicization of the judiciary. So we have two issues that you have to deal with. Really, one: why is the appointment process so politicized? And number two: does the politicization, of the judiciary affect the outcomes of cases on and particularly those involving hot button issues such as voting rights, abortion-- I like to say guns, gays and God-- which are the issues that seem to divide us and divide the court.

Jim Zirin (11:31):
Now, it shouldn't come as a great surprise that the court is divided and polarized. Our people are polarized. We saw this in the recent election. Our media are polarized. Think tanks are polarized and our Congress is polarized. We have very sharp differences of opinion in this country about approaches to things and how they should be done. And a lot of these issues land on the doorstep of the Supreme Court and in many cases, and Professor Baude might disagree, but in many cases, the Constitution doesn't tell us what to do about them. Scalia thought that the equal protection clause or due process clause and the majestic ambiguity were like two empty vessels. And then he saw the liberal justices pouring into the vessels anything they needed to. The liberal saw that there might be all kinds of rights that aren't expressed in the Constitution, a right to privacy a right to abortion and the evolving standard of decency that might even make capital punishment unconstitutional.

Jim Zirin (12:46):
And this is really what intensified the sharp divide in the court and caused commentators and observers, and particularly a Harvard address made by Justice Souter, that they were seeking a basis for their decisions from sources outside the Constitution. So I wrote this. I've been talking about a book called "Supremely Partisan." I recently came back from London where I addressed a group of lawyers and judges. And of course they have no written constitution in England. It's a constitution, but the constitution is basically what parliament says it is and it's based on practice and custom. And there really is no text to which you could point to and there's no power to overrule- no power of judicial review, no power to overrule an act of parliament. And what they say is, cause they always think they do it better, they say "how can you possibly have an 18th century document that applies to modern technology, to the internet, to GPS, to DNA and all the things we now know about, which certainly James Madison didn't know anything about?" You remember that famous exchange between Scalia and Alito, where Scalia was asking a lawyer some question on a video games case and whether they were protected by the first amendment. And the Scalia asked the lawyer some question and Alito interjected, "what justice Scalia wants to know is what James Madison would have thought of video games." And Scalia snarled back- he was such a snarky guy. And he said no, what Justice Scalia wants to know is what James Madison would have thought of violence. So well, this whole question of of Originalism and what Scalia thought makes it a lot easier because it's grounded in law and the law of- in United States law, which is the Constitution.

Jim Zirin (15:15):
And so you start with text and you'll look at the original understanding of the society at the time. And you look at precedent, he was perfectly ready to look at precedent unless it was abortion, in which case he was [inaudible]. And you have a much better basis for an answer rather than worrying about the evolving standards of decency. I didn't know what the evolving standards of decency are and I don't want to know. Which would shift from court to court. So that's the basic outline and structure of what I do in the book. I also talk about identity politics. When Scalia was around, you know, six Catholics and three Jews on the court-- three women, one wise Latina, an African American who seems to vote with the conservatives every time an issue was presented. Particularly dealing with the rights of African Americans, he seems to find a way to defeat those rights. Which, when you think he was appointed to replace Thurgood Marshall, is kind of a shocking fact. So I call that identity politics. And if Merrick Garland confirmed, you would have had five Catholics and four Jews on the court and no Protestants. We've had 112 justices of the Supreme Court, 89 of them have been white Anglo-Saxon Protestant males-- that has been the ethnic composition. But they're appointed in ways- if you look at it, it's really extraordinary because presidents have approached these appointments the way a democratic Tammany hall boss in New York City might approach assembling a ticket. When I was your age, the ticket that ran in New York was Lesko, Wisco, Hooli, and Fino against Procaccino and O'Connor and they thought "that's good" because in a multi cultural, multi racial society there has to be a certain amount of power sharing. But why is it necessary in a court? Or shouldn't you just look for the best justices? Shouldn't you have a meritocracy? Interesting questions, does a Jewish justice approach an issue in a different way from a Protestant justice? Justice Ginsburg thinks yes. And Felix Frankfurter thought no. Scalia said the number one thing that I am is is that I'm a Catholic. He said if my Catholicism ever clashed-- my Roman Catholic faith ever clashed-- with my constitutional duty, of course, I would have to resign. He said, "but I liked my job, so I'm not going to resign and I don't see that I'll ever have to." So anyway, that's about it. I've talked to much too long, but I would be happy to engage in dialogue with Professor Baude, who I'm sure disagrees with much of what I've said.

