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The David Frum Show
How to Save the Supreme Court From Itself
00:52:15
Kate Shaw on reforming the U.S. Supreme Court. Plus: extremism in the Democratic Party, and the history of the word “graduate.”
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Kate Shaw
AI AI AI.
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David Frum
Cut through the AI noise with AI solutions from PwC so you can solve the business problems that matter most. PwC. Hello and welcome to the David Frum Show. I'm David Frahm, a staff writer at the Atlantic. My guest this week will be Professor Kate Shaw of the University of Pennsylvania Law School. We'll be discussing the United States Supreme Court, what's wrong with it, and how to fix it. My literary discussion this week will be not a book, but a single word in honor of the class of 26. That word is graduate and how changes in the way we use that word reveal changes in our attitude toward individual accomplishment in American life. But before either the discussion or the dialogue, some opening thoughts on some trends that have disturbed me toward radicalism and extremism in Democratic Party primary contexts. Now, I spent most of my life as a Republican, and I began to be alienated from my former party during the Tea Party years of the early 2010s, when I just saw gathering around me all kinds of paranoia, extremism, outlandish accusations. And back in 2013, I wrote a little short play, just a few lines, imagining a conversation between myself and a Republican steeped in Tea Party paranoia. It sort of summed up how I felt this alienation that I then felt. If you don't mind, I'm going to reread it because it's short and I think it stands the test of time in conjuring up what it was like to live in 2013. If you were my kind of Republican. What do you think of President Obama? Me? I think he's a big tax, spend and overregulate liberal. Q. So he's a Communist then? No, not a communist. Trying to overthrow the Constitution and deliberately capsize the U.S. economy. No, he's not trying to do that. He's motivated by a deep seated hatred of white people. Don't be absurd. His health care reform will extinguish all freedom and literally sentence our seniors to death. Hardly. You'd agree that he secretly sympathizes with the Muslim Brotherhood and America's enemies. That's crazy. Why are you always defending President Obama? So that was 2013. If I rewrote that dialogue for 2026, it might go something like, what do you think of President Trump? I think he's a crook on a world historical scale and a profound threat to American democracy and the rule of law. So you must be excited that socialists and anti Zionists are winning Democratic Party primary races. No, I'm not excited by that. It's hilarious. When a new Democratic mayor says like bye to big taxpayers she's driving out of her city. I'm not laughing. But Democrats have to win the Senate. So you will support the guy who claims he accidentally got an SS symbol tattoo and kept it for 18 years? I'd prefer not to. You agree that we should be working across the aisle with Marjorie Taylor Greene, Steve Bannon, Thomas Massie, and Tucker Carlson against the Epstein class? Why do I suspect that if Jeffrey Epstein's name had been Godfrey Epworth, none of you would be talking about the Epworth class? You will admit that our system is profoundly broken and needs radical transformation. I believe the American system, while imperfect, is worth preserving against extremists, cranks and bigots. I remember when you agreed with me. So you're defending President Trump? Look, in 2013 as today, what America needs is government by grownups. The government that rejects conspiracy theories, that tries to solve real world problems, that tries to inspire people rather than animate their prejudices and fears. It's not too much to ask for, and I think it's what most Americans want. I think one of the reasons that President Trump has lost off year elections in 2018 and that President Biden won the election off year elections in 2022 is that Americans want something pretty sensible. And yet that wisdom seems to be lost in 2026 or anyway in danger in 2026. With everything that the Tea Party did wrong for Republicans, all the damage that Tea Party Republicanism did to itself now being copied and mimicked by people who should know better. What America wants is sensible government from the middle outwards. Is that so much to ask for? It shouldn't be too much to ask for. And now my dialogue with Professor Kateshaw. But first, a. Carla
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Carla Lally
I'm Carla Lally, cookbook author and host of Sweets Unwrapped, a podcast from Ferrero and Atlantic. Rethink, the Atlantic's creative marketing studio. This season, we're exploring how sweets add meaning to our lives, mark time, and create opportunities for connection. We'll travel across North America to hear about the hustle of Girl Scout cookie season, get an inside scoop on concessions at Yankee Stadium, and hear from families about their unique holiday rituals. Listen to SweetSunwrapped wherever you get your podcasts.
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David Frum
Kate Shaw is a professor at the University of Pennsylvania Carey Law School. She co hosts the widely followed legal podcast Strict Scrutiny. She served as an associate counsel in the Obama White House, and she clerked at the US Supreme Court for Justice John Paul Stevens. Shah is also a contributing opinion writer for the New York Times. Her scholarship and public commentary focus on executive power, the Supreme Court and separation of powers. And I'm so grateful to her for making time in this crazy busy schedule to talk to me today on the David Frum Show. Thanks, Kate.
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Kate Shaw
Thanks so much for having me. David.
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David Frum
All right, so let's start with your assessment of how dysfunctional, how broken, how off course the present Supreme Court is. Rough arithmetic. In the past quarter century, we've had about 13 and a half years of Republican presidencies, eight of George W. Bush and about five and a half of Trump. And we've had 12 years of Democratic presidencies, eight of Obama, four of Biden, 13 and a half to 12. The Republican presidents have nominated or appointed five Supreme Court justices and the Democratic presidents nominated three, five to three. So it's not parody, but it's approximately the same, given the slight advantage in Republican years of presidency. And yet I think it's fair to say that liberal minded people think that the Supreme Court is way out of kilter, way out of balance from the political realities of the country. What's the matter?
