Adam White is a senior fellow at the American Enterprise Institute and the Co-Director of the C. Boyden Gray Center for the Study of the Administrative State at George Mason University. He also leads seminars with the Hertog Foundation, one of which I had the chance to attend this summer.

Today we talk about the American judicial system, from its structure to its founding to its role in American society. We address whether courts function differently today than we have in the past, looking at the issues debated like court-packing and precedent.



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Juliette Sellgren

Science is the great antidote to the poison of enthusiasm and superstition. Hi, I'm Juliette Sellgren and this is my podcast, the Great Antidote named for Adam Smith, brought to you by Liberty Fund. To learn more, visit www Adam Smith works.org.

Welcome back. Today on January 9th, 2024. Again, we're going to be kicking off the new year by talking about the American Judicial system- from the ideas it was based on to its current functioning and even what the structure is. I'm excited to be welcoming Adam White to the podcast to talk to us about this. He's a senior fellow at the American Enterprise Institute and the co-director of the C Boyden Gray Center for the study of the administrative state at George Mason University. Sorry, you can read that one more clearly in the description of this episode; he also led a constitutional study seminar at the Hertog Foundation that I had the chance to participate in last summer, and it was super awesome. So if any of you are interested in that, go check it out. Welcome to the podcast.

Thanks. Happy New Year. Really great to talk again and really great to be here on the show.

So before we jump into the Constitution and the judicial system, and maybe we are going to be jumping in just through this question, what is the most important thing people my age or in my generation should know that we don't?

That's a great question. Well, in the debates around the Supreme Court, maybe the best thing for everybody to know is that these debates aren't new. That the Supreme Court has been at the center of constitutional argument, both real principled arguments and also really cynical, partisan arguments from the very beginning. The reason why Alexander Hamilton had to write about it so much in the Federalist Papers is because the anti-Federalists were deeply suspicious of the proposed Supreme Court the first time that you had basically a party change in government when John Adams lost to Thomas Jefferson and the Federalists gave way to the Republicans of the time. You had both Adams on the way out and Jefferson on the way in really focused like a laser on the federal judiciary and the Supreme Court and its place in American government and politics. We've had much more famous debates since then the court packing crisis of the New Deal era. But the fact is these debates about the Supreme Court, they're not new in their fundamental principles. They go back to the very beginning and we've been fighting about them ever since and they're worth fighting about.

So this is a great introduction and before we even get into what those debates were and how they shaped the system, I kind of want to lay the groundwork for what the system we have looks like, because either you're like me, and there was a point in time where even though you had learned about it in school, you didn't really understand the structure of the courts and how that worked or you kind of take it for granted how it's different from other systems. So can you talk to us about that a little bit? What is the court structured like? What is the judiciary really?

Sure. Well, if your listeners haven't looked at this part of the constitution before, they should and they'll be surprised by how brief it is. Constitution, the US Constitution sets up the three parts of government, the legislative and judicial and executive powers. And in the Judicial Powers section it refers to, it says there will be a Supreme Court and it mentions that there will be a Chief justice, but it doesn't really say much more than that. It doesn't say how many number of justices there should be on the court. I served in 2021 on President Biden's Commission on the Supreme Court where we studied the debates over court packing and so on, and that we had that whole debate and discussion because the Constitution itself doesn't specify the number of justices. There's currently nine, but that's just because Congress since the 1860s has set it at nine justices.

Originally, when Congress first structured the Supreme Court, the very first Congress, they set it at six justices, which might be a surprise to listeners we're used to having an odd number because we have all these five, four decisions, but the original court was six justices so that there could be basically two from New England, two from the Mid-Atlantic and two from the South. By the way, in addition to not specifying the size of the Supreme Court, the Constitution doesn't specify what the federal judiciary below it would look like. The Constitution provides that there could be lower federal courts that Congress would create, but it leaves the door open at least to Congress not creating a lower federal judiciary and letting the state courts and the state supreme courts be basically the lower federal judiciary in its entirety. Now, from the very beginning, we did end up having lower federal courts, and that's changed, but over time in some ways.

