The Hidden Economic Dangers Of Supreme Court Overreach - ft. 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, and 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. I'm Bethany McClain. Did you ever have a moment of doubt about capitalism and whether greed's a good idea? And I'm Lujza Zengales. We have socialism for the very rich, rugged individualism for the poor. And this is capitalism, a podcast about what is working in capitalism. First of all, tell me, is there some society you know that doesn't run on greed? And most importantly, what isn't? We ought to do better by the people to get left behind. I don't think we should have killed the capital system in the process. I want to start with a sentence the Supreme Court wrote about itself in 1992. The court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the nation. Basically, we only have power because you trust us. It sounds like 1992 was a different millennium. But anyway, it's not trust us because we're powerful. It is we earn power because we show our work. When the court is at its best, it persuades even the people who disagree with it. It proves to be above politics. But is it today? Fat independence can slide into this sort of idea that because it's technocratic, outsider shouldn't question it, even when it's making choices that result in the distribution of wealth. The idea of court independence can slide into this idea of independence as supremacy. The idea that because it's judicial, outsider shouldn't constrain it, Congress shouldn't constrain it, even when it bends procedure or expands its own power. The market system depends on these institutions, which are not for sale and don't respond to the majority but to the entire country. If one stops explaining itself or starts looking like it's playing for one team, the credibility of the entire system crumbles. And this is not just about legal procedures. Capitalists require a reliable referee. If you're a business, a consumer or an employee, you need to know that if you go to a court, the game isn't great. If the referee starts wearing a team jersey, the whole system, democracy and capitalists start to break down. Which is where Steve Laddick comes in. He's a law professor at Georgetown, a nationally recognized expert on the Supreme Court and the Federal Courts and the author of the Shadow Docket about how the court increasingly makes big decisions through emergency orders that are often unsigned and unexplained. And his larger argument is an important one. Badlick's focus is on how Congress gradually well-inquished control, how the court became more autonomous. We want to ask, what feels the vacuum when external checks weaken? Is it principles? Is it politics? Is it powerful? It's on sake? And because this is capitalism, isn't power the system actively favors certain kinds of litigants? We recorded this episode before the Supreme Court's tariff decision that has been rocking markets and the legal world. But both we and Steve and think that the episode still stands as is. When did the Supreme Court start to become so ideological and why? So I think the Supreme Court has actually been at least in one sense of the word political for its entire history. I mean, one of the most well-known decisions by the Supreme Court, even among non-lawyers is Marbury versus 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. So 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. And so 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. Now, you cited David Souter, who clearly, from a civil right point of view, was more friendly or more on the democratic side, but we came to business, and we were more interested on the economic side of things. When it came to business, it was probably to the right of Attila De Han. And so when did this shift take place? Because I'm obsessed by the infamous power 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. It was very influenced in the Supreme Court. And he says very clearly that is a neglected opportunity for the Chamber of Commerce to have influence on the court. And he said, under our constitutional system, especially with an activist mind as Supreme Court, they judiciary may be the most important instrument for social, economic, and political change. So there is at least one important constituency, the Chamber of Commerce, that in 1971, at very clear, they wanted to influence the Supreme Court to their own advantage. 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. And so groups like the Chamber of Commerce, they raise their heads, they say, hey, we want you to take this case or we want you to not take that case. And so 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. And 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 guy's that is less accountable to the other branches, it's less accountable to Congress, less accountable to the president, then it was at any prior point in its history. And so when the court hears from parties at likes, let's 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, it's something bad's gonna happen. It really is as my friend at University of Michigan Law Professor Leo Littman has put it, it really is a yellow court because it's not worrying about what folks are gonna do if the court does something wrong, how Congress is gonna react, how we're gonna react. And I think that's a big source of how we got to where we are today. Who is the court supposed to be accountable to and how is the court supposed to be accountable and how have they changed that? And then tell our listeners about that Alito quote and why it's so telling. I love the Alito quote. We'll end with Justice Alito of the Philly's fan. So the Constitution insurides an independent court and it protects independence by giving the justices protection against removal except for bad behavior by barren Congress from reducing their salaries. But in every other respect Bethany, Congress calls the punches, Congress calls the play as Congress pulls the strings. Congress decides when the court sits, where the court sits, what cases the court hears, how many justices there are. And Congress, Bethany for the better part of 175 years pulled all of those levers as a way of basically keeping the court loosely in mind, not to say, ruled this way