William Baude (18:30):
So we were joking before that I was not sure whether I was going to agree or disagree. So I think I'm going to try to split the difference by disagreeing in both directions at once. So, I like that there's sort of two points about partisanship in the court, right? One about the selection process and where they come from, and then the second about how partisan they are when they get there. So breaking them up. On the first point, on whether the selection of the justices is partisan or too partisan, I'm inclined to think it's actually not partisan enough. I think the real problem in our traditional selection is that we don't have enough partisan disagreement about politics. So the way it had Eisenhower picking Brennan and Warren and things like that, was not so much that he was magnanimous, that he just wanted to make sure there was a range of views or that he thought that that Brennan was the most qualified person for the court. It was just that he didn't care that much. It wasn't that important to the Republican party what the jurisprudential views of the justices were and he sort of scored political points by picking people. And I think it's actually good for the president and the Senate and people to care who's on the court. They have a lot of power, their judicial philosophies and approaches matter, and so we probably ought to just take it really seriously rather than doing it sort of randomly or, or in a less thought out way. And so even now, even we have this sort of sense that the judicial selection process is really, really partisan, I think it could be more partisan.

William Baude (19:57):
For example, we still have this norm that the president gets a substantial amount of the say in who the justice is, but according to the Constitution, it's the president and the Senate, both. And there's no reason for the Senate to defer to the pick of the president if they think they can do better- they think they could hold out and get somebody that they would like better. There's no reason for them not to sometimes sort of go first and say, I mean, now we're into lists of justices, I guess. So the reason for the Senate not to have put forward for Senator McConnell, not to have gone first and said, look, here's a list of seven people. We'd confirm if you pick them, Mr. President. They didn't do that, you know, instead we had this whole sort of stalemate for awhile.

William Baude (20:37):
Maybe that's a step in the right direction. But it actually seems to me that it'd be better if we have everybody who has the power to pick a justice kind of getting involved, taking it seriously. Maybe sometimes that means we'll compromise. Maybe sometimes it means we won't agree at all, but it's important and we should take it seriously. I think Justice Scalia actually foresaw this, right? So in one of his many, many dissents in Planned Parenthood v. Casey, one of the abortion cases, he predicts that this is what's going to happen. He says, you know, "it used to be that people thought that Supreme Court justices should just be a lawyer. Adam's lawyers work and we just sort of sat up here parsing like old texts and precedents. And so people just pretty much left us alone assuming that, you know, any expert lawyer could do the job.

William Baude (21:19):
But the more we've created, in Justice Scalia's view, all these rights that weren't in the Constitution purported to pronounce on the deep meaning of human life and the fundamental values of the American people, the more the American people thought, okay, if that's what they're doing, we should get a voice in it. If the court is going to do is decide the most basic questions of morality and Americanism, then, then I guess there should be a vote on it. So people have sort of gotten in on the act in a way. I think Justice Scalia would be pleased and amused by how much political fire there was over his scene. I think he would say, "I told you so." So I guess I think that's actually a good thing and if anything, we need more of it, not less.

William Baude (21:56):
Now, obviously on the other side, once the justices take their oath, get their commission, walk into the Supreme Court building, right? They aren't beholden to anybody anymore. They have life tenure, pretty much, in theory they could be impeached, but that's not really a realistic possibility. They need a little bit of money to keep the salaries protected by the Constitution. You need a little bit of money to hire law clerks, keep the computers running and things like that. But, but basically they're self sufficient and on their own. And I think they ought to use that more than they do and ought to sort of put aside their past political loyalties and their past sort of lives and just concentrate on being whatever- you know, find whatever they think is the right way to be to be a judge or justice.

