Speaker 1: To discuss all matters Supreme Court. It's a great pleasure
Speaker 1: to welcome back to the Armstrong and Getty show. Adam
Speaker 1: White the Resident Resident Scholar at the American Enterprise Institute.
Speaker 1: Adam focuses on American constitutionalism, the Supreme Court, the administrative State,
Speaker 1: and is also Assistant Professor of Law and director of
Speaker 1: the Sea, Boyd and Gray Center for the Study of
Speaker 1: the Administrative State at the Antonin Scalia Law School, one
Speaker 1: of the great law schools in America at George Mason University.
Speaker 1: Mr White, how are you, sir? I'm good. Thanks. You
Speaker 1: gotta take some deep breath in that law that long
Speaker 1: business card, I do it short, I declare Adam the
Speaker 1: smartest person on the Supreme Court in America. Well, that's
Speaker 1: that's what you are, brief and and lovely. So hey,
Speaker 1: why don't we start with why is interesting and partisanship
Speaker 1: over the Supreme Court at such a fever pitch these
Speaker 1: days in a way that it really wasn't in decades past. Well,
Speaker 1: it's because of what the Court has done in the
Speaker 1: decades since then. In Justice Scalia put this really powerfully
Speaker 1: in one of his descents, in the one of the
Speaker 1: abortion cases, he said that, you know, to extend just
Speaker 1: this is are worried that the confirmation process is getting
Speaker 1: out of control. Um, they need to take a look
Speaker 1: at themselves and understand that the bigger of a footprint
Speaker 1: that the Supreme Court puts on American politics by deciding
Speaker 1: issues that are better left to the political process, the
Speaker 1: more that the political process will pull the Court into itself.
Speaker 1: And that's what we have now, especially when people are
Speaker 1: are are when people think that that Roe v. Wade
Speaker 1: might someday be at stake. So did the did the
Speaker 1: court change, did the public attitudes change? Or did the
Speaker 1: Senate change? And that we used to confirm these people
Speaker 1: ninety eight to nothing to nothing two that sort of thing,
Speaker 1: and now it's you know, a fight to the death.
Speaker 1: It's a knife fight. And Alley, I'd say the court
Speaker 1: changed first, then the people, and then the Senate caught up.
Speaker 1: I'd say that the Court changed first in expanding all
Speaker 1: sorts of rights that aren't written in the Constitution, like
Speaker 1: in Roe v. Wade in other cases, I'd say that
Speaker 1: the left started to put much more emphasis on the
Speaker 1: Court as a politic cal tool. And then we saw,
Speaker 1: you know, Ted Kennedy others declare war on Robert Bork
Speaker 1: in seven. That was the real turning point. I think
Speaker 1: Republicans took a little while to catch up. They never
Speaker 1: really declared war on set. I mean, they never have
Speaker 1: declared war on on Ginsberg, Brier, Soda, Mayor, and Kagan
Speaker 1: the way that Democrats have to bork Thomas Kavanaugh. They
Speaker 1: even went after David Suitor before they realized he was
Speaker 1: going to be a liberal justice. I'd say that. Then
Speaker 1: finally Republican senators decided we need to take this stuff really,
Speaker 1: really seriously too well. And I suppose we could mention
Speaker 1: that the Congress is in the habit of passing grand
Speaker 1: and glorious legislation that's also very very vague, and then
Speaker 1: lets the court interpret, you know, their grand, grand and
Speaker 1: glorious implementation. Yeah, there's no shortage of that too. I
Speaker 1: spend you know, plenty of time teaching administrative law and
Speaker 1: warning about that problem. So yesterday Joe Biden was asked,
Speaker 1: if he's president, is he in favor of packing the court?
Speaker 1: He wouldn't answer that question because he said it'd be
Speaker 1: a distraction. What is packing the court out? What would
Speaker 1: it look like in you know, what's the likelihood of it? Sure, okay.
Speaker 1: Packing The court is adding justices. We have nine justices.