in this case. But as a way of saying, hey, the more that you are basically generally behaving, the nicer we're gonna be to you and the less well you behave, the meter we're gonna be to you. And that, 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 Fordis 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. So a couple of years ago, Justice Alito gives this interview to the Wall Street Journal. And he says something along the lines of quote, 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 three, section two, 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 years. But 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 justice's pensions as leverage, using its control over the court's docket as leverage. And so 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. Now, the obvious question to ask you, but it would be too easy for you, is why the Democrats allow this. But because 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, descend, a vehemently descent. But 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 financed 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. And the only thing that were really differentiated themselves was on civil rights. And so the Supreme Court was giving them an argument to be different. And that's the reason why they never, ever, even when they had a majority recently, they did not do anything to the court. And there were plenty of evidence of improprietors the court, so they couldn't intervene, or at least threaten to intervene, but go to the financial. So how do you like for this cynical interpretation? Luigi, that's cynical even for you. So 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 a cynical. I think one very important thread of what you said, Luigi's 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, right? For example, I think the problem is, is that Democrats were both one naive about that and how quickly it would turn. I mean, starting with Fortice's resignation, Republican presidents appointed the next 11 justices in a row, but 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, right? This notion is 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, right? 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. And so they want the same. And 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. And 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? So if you add to advice Biden in 2021, really you would advise it by the, oh, the next Democratic president, if there would ever be one, with their majority, what are the changes you want Congress to do to go in the direction you want? Yeah, so 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 some 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. But 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. That'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. So 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 complying 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. Like I think that's inner branch accountability, the life so much we haven't seen before. And four, and I think just more generally, I want Congress to get back into business of exerting institutional authority over the court. If the court adopts an interpretation of a statute, the Congress didn't need. In the old days, Congress would just pass a new statute in like a day and a half. Now that doesn't happen anymore. So it's a list that can go on and on and on, but those are the big ones. And 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. Whose interest is the court's serving with this change? Is the court serving the court's own interest? Is this just, I think it seemed to be overusing this phrase lately, but is this just the court's will to power? Is something or some shadowy power working through the court to try to make the court less accountable and more powerful? I think it's a question, Bethany, of from whose perspective are we answering that question? So from the court's perspective, I think almost all of this is about irrigating 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, right? Like 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. So from the court's perspective, I really think it is about power, but 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 has seized those things as all simpatico. And so people will disagree about how malicious it is versus how just sort of reactive it is, but I think it's, it all is swimming in the same direction when you add the pieces together. So as an economist, the idea that the court only cares about itself and then maximizes power, it sounds like very reasonable, but let me, and that's really why I'm so cynical. But why don't you walk us through exactly, because this is the part I completely don't know, is how the vested interests can manipulate the court, according to this objective, so effectively, to get what they want, for example, on deregulation. Let me give you a couple, since you're an economist, I'm gonna do something weird for lawyers and actually use some numbers. So, the Supreme Court these days has only decided on about 57 to 60 cases a year through its regular, what we might call the Merrick's 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 and 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, then are either about social issues, religious liberty, or administrative power and administrative law. But 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 their, 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 like 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. So that by the time it got to the Supreme Court, Luigi, they had already like, you know, they were winning and they were playing the defense. So I think you had 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, and 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 to sort of really interesting data point about this, and this is going to be maybe the nerdiest thing I will say today, I hope. No problem. We like nerdy, we like nerdy go forward. So the Solicitor General is the federal government's lawyer in the Supreme Court. And 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, right? Like usually the S 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 Alonist Morissette reference intended, more uninvited amicus briefs at the, should we take this case stage than every single president before? Basically, right, the SGs using their influence, right? 