William Baude (22:40):
I think a lot of them are doing that. The problem is just that they disagree a ton about what it is they're supposed to be doing, but maybe there could be more of it. And I do worry about all the five four sort of politicized decisions where people identify the justices as conservative and liberal and think of them even as Republicans and Democrats. I worry about that a lot. And then the question is, what, if anything, could be done about it? Especially if the selection process is going to be so partisan all the time, right? So like all law professors, the first best solution is for everybody to agree on the correct method of constitutional interpretation, which is mine. So if we can resolve the dispute by just having everybody adopt sort of like my views about Originalism, that would be great.

William Baude (23:27):
That's the way to get past partisanship is to have everybody agree with me. But, you know, if the second best option was to have them all agree with somebody I really disagreed with like Jeff Stone, I wouldn't like that at all, right? I would still be holding out for people to dissent and disagree. So it doesn't seem like we've got a lot to do there other than to just argue with one another all the time. One possibility would be, and you alluded to this a little bit, would be to have maybe more of a serious and principled conversation about precedent. And we saw this actually, I think a lot, in the past six months as people thought the fate of the Supreme Court was gonna be up in the air and had different guesses about which way it was going to flip.

William Baude (24:09):
So there were, there were liberal law professors who had been complaining all the time about how the Roberts court was running rough shot over various precedents and they weren't respecting precedent enough. And, you know, we need to have more precedent, who then started writing kind of gleeful posts about "as soon as we get a fifth vote" and "here's a list of all the cases we should overturn, we should do to that and what they did to us some more." And then, you know, suddenly everyone had to flip back and delete all their blog posts and say "never-mind, like I'm really in favor precedent." And it goes the other way around too, right? The conservative judges who had been complaining over ex-precedents getting overruled and as soon as they get five votes they overrule everything. And it seems to me that maybe we should, we should try to work out in advance some set of norms about what we fully want to do with precedent. I'm open to the view that we shouldn't have it at all. Justice Thomas comes the closest to that principle but even he actually respects precedent sometimes. But just say, look, you know, as soon as you get five votes or something, everything goes out the window. I'm not sure we all think that was a good idea. If we had to face it under the veil of ignorance, maybe we could agree on some set of principles so that we don't suddenly have the massive flip-flopping. That could at least kind of confine us into a narrower and narrower zone. Another possibility--I am curious to know whether you think either of these will work or anything-- would be just to get the court out of the most important, most hot button cases. The guns, god, et cetera stuff. And gays.

William Baude (25:36):
Let me just say, if you look at the court's docket, most of the cases are not five four. A lot of the cases are unanimous, a lot of them are seven two, a lot of them are six three. They just tend to be the boring ones, right? Is such and such a period of time excludable at a speedy trial act? You know, what's the definition of you know, automobile franchise under the federal preemption laws? All that kind of stuff. They seem to do a pretty kind of ordinary lawyer's job, it's just the headline grabbing stuff that seems the worst. So maybe it should just take fewer of those cases and spend more time on the other ones, or maybe Congress would take them away from them and strip jurisdiction in a set of the most contentious cases and just let that stuff sort of peter along. One other possibility I've seen floated, and I'm still on the fence about this, would be "nine is not the right number of justices."

William Baude (26:32):
So again, this is an opportunistic move. We saw it and now everybody's flipping around on it, but maybe we should have an even number like eight or six, the original number, because then you couldn't have five, four cases anymore. Right. As long as the court is roughly evenly divided, you would only able to get a ruling when there's some partisan crossover. And you know, five three's a little bit more of a majority than five four or four two. So maybe we should actually discourage the sense that like "they have nine justices and they're always supposed to give us an answer." I get them to see sometimes there are things that they just let go. [inaudible]

Jim Zirin (27:05):
Well, there's no magic of course in nine. The court was six in 1789, an even number, then it went up to seven and the Congress creates the number of judges. It's nowhere in the Constitution. It went up to seven, then it went up to nine, then they inflated it to ten because they didn't want to give a way of blocking Andrew Johnson. And then they put it back to nine again. In 1969 it became nine and it has remained nine to this day. So you have a practice of it being nine and you have a practice of it being an odd number. Alito and Breyer think they can do very well with with eight and Kagan and Ginsburg say, no, nine is good because then you have less of a risk of a deadlock.