But basically the structure we have, we have now we've had for a very long time is the Supreme Court sits atop a group of what are called Circuit courts, courts of appeals, a little more than a dozen of 'em around the country, and then below them are the federal trial courts. We call those district courts. And when a case goes to federal court, it generally starts in a federal trial court and then gets appealed up to the federal courts of appeals. And then from there the Supreme Court has a lot of discretion on what cases or issues it actually hears from the lower courts. I can unpack any of that if you want to. That's probably more detailed than you wanted in the first place. But my one observation I'd give from the outset that I think is important for young people thinking about this today is that if anything has really changed in recent years, whether that's recent decades or just the last few years, it's that the federal judiciary process is getting faster, that cases end up in court faster, they make their way through the courts of appeals faster, they get to the Supreme Court faster.

And in many ways that's a good thing. If you're somebody with your constitutional rights at stake, you're glad that the judiciary is hearing these cases quickly and that you might even have your case before the Supreme Court quickly. But there is some drawbacks to this and all of it I think is symptomatic of the fact that government in general just moves more quickly.

So I kind of, I'll get to different parts of the, I would say very concise and compact, very good response that you just gave. No worries about too much information, but this is one I want to address before we continue on and hit the rest of those points, which is the last thing you said. Why is it going faster now?

A few things. Once upon a time, a long time ago, you really wouldn't end up in federal court challenging the constitutionality of a statute or some government action unless you actually faced prosecution of some kind by the government, right? If you saw a statute that affected you and you thought was unconstitutional, well you would challenge it if the government actually enforced it against you. But for a very, very long time, I guess now more than a century, about a century, there's a statute that allows you to bring up preemptive action to challenge the constitutionality of laws or government actions or regulations. We call those declaratory judgments. And so instead of waiting for the government to do something to you, you go to court first and you sue to get a declaration that the law is unconstitutional. And that's great. In many ways, we shouldn't all have to live under the burden of worrying that we're going to be prosecuted for something that kind of approach.

It chills free speech, it chills other government exercise of constitutional rights by the people. And so being able to go to court first is in many ways a blessing. But it does mean though that anytime a major statute is signed or a regulation is issued or the government announces some of their policy, you're going to immediately have a lawsuit. And it's my sense, and now maybe I could be wrong about this, but it is just my sense studying these things and watching them for the last 20 plus years that actually they come faster and then they move faster through the trial courts, through the courts of appeals and through the Supreme Court, which is why now you get so many more debates. It's one of the reasons why we have so many more debates now about the way that the court picks, the Supreme Court picks and chooses its cases.

The court has power to grant relief at the front end of the case just to kind of freeze things in place while the litigation is pending. That's come to be known pejoratively as the shadow docket, and that's under a lot of criticism. But I think above all, the reason why things are moving more quickly is, again, as I said, government is just moving more quickly. As you pointed out, I co-direct a program at Scalia Law School at Mason called the C Boyden Gray Center for the study of the administrative state. And that is definitely a mouthful, but what we study day-to-day here at the Gray Center is administrative agencies, other executive actors, governors, as we saw during the COVID years, governors and mayors have the power to make a lot of rules very, very quickly. And so that calls out for a quicker response in the courts. And so the courts themselves are moving more quickly in some ways because Congress gave them those powers in some ways because the courts are just becoming more accustomed to using powers of acceleration, but also the rest of the government is just speeding up too, and the courts are reacting to that. And I think that last point is the most important one.

I see it as kind of this tension that could either be good or bad, but it's maybe kind of a net neutral. Maybe it changes depending on the issue, but maybe this buildup of speed and responsiveness allows for the people, maybe not the people, but yeah, the people who are affected in real time to have, I don't know if I would say more of a say, but to maybe get more out of the judicial system in the here and now. But at the same time, I think maybe part of the value of the courts is that it's a slower process. It takes more discretion and thought maybe than thought to lead to action than the legislative branch. And so I'm wondering if you see that and then I think that can lead us into more of what the founders were thinking and the debates they were having.