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Kate Shaw
As you see it, I do count myself among those who think that something is profoundly wrong with the way the United States Supreme Court is functioning right now. And I don't think that's just attributable to kind of an asymmetry in the opportunities Republican versus Democratic presidents have had to make a appointment. So you're right that there's been kind of rough parody in the last, you know, dozen plus years, but it's been actually sort of there's been an overrepresentation of appointees nominated by Republican presidents over the decades that preceded that. But that's actually honestly not, to my mind, you know, the sort of the heart of the problem. I actually think that regardless of the party of appointing president, this Supreme Court, which, you know, obviously is controlled right now by Republican appointees, is functioning in a way that is honestly kind of antithetical to a well functioning Constitution, institutional democracy. So we can talk about what a Supreme Court is supposed to do. And obviously that's something that reasonable minds can disagree about. But I think that people largely agree that one of the things that is supposed to do is to make sure the democratic process basically functions so that the people and their chosen representatives can make the most important policy choices about the kind of country we're all going to live in. And you know, again and again, this court seems not only to be failing at that core function of making sure the democracy is basically operational but acting directly at cross purposes to it. And so that to my mind, the kind of functioning of democracy undermining that this court seems to be determined to engage in is the most important and sort of under the radar story about what is so wrong with the Supreme Court.
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David Frum
And where do you see that? Do you see that in the effective dismantling of the Voting Rights act or in the. It does seem to be a practice, and this may be a little unfair to the court, where the Republican gerrymanders seem to survive and the Democratic gerrymanders seem not to survive. What is the. Your evidence or your text for your concern?
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Kate Shaw
Yeah, I mean, I think the Voting Rights act dismantling is a big part of it. So the court has now three times taken these enormous bites out of the Voting Rights act, this kind of crown jewel of the civil rights movement enacted and reauthorized again and again with enormous bipartisan support over, you know, over a half century. So first in Shelby county in 2013 and then in an intervening case called Brnovich, and then just last month in Louisiana versus Calais, it has basically rendered the Voting Rights Act a dead letter. So that's, I think, a very big part of it. There's also partisan gerrymandering, which you just referenced or distinct from this kind of question of race and legislative districts. And the court for many years sort of equivocated about whether and why extreme partisan gerrymanders might violate the Constitution, but was kind of non committal about it. And then in this case, Rucho in 2019, it slammed the door to federal court review of partisan gerrymanders, but basically said states can, if they want, do things to regulate partisan gerrymandering. And gerrymanders are, you know, they're some something that's undesirable. They're just not something federal courts can address. And then fast forward to last month in Calais, and the Supreme Court essentially seemed to have elevated the right to engage in partisan gerrymandering into this kind of core constitutional right of state legislature. So sort of, you know, invited more and more extreme gerrymanders. And you're right, there does seem to be this not only ideological but partisan valence to the way the court has permitted these extreme Republican gerrymanders. Now, I think that the Virginia case in which a Democratic gerrymander was invalidated, that was a state court and The supreme, the U.S. supreme Court just decided not to intervene and was probably correct to do that in that case. So, so there it's not so much that the court has disallowed Democratic gerrymanders and allowed Republican gerrymanders, but has allowed these extreme Republican gerrymanders and allowed the fast tracking of those gerrymanders in violation of ordinary practices that the court typically follows. So that's the VRA partisan gerrymandering. There's also the kind of unleashing unlimited spending in federal elections. There is the dismantling of all of these federal laws that limit or that prohibit corruption and bribery by elected officials. That's also, I think, related to the kind of dismantling of democracy. This is the court striking down or narrowing a lot of democratically enacted statutes designed to keep political actors from engaging in, you know, self enrichment and self dealing while in office. And then, you know, a lot of other things, voter ID permitting that. And then I think the siding again and again with the Trump administration in on the shadow docket in these, you know, challenges to lower courts, trying to keep the administration sort of within existing legal, you know, boundaries and the court, again and again without explanation, siding with the Trump administration and what feels like a pretty partisan trend. So that's, that's my list. But, you know, I could go on.
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David Frum
Okay, well, let's go now. Go a little pain more painstakingly through, through your list and some other items as well. The Supreme Court did strike down the Trump attempt to use emergency powers to impose illegal tariffs. They said you can't do that in a pretty decisive way.
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Kate Shaw
Sure. You know, I think that a couple of things. One, I think that that was a case in which the court was pretty significantly cross pressured. So you did have, obviously the Trump administration seeking permission to impose these, you know, sweeping worldwide tariffs. But you also had a lot of business and commercial interests on the other side of the case urging the court to disallow what the president wanted to do. So I do think that you had sort of the kind of conservative agenda that seems to be driving a lot of what the court was doing. Didn't speak a single voice in the tariffs case. I think that is part of it. I also think there, you know, this was a case in which the Trump administration really overreached in using this, you know, 1970s statute IPA in a totally unprecedented way. And also by imposing and lifting and reimposing these tariffs, sort of undercut the kind of core rationales that the court was being given for the need, the kind of national security need for these tariffs. And so I think that the administration
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David Frum
need for the tariffs, they won't be driven by the president not liking the tone of the leader of the Swiss Fed counsel on the telephone, you would think.
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Kate Shaw
So now look, that, that, that actually didn't come up in the court's opinion, but the kind of, you know, atmospherically I do think that all of that probably mattered a great deal.