Jim Zirin (28:09):
If there's a deadlock, of course, the decision of the lower court is undisturbed and has no precedential value. So it really deals with Supreme Court out of the equation. And that's not so hot. So fiddling around with the number of justices is really kind of a tendency because we, lawyers basically are a conservative lot. And lawyers will say, you know, don't fool around with the Constitution. Don't try to amend it. You can't amend it any way, you know, never get two thirds of Congress and three quarters of the States. Don't fool around with the number of judges the way Roosevelt tried to do, which was said to impair the independence of the judiciary. Leave it the way it is and let's have a supremely partisan court.

Jim Zirin (29:01):
And when you look at it-- I agree with you completely, Will, because the supremely partisan court is exactly what the Constitution contemplated. I'm not sure that the the founding fathers ever visualized that we would have a presidential candidate who would say, "I want to appoint a justice who will automatically overrule Roe v. Wade and will sustain the second amendment sustain the second amendment as a truism." There's nothing that a justice can do to declare the second amendment unconstitutional. But it has never happened to my knowledge and the history of this great Republic that the president has said, "this is the kind of justice that I will appoint" with the thought, that he, the president, would get the justice to automatically overrule a case that has been decided.

Jim Zirin (30:03):
And, in fact, it has been reaffirmed at least twice. So how is that going to work? The appointed justice, we're talking about-- the title of this talk was the Post-Scalia world. He will appoint a justice- if he wanted to appoint a justice, as McConnell said, who was elected by the American people, he'd appoint Merrick Garland. Because after all, Hillary Clinton received the majority of the popular vote, so why wouldn't Merrick Garland be a justice elected by the American people? But he's not going to do that. And you know he's not going to do that. And he will appoint someone and the nominee will go before the Senate judiciary committee and this Byzantine process that we've had since the time of Brandeis in 1916. And can you just see the first question from Senator Schumer of the nominee, he'll say "judge so-and-so," I assume it'll be a judge, it may not be, but "judge, so-and-so, will you automatically overrule Roe v. Wade?" And what will he say? He'll say what Clarence Thomas started the tradition in answering this way: "No, that's an issue that might come before me if I am seated on the bench. So I really can't comment on it now." Everyone likes to dump on poor Clarence Thomas, but actually the liberal justices who have been nominated, including Sotomayor, asked questions like that said "I can't comment on that because that's an issue that might come before me." Scalia, Thomas, they don't worry about issues that might come before them because they've spoken extrajudicially about those issues and about those cases. So in any event you have what seems to be a highly politicized process and a highly politicized court. So then he'll say "I can't answer the question" and then Senator Schumer will say, "well, tell me this, judge, you met with the president and he must've had some conversation with him. Did you say to the president, you were prepared automatically to overrule Roe v. Wade? Or did he suggest to you that you want to vote automatically to overrule Roe v. Wade?" And the answer would probably be, "I'm not at Liberty to discuss my conversations with the president. That was a privileged conversation." So you know, very well that his demeanor or her demeanor about discussing those conversations means that if we're jury trial, that would be an inference. And certainly the American people will draw the inference and Senator Schumer will draw the inference that this is a judge committed to rule a certain way when he or she gets on the bench. And that is certainly something that's taken it a step further and beyond anywhere that it has ever gone in the past. In the past we've had candidates like Souter, David Souter, who was supposed to be the stealth candidate, because he was supposed to be against abortion rights.

