Capitalisn’t: The Hidden Economic Dangers of Supreme Court Overreach

Episode Transcript

Steve Vladeck: The court's docket has become dominated by cases from these interest groups, whether it's regulatory interest, whether it's social interest, whether it's religious interest. The justices are doing nothing to stem that tide. They're like, "Ooh, candy," as opposed to, "Wait a second, maybe we should slow our roll."

Bethany McLean: If the referee starts wearing a team jersey, the whole system, democracy and capitalism, starts to break down. When did the Supreme Court start to become so ideological and why?

Steve: I think the Supreme Court has actually been, at least in one sense of the word, political for its entire history. One of the most well-known decisions by the Supreme Court, even among non-lawyers, is Marbury v. Madison, the 1803 case, saying the court has the power to strike down statutes. Bethany, that's often referred to as a political masterstroke.

I think what is different about the last, say, 16 years or so is that for the first time in its history, from 2010 to today, the ideological division of the justices aligns perfectly with the party of the president who appointed them. We don't have liberal Republicans on the court like David Souter anymore. We don't have conservative Democrats on the court like Byron White. I think it's always been there, but it's just so much more visible now, Bethany, and it's so much more easily chalked up to who appointed the justice than it ever was at any prior point in the court's history.

Luigi Zingales: Now, you cited David Souter, who clearly, from a civil right point of view, was more friendly or more on the democratic side, but when it came to business, and we are more interested on the economic side of things, when it came to business, he was probably to the right of Attila de Hun in this. My question is, when did this shift take place? I'm obsessed by the infamous Powell memorandum. For our listener who might not be familiar, this was a memorandum to the American Chamber of Commerce wrote by these prominent lawyers who, the next year, was appointed to the Supreme Court and was very influential in the Supreme Court.

He says very clearly that it is a neglected opportunity for the Chamber of Commerce to have influence on the court. He said, under our constitutional system, especially with an activist mind, the Supreme Court, the judiciary may be the most important instrument for social, economic, and political change. There is at least one important constituency, the Chamber of Commerce, that in 1971, very clear that they wanted to influence the Supreme Court to their own advantage.

Steve: I think that's true. I think what has changed since 1971, Luigi, is that it is easier for entities like the Chamber of Commerce to do so. The Supreme Court is deciding about a third of the total number of cases today that it was deciding in 1971. The justices are picking those cases based largely on what kinds of friend of the court or amicus briefs are being filed at the stage where parties say, "Hey, pick me, pick me." Groups like the Chamber of Commerce, they raise their hands. They say, "Hey, we want you to take this case," or, "We want you to not take that case."

I think the court's docket has shifted, Luigi, as its composition has shifted, to basically have more of the total output from the justices be either these kinds of economic bread-and-butter cases or culture war red meat, which we're seeing a lot of on the court's docket for this term. I think that's a symptom of a broader disease, which is that the Supreme Court is not just, back to Bethany's question, so ideologically divided. This is also a Supreme Court guise that is less accountable to the other branches. It's less accountable to Congress, less accountable to the president than it was at any prior point in its history.

When the court hears from parties it likes that say, "We want you to take this case," there's no person on the other shoulder saying, "No, don't take it," or, "If you do this, something bad's going to happen." It really is, as my friend and University of Michigan Law Professor Leah Litman has put it, it really is a YOLO court because it's not worrying about what folks are going to do if the court does something wrong, how Congress is going to react, how we're going to react. I think that's a big source of how we got to where we are today.

Bethany: Who is the court supposed to be accountable to, and how is the court supposed to be accountable? How have they changed that? Then tell our listeners about that. Alito quote and why it's so telling.

Steve: I love the Alito quote. We'll end with Justice Alito, the Phillies fan. The Constitution enshrines an independent court, and it protects independence by giving the justices protection against removal except for bad behavior, by barring Congress from reducing their salaries. In every other respect, Bethany, Congress calls the punches, Congress calls the plays, Congress pulls the strings. Congress decides when the court sits, where sits, what cases the court hears, how many justices there are.

Congress, Bethany, for the better part of 175 years, pulled all of those levers as a way of basically keeping the court loosely in line. Not to say, rule this way in this case, but as a way of saying, "Hey, the more that you are basically generally behaving, the nicer we're going to be to you, and the less well you behave, the meaner we're going to be to you."

It wasn't always perfect, Bethany. It didn't always produce great decisions, but it did mean that justices were looking over their shoulder, perhaps the most visible example of which was when Justice Abe Fortas resigned in 1969. By the way, the very last time there was a majority of the court appointed by Democratic presidents. He resigned because he was convinced by Chief Justice Earl Warren that if he didn't resign because of this ethical and financial scandal, Congress would come after the court. That was a big part of that move.

