Amy Coney Barrett, Bush v. Gore, and the Future of the Supreme Court

Topics Discussed:

• Amy Coney Barrett Confirmation Hearings

• Bush v. Gore

• The Future of the Supreme Court

Thank you for being a part of our community! We couldn't do what we do without you. To become a tangible supporter of the show, please visit our Patreon page, purchase a copy of our book, I Think You're Wrong (But I'm Listening), or share the word about our work in your own circles. Follow us on Instagram, Twitter, and Facebook for daily news briefs, GIF news threads, and our real time reactions to breaking news. To purchase Pantsuit Politics merchandise, check out our TeePublic store and our branded tumblers available in partnership with Stealth Steel Designs.

Episode Resources

• Buy tickets to our October 23 Live Event!

• Join us on Saturday for a virtual phone bank with Reclaim Our Vote!

• Virtual Episode Guide: Elections

• The Bush-Gore Recount Is an Omen for 2020 (The Atlantic)

• Sandra Day O'Connor's second thoughts on the 2000 Bush v. Gore decision (The Week)

Transcript

Sarah: [00:00:34] Hello, everyone. Welcome to another episode of Pantsuit Politics. We are so excited to be here with you today, especially for all of you who have already purchased your Supreme Court Stand t-shirts on our online merchandising site, because this is a Supreme Court episode. We're going to talk about Amy Coney Barrett's confirmation hearings.

We're going to talk about Bush V Gore. We're going to talk about court packing. We're just all in on the Supreme Court today, but. Before we get started, please join us for our pre-election political therapy online virtual event, Friday, October 23rd at 8:00 PM. Eastern. We're going to have such a good time.

We have general admission to the virtual event where we're just going to process. We're just going to do what we do best around pantsuit politics. We're going to talk about our feelings about the election. We also have a virtual meet and greet where you can buy a VIP ticket. You're going to get in like a virtual line.

We're going to have a little screen time. We're going to have a screenshot together. We're going to get to see each other's faces like this was the best part of our in person events. We can't do those right now. So looped the company we're partnering with has found a great way to do meet and greets virtually.

So we hope you will join us. The link is in the show notes. 

Beth: [00:01:44] Two other links we want to draw your attention to in the show notes. One is a link to an episode guide on elections and election loss. Yeah. If you are thinking, have they talked about this before? We probably have, and our wonderful listener, Ruth has put all of those links together in one place for you beautifully.

So if you want to brush up on your knowledge about elections, In the next couple of weeks, this is a perfect way to do it. We also want you to check out the link to the Reclaim Our Vote event that we're doing on Saturday. Our listener  is involved with this effort to ensure greater equity in voting, and we're excited to be, be part of it.

So check both of those out as well as links to all of the things that we'll reference in our conversation today. 

Sarah: [00:02:23] First up, we're going to talk about Amy Coney Barrett's confirmation hearing before the Senate. We are recording this late in the day on Wednesday. So they're wrapping up day two, barring some sort of intergalactic intervention. I don't know. It's 2020. I don't, I feel a little nervous about putting the phrase intergalactic intervention out into the universe. Amy Coney Barrett will be confirmed by the Senate, the Republican side of the vote. I actually like what Lindsey Graham said, which is not a statement I use often that, you know, barring some sort of.

He didn't say intergalactic event, but that would have been fun. The Republicans are gonna vote. Yes. The Democrats are going to vote. No. So I'm not sure how much we're going to learn. We are certainly not learning that much from Amy Coney Barrett cause she's taking the traditional stance of judicial nominees, which is of course I could not tell you how I'd rule on that case.

I'm an objective judge. I would never preordaine an outcome to a case, even though my stance on, for example, Roe V. Wade is well documented. So she did a lot of that. I, you know, I find her very likable. I find her incredibly intelligent and smart and her answers are fair. And what I would expect from a judicial nominee of either side of the political aisle, as far as that, I'm not going to answer that, but.