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. And 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? So 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 of the competence of business relative to some of the other special interests for us at work in our country now? 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 and 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 themes that are happening in the world. Yeah, 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. So 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 have 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. And so there are some areas where I think the business world has been more successful because it's had more control of where these cases are being litigated in the lower courts and somewhere there's been less success. And I think that's part of why I'm a little more equivocal on that front. So in the sometime in the mid teens, an economist named Mohamed El-Aryan wrote a book about the Fed called the Only Game in Town. And in that book, he argued that the Fed decided 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. So does that argument apply to the Supreme Court that it too feels it's the only game in town? And if so, then isn't the fault in the end, Congress is? Yes, I realize I'm swinging at the lowest hanging fruit in the history of fruit to say, yes, it's Congress's fault. But I mean, I think it's... I guess I didn't see that up, didn't I? No, that's okay. But Bethany, it's worth explaining that I think it's Congress's fault in multiple different ways, none of which are partisan. So 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 into fill. But 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 decided 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. And 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 their claim and the power of Congress has left on the field. So it's like, Congress is responsible at both ends of the equation. Since it's too easy to blame Congress, let me try something a little bit harder. And let's blame, no, no, no, yet too young to be blamed for this. Maybe I 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 won't protect business. And this gridlocking Congress was really playing while in this strategy. So why did the Republican Party should allow this to begin to change it because was playing in his direction? The Democratic Party, at least allegedly, claims to be on the other side. And the Democratic Party had a lot of power over these last 30 years. So it's not always a minority. Never did anything in that. And now, again, my citizens, 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're super smart and not naive. And so I have to come to the conclusion that they did on purpose. And they did on purpose because they needed to cater to a big part of their constituency. There was big business. And they wanted to pretend to be in favor of all the other stuff. But at the end of the day, as you said, they only focused on civil rights. And they gave away the rest. So 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 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 to fill a Buster-proof majority in the Senate. And wait a second, the Philip Buster is a self-imposed rule. The Democrats could change it tomorrow if they want to. Is that part of the problem? So it's really easy. I'm about to agree with you. And so I think that the real, the real, if you really want to lay blame on the Democrats, it's for not nuking the Philip Buster. And the reason why I'm a little bit equivocal about not nuking the Philip Buster is because I look at where we are today and the extent to which the Philip Buster 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 legacies sort of playing the old game or just playing the new game. But 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 frustrated in both directions. And at least right now, I'm kind of okay with the Philip Buster in a way that maybe I wasn't five years ago. But I'm sorry, I'm struggling a bit with your answers because on the one hand, you're saying is all fault of Congress that did not create the rivals. And 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 that too because imagine that in 2021, Biden had decided to follow all your advice, maybe including expanding the number of judges. That's not what I'm mind. Okay, but do you think there would be such in such a terrible situation today? Yes. I mean, I mean, I mean, I mean, I mean, those rules are not enough. But then you're saying those rules are not enough. Because, right, 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'm keeping 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 crossing Congress, but just because Congress should be exercising power unto itself. I wonder if part of it isn't so much that either party is captured by interests 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. And so it's easier to say, well, we didn't do that and defer to another group whether it be the Fed or the courts. And 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. Yes, Ann, Bethany, right? I mean, I think it's, 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. And 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 was on, I'm on CNN more often than I'd like to be. And I was on this panel with Scott Jennings, last March or April, where he was saying that Democrats fighting for due process for alleged alien enemies were making a huge political miscalculation, right? They're like, you know, you guys, this is a terrible political gamble. And I said, Scott, I don't give a shit about the politics. The question is, do we have principles or not? And if you don't believe in due process, then what are we doing here? That's what's missing. Like I should not be shooting people. We should not be sending people to googues. I mean, these are things that ought not to be controversial. And yet, I think at least many of the folks who I think of as the current formal leaders of the Democrat Party seem to be having a hard time saying that succinctly and loudly. And 