Jim Zirin (33:11):
He wound up voting for abortion rights. You have Brennan and Warren, I alluded to. It's interesting that a number of Republican appointees, once in office, once cloaked in judicial independence, have crossed the line and voted with moderates and voted with liberals on many occasions. Among them Sandra Day O'Connor, among them Anthony Kennedy, the swing vote, among them you have Potter Stewart, among them Lewis Powell. The other thing that makes the court-- you said, "I'll say that the public lacks confidence in the Supreme Court, when it perceives the judgements to be political, then they become just like legislative judgments. And they say, well, who in hell are these ladies and gentlemen they haven't been elected by anybody and they're not accountable to anybody, they're independent and they're making political judgements in other areas, in these boring cases, that they decide."

Jim Zirin (34:19):
And we see that every day, because we believe in the rule of law, a judge will come down with a decision and we'll say, well, I disagree with that. But of course if we have a rule of law we will accept it. And most litigants, most of your clients, when they get out, this will accept the disposition, even if it's at first, because they feel we have a rule of law and you just you can't argue with a final judgment. You can say it's bad, but you have to accept it. But if it's politicized, if it's a political judgment, "I like abortion, or I don't like abortion," we're not free to accept it. And that was a great fear that John Marshall had about the Supreme Court. Remember in the Cherokee Indians cases, when Andrew Jackson said, "John Marshall has made his decision. I will let him go enforce it." And because the Supreme Court has no army and it can't enforce its judgment, it depends for its legitimacy and its primacy as the last word on the Constitution and public confidence and acceptance and respect for what it does even when it's narrowly divided. And I suppose even it's terribly partisan. Now you look at the gay marriage case. I thought Chief Justice Roberts wrote a brilliant dissent, very persuasive, in which he said "if you're supportive of gay rights it's a great day for you, but a bad day for the Constitution because there's nothing in the Constitution about marriage. There's certainly nothing in the Constitution about gay marriage. If you'd asked Hamilton, or Madison, or a legislator in the 19th century at the time of the equal protection clause if they understood that what they were doing was authorizing gay marriage they would look at you as if you were crazy." And when Scalia in his dissent, where he sarcastically said, "how is it that there's a right lurking on the fabric of the Constitution that was undiscovered by Louis Brandeis, Oliver Wendell Holmes or Henry Friendly?" But they found it and Kennedy found it, there was a brilliant, eloquent opinion of the court. But as Robert said in his dissent, who the hell do we think we are that we can invent a right like this. And you look at the whole history of the Constitution, which never mentioned marriage. And marriage was something that was left to the states and yet they made a decision of this kind. As Will points out, they're making these decisions when life begins, who should be able to marry, when a doctor can be of assistance in ending a life. I mean, these vital personal decisions have been decided for us by unaccounted judges. But yet that's our system and it was intended to be a politicized system. So we have to acknowledge that we're stuck with it. So,

William Baude (37:41):
So I think we've got some questions from the students, but I want to sneak one in first. So the senators asking the questions and the nominees invading them, do you think-- I mean, I actually, I think we should ask them more questions as I hinted, but is that really fair? Like, do the senators even really want to know the answer? Cause I assume that if one of Donald Trump's nominees said, "Oh no, Oh no, your honor, I wouldn't, I wouldn't overrule Rowe v. Wade. I'd assume that nobody would believe them. I assume that we're still going to vote no, saying like, "I'm not reassured by this answer." And similarly I assume that if the Senate really ca about getting answers to questions, they could adopt a rule we won't let a nominee proceed to the floor until they answer all the questions of the Senate Judiciary committee. And that's just going to be the rule.

Jim Zirin (38:26):
Well, that would almost create a constitutional crisis between the legislative branch and the judicial branch as to what the ethics are of answering these questions. But, you know, Clarence Thomas lied through his teeth unquestionably because he was asked about Roe v. Wade. He said, whether he'd ever read it, but they'd never discussed it. Was there a debate of it with anyone? And he said, no, I can't say that I have. But he wrote two law review articles on the subject which they produced and they passed him anyways. So the whole thing is kind of a circus. He co-authored them, but he wrote them and his name was on them. So he must have at least read the title. [Audience laughs].