Speaker 1: The court has been that size for about a hundred
Speaker 1: and fifty years. That's not written in the Constitution. The
Speaker 1: Constitution doesn't say anything about it. Originally the court was
Speaker 1: six members. It's been as large as ten, but since
Speaker 1: about the Civil War we've been at nine. That could
Speaker 1: be changed any time by ordinary legislation. Congress could create
Speaker 1: Supreme Court seats the way that it you know, it
Speaker 1: could print money. We don't do that for a good reason,
Speaker 1: because the stability of the court is an important thing.
Speaker 1: And once you'd make that move, once a Congress and
Speaker 1: a fit of partisan peak add seats to the court,
Speaker 1: we all know what happens the next time the tables
Speaker 1: are turned to the other side add seats in. Pretty
Speaker 1: soon we have a court of fifteen seventeen members. It
Speaker 1: looks less like a court of law and more like
Speaker 1: a miniature Senate. We call it court packing because that's
Speaker 1: what it was called when President Franklin delan Or Roosevelt
Speaker 1: tried to do it or threatened to do it in
Speaker 1: the nineteen thirties, and its own fit of peak over
Speaker 1: the Supreme Court striking down a couple of New Deal statutes.
Speaker 1: Back then, the the the proposal was so radioactive, uh,
Speaker 1: that everybody in the political process immediately rose up and said, no,
Speaker 1: this must not be done. It's been to call the
Speaker 1: third rail since then would be an understatement. It's worse
Speaker 1: than a third rail. And the fact that Democrats about
Speaker 1: two years ago started talking about it, I think, really
Speaker 1: showed how far beyond the beyond they've gone. And I
Speaker 1: think that it would be if they were to push
Speaker 1: that button, after say, taking over the White House and
Speaker 1: the Senate, it would utterly destroy the Supreme Court as
Speaker 1: a credible institution. I think that it needs to be avoided. Yes,
Speaker 1: I mean, I feel like we do that weird speaking
Speaker 1: of rails, were really off the rails at that point. Um,
Speaker 1: how difficult is it to do? Is it just a
Speaker 1: majority vote in the House and Senate and the President
Speaker 1: signs it or what is it? That's it? That's it.
Speaker 1: The Supreme Court. Congress can just pass a law like
Speaker 1: any other loss and just amend the statute. I don't
Speaker 1: have the statute in front of me that says how
Speaker 1: many seats the Court as but you just strike out
Speaker 1: nine and right in and and that's it, and and
Speaker 1: in fact they don't if they get rid of the filibuster,
Speaker 1: then it's just a bare majority of the House and
Speaker 1: the Senate at a moment in time adds seats. Yeah,
Speaker 1: how concerned are you that we are entering an era
Speaker 1: where that sort of thing is being um not only contemplated,
Speaker 1: but done. And to hell with the Union, to hell
Speaker 1: with the country. I'm profoundly worried about it. I think
Speaker 1: that the greatest constitutional crisis of our time is just
Speaker 1: one of utter, the utter lack of self restraint by
Speaker 1: our political actors and by so much of the public
Speaker 1: that really rallies them to go to abusive extent just
Speaker 1: in support of whatever policy they favor at the moment.
Speaker 1: I think it's profoundly dangerous. You know. You know what
Speaker 1: bothers me about it is that Democrats have done a
Speaker 1: great job. I think, you know, the media helps that along,
Speaker 1: but the Democrats done a great job of making it
Speaker 1: seem like you do this crazy thing, and we're gonna
Speaker 1: do this crazy thing. Well, the crazy thing the Republicans
Speaker 1: are talking about doing is one constitutional I mean, it's
Speaker 1: not out of bounds at all. Yeah, it's it's not
Speaker 1: all they're trying to do is fill the seat. Now
Speaker 1: here's here's the butt. Okay, here's the butt. The butt
Speaker 1: is as much of in favor of the Garland in
Speaker 1: action that I was. I was totally on board with
Speaker 1: them not voting on Garland. I think the way, the
Speaker 1: extent to which they really emphasized this new rule about
Speaker 1: not voting on Supreme Court confirmations during an election year,
Speaker 1: I really wished at the time they hadn't said that.