You know, whether it's, because I like that she's from a different background, whether it's because she has young kids like me, I'm with the majority of Americans that polling show, like their opinion of her is rising. Maybe it's just the trauma of the last confirmation hearing. And she's not shouting about how she likes beer.

That makes me like her so much. And when I say I like her, I think she is performing well in the confirmation hearing. And so I guess, let me, let me clarify that language a little bit, but I think she is doing well in the confirmation hearings and as sort of taking the questions and presenting her background and her judicial philosophy as fairly as she can.

Beth: [00:04:12] I have four problems and one of my four problems has two parts. Okay. So my first problem is regarding her answers on the upcoming election. I think for the most part, it is fair to say, I'm a judge. I cannot comment. You don't know what posture something is going to come to me in. So I can't tell you how I would vote in a particular case.

And yet I also think it is very easy to answer the question. Does the constitution allow the president to extend the deadline for a national election? I think that is just being, ask the answer to a legal question on which if you are an originalist and a textualist, there can be no dispute. Right. And I think she should have answered that question.

And so part B of my first, that was a part B of my first problem here is that I also think she should have directly answered the recusal question or had something better to say about it than she did being confirmed. Historically close to an election, I think does present the appearance of a conflict of interest.

And I would have gone a long way. I think, with the American people to just say that out loud, he doesn't want even the appearance of a conflict. And so I think she should have said, and to me that weighs heavily in favor of recusal. I will, of course consult with my colleagues, but. In my mind, I probably should recuse from deciding any questions related to the upcoming election.

That's happening as we are sitting here. I think she should have said that. So that's my first problem. 

Sarah: [00:05:43] We'll wait before you move on. I want to say something about that. To the first, to 1A

Beth: [00:05:50] It's Supreme Court day. This is how we have to do it. 

Sarah: [00:05:54] Um, I think there's a little, little bit of, well, if I do this, like, you don't know, give an inch, right.

If I give an inch and I start answering these questions, even if it's as explicit yeah. As the election day set forth in the constitution will then they're going to pounce. Cause there's a lot of attorneys on the other side that say, okay, well you answered this way for a textualist. So why can't you answer this way as a textualist?

You know, I think that she would have gone down that path. I can't believe I'm sitting here defending Amy counterpart. Whatever, and then this is nuance. That's what we do here. Good. And then to the recusal, I understand her desire to say, I did not strike any deals and I am coming in here impartial. And there is a part of me that thinks, you know, I don't know the fact that she would accept the nomination of Donald Trump, I guess goes against what I'm about to say.

But there is a part of me that thinks like she is. Personality ethically, like in every way she is opposed to what Donald Trump is. I don't think Amy Coney Barrett is a narcissist. I think Amy Coney Barrett has incredibly strongly held moral judicial ethical beliefs, way more black and white than I am in my life.

And so I think her desire was to say like, I cannot assure you enough. I struck no deals. I would go into this. Like, there's a part of me that thinks she's going to step on that court and not feel like she owes Donald Trump a damn thing. 

Beth: [00:07:18] Oh, I agree with that. A hundred percent. 

Sarah: [00:07:20] I think she's, she does not strike me as the type, like, you know, and so, so there's a part of me that's like, well, and, and also I think recusing yourself when it is, you know, an eight person court.

I don't know. I think that I would prefer her to, I don't know if I would prefer her not to recuse herself, but I don't know if answering it before. Like she said, I, maybe the answer is good. What you said, which is I need to talk to my colleagues. Really, I just want to know what Atlanta Kanga thinks about this.

Then I would feel like I could form a more well informed opinion this whole time. All I want to do is sit at the feet at Atlanta Kagan. Tell me like, okay, can you just tell me what's going to happen next? How do I need to feel about this? Do you need me to make phone calls to my senators? I'm happy to do it.

Like, I feel like she is. She can see the, the chess board much more clearly than I can, but whatever. 