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David Frum
Let me put in a good word for the court here. So one of the problems the Supreme Court has had, especially in the Trump era, is the behavior seems to be becoming so outrageous and the breakdown in the normal sort of balancing or informal adjudication between the branches of government is so extreme that it kind of dumbfounds the court what to do. So the courts had to come up with a question of, well, what if the President absolutely refuses to share documents with Congress and, or the President just says that's it, Congress has no ability to look at my papers. Or if the President says I want the right to commit crimes. I mean a lot of people are upset by the Supreme Court's decision on presidential impunity. And from a legal doctrine point of view, an expert would point out they just made it up out of thin air as they've made up their doc, their doctrines about the presidentials, Presidential papers, out of thin air. But the court said, look, what are we supposed to do? We got all this way, quarter of a millennium of American federal history without a president asking for the right to commit crimes. And it can't be that the President is totally immune. Like if, if the President gets drunk at Camp David, grabs a Secret Service vehicle, drives out of the driveway and hits somebody, that's gotta be held to account. Right? On the other hand, we don't wanna have, when Obama orders a drone strike in Yemen, we don't want to have that treated as a matter for criminal law. So there's got to be some balance here. And basically we'd be happier if you didn't ask us these questions. But if you ask us these questions and we have to answer them, we don't see a good way forward. So we make up this complex balancing test. And the same thing with presidential papers, like the Congress and the President are supposed to jostle and push and shove and work it out, don't bring it to us. And if you do again, we're going to have to make up some balancing test, some doctrine. Is that our fault? What were we supposed to do when the President asked for the right to commit crimes?
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Kate Shaw
So you're right that the court is not a self starting body, right? It is sort of stuck with the questions that come to it. But it's also the case that the court decides what questions it's going to answer it has this certiorari jurisdiction distinguishes the Supreme Court from lots of state supreme courts and other apex courts and other systems where it has nearly complete control over the kinds of questions that it wants to take up. So it certainly could have, in Trump versus United States, the case about presidential immunity, the D.C. circuit had said, nope, the president's not immune. The Supreme Court could have just let that stand, like it absolutely could have done that. Now I understand why the Supreme Court thought it was important for the country to sort of hear a clear, single answer to the question of whether ex presidents could ever face criminal prosecution for things that were, as Trump suggested, sort of arguably within the scope of presidential duties. So I, you know, I, I actually thought they should have just let the D.C. circuit opinion stand. But I understand why they wanted to give a final answer. But answer they gave was so unmoored from the ordinary modes of constitutional reasoning that the court engages in. Right. We're supposed to look at history. We're supposed to, you know, consider the kind of long practice between the branches of government. We can maybe consider consequences. But all the court seemed to kind of indulge in the Trump versus United States opinion was kind of what it would mean or what it would do to the office of the presidency and the ability of the occupant at that office to kind of energetically exercise the duties of president. Like that would kind of the beginning and the end of the analysis. And the court said it would just be too constraining for the President to be constantly worried about future criminal liability. And it kind of jettisoned all these other sources the court is supposed to look to, which might be okay if, if the court was willing to kind of engage in that reasoning in other cases. But in, you know, a range of other cases involving different kinds of constitutional liberties or separation of powers questions, the court says it's totally improper for us to just ask about the consequences of our rulings. That's not supposed to be how judges, you know, or a judge courts sort of with integrity and principle operate. So I think that that's part of what's so hard. The court swept way more broadly than it needed to. It didn't just say presidents are immune from conduct that is, you know, arguably official, you know, absolutely immune for some of it, presumptively immune for other kind of types of conduct. The court said all this stuff in passing that that suggested it's going to be really difficult for Congress to regulate presidents at all. And I honestly think that that the kind of Logic of that opinion and the kind of the president's lawyer's understanding of the breadth of some of the reasoning in that opinion is part of the reason that that the administration has conducted itself the way it has. Kind of seemingly uninterested in legal constraint for the last 16 months.
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David Frum
So there's a case making its way to the Supreme Court right now about presidential record keeping. Since the 1970s. In the olden days, when presidents wrote by quill pen, it was understood that a president's handwritten documents were the president's personal property. And the president, when the president left office, could take the quill pen documents where Jefferson did it and Madison and the others. And they didn't have a lot of commercial value. There was some loss to history. But the president's papers were the president's property. And that made sense, given that the president's papers were generated by the President himself personally. As we got the modern presidency, this situation became more and more unrealistic and untenable. And then there was a crisis during Watergate where Nixon, President Nixon tried to take documents as his personal property, pretty obviously with the intent to destroy them. And there was an emergency Supreme Court hearing, and then a second case in which the Supreme Court greenlit, without quite saying so, the power of Congress to say, you know, we're going to create a whole new system that the president's papers are public property. And there's a. They go to the National Archives and we'll build this library system alongside them that the President can control personally for the museum part. But the papers, okay, so the President Trump is completely challenging every aspect of this and saying, they're my. The private papers are my property, by the way, even. I have no obligation even to keep papers. If I want to throw them away, I can. If I want to use signal and delete the messages, I can do that. The first round of litigation went to the critics, but this is obviously on its way to the Supreme Court. And it's not so clear that the later rounds will go to the critics, right?