Audience Member 1 (39:14):
So a concern that I have for a four four, if it gets involved in gridlock, we have problems that kind of situation would bring up where you have a political process that just doesn't work. So think about like one person one vote, originally, or for gay marriage, specifically, where people in these States are going to have a stigma against them. Pick your choice of argument. If the political process doesn't work, you have people who can't get help from the courts. What is the remedy if you have a four four court?

Jim Zirin (39:51):
So was it that a four four court means the lower court decision stands? Right. So in most of the gay marriage cases, that would mean a right to gay marriage and almost every circuit, I guess, other than the sixth circuit. So maybe that's weird cause there's a lack of uniformity or we don't like that one position. On the other hand, sometimes that can mean the right decision stands. So we give more power to lower court judges, which--

Jim Zirin (40:14):
The other really interesting thing about the gay marriage decision is that the Senate might have been all the more powerful was predicated on the fact that you can't find a right to gay marriage in the Constitution. But when you have Scalia in Lawrence v. Texas where he dissented in the judgment that homosexual sodomy could be criminalized he thought it should be criminalized as it was in Texas. And the majority said, no, it's unconstitutional. And he said, "well, you know, this is bad enough, but just wait, they're going to come back with gay marriage. And wait till they come back with gay marriage" as if that was anathema. And then in the course of the oral argument and the gay marriage decision, and his views were well known because of Princeton, he railed against homosexual and against gays.

Jim Zirin (41:14):
And in the course of the argument, a man Rose in the spectator's portion of the hall and he started to scream and yell. And so the marshals went over to him and tried to subdue him and drag him of the courtroom. And as they dragged him out of the courtroom, the courtroom was hushed. And the man said at the top of his lungs, "you will all roast in hell for this." And Scalia said, "I find that rather refreshing." There's no question about how he felt.

Audience Member 2 (41:55):
So just trying to project what the court might look like over the next few years, the conversation seemed to differentiate between politicization and partisanship. It seems like politicization might be justices that have views of how the Constitution should be interpreted, who state those views. Ideally there can be a robust debate about it and then they're confirming that they are on the court. And then in that case, at least we have principles that we hold them to as we look at their decisions and we can see if they're being arbitrary. That seems-- I have a hard time figuring out what Roberts and Alito, and if you make the kind of conservative judicial force say Roberts and Alito and prior recites, if you guys can answer this- what are the kind of judicial interpretive principles that we can hold them accountable to? I know what they are fairly well for Thomas and, you know, for Scalia, but I'm not sure what they are for the kind of new conservatives.

Jim Zirin (42:54):
I think they're unaccountable. You have, of course, Breyer who has publicly said that he considers Roe v. Wade to be an abomination. And he said that it should be overruled. The others have not spoken on it. So I suppose Senator Schumer will say, "judge, you said Roe v. Wade is an abomination? Why is it an abomination?" He'd say, "because I'm a devout Catholic and I think abortion is murder and should be outlawed." And it's going to come up. That issue is going to come up because it is pending in Congress, a bill that says that abortion will be illegal after 20 weeks. And the Supreme Court will have to pass on that. That'll probably-- if bill is enacted into law-- it will come up more quickly than the issue of whether a doctor needs a Nobel prize to perform an abortion, which will come up slowly in various States.

Audience Member 3 (44:03):
So you mentioned, Mr. Zirin, the idea that there's never been a presidential candidate who said that he would use a litmus test, basically, in nominating a Supreme Court justice, in this case Rowe v. Wade. And I know in Philadelphia when Hillary Clinton was talking about judicial nominations, she said she would only appoint justices who would overturn Citizens United and that was met with thunderous applause. So my question is, is your argument predicated on the fact that a lot of these precedents have been upheld after coming up again? So is it just old precedents that matter and that kind of make this court more political thing? Or do new precedents have just as much weight as the old ones?