Fast forward to the Alito quote. A couple of years ago, Justice Alito gives this interview to The Wall Street Journal. He says something along the lines of, "I know this is a controversial position, but I'm willing to say it," which my edit, always a good way to start a quote. He says, "No provision in the Constitution gives Congress the power to regulate the Supreme Court, period." The period is his, which is literally incorrect. Article 3, Section 2, the part of the Constitution that talks about the Supreme Court's jurisdiction literally says Congress can make regulations that control the cases the court hears.

He's capturing, Bethany, this broader thing that's in the zeitgeist, which is Congress has stopped doing that. Congress has stopped using the court's budget as leverage, using the justices' pensions as leverage, using its control over the court's docket as leverage. When you have a court that is completely unrestrained, it's no wonder that the court's going to just run in the direction of its ideological majority. Whereas at prior points in American history, that wasn't true.

Luigi: Now, the obvious question to ask you, but it will be too easy for you, is why the Democrats allow this. We have this running competition between Bethany and I, who is more cynical. Let me try to present you a cynical interpretation of this, and then feel free to, of course, dissent, vehemently dissent. My cynical mind is, at the end of the day, actually, the traditional Democrats love the situation. Why? Because the court was defending very strongly the interests of the rich people they finance, the Democrats, and was attacking the Democrat on the civil rights on which they could campaign, because Democrats needed something to differentiate themselves from the Republican. The only thing that would really differentiate themselves was on civil rights.

The Supreme Court was giving them an argument to be different. That's the reason why they never, ever, even when they had a majority recently, they did not do anything to the court. There were plenty of evidence of improprieties of the court, so they couldn't intervene, or at least threatened to intervene, but were too differential. How do you like this cynical interpretation?

Bethany: Luigi, that's cynical even for you. [laughs]

Steve: I will say that I am, I think, halfway to your cynicism, but not all the way, which, for folks who know my work, I think will find not surprising at all that I'm not quite as cynical. I think one very important thread of what you said, Luigi, is absolutely correct, which is that Democrats have spent 50 years viewing the Supreme Court as the best way to protect and articulate and expand the rights for which Democrats think they are fighting, and therefore, view any attempt to rein in the court, to pull those levers, to nudge the court as potentially weakening an institution that was so central, at least for the better part of 25 or 30 years in expanding the gains of the civil rights movement, for example.

I think the problem is that Democrats were both, one, naive about that and how quickly it would turn. Starting with Fortas' resignation, Republican presidents appointed the next 11 justices in a row. Two, I also think that it's the same problematic mindset, Luigi, that I'm fighting against in so much of my work, which is that you can't have a strong and accountable court.

This notion that it's a zero-sum game, that the two options are to leave the court alone or to weaken it, which I think is why so much of the democratic court reform agenda really hasn't hit home because the most visible examples, add seats to the court, that would weaken the court, or immediate term limits, which you couldn't really do by statute, might weaken the court. Whereas I think if you really trace the problem to its deeper roots, which is not an ideological problem, it really is an institutional problem, the solutions are both more modest and more politically achievable.

It's just that so many Democrats want quick results fast because they've seen how much the court has done quickly and fast for Republicans. They want the same. I think that's the mistake that folks are making, which is all that you would accomplish, even if you had the political wherewithal to get those kinds of reforms through Congress, is actually weakening the court even further in the long term. I'm here trying to say, why can't we all figure out how to make the court more respected by everybody, as opposed to how can our side manipulate the court for its partisan policy goals the way that we've seen Republicans do the same?

Luigi: If you had to advise Biden in 2021, maybe you were advising Biden, or the next democratic president, if there would ever be one, with the majority, what are the changes you want Congress to do to go in the direction you want?

Steve: I have a bit of a laundry list, but I think the most important thing to say before ticking off some of the items on the laundry list is that the whole is greater than the sum of its parts here. My goal is for Congress just to get back in the business of nudging the court, no matter what the nudges are.

Just a few things I'd like Congress to do. One, I would like Congress to make more of the court's docket mandatory again. The Supreme Court today picks basically 99% of the cases it hears. It's only been true since 1988. For the first 102 years of the court's history, it had no control over its docket. Even until 1925, it had very little control over its docket. Now, it's at the other extreme.