Beth: [00:08:11] I just think there is an inherent dishonesty. Yes. Permeating this process and that those were moments when she could have cut through that a little bit. And I'm not saying that she's being dishonest. I'm saying that the process is dishonest called it out in that way.

Um, and it would have been, I think, really credibility boosting to answer those two questions more directly. 

Sarah: [00:08:34] Yeah. But put a pin in that. Whole this process is dishonest for when we talk about our big picture thoughts on the Supreme Court, because I got lots of thoughts on that. 

Beth: [00:08:43] So I did too. Okay. My second issue, there has been a lot of commentary about her answer on sexual preference versus sexual orientation.

And Senator Hirono's follow up. And I just want to say, because I'm seeing so much from the conservative sources that I follow and respect that are sort of eye-rolly, here we go with the PC police. Yeah. And I just wanted to use my voice to say the language police is exactly what a Supreme Court Justice is.  Important rights are won and lost based on the placement of a comma in the Supreme Court. Yup. And so pretending that, that language is not deliberate and telling me on the other hand, what a brilliant scholar this woman is, it does not square. Nope. And I think that was a revealing choice. Yup. And I think the way she answered the followup questions on it, if you don't want to, if you don't know what I'm talking about, she was asked about the Obergefell decision that found in the country.

a right for people to enter into same sex marriages. And in responding, she said she does not discriminate based on sexual preference. And Senator Hirono said that is dated offensive language. We should be talking about sexual orientation, not sexual preference. And she basically said, I'm sorry if anyone was offended.

And the difference between preference and orientation, when you're in, you're talking about whether a right exists in the constitution matters and she knows it. And I thought that was a very revealing moment. That's worthy of consideration. 

Sarah: [00:10:18] Well, especially since we have justices Alito and Thomas saying, Hey, we need to revisit that for what it's worth.

Let me say this. There's two things about that one. It's just hurtful. It's just hurtful to use that language, the LGBTQ community and the people who love them, heard it and knew exactly what she was saying. And so did she, and it's hurtful. It's hurtful to our fellow citizens to perpetuate the myth that people choose their sexual orientation.

I also want to say this to that community. Not that we shouldn't continue to fight for an expansion of rights to hold our feet to the fire, but if I can channel my Elena Kagan chess board, Personality for a moment. I don't think there's any way they turn that because even if Kavanaugh voted with Alito and Thomas and Amy Coney Barrett, we know where Gorsuch stands because he just said it was illegal to discriminate in employment.

And I don't think there's a planet. In this intergalactic universe of which we were previously talking where John Roberts votes to overturn that decision. So for what it's worth, I think it's safe. 

Beth: [00:11:25] I agree with that. Okay. The third problem that I have is that I think the discussion around the Affordable Care Act.

Was also too cute because I do not think there is this cataclysmic differentiation between academic scholarship and judicial decision making that she proclaimed to exist. When she was asked about her writing, where she said clearly that she thinks justice Roberts was wrong in the way he decided. The Affordable Care Act case, the way he voted and the way he reasoned through that she thought was wrong.

I think it's a hundred percent fair to say the case coming up out of Texas, that the Trump administration has joined, trying to save entire Affordable Care Act fails. Individual mandate is gone is a different question than the question previously presented to the Supreme Court. And it presents very different legal arguments and conservative judicial philosophy.

Tends to make me believe that the Affordable Care Act will survive this challenge because conservative judicial philosophy is we uphold acts of Congress. If we can, we do everything we can not to invalidate acts of Congress. And so, yeah. 

Sarah: [00:12:36] Put a pin, put a pin in that one too, please. 

Beth: [00:12:38] Yeah. I would be surprised if that case fell, not shocked but surprised, but I just thought it was unfair to characterize her writing.

That is completely irrelevant when she has written completely on this point. 