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Kate Shaw
I mean, I think so. You know, that's right. So we have in 74, that initial, kind of earlier, very Nixon specific statute, and then in 78, the presidential records act, which has governed every White House since and has never seriously been contested its constitutionality by any president. And I think that that's interesting to hear. You take strike so pessimistic a note about the likely fate of this, the kind of question about the constitutionality of the Presidential Records act before the Supreme Court. And I actually think it's useful to talk about the records statute, the pra, in the context of a lot of this kind of post Nixon, post Watergate legislative sort of suite of reforms, because, you know, the last time we had a president who threw the separation of powers badly out of whack, Congress responded in all sorts of ways. So one of the ways was, you know, these two successive statutes about presidential papers. But there's a lot else. Right. We talked briefly about campaign finance. The Federal Election Campaign act is passed in 74. The Impoundment Control act is also passed in 1974 to respond to Nixon's reputed repeated refusal to spend all these congressionally appropriated funds. There's the National Emergencies act, the Ethics in Government Act. I mean, there's a really long list of statutes. And honestly, most or all of those statutes, I think are constitutionally questionable in the view of this Supreme Court, which I think is part of the reason I think this Supreme Court is such an obstacle to a functioning democracy. So I was talking about the kind of machinery of sort of democratic participation at the outset, but also, you know, our ability as a polity to respond to this out of control president through reforms that would rein in future presidents. I don't know that most or all of what we did post Watergate or most of all of what we would need to do, I think to respond appropriately to Trump would fly in, in the kind of outsized conception of presidential power that this Supreme Court holds. And I think that's an enormous problem.
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David Frum
You mentioned presidential corruption or corruption statutes. Before Donald Trump came on the scene, the present Supreme Court of the 21st century Supreme Court took a pretty jaundiced view of public integrity prosecutions. And kind of cynically, the court seems to think, you know what, American politics is pretty corrupt. Governors, state officials, they take a lot of gifts that maybe their Swiss counterparts would not accept, but that's the way it's always been. And we don't want to license state and federal prosecutors to go after every governor, every state official, for taking a free golf game or a free ticket to the Super Bowl. That antedates Trump. And the defining case here involved the governor of Virginia, who took about, if I remember right, about a hundred thousand dollars worth of gifts, which is like not even a good before breakfast hall in the Trump White House.
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Kate Shaw
Correct.
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David Frum
What is this? The envelope's a little light here. Okay, so, but the Supreme Court has said this seems to be actually a matter of principle for them, that corruption can be over prosecuted and that antidates Trump. How Dangerous is that and what are the implications of that?
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Kate Shaw
Yeah, so that's the case involving former Virginia Governor Bob McDonnell, but there's also the case involving Governor, then New Jersey Governor Chris Christie and the so called Bridgegate scandal which resulted in some criminal prosecutions like closing the lanes on the GW Brid.
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David Frum
That's not a corruption, that's an abuse of power.
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Kate Shaw
So the statutes are all different. So it's there. They're all different federal statutes. But I view Kelly, which is the bridgegate case and McDonnell and a case called Percoco and a whole bunch of cases all involving slightly different federal statutes, but I think all about abuse of power, whether for personal financial gain or political advantage. I think those cases are all in the same line, basically. I mean we could disagree about that, but I think they're all conceptually pretty, pretty connected. And kind of importantly, the Supreme Court in all of them has overturned these convictions and has held exactly as you suggested, that these prosecutions were sort of overzealous, that they ran the risk of criminalizing kind of the ordinary sort of give and take and rough and tumble of American politics. And I, I don't want to understate the danger of aggressive prosecutors. Obviously we are seeing extreme danger in, you know, the second Trump era and all of this kind of predates that. So I think the court is not wrong to be concerned about got, you know, federal prosecutors standing up and just saying, just trust us, we're not going to overuse these statutes. But I also think the court has badly undervalued the sort of other side of the balance, which is actually disincentivizing and punishing, where appropriate, really extreme abuse of public office for private gain, whether that's financial gain or political gain. And I think the court has sort of, you know, done this kind of these have all been read as, these have been decided as statutory cases. They haven't said you have a constitutional right to kind of engage in sort of borderline corrupt activity. But I think there's this con constitutional overlay which is just kind of the vision of office holding and of politics that the court holds that they have sort of channeled through reading these statutes very narrowly. But it is a bunch of cases at this point. And has it contributed to sort of a generally cynical view of kind of the connection between corruption and self dealing and public office holding in the minds of the sort of the people? Maybe. Is it like causally connected to the corruption that we have seen on display in the Trump White House? I don't think so but I also think it might be connected to, you know, the kind of concern about over criminal normalization of, you know, successive presidents. That is also part of the kind of reasoning in the Trump versus United States immunity case. Right. They're concerned about presidents prosecuting their predecessors and that's part of the justification for finding immunity. And so I think that is connected to the line of cases we're talking about.
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David Frum
So let me ask, you have written and had dialogues and both in scholarly formats and in more accessible formats, but what you think should be done about these various problems? So give me summary form your reform program.
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Kate Shaw
Well, I think sort of first, I think that, just kind of acknowledging that this, that there is a problem, that this is not just the ordinary liberals are unhappy when there's a conservative Supreme Court handing down conservative decisions and vice versa. I think that, that, you know, no one can deny that we're going to feel differently about some of the substantive decisions that the court renders, you know, based on our sort of ideological priors. But I also think that there was something deeply systemically wrong with the way the Supreme Court is functioning right now. And I do think that transcends partisanship and ideology and politics. So kind of acknowledging, acknowledging the problem and also having kind of Democratic leadership really focus on institutional reform. And the Supreme Court I think is critical sort of right now and in the kind of years to come. Okay, so I don't want to filibuster in terms of what specifically? I mean, there's a kind of a handful of options. So there are structural reforms to the Supreme Court that could take the form of things like term limits, which are actually really popular, have super majority support, even have majority Republican support according to some recent Brennan center polling. But something like 70% of the American public support say 18 year term limits for the justices. So that I think is one fairly straightforward and kind of easy to galvanize public support for kind of reform. You'd have to figure out how exactly to design it because the Supreme Court justices have always been understood to hold their offices for life, wouldn't that take
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David Frum
a constitutional amendment to change?