I think it would be very, very modest for Congress to say, "Actually, Supreme Court, we want you working a little harder, and we want you taking cases you wouldn't otherwise be inclined to take, maybe because they're not quite the cotton candy ideological disputes." One is docket reform. Two, I want an inspector general, not just for the Supreme Court, but for the entire federal judiciary, someone who can actually provide objective assessments of whether the justices are compliant with all of these ethical and financial disclosure rules of whether Justice Thomas really did violate federal tax law. That shouldn't be litigated in the court of public opinion. It should actually have an official whose job it is to investigate that.

Three, I want Congress to have the justices testify before Congress again. That used to happen all the time. There's this remarkable video from 2001 of Justice Kennedy testifying ostensibly for the Supreme Court's budget before a House committee where the members just kept yelling at him about Bush versus Gore. I think that's helpful. I think that's inner branch accountability, the likes of which we haven't seen before.

Four, and I think just more generally, I want Congress to get back in the business of exerting institutional authority over the court. If the court adopts an interpretation of the statute that Congress didn't need, in the old days, Congress would just pass a new statute in a day and a half. Now, that doesn't happen anymore. It's a list that can go on and on and on, but those are the big ones. It's all about the court being reminded that it is one branch among three as opposed to this aloof, insulated entity on a hill.

Bethany: Whose interest is the court serving with this change? Is the court serving the court's own interest? I think you seem to be overusing this phrase lately, but is this just the court's will to power? Is somebody, something, or some shadowy power working through the court to try to make the court less accountable and more powerful?

Steve: I think it's a question, Bethany, of from whose perspective are we answering that question. From the court's perspective, I think almost all of this is about arrogating power. There's that really terrible Chris Rock movie from the early 2000s, Head of State, where the guy Chris Rock is running against for president, his tagline is, "God bless America and no place else." That's how I think the court operates. God bless us and nobody else. We don't like Congress. We don't like the lower courts. We don't really like the president, although we're okay with some of what he's doing.

From the court's perspective, I really think it is about power. I think that because of that, Bethany, and because of who the justices are, there are outside forces that are able to manipulate that mentality and that are able to capitalize and exploit that mentality to get particular issues, whether it's deregulation, whether it's expanding certain understandings of religious liberty under the First Amendment, whether it is weakening administrative agencies, but empowering the president, that those are all, I think, channeling through a court that sees those things as all simpatico. People will disagree about how malicious it is versus how reactive it is, but I think it all is swimming in the same direction when you add the pieces together.

Luigi: As an economist, the idea that the court only cares about itself and maximizes power, it sounds very reasonable. That's really why I'm so cynical. Why don't you walk us through exactly, because this is the part I completely don't know, is how the vested interest can manipulate the court with this objective so effectively to get what they want, for example, under regulation?

Steve: Let me give you a couple. Since you're an economist, I'm going to do something weird for lawyers and actually use some numbers.

Luigi: Great.

Steve: The Supreme Court these days is only deciding on about 57 to 60 cases a year through its regular, what we might call the merits docket. As I said earlier, that's basically down to about 33% of where the court was as recently as the 1980s. Of those cases, if you go back two terms or two or three terms, you can count up to about 22 of them, so well more than a third of the total cases the court has decided in that are either about social issues, religious liberty, or administrative power and administrative law.

What's crazy is even if we went back 40 years to when the court was here on three times as many cases, they wouldn't have had that many then of these kinds of cases. Why is that happening? It's happening because the court has complete control over its docket. It's happening because since 2020, because it takes four votes to grant review, you need at least one of the Republican appointees in every single case to vote to take it.

The Democratic appointees can't do it by themselves anymore. It's happening because the kinds of cases that these litigants are steering to the Supreme Court are basically teed up exactly to appeal to whatever their dog in the fight is, whether it's the substantive question or about judicial power.

One of the phenomena I encountered when I was teaching at the University of Texas is many of these cases were being brought in random parts of Texas, in Amarillo or, gosh, Victoria. Why? Because there was a single Trump-appointed district judge in those places where they were guaranteed a favorable outcome in the district court. By the time it got to the Supreme Court, Luigi, they were winning and they were playing defense.

I think you add all of these things together and the court's docket has become dominated by cases from these interest groups. Whether it's regulatory interest, whether it's social interest, whether it's religious interest. The justices are doing nothing to stem that tide. They're like, "Ooh, candy," as opposed to, "Wait a second, maybe we should slow our roll." One other really interesting data point about this, and this is going to be maybe the nerdiest thing I will say today, I hope. No promises.

Bethany: We like nerdy. Go for it.