Sarah: [00:12:51] Well also, you don't get to discard stuff when you're 48 and you've been a district court judge for like two hot minutes with love. We got to look at everything you've written and you don't get to throw it out because it was academic and not a judicial decision.

And I would expect the same thing for a liberal nominee who doesn't have a lot of judicial experience. I would love to see people with less judicial experience. I know that sounds crazy when we're talking about the Supreme Court, but I would like to see a differing level of experience in the court. And so going, gonna get that like.

Let's do it. And let's acknowledge that means we're going to have to look at your entire body of work and not be like, Oh, well, that's academic. So it doesn't count. Come on. Now, 

Beth: [00:13:27] everybody who wants to be on the Supreme Court knows that everything they write for their entire life is going to be fair game in a confirmation hearing.

Yep. Okay. My fourth problem and my biggest one that has nothing to do with her. Is the coverage of this hearing as being so refreshingly civil. 

Sarah: [00:13:45] Oh, here we go again. 

Beth: [00:13:46] I am so sorry that everyone's delicate sensibilities were offended by a woman saying this man sexually assaulted me. 

But that's what I hear in all of his commentary about like, Oh, thank goodness we're not doing that again. No, we needed to do that around then. And he Kavanaugh who I wish had forever stayed nominee Kavanaugh. We needed to do that. That was important. That was not a lack of civility by Democrats. I feel like the media is perpetuating the idea that it was yeah. Talking about it that way. There are lots of people that Democrats could have brought into that hearing that they didn't around justice Kavanaugh, they brought in the person they found most credible. They did not make it the circus that it very well could have become. And so it just bothers me that we're all sitting around it. I almost feel like Christine Waze Ford is being accused of something.

When people say that shoe, like this is just so much better, I'm delighted that we have a Supreme Court nominee against whom there are no allegations of sexual assault, hooray. But if that is our standard here in 2020, what are we doing, America? 

Sarah: [00:15:00] Okay. I need to get something off my chest that I feel about the coverage or about let's see, it's not really about the coverage.

It's about some of the choices, but it is about the, I don't, what's the word I want not marketing perception of the confirmation hearings and of her specifically, listen, this is a female nominee and I am a proud feminist. I do not subscribe to the belief that commenting ever on women's appearance or wardrobe is anti-feminist.

And I want to talk about that pink dress because that pink dress was a choice. She, every time we put on clothes, it is a choice and we are sending a message and a hyper conservative mother of seven nominated the Supreme Court coming into the first day of confirmations, pairing in a. Pink dress since so many messages, I don't even know where to begin.

Beth: [00:16:07] So I'm not a person who typically follows sartorial decision making. Um, I rely on you and Elise for this. I do think that everything that has happened has been very deliberate. And that it's just noteworthy and it's not anti-feminist to say that just like, it's not wrong to, to note that. I mean, there have been pages written about Thai choices in men, everything, somebody on camera does and masks exactly everything somebody does in that level of public scrutiny is intentional.

And so, and that's again, why I'm not willing to skirt that sexual preference line because. Lots of what's occurred here has been focus, grouped and workshopped and prepared. And that's not new. That is not unique to her. It's probably been prepared, rather hastily and how these events have unfolded. But I do think it's noteworthy and it's something for us to all remember it is not a coincidence.

What we're seeing unfold in front of us.

Sarah: [00:18:01] All right. Bush V Gore. Let's talk about it. Let's talk about the fact that this was Beth and I's first presidential election. Here's how it rolled out. It was close. We all knew it was going to be close. We knew it was going to be close. We get to the night. Election night, first problem. First of many problems, media starts calling things before we know the winner, they call Florida.

Then they're like, just kidding. We take it back. There's all this confusion. The confusion does not end with the media coverage because as we all learn more and more about what's going on with Florida, we learned that. Florida has a hella confusing ballot design. It's called the butterfly ballot, where there is a role of holes down the middle of the ballot that you punched to indicate your choice.