Well, you're right on. In terms of the ideal of this, that from the very beginning, the idea was that judges would be separated from political passions and from just the energy of the political process, and they'd be more deliberate In more recent years in the 20th century, there was a law professor at Yale, he died in the 1970s named Alexander Bickell, and he's a sort of intellectual hero of mine among others. And he described judges, I mean, almost in cartoonish terms, he sort of described them as alone in their study, really studying deeply American law and tradition and sort of having a sense of where things were headed and trying to help lead those debates, but not force those debates. 10 years ago, I used to compare it to a movie that's probably now too old for even the young people listening to this podcast, but on the movie Anchorman, the Will Ferrell movie with Ron Burgundy where he says, my library smells of rich mahogany and is filled with many leather bound books.

That was sort of Alex Bickel's sense of a judge. And it was always a little bit, little bit much, but there's something to it that you do want the courts to be less impassioned, more deliberate and slow. But as you said, maybe the best way of putting the other point is, well, justice delayed is justice denied. And every day that somebody with a real clear constitutional right being violated by government or being threatened or chilled by government, they suffer a loss. And we felt that We saw those debates a lot during the covid years, whatever one makes of say, the debates between governors and various religious communities over the collision of your First Amendment rights to further exercise your religion versus the government's power and emergencies, especially as the pandemic progressed a year, a year and a half into it, I was decidedly more sympathetic to the religious communities.

But whatever one makes of those particular debates, I think everybody would agree that to the extent that a religious community had at least a colorable claim to religious liberty, there was at least a risk that they were really suffering a miscarriage of justice when governors or mayors could quickly make and unmake rules on the fly, oftentimes in very seemingly arbitrary ways that burdened religious liberty. And so for those communities, they certainly were grateful to have ready access to the courts and sometimes very quickly, even the Supreme Court maybe to take a different debate. Ever since Roe v Wade, anytime a state passed a law regulating abortion, you would immediately have a lawsuit in federal district court and oftentimes a federal district judge immediately freezing the application of that new legislation until the constitutional issue could be sorted out. In those cases, I was usually more sympathetic to the regulators than to the folks who were defending the Roe v Wade right to abortion. But there too, again, there was a constitutional issue. Some folks thought that their constitutional rights were being deprived or at risk of being deprived, and for them having ready, rectify what they saw as a real violation of their constitutional rights,

These are some really good examples that I think really highlight how there can never be one, I don't want to say correct answer, but there can never be a clear cut which side of this is winning out in any given argument or any given situation because in some, maybe justice can be delayed a little bit and denied depending on the circumstances and depending on the context of when a case comes about or when a liberty is perceived to be denied, that's going to change. I don't know. I guess to me it screams, this is like a case by case thing to weigh. We can't say definitively that one of the parts of this tension is more important always or is more prevalent, which I think is super interesting. And I think you can kind of see that in a lot of our government and a lot of the Constitution and the way that the government was founded and set up, that these tensions are somewhat positive and we're kind of created to be. So let's kind of jump in there.

Well, let me just say I agree with that and you put it really well. Anybody who says that these big picture questions are simple is either fooling you or fooling themselves. I wouldn't go so far as to say that the answers are always case by case, but I would say that the answers really need to grapple seriously with the big sweep of cases and the hard cases. I mean, in the end, there's often room for systematic reform. I think there's probably room for some reform on how the lower courts operate and feed cases up to the Supreme Court. And when the Supreme Court can intervene at the end of my service on the Supreme Court Commission, which was often referred to sometimes by me as the court packing commission, and I didn't mean it as a compliment because that's what we were created to study is court packing. But even by the end I said, there's room for reform here. It's probably systematic, but it really has to take seriously the realities of these issues at the case by case level and not just the cases we like talking about on our particular side of an issue.

So I guess the best way to say this, what are the biggest tensions that were spotted and or fought over and acknowledged and dealt with at the Founding? And I guess knowing that kind of informs what has continued happening with the courts and the way that people perceive them and maybe some misconceptions about how the courts have changed or not. Can you tell us a bit about that?

Yeah, the debates about the Supreme Court all happened in the shadow of the bigger debates about federalism. What's the power of the federal government? What's the power of the states? Because the federal judiciary and the Supreme Court inevitably would be at the center of those debates, not just because the Constitution provides for a Supreme Court, but because the Constitution provides that federal, that the Constitution itself and all laws under the Constitution and treaties are the supreme law of the land. And so the federal government was going to be immensely powerful, maybe not as immensely powerful as it turned out to be in practice. But even in the founding era, the constitution's, critics, or skeptics were wary of federal power, and they knew that federal courts, like any courts would be significant in that system of government. The most important criticism of the proposed federal courts came from a writer who wrote under the pen name Brutus.