Steve: The solicitor general is the federal government's lawyer in the Supreme Court. Historically, that office has had so much sway over the court and has been given so much deference that it's often referred to as the 10th justice. One of the ways that the solicitor general influences the court is sometimes when the government's not a party, the court will say, "Hey, solicitor general, what do you think? Should we take this case or not?"

There's no real history of the solicitor general weighing in without being invited. Usually, the SG is like, "All right, if you invite us, we'll weigh in, but we're otherwise going to stay out." The Trump administration has filed more uninvited, no Alanis Morissette reference intended, more uninvited amicus briefs at the, "Should we take this case," stage than every single president before. Basically, the SG is using their influence. "Hey, Supreme Court, you should take that one, and you should take that one."

These are all pieces of the same phenomenon, which is these are smart lawyers, many of whom clerked for these justices, who know that they have a majority and who want to take it out for a spin. Historically, what would have constrained that kind of manipulation was a combination of the court itself being self-aware and the court being worried about engendering pushback if they were perceived as being in too much of a hurry.

Bethany: Between all these special interests that are trying to influence the court, is there any way to think about who's having the most luck? I think my cynical belief would have been, before listening to you talk, that it would for sure be business interests that were figuring out how to hijack the court and turn what's happening there to their advantage. Is that the case, or am I overestimating the importance and the competence of business relative to some of the other special interest force that work in our country now?

Steve: I think it's a question of what your metric is. If it's a volume question, Bethany, it's not business. If it's a volume question, it's the Trump administration. It has been for the entire duration of President Trump's second term. The court has bent over backwards to accommodate the Trump administration. The court has enabled the federal government to continue enforcing a whole bunch of policies that lower courts had said were unlawful.

If it's about how much the court is changing the doctrine, the broader law governing all of the things that are happening in the world, yes, I would say it's a close call between business interests and religious interests. The court has expanded its conception of religious liberty in ways that I think would have been unfathomable 10 years ago. The court has narrowed the scope of the establishment clause, which is supposed to keep the government out of religion to an extent I think we would have thought unfathomable 10 years ago.

We're now seeing serious arguments that public religious charter schools might actually be constitutional. That is not something that was even remotely conceivable 15, 20 years ago. The movement on the religious front has really been staggering. The business stuff I think is also part of the story, too, with one big caveat. All of the successes that big business has had in the Supreme Court has been with an eye towards shifting power from administrative agencies to courts.

Regulations, are they valid or not? It's not going to be up to the agency. It's going to be up to the courts. That only works, Bethany, so long as you can control which courts are reviewing these cases. There are some areas where I think the business world has been more successful because it's had more control over where these cases are being litigated in the lower courts. Somewhere there's been less success. I think that's part of why I'm a little more equivocal on that front.

Bethany: Sometime in the mid-teens, an economist named Mohamed El-Erian wrote a book about the Fed called The Only Game in Town. In that book, he argued that the Fed felt it had no choice to take more and more responsibility for the economy, even in ways that sat outside obviously any kind of constitutional oversight because Congress just simply wasn't doing it. Does that argument apply to the Supreme Court, that it too feels it's the only game in town? If so, then isn't the fault in the end Congress's?

Steve: Yes. I realize I'm sort of swinging at the lowest hanging fruit in the history of fruit to say, yes, it's Congress's fault.

Bethany: [laughs] I guess I did tee that up, didn't I?

Steve: That's okay. Bethany, it's worth explaining that I think it's Congress's fault in multiple different ways, none of which are partisan. Way number one is Congress no longer being the dominant voice of domestic policy. That's what creates all this gap for presidents and/or courts to rush in to fill. Number two, Congress is also the reason why the court has been able to aggrandize all this power over the last decade or so because there have been no consequences as it's done it.

The court has decided on more and more cases through these emergency applications. That's something Congress could control. It's just chosen not to. The court has taken truly bizarre interpretations of statutes, and Congress has left them untouched. The court has articulated a brand new theory of what Congress must do to regulate domestic policy issues. Congress has sort of rolled over and said, "Okay." Congress is enabling this mush both by not regulating directly and by not checking the other branches as they're claiming the power of Congress has left on the field. It's like Congress is responsible at both ends of the equation.

Luigi: Since it's too easy to blame Congress, let me try something a little bit harder. Let's blame--

Steve: Blame me.

Luigi: You're too young to be blamed for this. Maybe you have other responsibilities, but not this one. Let's blame the Democratic Party. Why the Democratic Party? Because, to some extent, the Republican Party was playing this game. The Republican Party has always been the party that want to protect business. This gridlock in Congress was really playing well in this strategy. Why the Republican Party should allow this to change it? Because it was playing in his direction. The Democratic Party, at least allegedly, claims to be on the other side. The Democratic Party had a lot of power over this last 30 years, so it was not always a minority, never did anything in that.