Speaker 1: I really wish now they hadn't said it, because while
Speaker 1: they are totally in the right to do what they
Speaker 1: are doing, there is there is this this this debate
Speaker 1: surrounding the honesty or dishonesty of Republican senators that I
Speaker 1: think looks terrible, and I really worry that it's gonna
Speaker 1: undermine not just their own credibility politicians. They can give
Speaker 1: away their credibility whatever they want. I'm really worried that
Speaker 1: that the stench of that is the stick to the
Speaker 1: whatever great judge gets nominated, and it will follow them
Speaker 1: to the court. And I think while politics is brutal
Speaker 1: and it always has been, I think one of the
Speaker 1: things we need to keep in mind, is that politics
Speaker 1: surrounding the Supreme Court needs to have an extra measure
Speaker 1: of self restraint for the good of the court, because
Speaker 1: we need it for the good of the rule of law.
Speaker 1: Adam White is with the American Enterprise Institute and George
Speaker 1: Mason University. What do you think of the principle of
Speaker 1: choosing court new justices according to the dying wishes of
Speaker 1: the previous justice. Yeah, you know, I'm not going to
Speaker 1: speak ill of the dead, No, certainly not, but speaking
Speaker 1: dying wishes as serious, I'll say Justice Ginsburgh from time
Speaker 1: to time ran into trouble for getting too engaged in
Speaker 1: the political process, particularly with respect to President Trump. I
Speaker 1: really regret that she her her last statement was one
Speaker 1: calling for a quote new president to name the next
Speaker 1: Supreme Court justice. I just think that's that's really not
Speaker 1: a statesman like word message from a Supreme Court justice,
Speaker 1: and and it's not her call. Right, Let's move on
Speaker 1: to some of the women being discussed for the opening
Speaker 1: um Amy Coney, Barrett obviously Barbara le go On. I
Speaker 1: don't know to what extent the rumor mill is accurate,
Speaker 1: but any thoughts on those two women in particular, so
Speaker 1: I really don't know anything about Barbara logo. She's she's
Speaker 1: not been sort of on the radar of the areas
Speaker 1: of law that I tend to focus on. Um Amy Coney.
Speaker 1: Barrett obviously was thrust into the spotlight when Diane Feinstein
Speaker 1: at the last confirmation hearing for when when Barrett was
Speaker 1: going on the Lower Court, you know, Finstein said that
Speaker 1: she had too much dogma, that Barrett had too much dogma.
Speaker 1: Really to call it finley veiled is to give it
Speaker 1: too much credit. Just a blunt attack on on her,
Speaker 1: on Judge Barrett's Catholic faith that was horribly offensive. And
Speaker 1: I think that the extent to which Judge Barrett really
Speaker 1: rose above that situation and and and and prevailed is
Speaker 1: to her great credit. Her scholarship on how to read
Speaker 1: statutes and how to balance the reading of statutes against
Speaker 1: the reading of precedents is I think among the most
Speaker 1: fundamentally important issues of the next twenty five years in
Speaker 1: the Supreme Court. And so I think Judge Barrett, for
Speaker 1: a variety of reasons, is probably the ideal candidate for
Speaker 1: this moment in time. Some of the names that have
Speaker 1: floated around Judge Britt Grant of the one of the
Speaker 1: lower federal courts down in Georgia. I've known her since
Speaker 1: she was in the Attorney General's office down there. She's
Speaker 1: a really great lawyer, extremely smart, smart and sharp. I'm
Speaker 1: glad to see her name on the list as well.
Speaker 1: So this is a You'll have to use some judgment
Speaker 1: on this question, because I I don't know the answer
Speaker 1: to this. The court with Ruth Bader Ginsburg on it.
Speaker 1: If you're looking at a football field and the fifty
Speaker 1: yard line is right in the middle between liberal or conservative,
Speaker 1: where was the court with her on it? So which
Speaker 1: how far do the writer left? Oh, that's hard to say.
Speaker 1: I'm from a Big ten school and we don't do
Speaker 1: football anymore. Um. I uh So this this replacing Judge
Speaker 1: Ginsburg with say Barrett or somebody in a similar vein,
Speaker 1: is going to move them If we were at the
Speaker 1: fifty yard line before, we're moving over to about forty
Speaker 1: five forty yard line in the conservative direction. There's an
Speaker 1: opportunity to change some precedents that the liberal justices had
Speaker 1: laid down in earlier years. But also this is really important.