I think it was actually Multon Smith of New York. That's what writers I like have tended to see. But anyway, Brutus wrote to say the federal judiciary in Supreme Court would be a double threat to good government and the rights of the people. The first threat is that the federal government would, the Supreme Court would basically be in a position to make up what the Constitution means because the Supreme Court, unlike the courts in England and Great Britain would not be subject to a legislative veto in that era. Judges in England had life tenure, but ultimately the decisions of the highest judges, the law lords would be subject to review by, I guess the House of Lords. And so you did have some legislative oversight, and thus the theory goes popular oversight of the Supreme Court. The US would have a written constitution unlike England, and it would not have Congressional oversight of Supreme Court decisions.

So Brutus was very worried that judges with life tenure and without being subject to the vetoes of a legislature, legislature would basically treat the Constitution as something that could be made and unmade just through creative cynical interpretations of the words. And so Brutus was worried that the court would distort the Constitution. And he also worried secondly that the Supreme Court, since it's a federal court, would be inherently biased towards federal power and would assist the Congress in taking away the state's powers. So the federal Supreme Court would be both a threat to Congress and a threat to the States. Hamilton responded most famously in Federalist 78 that the court put it this way. He said, if you're worried about the court just making up the law as it goes along, then we shouldn't have courts at all. That at the end of the day, if the Constitution is going to mean something and we're going to entrust it to the courts to do something, then let the courts have independence.

Otherwise just let Congress settle everything or legislature settle everything. So we'll have a Supreme Court, its members will be appointed by the President with the Senate's advice and consent, and they'll be independent from political pressure so that they'll be able to make the right decision. Now, Hamilton wasn't a fool. He knew that judges might make wrong decisions in theory, they could be impeached for that kind of thing, but Hamilton really trusted that the constitutional system as a whole, President, the Senate and America's broader constitutional culture would help to ensure that on the whole good judges would be appointed to make right decisions as agents of the people and not as handmaidens of politicians. And that was his main response. Maybe I'll stop there.

And listeners, I can't express enough how much I recommend reading that and also to Tocqueville on the American judicial system, there's something so that their words impart this admiration for their view and their vision of the judiciary That is just, I don't know, it makes me feel so American and so patriotic.

Well, Tocqueville is a great reference point because Tocqueville writing in the 1830s, he says, I won't get the quote exactly right, but he says, even in that time scarcely an issue arises in politics that doesn't sooner or later wind up a lawsuit. So again, we shouldn't think that the fights about the courts and litigation over public policy is new. It's not. It's bigger and faster now. But Tocqueville's great. He has extended discussions of judges in American democracy of lawyers in American democracy. I wrote a paper back when I was still a lawyer. I wrote a paper on Tocqueville and lawyers and civic institutions like lawyers.

It is just endlessly fascinating, endlessly amusing. I don't know that Tocqueville got it right in his time. I don't know that it's right in our time, but it's definitely, definitely worth reading. And I just have it on my mind because my colleague, Yuval Levin and I are putting together a project that involves some readings from Tocqueville. And so just this week as we are recording this, he and I have sort of the pleasure of going back and reading Tocqueville along with my great research assistant, Sophie Rii. And it's even for those of us who have read it over and over again, every time you go back to it, especially on these issues, it is just such a joy.

Yeah, there you go. Two people really telling you to go and read your text bill on the Advisory Opinions podcast to kind of continue this line of thought and to drag it into the modern day. They discuss a lot of legal and cultural issues, and they always say, Congress, do your job in the context of the court because they kind of hold the belief that Congress should take more responsibility in legislating on issues that are often left to the courts to decide. It suggests that they believe that either Congress is neglecting its duties or that it's over relying on the Supreme Court to make decisions, but we also call the Supreme Court the one that decides the law of the land. So obviously there's this relationship between what the law is and what legislation is and should be and the courts and Congress. So I guess, has Congress moved away or increased its reliance on the judiciary, or is this kind of always the relationship it was destined to have?