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Kate Shaw
I don't think so. It depends on how you structure it. So you couldn't. So if you basically said you get to stay a justice for life, but, but after 18 years you become a senior justice. So you don't sit and hear every single case the courtiers argued. You keep your salary, you keep your justice title, but you can, you know, sit if there need, if there's a recusal and they Need a different justice you can sit. Otherwise you can sit by designation on the courts of appeals, you can ride circuit. So again, you get the things the Constitution is, has been understood to guarantee you. The Constitution actually doesn't say life tenure. It just says they hold their offices during good behavior, which has always been understood to mean life tenure. But there I think different ways to give that life tenure. It doesn't need to be you stay on the court until, you know, you decide to leave or you pass away, which you know, has happened with a lot of justices. So that's, I think one possibility. And I don't think it would require a constitutional amendment. I think a statute would be enough. If you structured it kind of carefully, you know, you could increase the size of the Supreme Court. There's nothing in the Constitution that sets the size of the Supreme Court. So it was six, it's been bigger before, it's been smaller before, it's been six, it's been seven, it's been 10, it's been nine for about 150 years. But you know, the last sort of major effort to threaten and pursue court expansion was fdr and that would have been an expansion of the court up to six additional justices. So it would have been up to 15. Obviously that proposal never passed. But arguably Roosevelt sort of threats to increase the size of the Court had their intended effect, which is that the Supreme Court stopped striking down all this New Deal legislation. And so it a little bit mooted the need to do court expansion. So that's another possibility. Grow the size of the Court again, could happen definitely by statute. That for sure wouldn't require a constitutional amendment.
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David Frum
What about ethics reforms? What would you, what would you recommend?
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Kate Shaw
It seems so. That all seems so straightforward and also, you know, has extremely broad support. I mean the Supreme Court is, is essentially a self regulating body just kind of actually subjecting the Supreme Court in a mandatory binding way to the same code of conduct that governs other federal judges. Seems like a no brainer. And at the moment we don't have it. And the justices have at least some of them publicly voice some skepticism about Congress's ability even to by statute regulate things like their ethics. Alito gave an interview to the Wall street journal In, in 2023, I think in which he basically said there's nothing in the Constitution that gives Congress the power to regulate us, which is just wrong. The Constitution explicitly gives the power to Congress to regulate the Supreme Court. But I think that that kind of, sort of, kind of hubris that that kind of comment I think evinces is emblematic of I think a lot of the way the Supreme Court seems to conceive of itself. Sort kind of an active participant in our system of separated powers. Okay, so, so you know, what would the code of conduct include? Gift, mandatory gift and disclosure rules, Recusal, clear recusal standards, maybe a requirement of, of reason giving around recusals. Maybe some kind of enforcement body, an inspector general for the Supreme Court is something that Congressman Raskin has talked about and, and, and others have as well. So some kind of, you know, entity that has a little bit of critical distance from the justices that actually enforces compliance with a binding code of ethics. I think seems like it would be a really positive development. So I think I would support all of that.
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David Frum
Well, let me give you my concern about the term limit and tell me how you would overcome this or if you think that I'm unrealistic. So you're on the court for 18 years and you're appointed in your 50s. You are going to probably these days, mercifully this is a great achievement of science and technology, but you'll live into your 80s or even your 90s. You come off the court in your early 70s and at that point you confront, you come off active duty, as you say, at that point you discover a lot of interesting opportunities. And depending on how you've ruled, the opportunities might be more interesting or the opportunities might be less interesting. You know, if you've come through for Google, you're on the Google board. If you haven't come through for Google, you're not on the Google board. If you, you're of counsel at a million dollars a year, or you're of counsel at $100,000 a year. So how do you, how would you overcome that, that, that sense that you've seen in, in some other peer democracies that have these kinds of effective rule limits on their constitute term limits that you, you invite judges to think about. This is not your last job. Actually your most lucrative job is the one you get after the Supreme Court.
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Kate Shaw
So yes, I mean that's certainly an objection that gets raised. I would say a couple of things in response. One, in some ways right now we have like the worst of all possible worlds, which is you can get, you can reap some of these benefits not sitting on boards, but you know, having billionaire benefactors while you continue to enjoy the sort of power and prestige and you know, kind of intellectual feast, et cetera, of being a Supreme Court justice. So kind of an unregulated life Tenure system doesn't seem to be, to my mind at least, a perfect kind of guard against the possibility of corruption. But. Right. The fact that the idea that these justices would always be looking for their next opportunity and that that would sort of color their decision making. I mean, I think maybe that's really a couple of, a couple of answers. One, I think that if we're talking about an 18 year limit, the incentive for presidents to nominate younger and younger Justices would sort of no longer be particularly relevant. So I think you probably would have a slightly older cadre of nominees, which I think would probably be to the good. I mean, these are hard jobs and you do want people deeply experienced, ideally with a few different, you know, time in the executive branch, maybe in the legislative branch, you know, maybe on the bench in a private practice so that they're not going to leave with like, you know, decades yet of kind of law practice ahead of them. So I think that that's kind of one answer and two, there's not really anything stopping the scenario you're describing from happening right now. Like they can leave voluntarily if they want and take up a lucrative post in the private sector at a law firm or elsewhere. So I'm just not sure that the system we have right now really guards against all of those possibilities to the extent that they're so concerning. If we were to implement the sort of change that an 18 year limit
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David Frum
would reflect, what would you do about changing the attitude of judges towards their easygoing attitude toward corruption? Is that something that different? The statutes may not pass constitutional muster. Maybe they'll be more tolerant of congressional statutes than they are of state statutes, but maybe not. How do you make the Supreme Court say, you know what we actually this is one of those moments that occurs at intervals. There's one of the seventies, there was one in the 1910s. When American society decides, you know what, we want politics to be a little cleaner than it was in the previous generation.