Now, again, my cynicism, you can argue that this is because they are naive, but I don't think that Nancy Pelosi or Bill Clinton can be accused of being naive. They can abuse a lot of things, but they are super smart and not naive. I have to come to the conclusion that they did it on purpose. They did it on purpose because they needed to cater to a bigger part of their constituency that was a big business, and they wanted to pretend to be in favor of all the other stuff. At the end of the day, as you said, they only focused on civil right, and they gave away the rest.

Steve: Again, I think there's a lot of truth in what you said, but some of it, I think, is overstated. To say, for example, that the Democratic Party never did anything is to ignore some pretty significant domestic policy achievements from the Democratic Party, even in my lifetime. The Affordable Care Act is a real thing that has helped a whole lot of people in ways that otherwise they would not have been. I think I would say, I see, Luigi, more problems with how Democrats have behaved when they've been in the minority than when they've been in the majority because, with only a short exception in, gosh, the early 2010s, maybe the late aughts, the Democrats never had a filibuster-proof majority in the Senate.

Luigi: Wait a second. The filibuster is a self-imposed rule. The Democrats could change it tomorrow if they want to. That's part of the problem.

Steve: I'm about to agree with you. I think that if you really want to lay blame on the Democrats, it's for not nuking the filibuster. The reason why I'm a little bit equivocal about not nuking the filibuster is because I look at where we are today and the extent to which the filibuster is actually preventing Congress from doing a lot of awfully shady stuff like passing this crazy legislation to basically federalize elections so that President Trump can mess with them.

I am not here to defend the Democratic Party. I wish it looked very different than what it looked like today. I think it has a huge age problem that reflects some of these, Luigi, sort of playing the old game versus playing the new game. I also think we shouldn't be quite so quick to assume that destruction is the first answer because some of these frustrating obstacles to meaningful reform are frustrating in both directions. At least right now, I'm okay with the filibuster in a way that maybe I wasn't five years ago.

Luigi: I'm sorry. I'm struggling a bit with your answers because, on one end, you're saying it's all fault of Congress that did not create the right rules. Then when I say, "Okay, the Democrats had the chance in Congress to put all the rules they wanted," you say, "Oh, but that would not be enough and it would be danger today." I'm not so sure how you can reconcile the two because imagine that in 2021, Biden had decided to follow all your advice that you're giving today, I don't know whether you were giving also then, and maybe including expanding the number of judges.

Steve: That's not one of mine.

Luigi: Okay, but maybe. Do you think it would be in such a terrible situation today?

Steve: Yes.

Luigi: Then those rules are not enough. Then you're saying those rules are not enough.

Steve: Yes, because what really is missing from this conversation is a broader structural reallocation of power between the three branches of government. On any one issue, maybe you can cobble together a majority or not. Maybe you can get votes or not. The question that I keep coming back to, Luigi, is how do we actually rebuild Congress as an institution that regularly asserts itself even when it likes what the president is doing, or it likes what the court is doing? That's not about any one particular reform. That's about Congress reclaiming power to act even when the other branches are not necessarily cross in Congress, but just because Congress should be exercising power unto itself.

Bethany: I wonder if part of it isn't so much that either party is captured by interest, is just that they're afraid to take a stand, and that winning elections has become about not being accountable for anything and not having to have your feet held to the fire on anything. It's easier to say, "Well, we didn't do that," and defer to another group, whether it be the Fed-

Steve: Like the courts.

Bethany: -or the courts. I don't know if that's a naive point of view or an actually ultimately cynical one that it's very much in keeping with this ugly part of human nature that feels like it's risky to stand up for something that you believe in and easier not to believe in anything and let somebody else take the blame.

Steve: I think, "Yes, and," Bethany, right? To me, the thing that has been missing the most from the Democratic Party for 10 years has been leadership. Even when President Biden was president, I wasn't sure who the leader of the Democratic Party was. I think leadership comes in lots of forms, but one of the unifying and uniform themes of leadership is identifying things for which you are willing to stand up.

I'm on CNN more often than I'd like to be. I was on this panel with Scott Jennings, gosh, last March or April, where he was saying that Democrats fighting for due process for alleged alien enemies were making a huge political miscalculation. That like, "You guys, this is a terrible political gamble." I said, "Scott, I don't give a shit about the politics. The question is, do we have principles or not? If you don't believe in due process, then what are we doing here?"