Before I answer, that's a great question. I just want to say since there surely is overlap between this audience and the Advisory Opinions audience, I just want to tell you folks, I met Sarah Isgur when she was a law student, and I was a young lawyer at a law firm, and she was so clearly destined for stardom, even as a law student that no matter how long any of you have been listening to Advisory Opinions, I was a Sarah Isgur fan first. So let me just get that out on the table. On the point about Congress doing their job, I sometimes equate them to the opening scene of the first Godfather movie where, again, this is very old, but the Frank Sinatra knockoff, Johnny Fontaine is in the godfather's office sort of crying about how he's getting a raw deal from the studio head, and the Godfather finally gets sick of it and slaps Johnny Fontaine in the face and says, you could act like a man.

And I sometimes feel like that's what, that's Congress's problem. They complain about the Supreme Court, they complain about the Supreme Court. They can start by just doing their own job by legislating better. And Congress has changed in that way. I'm not pollyannish about this. I don't pretend that Congress could write every single law with perfect clarity to reduce the need for litigation. That's just impossible. My favorite Federalist Paper, Federalist 37, where Madison is writing about the debt challenges of vagueness in a written law, Madison says from the start, there's always going to be some vagueness in law, sometimes a little, sometimes a lot. The upshot of that is not that Congress shouldn't try to be more specific. It's that we should be, we should have some humility in expecting perfection from Congress, but Congress could always do its job better, all these problems, so much of this, so not all constitutional problems, but a lot of the practical aspects of this that began with Congress, if Congress would just write clearer laws from the start, it would first of all eliminate some constitutional problems, and second, Congress would actually deal with some of the constitutional issues better on its own, trying to strike a balance that has better protection from the ground up for free speech or for religious liberty and so on.

So Congress could do its job better, but then ideally an executive branch would take those laws that are somewhat vague and not use them as their own things of wax to kind of be just a tool. The president's own ambition. Presidents would actually approach these things with a sense of duty and be more constrained and their agencies be more constrained in their creativity and really try to act more faithfully with what Congress said and what Congress intended. And then if a president did that, then by the time the case actually got the litigation, the issues would be narrower. Some of the issues would've gone away. But then there too, the courts would need to approach their task, feeling not so much empowered by these laws, but in a way burdened by these laws constrained by these laws. And I think that textualism and originalism the effort to interpret a law in accordance with what it originally meant, that's the main tool of judicial self-restraint. But even in cases where maybe there isn't a clear originalist answer, there's still a little bit of doubt left over. There has to be some ethic of judicial restraint to make sure that judges consider themselves bound by law and not superpowered by law.

I'm going to kind of, I don't know, illustrate this idea that I've been thinking about for, I mean, I feel like it's been almost six months since the Hertog seminar, and it hit me on the second day, and it's just been marinating in my brain since then. And maybe this is going to sound conservative, but I really don't think it is, is that when you're in civics class, you learn that the legislative branch, especially the House of Representatives, carries the torch of the people. It's the voice of the people in government, and then the executive is enforcing and all of that. And then it kind of hit me that this idea of judicial self-restraint and in conjunction with originalism as its method that really the courts, what they do or what their job was to kind of pull together this trifecta of the three branches is to curb the advancements.

And this isn't saying that the decisions or the advancements or the changes need to go in any specific direction, but that all three of them have to work in this way where the court's function, especially if you take it in the context of the founding and the two other branches, is one that is restraining inevitably because the other two are pushing forward always. And I don't know exactly how to characterize this, and I doubt this idea is new, but it just hit me one day and I was like, whoa. So I'm wondering what you think about that.

Well, this brings me back to that seminar last summer. You were such a great participant, and it's again, fun to have this conversation again. When Hamilton replies to Brutus in Federalist 78, one of the attacks responding to is Brutus’ accusation that the Constitution would put the Supreme Court above the legislative branch. And Hamilton says, no, no, no. This is not a question about the courts being above Congress is that both of them are agents of the people themselves, but in different ways. So when there is a lawsuit that involves a challenge to a statute, then yes, the court will sit in, I guess what we now call judicial review of the constitutionality of the law. But that's not the courts being above Congress, that's the courts being an agent to the people, just like Congress is an agent of the people. Now that's maybe a little too cute.