The problem is the names are split on both sides and it's kind of hard to make sure which name, which lines up with it, which hole so famously there were people who thought they were voting for Al Gore who voted for Pat Buchanan, who is about as far as you could possibly get from Al Gore. Yeah. Side note, this is another aspect of this particular election is we had two third party candidates.

Well, I guess that would be a third and fourth party candidate, but we had Ralph Nader on the left and Pat Buchanan on the right. Okay. We're in Florida. Well, here's another fun historical fact, the governor of Florida at the time. Who was one of the presidential candidates, a little brother, Jeb Bush was the governor of Florida.

Catherine Harris was the secretary of state and was also the cochair of George W. Bush's, Florida campaign. So we have all these partisan election officials. We have confusing ballots. We have confusing media coverage, and we get down to the middle of the night where Gore, who had conceded says, you know what?

I changed my mind. I changed my mind. We get certification. Of the results in Florida. And it's so close that it triggers a machine recount, the Gore campaign makes a call. They say, we want limited recounts in certain counties that were democratic strongholds. Now, some people argue that this. Was the first mistake, because once they started to say, we just want recounts in democratic candidate counties, it starts to look like a political play.

Instead of, we want to make sure the electorial process worked fairly. Right. Right. But when you have 60,000 ballots, right. Need hand recounting across the state, I guess they decided made the call to pick certain counties to focus on. They're also running up against some deadlines. So there's a time at which you can protest and then there's a time at which you can contest the recounting.

So not surprisingly because we have different standards and counties across the state of Florida about how we're going to determine what people were trying to do with this confusing ass butterfly ballot. We get challenges that go to the Florida Supreme Court. So the Florida Supreme Court says, hold up before you certify this recount, we want the hand recounts to go on and we're going to give you five days.

Okay. Miami Dade County was one of the places that this counting recounting was happening and you have the famous Brooks brothers riot organized by the one and only Roger Stone. He's not the first historical player whose name you should recognize as we work through this. Moment in time, he organizes all these people to come to the Miami Dade County election, right.

Recounting site and like protests screen, they're stealing ballots. Um, there's this great story. And in a Atlantic article, that's an oral history that a highlight recommend one of the Gore AIDS and gets a sample ballot and puts it in his pocket. And they're like, you took a ballot and he's like, it's a sample.

Ballad, but this Briggs brothers riot made people in the, that were recounting uncomfortable enough that they stop. They stop, they feel threatened and they stopped the recounting. Okay. So this decision from the Florida Supreme Court gets taken all the way to the Supreme Court Laurence tribe. Who's this really famous constitutional scholar for Gore is arguing for Gore.

Ted Olson goes on to beat George W. Bush, his solicitor general argues for the Bush campaign, the Supreme Court. Vacate the Florida Supreme Court decision kicks it back to the Florida Supreme Court and says, we're going to need more explanation for how this hand recount is going to be done. Okay. Up until this point, the Florida Supreme Court had been really ruling unanimously, but simultaneously there's a lower court ruling that comes up.

And they overturned this lower court ruling four to three. And now they're ordering a state wide hand recount of 60,000 ballots. And you have a four, three ruling. You have some real contention within the Supreme Court, not to mention that they're issuing these decisions very quickly on a very tight timeline.

Okay. So we go back to the Supreme Court, the Gore campaign, which has attorneys. They go from Lawrence tribe to David boys who. Again, historical fun fact way wrapped up and Theranose, which is a, is a personal obsession with mine and later joins forces with Ted Olson, the Gore, or the Bush attorney to argue in favor of gay marriage proposition eight in California.

So there you go. Okay. So oral arguments are December 11th opinions come out the next day from the Supreme Court at 10:00 PM. It's a per curiam decision. Beth break it down for the people 

Beth: [00:23:24] per curiam decision means no one signed it. We do not know who wrote the majority opinion. In this case, it would have been joined by the five conservative justices on the court at the time request.