That's what's missing. I should not be shooting people. We should not be sending people to gulags. These are things that ought not to be controversial. Yet I think, at least, many of the folks who I think of as the current formal leaders of the Democratic Party seem to be having a hard time saying that succinctly and loudly.

I think that's a big part of maybe Luigi's broader frustration, whether it's because they're captured by outside interests or just because they're weak or because they came up in a different era where they thought you could actually compromise your way to a solution. The Republicans have just blown us by on that. It might be different answers for different people, but I think it's all part of the same stew.

Bethany: Is there a scenario in which the cure for this is worse than the disease? What I mean by that is that one cure for this is that the Supreme Court, through its actions, actually erodes its own standing in the eyes of the American public and erodes its own-- the sense of it as an institution that stands above politics and that is ultimately trustworthy. In which case, you have yet another addition to the ongoing crisis in institutions in our country, and it unspools from there. In other words, the consequences of this are big. [chuckles]

Steve: I think the answer is yes, but Bethany, I think it's already happened. I ask my students a lot why, in the most critical moments in American history, why did presidents comply with the Supreme Court when they didn't want to? The two examples I usually give them are, why does Eisenhower send troops into Little Rock in 1957, and why does Nixon turn over the Watergate tapes?

The answer is not some deep internal morality in either case or some high ethics that really set an altruism. The answer was politics, that in both cases, the presidents at issue were worried about the political ramifications of not doing it. Eisenhower was worried about what would happen if he didn't stand up for the Supreme Court. Nixon was worried about what would happen if he defied the Supreme Court. I don't know that the Trump administration spends that much time worrying about what would happen if it defied the Supreme Court. I don't know what those political consequences would be. I think that's a reflection, Bethany, of how much we're already there.

When I wrote my book a couple of years ago on The Shadow Docket, the subtitle was How the Court Uses Stealth Rulings to Amass Power and Undermine the Republic. We meant it, that the court's behavior has really, I think, affected its credibility, not on a nationwide basis with everybody, but at least with half of the country, where historically, the court depended upon at least some diffuse support, even from folks who might not agree with it, to be able to ensure those mandates were carried out.

Part of why I spend so much time writing about the court's behavior and not just its rulings and shouting at my newsletter subscribers about why they should care about all these nerdy features of the court's business is because I think there are so many ways in which the court could be using all of these opportunities to rebuild credibility. They're just not. They keep leaning into, "Hey, we're a 6-3 court, and we're going to do 6-3 court things."

I think that that's making the court that much weaker, Bethany, for the confrontations that are inevitably to come. To me, the solution is not, as some of my friends on the left would suggest, to push the court the last few inches off the cliff. To me, the solution is to figure out how to pull it back and how to pull it back in a way that it will have more credibility so that it can more effectively stand up to everybody, including presidents of the same party as a majority of the current justices.

Bethany: Yes. You would think in a rational, long-term world that the business community would actually be also very interested in aiding that endeavor because if faith in America's system of rule of law starts to break down, that's actually terrible for American business. They will reap the rewards of the very thing they fostered or helped to foster, but that's actually a terrible outcome for them.

Steve: Right. Imagine a world in which, all of a sudden, it becomes hard to enforce contracts.

Bethany: This is the Roberts Court. What does this say about what the Roberts Court is? What does your broad argument say about what the Roberts Court is, and what does that mean for his legacy? Then as you think about him, you study him more closely than probably many other people do. What would you expect he will do based on what you've seen ultimately? Does he know or care that this is his legacy?

Steve: John Roberts, I think, is really a bit of an enigma at this point, in a way that he wasn't, I think, for perhaps his first 10 years as Chief Justice. He just celebrated his 20th anniversary as Chief Justice in September. It is crazy. I think, insofar as he's worried about his legacy, I think he probably feels a bit trapped. Trapped by events, trapped by the sort of the lack of a center on his court, where it really is him and almost nobody else. Trapped by a president who-- I don't think it's wild speculation that John Roberts has no love for Donald Trump, but also is wary of the power he's wielding and is wary of the fact that Congress has basically rolled over, over the last year and three weeks.

I think if I had to bet, I think John Roberts always wanted his legacy to be preserving the court's power while cementing the dominance of the conservative legal movement. A lot of the big action items for the conservative legal movement are now in the rearview mirror. They overruled Roe. They gutted the Voting Rights Act. They basically threw open the doors to all kinds of campaign finance. Mishigas. The religious stuff. You name it. The dismantling of the administrative state. Check, check, check, check, check. Yet the court today is so much more of a lightning rod than it was when he took over 20 years ago.