Speaker 1: We could avoid some bad precedents that might have been
Speaker 1: made with just the changing of a couple of seats
Speaker 1: in a liberal direction, especially in areas of religious liberty,
Speaker 1: where Justice Ginsberd really was at the forefront of trying
Speaker 1: to trim back the Religious Freedom Restoration Act and pull
Speaker 1: back some of the protections that religious believers have in
Speaker 1: the face of progressive administrative state regulations. UM. I think
Speaker 1: that was going to be a crucial area for for
Speaker 1: Judge Barrett or any other appointee to the Court to
Speaker 1: really avoid aid a dangerous turn. I know it's not
Speaker 1: in the Constitution that you need to have sixty votes
Speaker 1: to become a Supreme Court justice. Did you like it
Speaker 1: better when the threshold was higher than just a majority
Speaker 1: or do you think of majority is fine? I wouldn't
Speaker 1: say I liked I definitely didn't like it better at
Speaker 1: the time, UM, because it was blocking some good judges
Speaker 1: in the George W. Bush administration. It's hard for me
Speaker 1: to put myself back in that mindset. I think that
Speaker 1: the voting threshold is really less important than the process
Speaker 1: in general. I think I think ultimately the Synate is
Speaker 1: to decide how the Senate does business in terms of
Speaker 1: the votes. I think the more of the Senate can
Speaker 1: do to create a credible process that really does I
Speaker 1: mean bad pun but does justice to the gravity of
Speaker 1: this particular issue, the appointment of Spreme Court justices. That's
Speaker 1: a good things of gang rape and that sort of thing. Well, right,
Speaker 1: that's the problem is you don't want to belabor the
Speaker 1: process just for the sake of character assassination. That was disgusting. Uh,
Speaker 1: and it's it's something that Republican senators have never never done. Um.
Speaker 1: But I would say trying to trying to to raise
Speaker 1: a confirmation through before election day, like you're the Dukes
Speaker 1: has are trying to to outrun Roscoe Peeke Coltrane, that's
Speaker 1: just a bad It just doesn't do justice to the
Speaker 1: gravity situation. I've I mean, I've written on this for
Speaker 1: the Bulwark and a piece that I know is pretty
Speaker 1: out of step with with my conservative friends. I think
Speaker 1: that they should do justice to the process, even if
Speaker 1: it means voting after election day, even if President Trump loses.
Speaker 1: I think that the process, especially for this seat, I
Speaker 1: think the American people deserve to get to know this
Speaker 1: nominee the right way and not in a hurried or
Speaker 1: or or other otherwise problematic way. By the way, your
Speaker 1: writings on Duke and Duke versus Coltrane. Incredibly insightful. Adam
Speaker 1: White with the American Enterprise Institute. Alright, final question, we
Speaker 1: gotta go there. I guess it's obligatory, um Roe v. Wade.
Speaker 1: It's just an exhausting discussion. To me, What are the
Speaker 1: chances a conservative court would actually overturn it in the
Speaker 1: next in years. It's hard to imagine, I'd say in
Speaker 1: the next twenty five years. Not hard to imagine. It's
Speaker 1: a It will take a process of case by case
Speaker 1: narrowing the precedent and really getting down to the core
Speaker 1: abortion right and then making the big decision. But along
Speaker 1: the way it's going to require a cultural change and
Speaker 1: cultural outreach. It's the most one of the most important
Speaker 1: issues of our time. There's a great line from a
Speaker 1: liberal law professor. The problem with Roe v. Wade, it's
Speaker 1: not that it's bad constitutional law. It's that it doesn't
Speaker 1: even pretend to be constitutional law. It's had the worst
Speaker 1: gravitational pull on everything around our court in our politics
Speaker 1: for more than forty years, and I think the moment
Speaker 1: that it's overturned will be a good moment. Adam White,
Speaker 1: Residents scholar of the American Enterprise Institute end with the end,
Speaker 1: and in Scholey Law School at George Mason University, Adam,
Speaker 1: it is always a pleasure. Thanks a million for the
Speaker 1: time you too, Well done.