- [31:25]
Kate Shaw
I mean, I think you're right, that's hard. None of these like reform measures that we're talking about necessarily sort of speak directly to this. I think that, you know, there are proposals out there, this is a slightly different kind of category of reform proposal, but a proposal that would, that would require not just a simple majority but a super majority vote of the, of the justices to say strike down an act of Congress. So that to the extent that we're talking about federal statutes that, that, that I think could matter. Right. So now some of these anti corruption measures have been invalidated unanimously like in the Virginia case, McDonnell was the unanimous opinion. So that, you know, that doesn't change the outcome there. But I do think that that's both as to these kind of public corruption questions, but also kind of more broadly to the court sort of eagerness to impose its own vision on the country regardless of what the elected representatives have have chosen that could make a difference. So some state supreme courts have these. And again, there are scholars like Daphne Renan and Nico Bowie at Harvard who've proposed statutorily requiring what they call consensus or you can think of a super majority requirement. So if you're going to strike down act of Congress passed by the legislature signed by a president, it doesn't just take five, but six or seven or eight justices consensus to do that. And that I think again would maybe speak to the specific anti corruption question, but also more broadly to the court's eagerness to invalidate, you know, enactments of the elected branches.
- [32:44]
David Frum
One more hypothesis is maybe the, the true villains of the story here from your point of view are Democratic voters, if you care. Republican voters have regarded the court as issue number one and have made a lot of compromises in order. That was the big argument. If you were a reluctant Republican in 2016 to vote for Trump as well, you get the justices you want. And enough people seem seemingly accepted that as a good enough reason to overcome qualms. Democratic voters have not made the court an issue. Hillary Clinton and her supporters didn't argue that very hard in 2016 at a time when it really might have made a difference. And Democratic voters are also don't seem willing to reinvent, to think about their party. In a way, how do we get enough majority in the Senate given the way this give the lopsidedness of the state balance in the country. You can't run very liberal senators all the time and expect that you'll have the kind of majority in the Senate to confirm or block Supreme Court justices.
- [33:37]
Kate Shaw
I think I would probably put more fault at the feet of Democratic politicians than Democratic voters. But obviously you're identifying a really important phenomenon. There has been this asymmetry in the kind of degree to which Republican voters have kind of centered the Supreme Court in their kind of voting lives and the kind of complete disinterest and again, Democratic elected officials and I think Democratic voters in doing the same with the Supreme Court, I mean, I think there's something kind of, there is something sort of principled kind of that is at the root of this, which is that I think that, you know, using the courts to do policymaking is not something that Democratic officials are that enthusiastic about. And I think that's because courts are not supposed to be doing policymaking. But I think that, you know, in this period, sort of the post Roe period in which it felt like the courts were going to be sort of more within reach than, you know, the House of Representatives, which was like, you know, sort of viewed as essentially democratic forever. And, you know, the presidency was sort of maybe switch back and forth, but you also had a lot of kind of progressive legislation from the 60s and the 70s. Courts felt like the place that you could actually go and win. And I mean the Senate as well. And so I just think that there was a sort of strategic focus on the Supreme Court on the right in a way that they're just that the left is very, very far kind of behind in. But I'm hopeful that that tide is turning a bit.
- [34:47]
David Frum
So if I've got your full list of proposed reforms, I hope I haven't missed one. If I missed one, please fill it in. What do you want to conserve as you're, you're a liberal minded person. But, but lawyers are a pretty conservative profession, even the teaching part of the legal profession, with an eye of how much, how easily things could be worse rather than better. What is important not to change. Yeah.
- [35:08]
Kate Shaw
Well, let me just say one thing that we haven't talked about in terms of reforms, if that's okay, which is shadow docket reforms. So the court, in addition to the way that, that the court ordinarily decides cases, which is the parties file briefs, there's oral arguments, they, the justice is deliberate and they write usually a long opinion and there's a dissent and the public can, can read the opinion and understand the reasoning of the justices for ruling for one party versus the other. There is this other way that the court does its business, which is on what we talk about or refer to as either the shadow docket or the emergency docket, something that has existed for a long time, but that has gotten far more use in the last year and change since Trump took office for the second time than it ever had before. And that is these last kind of emergency appeals that head to the Supreme Court directly from a lower court opinion and ask the court to essentially intervene and to block whatever lower court ruling has gone into effect, at least temporarily, while the full litigation plays out. And that used to be something that was very rarely sought and even more rarely granted. And Trump has, with his Justice Department, gone again and again to the Supreme Court on the shadow docket since last January and has over two dozen times won in these very high stakes cases involving you know, the ability to kick every trans member out of of the military to render individuals to third countries so countries they don't have any connection to if they're, you know, they are to be deported. But where is the question has allowed these roving immigration patrols to engage in these sort of suspicionless detentions in Los Angeles. So that's three examples of cases the court weighed in. After a lower court had ruled that the administration's action was unlawful, the Supreme Court weighed in and allowed the administration to go forward with its action without giving one word of explanation as to why. And that's happened many, many times. And that's something I think the court should not be permitted to do. It should have to give reasons if it's going to block right or stay what a lower court has done. Especially if the lower court has given, you know, kind of reasons for, for what it is concluded. So that's the last thing. So okay, what to preserve? I mean look, I do think the Court, when it's functioning properly plays an important but limited role. So I do think the kind of ensuring that democracy functions so people can translate preferences to policy is critical. And the Court hasn't done that. But I to preserve a Supreme Court that is able to because you know, the political process is not particularly good at self regulating, right. The beneficiaries of any kind of set of rules governing politics, sometimes they do self denying things, right? Like Congress passing campaign finance regulation actually is like a pretty self denying thing Congress has done. But typically legislative bodies are not, you know, the best at self regulating. Maybe nobody is great at self regulating, but that I think is one thing that courts critically are for. But they're also I think about protecting core individual rights, especially the kinds of rights that are under protected by a majoritarian political process. And obviously we might disagree about what those rights are, but the Court I think has overprotected rights that actually have a lot of popular support. So all of these cases in which it has weighed in on the side of religious liberty to invalidate democratically chosen either laws or school board policies in favor of objecting kind of Christian typically parents in a majority Christian nation is just an odd exercise of the judicial right. You're, you're protecting a majority even when the majority has decided to regulate the majority and it is underprotected vulnerable minorities. And so I'd like to see it sort of, you know, kind of essentially right that ship of protecting Underprotected rights and not overprotecting those that the, the polity has decided to restrict because of important countervailing interests like the separation of church and state.