I cannot imagine that that's something he's happy with, but I also bet that he's worried that it's not something he knows how to fix. To me, the most obvious way you fix that is by finding ways, big and small, to stop doing what everyone predicts you're going to do based on the president who appointed you.

To have some of those big rulings that are unanimous that were so important in earlier moments in the court's history. Brown was unanimous. The Watergate tapes case was unanimous. The court worked very hard for those things to be unanimous so that it would look like the court was speaking with one voice. I don't know how Roberts does that given the Thomas-Alito-Gorsuch cohort he's working with, but I think that's part of the trap.

Luigi: Again, to be fair, being unanimous these days is very difficult because I read, I think, in The New York Times, that even Kagan is in trouble because now you have Ketanji Jackson, who is really not afraid to dissent on the left. Kagan doesn't know what to do because she's normally somebody that tries to form coalitions. If you have somebody who is always out there and you're left in three, what do you do? If you were, for example, Elena Kagan, what would you do?

Steve: Let me start with what she's done. The New York Times story, Luigi, that you're referencing, I actually think was maybe a bit dated. I think that was the Justice Kagan of last April and May. Over the course of the summer, as we saw the Supreme Court side with Trump again and again in circumstances that were increasingly problematic, you started to see Kagan actually joining the Jackson-Sotomayor dissents more often, and sometimes even writing them.

I think she's already, if anything, made her position clear. If I were thinking about how to get out of this morass, I would go to the Chief Justice's chambers, and I would sit down with him, and I would say, "How are you and I going to lead the court out of this mess?" There are ways in which they are the two natural leaders on the court. They're the two who are the most private. They don't go around and hawk their celebrity. They're the only two justices who haven't written a book. They, I think, are the two best writers on the court. I think they're probably the two most well-respected thinkers on the court. I think it would have to start with them.

I guess my question is, are we really sure that there hasn't been an attempted olive branch to this point, and that it was just refused? That's where I lose sleep over on this question because it seems to me that Justice Kagan signing on to more and more of these dissents from Jackson and Sotomayor, may be a sign that she tried and failed, and that even she is now calling BS on what previously she would have grinned and bear it. She would have held her nose and allowed it to go through.

Bethany: That's a depressing possibility. Okay, we're not going to end there. This is an upbeat, happy, happy podcast where nobody is cynical and everybody is pleased about the state of the world. Tell us something--

Steve: We can say we're totally screwed in a happy, upbeat voice. We're totally screwed.

Bethany: [chuckles] No. Come on. Give us something in all of these mishigas that makes you upbeat and happy. Something, some little tiny thing that makes you optimistic.

Steve: I actually think it's a big thing, which is people like me have been shouting about this institutional collapse for 25 or 30 years. Now, more people are taking us seriously. We are actually now having conversations about reinvigorating institutions in this country that are decades overdue, whether it's universities, whether it's law firms, whether it's state governments, whether it's nonprofit organizations.

The assaults on institutions have actually, I think, provoked a really welcoming reminder that these institutions matter, that public and private institutions are actually pretty important features of our democratic society. We're having conversations about reform, Bethany, that are taking the views that we wouldn't have seen 15, 20 years ago. There are people who are, I think, genuinely thinking about how to square the circle of meaningful reform in our current sharply divided two-party system. That gives me a lot of optimism that we're not past the point of no return.

We don't have to look that far to see examples of this actually happening. The Supreme Court adopted this code of conduct a couple years ago after all the outcries about the justice behavior. Now, to call the code of conduct the court adopted a half measure is to do grave injustice to half measures around the world. The fact that the court did anything, if you are a student of the court's history, is astounding. They were reactive to public pressure. They actually felt like they had to move.

My hope is that we are going to come out of this, whether it's three years from now or five years from now or even nine months from now, with a much better understanding of how we got here and a much better understanding of how we can insulate our democratic system against getting back here so quickly again. It has to be about more than just electing different people. It has to be about rebuilding institutions and maybe codifying things that were norms to actually restore any modest understanding of the separation of powers as a way of protecting all of our liberty.

Bethany: The most stunning thing to me in the podcast was when he said that it has been the Roberts Court for 20 years. I guess I was thinking it had been the Roberts Court for a long time, but I was not thinking it had been the Roberts Court for 20 years. [chuckles] I remember when he was appointed the Chief Justice, right? [laughs] It doesn't seem that long ago.

Luigi: It was a punch in the stomach to me as well because 20 years is a long time.

Bethany: 20 years.

Luigi: I thought it was a few years ago.

Bethany: I know, right? Anyway, I thought that was a great conversation, did you?