O'Connor Scalia Kennedy and Thomas, all four of the liberal justices dissented. And we have a concurring opinion from chief justice Rehnquist. We are not going to go through these opinions in the kind of painstaking detail that we do on the nightly nuance. So let me just give you the highlights. So Bush Chaney asks the U S Supreme Court to overrule the Florida Supreme Court effectively.

It's an emergency application for stay of the Florida Supreme Court's ruling ordering this manual recount state Bush Cheney said, he said that effectively the Florida Supreme Court. By telling counties to recount, by looking for a clear indication of the voter's intent had established new standards for resolving the election and that those new standards violated the equal protection clause and the due process clause, because those standards were being applied inconsistently throughout Florida.

So the majority of the court says, Oh my goodness, what a problem we have in the United States that it turns out in every election, almost 2% of ballots cast don't register a vote for president either because the voters skipped the election or because of an error like voting for two candidates or insufficiently marking the ballot.

And in Florida, you probably remember the expression hanging CHADS. We had places where people. Started to punch their ballot for a candidate, but the punch didn't go all the way through. And so there were questions about like how far did it have to be punched to give us clear indication of the voter's intent?

So the U S Supreme Court says, you know, legislatures really need to deal with the fact that these balloting machines produce. This is a quote, an unfortunate number of ballots, which are not punched in a clean, complete way by the voter. And so they go through this analysis that individual citizens have a constitutional right to vote for electors for the president, unless the state legislature chooses an election as our States have done.

But when they choose to that right in the people, the right is fundamental. And so that's why we have due process and equal protection concerns here. And they say a state cannot value one person's vote or another. And the controversy in Florida is that the Florida Supreme Court gave us the starting principle of discerning the clear intention of the voter, but there were no standards on that.

And so determining intention from marks or holes or scratches on paper is hard. You know, the court says, we look for intention all the time as courts, but we're looking for, for intention in people, not things and ballots. Things. And it's just a really difficult process. And there was evidence that people were using different standards that one County started with a certain guideline and then switched midway.

And the court said those variances have real concerns sequential, and it could mean some voters are not being treated equally. And Florida wanted a December 12th. Count of its vote to turn into Congress, to go to the electoral college and I'm with the court until this point. I just want to delineate this as the marker where the court loses me.

It says, you know, it's just obvious that we can't do this well, fast enough. And so we're going to stay the Florida Supreme Court's ruling, which effectively ended the recount, which effectively ended the election. 

Sarah: [00:27:10] Yeah, I think my first issue is with this. Their interpretation of the safe Harbor prison vision under three USC five, you know, it's really interesting.

I listened to a podcast that talked about the only other time somebody had ruled on that particular provision of law was under Carter V Ford, the election of Jimmy Carter and Gerald Ford, where they were contesting some elections in New York state. And they ruled that it wasn't a deadline, you know, it's right there.

I mean, not to be flip, but it's right there in the name. It's a safe Harbor. It's not a hardcore deadline. Not only do I think maybe if they push themselves, they could have met it. But I don't think that it was a, I think that if it exceeded that deadline quote, unquote deadline, or if it had not reached a safe Harbor provision, I think that there were other allowances within the law.

Now I will say this. It's a crappy law. There's lots and lots of crappy confusing, conflicting electric for a law, not only in the United States code, but in state codes across the country. And they're real unfortunate, ineffective Bush recourse that we did not learn from that and clean up all those electoral codes, but less, I think that their interpretation of this is a strict deadline that, Oh, well, we just can't meet the deadline.

Guess we can't solve this problem is ridiculous. 

Beth: [00:28:22] I am with justice Ginsburg's dissent in this case. Because her main point was Florida Supreme Court judges interpreted Florida law to the best of their ability. We don't have any business here. Yup. And she said, you know, surely the constitution does not call us to pay more respect to the way federal agencies operate than to a state high courts interpretation of its own state law.