- [38:42]
David Frum
Isn't that one of the central questions about the court dating back to the beginning of the republic public, why should anybody listen to you? And that has a question that has often haunted the court. Is there in Marbury vs Madison, the case that established judicial review and they established judicial review by refusing to do an action, not trying to do one.
- [39:00]
Kate Shaw
Exactly.
- [39:00]
David Frum
And the answer to the question why should anybody listen to you? Has often rested on kind of myth making. The robes, the aura of impersonality, the lack of attention we pay to, to who these people are. I mean, even the fact that when you see an opinion, we don't use first names. It's, you know, Kavanaugh J.
- [39:22]
Kate Shaw
First name is justice.
- [39:23]
David Frum
Yeah, exactly. Exactly. So. And one of the questions I wonder about is in the present mood among liberal minded people, have discussed with the court whether that mood of disgust then breaches the myth making, which is myth. It's myth, admittedly myth, but then leaves the court ultimately indefensible because what have they got if they don't have their myth?
- [39:42]
Kate Shaw
Yeah, and I mean, I think there are some people on the left who would say yes, like, let's accelerate that process because at this point, like there's not much worth preserving. And I don't count myself in that category. I, I do think that they are in danger. You mentioned, you know, Marbury vs Madison, 1803, which announces the power to say what the law is. But the court is very kind of judicious in its deployment of that power for most of its history. So it's 1803. The court, you know, declares it gets to say what the law is, but actually doesn't do anything with that power in, in, in 1803, in 1857. So it's, you know, it's, it's, it's, it's a Dred Scott versus Sanford is the next case. The Supreme Court actually uses this power of judicial review to invalidate a federal statute that's, you know, half a century, over half a century later in this, you know, critically important case that is part of the kind of march toward the Civil War. But the court is just for most of its history, very, very sparing in its deployment of this awesome power to invalidate things that the, you know, democratic process has produced. And I just don't think we have seen any of that kind of forbearance restraint on the part of this Supreme Court. And I do think that that does put us in a position of kind of the court's legitimacy being jeopardized. And not just Jack Balkan at Yale talks about this kind of, you know, partisan support for the court sort of waxes and wanes depending on sort of who controls the court and what kinds of decisions it's handing down. But this sort of diffuse support for the court has really cratered in. In the last couple of decades. So people don't pay that much attention. And that, I think, is. Is a genuine, potentially existential threat to the court and its legitimacy. And if you think that it plays, again, as I think it does, a limited, but when operating properly, important role in our system, that's dangerous, because I think you sort of look around at the kind of political branches of government at the moment, and the idea of not having a referee or an umpire who's actually stands in some sense outside of that process to sort of get things back on track when they've gone so, so badly sort of off track, I think is actually really scary. But I. That's where we are.
- [41:45]
David Frum
That's why the proposal to make the court bigger seems to me of all the proposals, the most dangerous. Because why did. Why is the court nine? And, you know, it doesn't have to be. You know, it didn't used to be. Sometimes there's more, sometimes there's less. I think most people think it has to be nine the way a baseball team has to be nine. It's just. Is just. That's just the way it is. And once you introduce the idea, it could be 11, could be seven, then people. Well, then you can do anything. And we are. We are watching across the border in Mexico as the Supreme Court be reinvented by an authoritarian presidency. Presidency. And the presidency had some gripes. I. I think they're not valid, but it had gripes with the Supreme Court. And it. And it has done that, has responded to that by reinventing the Supreme Court, making it much more partisan. In a way, this completely destroyed the authority of the Supreme Court and left the Mexicans with no political resource other than the presidency itself in an intense battle for control of the presidency. I worry so much about piercing the myth of the Supreme Court and then discovering we did need it.
- [42:37]
Kate Shaw
Yeah.
- [42:37]
David Frum
And now we've lost it and it can't be recovered again. Again.