Luigi: I completely agree. First of all, I learned a lot, but what is interesting, and I don't think people fully appreciate, is that put yourself on the other foot. Imagine that today with a very leftist president who was pushing for a number of changes that a lot of business people dislike, and you had a complacent left-leaning Congress that let it happen. This would be pretty devastating.

What I don't fully appreciate is that forget in the political sphere, but I think also in the business sphere, you don't see this long-term orientation. You don't realize that what goes around comes around, and if you have a court that is so aggressive in one direction, it might be a lot of aggressive in the opposite direction. Maybe because they think it would take so long to change this court that is past my lifetime, and they discount massively. I think that they underestimate the possibility that there is such an intolerance that the court is either sidestep or packed with nine extremist judges or stuff like that. I think that the rage that I feel is increasing, and I don't know where it would stop.

Bethany: Let's start with one aspect of that. I think you just did a Bethany and said a whole bunch of things at once. [laughs]

Luigi: I'm learning from you, Bethany. I'm learning.

Bethany: Dear, no, no, no, no, no. This is bad. Stick to your professorial point when you're talking instead of just doing a giant ramble. You don't want to pick up on the former from me. When you say the rage you feel, why?

Luigi: First of all, I think it's a fact that the Supreme Court has a very low support in the population. The law is probably in its history. This is not good for anybody, but particularly not good for the court. I speak for myself, but I've always been a law-abiding citizen who believe in justice and the law. I've always thought that the idea of packing the court is terrible.

I have to say that now I start thinking maybe it was a mistake that Biden did not do it. I think the court is so basically playing the game of the Trump administration that I don't think has, in my view, any credibility of a third party. If it's entirely political game, anything in the political game. You know the French expression, à la guerre comme à la guerre? When you are at war, you play like in a war. Either you respect institutions or you don't respect the institution, but don't expect the other to respect the institutions.

Bethany: Yes, it does approach eye-for-an-eye rationale, but I guess I understand that. I think my rage, and not because I have a strong political leaning either way, I tend to be person in policy over party, but I do have a degree of rage at the Democrats for what I perceive as a combination of arrogance and naiveté. An arrogance that I think costs them a lot of votes among the working class for some of the earlier podcasts that we've done, but also this naiveté about how things were working and this refusal to see it for what it was. Maybe in combination with that, a sort of monomaniacal focus on the issues that they deemed important without understanding that other issues could be important.

I remember somebody, a very prominent Democrat telling me, and I don't know if this is true, but it's at least perhaps an anecdote that is indicative of this mindset, that the Biden administration simply decided immigration wasn't that important an issue and didn't understand that it was an incredibly important issue to voters. It's not as if they meant for it to become the problem that it did. It's just that it was handed over to the far left because it was a way of appeasing the far left, speaking of appeasement, without ever saying, "Well, this could actually do us all in." It's that sort of failure to think through consequences that bothers me. I think maybe we're seeing some of that with what's happened with the court.

Luigi: I'm sorry. I am a little bit nervous because both you and Steve has used the term naiveté a disproportionate number of times.

Bethany: You don't agree with that. I know.

Luigi: I think, at some point, there is a limit to the naiveté. At some point, you are responsible, you are so naive. If you are going to a gunfight with a knife, is it being naive or being stupid? I think that this is not naiveté. I think it's either stupidity or corruption. I go for the corruption because I'm cynical. If you don't want to believe that, go for the stupidity. I will abolish the term naiveté because it's a polite way not to attribute responsibility.

Bethany: You're right. It's a way of letting people off the hook. You're right. Even though it isn't in some ways, but I hear you on that. I hear you on that. By using it, though, I don't mean to let people off the hook. I remember in the Enron trial way back when, I remember Ken Lay making it very clear that he really didn't understand Enron's business. He really didn't.

It was an excuse in some ways. He really didn't understand what was happening. I absolutely, no doubt, that he understood very little of what the problems at Enron were. At the same time, he took some $300 million out of the company. If you're getting paid, if your job is to understand, then you don't get to turn around and use it as an excuse to say, "I didn't understand." I'd almost take willful wrongdoing over that kind of excuse-making. When I use the word naiveté, I see it through that same lens that to me it is almost worse, that kind of willful naiveté when you're getting paid to do a job and that is your job and you're not doing it is almost worse. For what that's worth.

Luigi: I agree. You know the expression, "Fool me once, shame on you. Fool me twice, shame on me." I might even concede that, at the beginning, there was some naiveté, but the process and the evolution has taken place for 30 years now. If you don't see it, then you're either stupid or corrupt. I leave you the choice of the two.

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