Jim Zirin (44:58):
Well I think stare decisis is very, very important because it is a judicial process and that's a traditional, traditional tool. Not that judges can't make the law. I mean, Holmes believe that judges make the law, but they make it in a different way from the way legislators do. But I believe that the law must be allowed to develop, and it develops, I think, through stare decisis. By following cases that clearly, in point, or by distinguishing cases that are close, but not really so very much in point, where there is a real substance to the distinction, not just saying case standing, borrowing some language of the case, but where the judge really analyzes what the case stands for. So are there super duper precedents? I think that came up in one of the confirmation hearings with- I think Arlen Specter coined the term, senator from Pennsylvania that Roe v. Wade has become a super duper precedent because even though controversial at the time, maybe even though controversial now, it's been reaffirmed several times.

Jim Zirin (46:18):
Yeah, I think if there is, of course, a time which has to do with the development of society and the recognition that certain cases were erroneously decided such as Plessy v. Ferguson there comes a time where you have to overrule precedent or ignore it. And that's what they did in Brown v. Board of Education. And I think everyone on the court today would say that that was correctly decided. I mean, they might have take some exception, the reasoning or how it was done, but that was what? 58 years from the time of Plessy to Brown v. Board? It took them 58 years to overrule the case. Lawrence V Texas, the the prior case was Bowers v. Hardwick, but it was, I think, about 17 years. And so it was a five to four decision at Bowers v. Hardwick. And I don't remember Lawrence v. Texas, probably six to three. So, but that was a case where, particularly, you could see a strong equal protection argument, because the same acts committed by heterosexual couples in Texas were lawful, but by homosexual couples, not lawful. So I think perhaps they saw that as a denial of the protection

William Baude (47:56):
I don't know if you've had these parallels in mind, but two. So Citizens United has already been challenged and affirmed once already in the Supreme Court. There was another case a few years later where the Montana Supreme Court tried to basically nullify Citizens United and then went back to the court and they said, "no, no, we meant it." And even some of the justices who had dissented said, you know, obviously we're not overruling this case right now. So there's that. And in Casey, when the court refuses to overturn Roe, one of the reasons it gives, it says given that there's this popular outcry against the decision, that makes it all the more important. Like, sorry, this sentence has unusual force when there's popular outcry against a decision, because we need to show people that we don't bow to political pressure. That we kind of stand up in the face of controversy. So I expect that language would be cited prominently if, if Hillary Clinton had won and tried to overturn it.

Audience Member 4 (48:46):
So it seems to me that almost every single year, this potential justice is not seconded thoroughly. You know, race, gender, political views, is second, the only one that seems to escape and listening to your comments on it still seems to matter is their religion. And so I'm wondering if you see the politicization of the religion of the potential justice matter for the future of the court, should it matter, should we be done looking at that with the same scrutiny that we've done some of the other identity politics of the judges?

Jim Zirin (49:23):
And that came up in the Roberts confirmation hearing, actually, where they asked whether his Roman Catholicism would influence his decisions. And that issue has been discussed in many lower- a few articles discussed by your professors, Stone, it's been discussed by judges, Catholic judges. They've done analyses. Remember that one of the justices voting with the majority in Roe v. Wade was William Brennan, a devout Catholic. And even in the Planned Parenthood v. Casey, and it's probably the most recent abortion case, Justice Kennedy, a devout Catholic, who agreed that the kinds of limitations that the taxes were imposing were placing a substantial burden on a woman's constitutional right to an abortion when the fetus was non-viable. So it seems pretty much ingrained in our jurisprudence that this is a constitutional right. And it's hard to see someone getting on the court saying, well, you know, "I can't endorse that, I have to ignore that because I'm a Roman Catholic." I think it's not where- in that position you ought to do what Scalia said should be done, which is resign. I don't think that would come up that way. But yes, we do scrutinize. I think that the Senate scrutinizes the religion of the candidates and is aware of the religion of the candidates and their religious beliefs. And at times they- there should be no religious test for office, but they ask him anyway about it and they did in the case of Robertson, but he answered it quite well.

University of Chicago Law School (51:16):
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