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. And the Republicans have just blown us by on that. I mean, I think that's a big different, it might be different answers for different people, but I think it's all part of the same stew. Is there a scenario in which the cure for this is worse than the disease? And 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 unspulls from there. In other words, the consequences of this are big. I mean, I think it's a choice, yes, but Bethany, I think it's already happened. I asked my students a lot, right? Why in the sort of most critical moments in American history, why did presidents comply with the Supreme Court when they didn't want to? And 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 water gate tapes? And the answer is not like some deep internal morality in either case or some high ethics that really sort of 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 mean, I don't know what those political consequences would be. And so I think that's a reflection of Bethany of how much were already there. When I wrote my book a couple of years ago on the Shadowdocket, the subtitle was, how the court uses stealth rulings to a mass power and undermine the republic. We meant it. The court's behavior has really, I think, affected its credibility not on the 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 there's mandates for carried out. So 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 and there's just not. And they keep leaning into, hey, we're a six three court and we're going to do six three court things. And I think that that's making the court that much weaker, Bethany, for the confrontations that are inevitably to come. So 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 the majority of the current justices. Yeah, 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. And so they will reap the rewards of the very thing they foster or help to foster, but that's actually a terrible outcome for them. Right, I mean, imagine a world in which all of a sudden it becomes hard to enforce contracts. This is the Robert's Court. So what does this say about what the Robert's Court is? What does your broad argument say about what the Robert's Court is and what does that mean for his legacy? And then as you think about him, you study him or 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? You know, 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. And I think insofar as he's worried about his legacy, I think he probably feels a bit trapped. Trapped by events, trapped by 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. 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. And a lot of the sort of the big action items for the conservative legal movement are now in the rear view mirror. They overruled Roe. They gutted the Voting Rights Act. They basically threw open the doors to all kinds of campaign finance, Michigas, the religious stuff. I mean, you name it, the dismantle of the administrative state. Like check, check, check, check, check. And yet the court today is so much more of a lightning rod than it was when he took over 20 years ago. And 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. And 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 Robert's does that given the Thomas Alito Gorsuch cohort he's working with. But I think that's part of the trap. Again, to be fair, being unanimous this day is very difficult because I read, I think, in the New York Times that even Kagan is in trouble because now you have Katanjia Jackson who is really not afraid to dissent on the left. And so Kagan doesn't know what to do because she's normally somebody that tries to kind of form coalitions, but if you have somebody who is always out there and you're lasting three, what do you do? So if you were, for example, Elena Kagan, what would you do? Let me start with what she's done. I mean, so the New York Times story that you're referencing, I actually think was maybe a bit dated that I think that was the Justice Kagan of last April and May. But 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. So I think she's already, if anything, made her position clear. But if I were thinking about how to sort of 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 leave the court out of this mess? Because 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 sort of go around and sort of hock 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. And I think it would have to start with them. And 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 what 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 maybe a sign that she tried and failed. And that even she is now calling BS on what previously she would have, Grinn and Barrett, right? She would have held her nose and allowed it to go through. That's a depressing possibility. OK, 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. So we can say we're totally screwed in a happy, upbeat voice. We're totally screwed. No, no, no, come on. Give us something to give us something in all of this, Michikas, that makes you upbeat and happy. So 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. And now more people are taking this seriously. That 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. And 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. And we don't have to look that far to see examples of this actually happening. I mean, the Supreme Court adopted this code of conduct, a couple of years ago, after all the outcries about the justice behavior. Now, I mean, to call the code of conduct, the court adopted a half measure, is to do graven justice to half measures around the world. But the fact that the court did anything, right? If you are a student of the court's history is astounded. They were reactive to public pressure. They actually felt like they had to move. My hope is that we're 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. Because 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. If you're enjoying the discussions Luigi and I have on this show, there's another University of Chicago podcast network show you should check out. It's called entitled International Lawyers, Claudio Flores and Tom Ginsburg have traveled the world getting into the weeds of global