She says, we are in the business here on this five, four conservative court of deferring. To the political branches. Why are we not deferring to a state? Isn't that what we do? Isn't that the essence of federalism that we defer to a state high courts, interpretation of state law, we shouldn't have taken this case.

And I think she's right about that. Had the court not taken this case, the recount would have continued. We would have gotten whatever election result we would have gotten. And we would not years later be talking about whether George Bush was legitimately the president of the United States, there probably still would have been some concerns.

And we probably still would have looked at this election as historic and uncomfortable and embarrassing in a lot of ways, but that, but stopping that recount in its tracks, guaranteed that for the rest of our history, people will cast out on this election. 

Sarah: [00:29:45] There was an interview with Sandra Day O'Connor later where she said maybe the court should have said, we're not going to take it goodbye.

And that would have been the right call. And I think it would have been the right call, not only under aspects of federalism, but it would have been the right call for the Supreme Court. That's why we're talking about this. Case not really under the banner of the 2020 election, although it's incredibly relevant, but under the banner of what is happening with the Supreme Court in the future of the Supreme Court, I think this did permanent damage.

To the court, to the idea that the court is not a partisan body, because it exposed clearly that it was, you know, not even heard this recounting of the oral argument, that rink was asked David boys. Well, how long should the counting go on? And Antonin Scalia. Said Oh, until they win. And if, if you can't pick up on what he's laying down from that response in oral argument, the line of Bush V Gore, that to me, is such a clear indication of the hypocrisy of conservative justices, that Crow about federalism, and then take this case and stop a second state court, a state Supreme Court from interpreting state law.

Is this line in particular. Quote, the court stated that the procuring opinions applicability was limited to the present circumstances for the problem of equal protection and election processes. Generally present many complain expertise in quote, it's something you hear a lot in Supreme Court cases. The point of interpreting in the Supreme Court is that it is supposed to issue guidelines for the law.

So when they're saying, Hey, this is just for this time, don't apply what we're saying anywhere else. If that is not like a red siren of hypocrisy, honestly, I don't know what it is. 

Beth: [00:31:34] And you see now lower courts. I think trying to learn from the Supreme Courts in my view error, in this case in ways that are really limiting the effectiveness of courts.

To ensure that people vote safely during the pandemic, because there are all these challenges underway right now to state voting requirements, asking for more time, asking for more Dropboxes in Texas, in Georgia, asking for procedures to try to keep people from standing in line for hours and hours and hours.

And those are equal protection cases, their first amendment cases. And you hear courts saying, this is the job of the legislature. We do not have a role here. The legislature has to decide in Texas. It was the governor has decided, and the fifth circuit even said, grudgingly, the governor has decided, and we respect his authority, but in a footnote and an, a concurring opinion said, we don't think the governor had this power.

So, so you see the courts hardcore stepping back from making rules about this election. And I think that you have to connect that. To Bush versus Gore. 

Sarah: [00:32:40] And, you know, as a historical epilogue, I think the Miami Herald counted the ballots in the contested counties and determine George W. Bush would still have one.

There was another study that counted the ballot statewide so interesting. They had to go through all these lawsuits because all the ballots are still out there and they determined Al Gore would have won, but that's a process that should have played out because we got the worst of everything we got.

Do's trust in the election. We got reduced trust in the courts. We don't have technology that's much better. We still have crappy conflicting laws about elections. I still have partisan election officials. And so here we stand in 2020 with all this just trust in our process and a presidential candidate willing to exploit that distrust.

And I think in so many ways we can hand put that squarely at the feet of the Supreme Court. 

Beth: [00:33:29] So with all that said, We're in a moment now where Joe Biden gets asked every five seconds about court packing. There is a sense that the best strategy for the democratic party, knowing that they can not prevent Justice Barrett from joining the court and knowing it was a five, four conservative majority before Justice Ginsburg passed away.