I'm not sure how convincing that was. Even in Hamilton's own time, I mean in those contexts, the courts do seem to be somewhat above Congress, at least in the sense that Congress and presidents tend to accept the Supreme Court's decisions. But that's a long way of saying, I think you're right that in the end, it's a system of three branches, and I sometimes bristle when somebody says, what's the first branch of government? The answer is usually supposed to be Congress, and I usually bristle at that because I don't think it's quite right. Congress is, and this is going to sound so childish and pedantic, but Congress is the first branch when it comes to legislation. The President is the first branch when it comes to execution. The Supreme Court and the courts are the first branch when it comes to adjudication. And I know that's totally pedantic and almost, I guess circular, but it's more than that.

It's that each branch of government was structured in a way to bring certain kinds of accountability and certain kinds of what I tend to call Republican virtue to the task at hand. And Congress was structured in a way to bring, more often than not, one would hope the right kind of members of Congress who could do the task of legislation well, it would attract the right kind of executive who would execute well, and it would bring the right kind of judges who would judge well. And that's another part of Federalist 78 where Hamilton really dwells on the incentive effects of giving judges life tenure precisely so that you attract the right kind of judge. You need all three of those things in the system, but it's not just that you need three separate branches, you need three separate branches that is each doing its proper job.

In this day and age, our executive branch almost acts like a legislature because it makes all kinds of regulations. It wasn't built to be a legislature. The judiciary in some ways almost acts like an executive branch, especially the federal trial courts where the judges often have to make quick discretionary judgments, almost prudential judgments about not just what the law says, but where the courts should intervene and in what ways, almost acting like an executive. But they weren't built to be an executive. And what's Congress doing this whole time? Quite frankly, if you watch Congress on tv, not maybe the evening cable news shows, but when you watch them in their day-to-Day work, they're mostly sitting in oversight hearings where they sit almost like a Supreme Court bench. They sit a raid across a room, asking questions, making accusations, courts, Congress today almost acts like the Supreme Court of public opinion, where it sits in judgment of things that have happened instead of really legislating with eyes looking forward, that really wasn't what Congress was primarily built to do either. And so we have three separate branches of government. Maybe they're not even separate enough due to the political parties, but to the extent they are separate, each branch is basically doing the wrong job at this point. So you get sort of the worst of all worlds.

I'm going to validate the pickiness because I think even if we don't intend it to be, oh, well, the legislature is the first branch, it's important to remember that there are three parts of a whole and that without the other two, each one is kind of not nothing, but it loses its value. Not entirely, but it loses its strength, which is why there are three of 'em. So I really appreciate that way of saying it. And then I kind want to get into the politics of it all and a lot about court packing. You're on the court packing committee. How did the court packing crisis kind of come around and how is it something that every administration is going to have to deal with, and is it always going to be this kind of political battle that we're going to have to continue fighting now that it's surfaced?

Like I said before, it certainly wasn't unprecedented. These latest debates, John Adams and the Federalists in the early Congress, I guess they would've been, he oversaw the fifth and sixth congresses at the end of his administration. They added a bunch of new lower court seats, maybe even a Supreme Court seat, I can't remember. And they restructured the federal judiciary. Jefferson comes to office, immediately tries to undo all of that. It actually shuts down the Supreme Court for a year. So the court itself can't sit in review of what Congress and the Jefferson administration did. Fast forward to the Roosevelt administration, when President Roosevelt and the New Dealers are dissatisfied with the Supreme Court's rulings against the first new deal, he threatens to pack the court with additional justices. The most recent version of that debate was very, very recently in the Trump administration. You recall when Trump got elected, we'd already were about almost a year into an argument over the Supreme Court because Justice Scalia had died in February of 2016. The senators, the Republican controlled Senate announced they wouldn't move forward on a nomination for it to fill the Scalia seat. So the Merrick Garland nomination just kind of sat there all year. President Trump wins. He nominates Neil Gorsuch for that seat, and the Republican Senate confirms Gorsuch to be a justice. At that point. You saw some calls to pack the court with new justices, but not really as far as I can tell.