human rights debates. Unentitled, they use their expertise to explore the stories and the thorny questions around why rights matter and what's the matter with rights. Subscribe to entitled part of the award-winning University of Chicago podcast network. The most stunning thing to me on the podcast was when he said that it has been the Roberts Court for 20 years. And 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. That was just, I remember when he was appointed the Chief Justice, right? Yeah, I need to. It wasn't that long ago. It was a conscientist topic to me as well because 20 years is a long time. 20 years. And I thought it was a few years ago. I know, right? Anyway, I thought that was a great conversation, did you? I completely agree. I think what is interesting and I don't think people fully appreciate is that put yourself on the other foot. Imagine that today, whether they left this precedent who was pushing for a number of changes that a lot of business people dislike, and you had a complacent laughling in Congress that I did that. 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 quarterly, so aggressive in one direction, it might be a lot of aggressive in the opposite directions. Maybe because they think it will take so long to change this court that is past my lifetime and they discount massively. But they underestimate the possibility that there is such an intolerance that the court is either side step or packed with nine extremist judges or stuff like that because the rage that I feel is increasing and I don't know where I would stop. Hmm. So let's start with one aspect of that. I think you just did a Bethany and set a whole bunch of things at once. I'm learning for you, Bethany. I'm learning. 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 would be as best probably you don't want to pick up on the former from me. So when you say the rage, you feel why? So 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've always been, I speak for myself, but I've always been a low-biting citizen who will believe in justice and the law. And I've always thought that the idea of packing the court is terrible. And I have to say that now I start thinking, maybe it was a mistake but Biden did not do it. I think the court is so basically playing the game of the Trump administration. I don't think as, in my view, any credibility of a third party and if it is in time the political game, anything in the political end, it says, you know the French expression, al-Agaire, cum al-Agaire, when you are at war, you play like an award. In either you respect institutions or you don't respect institutions but don't expect the other two respect institutions. Yeah, it does approach I, for an I, 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 and policy over party, but I do have a degree of rage at the Democrats for what I perceive as a combination of arrogance and naivete, and arrogance that I think cost them a lot of votes among the working class for some of the earlier podcasts that we've done, but also this naivete about how things were working. And this refused all to see it for what it was and 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. And 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's simply decided immigration wasn't that important an issue and didn't understand that it was an incredibly important issue to voters. And so they just kind of, it's not as if they meant for it to become the problem that it did. It's just that it wasn't, 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. And it's just, it's that sort of failure to think through consequences that bothers me. And I think maybe we're seeing some of that with what's happened with the court. I'm sorry, I am a little bit nervous because both you and Steve has used the term naivete, a disproportionate number of times. And you know, I agree with that. I know. Steve, this is, I think at some point, there is a limit to the naivete and at some point you are responsible, you shall so naivete. And this is, if you are going to again fight with a knife, is it being naivete or being stupid? Okay. And I think it's in a stupidity or corruption. I go for the corruption because I'm cynical. If you don't want to believe that, go for the stupidity, but I will abolish the term naivete because it's a polite way not to attribute responsibility. But 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. And 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 Kenley making it very clear that he really didn't understand Enron's business, that he really didn't as a way of, and it was an excuse in some ways. He really didn't understand what was happening. And I absolutely know that he understood very little of what the problems at Enron were. But at the same time, he took some $300 million out of the company. And 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 Wrong doing over that, that kind of excuse making. And so when I use the word naivete, I see it through that same lens that to me it is almost worse, that kind of Willful naivete, when you're getting paid to do a job, and that is your job and you're not doing it is almost worse. So for what that's worth. You know, I agree. And you know the expression, for me ones shame on me, for the north. So for me one shame on you, for me twice shame on me, I might even concede that at the beginning, there was some naivete, but at the process, and the evolution is taking place for 30 years now. If you don't cheat, you eat this stupid and corrupt, and I lead you the charge of the two. Capitalism is a podcast from the University of Chicago Podcast Network and the Steakler Center in collaboration with the Chicago Booth Review. The show is produced by me, Matt Hodeb, and Leah C's Reign with production assistance for Udsof Gandhi, Matt Lucky, Sebastian Berka, Andy Shee, and Brooke Fox. Don't forget to subscribe and leave a review wherever you get your podcasts. And if you'd like to take our conversation further, also check out promarket.org, a publication of the Steakler Center, and subscribe to our newsletter. Sign up at Chicago Booth.edu slash Steakler to discover exciting new content, events, and insights. We hope you'll join our community. Again at Chicago Booth.edu slash Steakler.