- [42:41]
Kate Shaw
Yep. Yes. I mean, I think. I think those are valid concerns and fears. And I mean, switching to an judicial election system, as I did in Mexico, I think is not on the table here. Right. So. But I think the kind of larger politicization point is, is a real one. I mean, I think there's also the possibility this just inaugurates an era of kind of, you know, sort of tit for tat in terms of court expansion. But you're right, it could be court expansion, it could be shrinking if the size of the court is all of a sudden up for grabs. And you're right, 150 years of settled practice is significant. Some, you know, once upon a time we used to say, well, that's kind of a settlement that everybody has agreed upon. And if it's not const constitutionally mandated at this point, it's at least, again, constitutionally settled. And we don't unsettle things sort of lightly when they're that established and settled. And the problem is that the court itself has shown itself so willing to unsettle settled institutional arrangements. Right. It's going to rule for, despite the tariffs opinion that you mentioned, it's going to, and it's probably going to rule against Trump in the Fed case, but it's going to give him, you know, virtually unlimited power to fire the heads of independent agencies. And maybe that's going to go deeper into the federal government and have implications for things like the civil service. And so the court is, is very willing to unsettle these kind of, you know, entrenched established institutional arrangements and dynamics. And it just may be that the court doesn't quite realize that it is setting in motion something that it itself is going to be vulnerable to. But, but I think that the court has sort of set us on this path, and that doesn't mean we have to go all the way down it, but it does mean that it bears a heavy responsibility for the fact that we are, you know, kind of this far down it at all.
- [44:03]
David Frum
So maybe we can't save them if they won't save themselves.
- [44:06]
Kate Shaw
Something like that.
- [44:07]
David Frum
Okay. Shaw, thank you so much for making time for me today again with your busy schedules. It's very appreciated. Thanks for joining.
- [44:13]
Kate Shaw
David Frumshaw, thank you so much for having me.
- [44:14]
David Frum
David,
- [44:19]
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- [44:52]
Kate Shaw
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- [45:08]
David Frum
thanks so much to Professor Kate Shaw for joining me today on the David Frum Show. As I mentioned at the top of the show, my literary item this week is not a book. In fact, it's just a word. This is graduation season and I'm interested in the word graduation because I've noticed a linguistic change that has occurred over my life lifetime. I got interested in reading about it to understand it better and it to me, it cast some interesting light on the way American culture has changed. So the word the word is graduation or graduate. When I completed my studies in the 1980s, it would have been natural for me and my friends to say, I graduated from villa name of university here or I graduated from college, I graduated from university or I graduated from high school. I've noticed as time has passed past that younger people are increasingly prone to say I graduated just directly I graduated name of school, I graduated college, I graduated high school. It's very normal for those of us who grew up speaking one way to assume that we are right and those who come later are wrong. So I got interest in the question of who's right, who's wrong, what, what is, which is it graduated from, or just simply graduated. And reading about this and through the etymology words, I think tells us something about the way a lot of our ideas have changed, not and not just about education, but about our role in society. So the word graduate comes from the Latin word gratis, meaning step. When universities began to be organized in medieval Europe and began to grant degrees, they conceptualized those degrees as steps. And it was very important to make these steps. There's great formality and dignity. The steps decreed what clothes a person could wear, what cap they could wear, whether they could wear a hood, whether they could wear food prefer. And of course, they also determined whether or not a member of the university community could charge fees for listening to that person's instruction or lectures. If you had a certain degree, you could charge fees. If you didn't have the degree, you couldn't charge fees. So moving up those steps of from bachelor to master to doctor, that was a very important thing, attended with great formality. So it was very important to note who had been raised up a step and who had not. The Latin word graduatus was coined to describe the person who had been raised up a step or a graduate raid. And the word graduatus is a Latin word. It's a past passive participle, and it literally translates as one who has been raised up a step. Now, the passive part of this is important. The person who did the raising or the thing that did the raising was the university. The person who got the degree was the person who had been raised. And that's the origin of the older form that some of you may remember reading or hearing that he is a graduate of such and such a place, or he was graduated from from such and such a place. When I was a younger person, that memory of that passive sense was still retained enough that we didn't anymore say he was graduated from or he is a graduate of. But we did say I graduated from because our conception of what it meant to be a graduate was shifting. The star of the show was no longer the university, it was the individual. And as our conception of. Of life and education became more individualistic, it became natural to shift the attention from the university that granted the degree to the person who, as we thought, earned the degree. I did it. I graduated. I graduated from. And unsurprisingly, over time, that sense of individual accomplishment has only intensified. So not only did I graduate from this place, I graduated. I did it. It's me. It's my story, my cap, my gown, my parents, my photographic ceremony, my kids take my accomplishment. I did it. And what we are seeing in this shift of language is a shift of conception in which the individual becomes much more the center of individual life and much more the center of education. Now, that has some negative consequences. The student begins to think like a consumer. The student begins to make demands. But it has some positive consequences as well of a person feeling more efficacious, more in charge of his or her own life. In the American story, the individual is always the hero, not the institution. And as the individual is the hero, so we can trace the change from graduated by graduated from graduated. Simply put, to all the graduates out there of The Class of 2026, my congratulations to you, my congratulations to your parents. May you embark on fruitful postgraduate careers. Thanks so much to everyone for joining me today on the David Frum show for watching and for listening. Listening. I hope you will share and like this program on whatever social media platform you receive us on. If you are minded to support the work of this of this program, please consider subscribing to the Atlantic. That's the best way to support the work of all of my colleagues here at the Atlantic. Thanks for watching and for listening. See you next week on the David Frum Show. Bye Bye. This episode of the David Frum show was produced by Nathaniel Frum and edited by Andrea Valdez. It was engineered by Dave Grine. Our theme is by Andrew Edwards. Claudine Abayad is the executive producer of Atlantic Audio, and Andrea Valdez is our managing editor.
- [50:38]
RPI Researcher
My motivation in research is to use light as a tool. I try to manipulate it and study how it changes the environment in the lab. On top of being a scientist, you have to be an artist as well. What RPI has made possible is given a chance to be creative. That's as ideal of an environment as one can get.
- [51:03]
Kate Shaw
Learn more at rpi.edu barraisers.