The real calls to pack the court with additional justices came when Anthony Kennedy announced in, what would that have been, 2018, that he was retiring from the court. And that was the moment at which it was clear that the ideological makeup, the jurisprudential makeup of the court was about to change. Since Kennedy had always been the kind of centrist, not the centrist, but the swing justice in the center of the court, you started to hear calls to pack the court, and then of course you had Brett Kavanaugh was nominated, and then there was the personal accusations against him that brought up all the flames around his nomination. And then at the very end of Trump's term in office, justice Ginsburg dies. Amy Coney Barrett is nominated, and the Republican Senate, which had said they didn't want to move during the last election year, move very swiftly to confirm the Barrett nomination.

So by the time she was confirmed, or even before she was confirmed, you saw real, real threats to pack the court so that when President Biden, before he was even president, but towards the end of the 2020 campaign when progressives were calling on him to promise to pack the court, he said, well, I'm not going to promise to pack the court. In fact, he had advocated against that for years, but he said, I'll appoint a commission to study it. And so that's really where it came from. It was the last two years of the Trump administration more than anything that inflamed calls to pack the court. I thought those calls were all misguided. I thought they would be ruinous. I thought that if President Biden and a Democratic Congress actually did add, say four new seats to the Supreme Court as court packers wanted to, that the next Republican president in Congress would add another four court justices, or they'd impeach justices or something, but there would be some kind of countermeasure, and we would enter a new decades long era of really, really nuclear warfare over the Supreme Court.

It's kind of like a trade war where one side raises tariffs than the other, and it goes back and forth, except it's with court packing. Kind of a weird, but also, I think accurate analogy. There could be a whole interview just on court packing, but you gave such a concise overview and kind of insight into it. That was super helpful. And I know I'm going a little above time here, but I also want to ask you about another big issue with the court, something that has been circulating recently, which is also what we talked about at Hertog, which is precedent, especially with the cases that have come through recently, especially the one overturning Roe v. Wade, there's been a lot of talk about, did precedent ever really exist? Does it just justify what justices want in a given moment or has it recently been overturned as a norm? And so I guess, what is precedent and can you give us an overview of what the debate is and kind of where each side is coming from and if it's really new at all?

Well, precedent's always been at the heart of the judicial system in the common law system. That's the point of the common law. That law would be made and discovered through a series of decisions. And then over time, lines of decisions would take on a weight of their own. That's what we call precedent or stare decisis. Now, that becomes more complicated when you move from a purely common law system to a common law system surrounding written laws. When you have a written constitution, written statutes, then suddenly the first task of a judge has to be to faithfully interpret the meaning of those laws. And precedent can build up around those interpretations, and they can really inform those interpretations often. But in the last 50 years, the real challenge has been that we came out of an era where a number of the justices in the 1960s, especially in seventies, were very explicit that they didn't feel very bound by precedent, and they were willing to change it.

Chief Justice Earl Warren, justice Arthur Goldberg, I can't remember if I signed those readings. I think I did in our Hertog seminar, their own writings at the time outside of court where they're explaining why they were willing to overturn so many precedents. You saw this flurry of overturning precedent making new precedent that really seemed at odds with the written constitution. Well, what happens when 25 years later, you get the rise of the originalists and textualists who try to once again put the text of a law front and center? You had the American public over time from the 1980s onward, not maybe not the public, but the political parties polarizing over constitutional interpretation and those really polarized debates and political debates, they all centered around basically Roe v. Wade. And so for a while, we had a lot of cases in the Supreme Court that were about precedent involving a right to trial by jury or whatever.

That was really kind of a shadow boxing around the main disputed precedent of the mall, Roe v Wade, and even after the court overturned Roe v. Wade in the Dobbs decision recently, it's not like all precedent is going away. There's still a real debate about specific precedents, but each justice seems to have a slightly different or vastly different prudential sense of how to apply precedent maybe way. What I leave it with is, one example is Justice Alito, who I've written a lot about over the years, and as my writings made clear, I'm quite impressed by his jurisprudence. I said in a piece for the Harvard Journal of Law and Public Policy recently that Justice Alito has, in his writings over the years and his other statements, he's made clear that he thinks precedent is extremely important, but any particular precedent and specific precedent we ought to look a little skeptically at, because any one precedent is the product of one judge or one small group of judges who might well be prone to error. And so Alito is a fan of precedent, but skeptical of individual precedents. And I think that's right. I think that's probably the right way to approach it.

Yeah, that does seem pretty sound. So before I get onto the final question, I want to ask you a final within the, of this conversation type of question. Obviously the final question can be related to this conversation, but doesn't necessarily have to be, I'm going to ask it kind of two ways. Are there any trends that you see in the courts or in the perception of the courts that are worrying slash Is there any advice or specific misconception that you would like to address that you think that is maybe if we're going to take away one thing from this interview and from this conversation that about the courts that we should know and really that we should take to heart, especially in this time, in the midst of these discussions and debates about the Supreme Court and the judiciary as a whole, that maybe aren't new, but we think they're new?

Well, there's a ton of, I could take that in about 27 different directions. So here's maybe one that's, and I've already said too much on the podcast, and I appreciate everybody's patience and bearing with me. Here's one though. Like we said, there's always been a tendency in America to turn, eventually turn every policy or political debate into a constitutional lawsuit and that, because that's where things end up, we tend to approach these constitutional debates, debates from the start as legalistic lawsuits. And I think that's a mistake just because the court is going to end up deciding a case, applying various judicial procedures and burdens of proof and styles of argument. That doesn't mean that all of us should approach constitutional argument like we're a bunch of lawyers or a bunch of quasi lawyers. Obviously, first and foremost, the Constitution is a legal document. It is a law, but I think all of us should approach the Constitution a little bit more broadly, truly trying to think about the principles and statement and traditions and intentions that undergirded the Constitution.

We ought to approach these debates, taking these issues seriously and being principled about it. But being open to debate and knowing that not every constitutional argument is going to end with a judicial decision that declares a winner and a loser, that the legislative process and executive process should allow for constitutional debate that ends in sort of more moderated ways separate from whatever the courts end up doing. And we shouldn't just act like constitutional debates are exclusively lawyer debates. They're really not. And I think something's been lost in our constitutional culture in the last century where we just assumed that either the constitutional debates are all outsourced to the lawyers and judges, or that when the rest of us are talking about the Constitution, we should talk about it like lawyers and judges.

That's a great response, and thank you for all of your wisdom and for taking the time to be on the podcast to talk to me and to all of these awesome listeners about these issues and to kind of give us deeper insight into our beautiful system. I'll say I have one final question for you. Sure. What is one thing that you believed at one time in your life that you later changed your position on and why?

Well, that's great. Again, I'm sure there's a lot of answers, and I don't know that this is the, just because this is what occurs to me first. I don't want it to make you think that this is one of my central, central issues or whatever, but I'd say in the last 10 years I've become, I went from being sort of casually, I wouldn't say pro-death penalty, but I was anti anti-death penalty, and now I would very much like to see the death penalty abolished, relatedly, I think I was very anti-immigration. I'm not anymore, and I was very, in the past, very cavalier towards issues involving, I come from a rural state. I come from Iowa, although I didn't grow up on a farm, but listen, I love steaks and burgers and bacon, and I love to smoke briskets and all those things. But in the last 10 years, I've become much more conscious about the, and I really credit that to my wife and daughters who have been much more concerned about that.

And the through line between all of those is I think I've just tried to become more mindful of cruelty in day-to-day life, much more conscious about human dignity and the dignity of all living things. And it's not to say any of those three issues are easy, even though I would like to see the death penalty abolished by legislatures, I know the reasons for the death penalty, and I know the suffering of the, I'm mindful of the suffering of victims of really horrible crime and the need for deterrence and so on. I understand our immigration debates are not easy and that we can't just have open borders letting everybody into the country. And again, I understand from the animal side of things, I understand hunting hunters in my family, and like I said, I still love to grill steaks and all that stuff, so I'm not a vegetarian. But for all those things, I think I've tried in the last 10 years of my life to be more mindful of dignity and cruelty.

Once again, I'd like to thank my guests for their time and insight. I'd also like to thank you for listening to the Great Antidote Podcast. It means a lot. The Great Antidote is sound engineered by Rich Goyette. If you have any questions, any guests or topic recommendations, please feel free to reach out to me at Great antidote@libertyfund.org. Thank you.