Uh, because Mitch McConnell would not hold a vote on president Obama's nominee me too. The Supreme Court, when Justice Scalia passed away that the best strategy for Democrats just say fine, you can have Amy Coney Barrett, and then we're going to add a bunch of seats under Joe Biden. I think that that question to Joe Biden is a little off the Mark and is a little bit seeding the narrative that Republicans want to share.

They want to threaten this court packing idea. But I also think it's an interesting conversation. We talked about it at dinner last night with Jane and Ellen, there was a fascinating discussion of court packing. Um, so I'm really excited to hear your thoughts on this, Sarah. 

Sarah: [00:34:32] Um, so because of Bush V Gore, and a lot of other reasons, including the fact that once Amy Coney Barrett is confirmed to the Supreme Court, which I fully expect her to be a majority of Supreme Court Justices will be appointed by presidents who lost the popular.

Think about that. A majority of Supreme Court Justices will be appointed by a president who lost the popular vote. That is a threat to our democracy. In the same way that the electoral colleges and here's what I expect to play out with Amy Coney Barrett, sitting on the Supreme Court. Let me just lay on my cards on the table.

I believe that Joe Biden will win. I believe that Democrats will take control of the Senate. I expect there to be a proliferation of just what Amy Coney Barrett and Scalia want. Legislation, right. It's the job of the legislator, the job of Congress, just like it was hundred years ago when we had a progressive era.

And progressive legislation that was doing all kinds of things that the American people demanded. They demanded a more Democrat credit process to the election of Ohio state senators. And they demanded a lot of changes to labor laws. They demanded the right to unions. They demanded the end of child labor.

They demanded fair wages. And what happened? We had a proliferation of progressive legislation that went to a very conservative Supreme Court that even though they did not have the words for textualism, they supported a prioritization of property rights that is found all over our framers documents.

And so they prioritize those, prioritize those property rights, and they struck down that progressive legislation one after the other. And that's just what I expect. I'm a student of history and I expect that to happen again. I think we will have a proliferation of progressive for the legislation and all these people who crow about wanting the legislators to step up and do their job.

We'll strike it down under the guidance of our framers, who we all now see had messed up priorities. We can start with slavery and work our way down there from there. And so I think we will end up probably in a very similar position to the last time we talked about court packing, which is completely legal.

The number of the Supreme Court Justices is not set out in the United States constitution, but I don't know if we'll reach a compromise like we did with FDR. I don't know if we'll get to a spot where we say, because I don't, I don't think we need to reach a compromise that again, I think the Supreme Court, the way we appoint justices, the way they serve is broken.

And I fully expect progressive legislation to push it to the brink where we'll have to say, okay, it's time to rethink this. And so I really reject the framing of court packing. Cause I don't think that's what it is. I think the institution is broken and I think it's time to change the number of justices, how they're appointed and how long they serve.

I think the Pete Buddha judges amazing articulation of that is why he became. A front runner in the presidential race. It's certainly what appealed to me. And I just think that, you know, the hypocrisy of saying we want to legislate because it's not going to be, you know, it's not that I don't think Roe V Wade or gay marriage are massively important, but there's lots of good.

Scholarly texts out there, particularly surrounding Brown V board of education that says where the Supreme Court really has an impact is with corporate interests and business interests. And that's where you can see the power of a conservative court, really exercise size itself. And I'm not going to do this again, like we did a hundred years ago.

Like I don't, I'm not going to sit by. Yeah. And let us a 63 conservative court say. We want you to legislate. It's the power of the people, the power of the people saying, we want this done and them going, Oh, sorry guys. It's unconstitutional. Just, I can't, I don't have the patience for it. I'm just going to be honest.

I don't have the patience for it. 

Beth: [00:38:21] I think that it is important not to dismiss a new idea outright. And I think that with the idea of increasing the size of the Supreme Court, a lot of people just outright say. It's always been nine. Why would we change it? Well, let me share some data about why we might change it.

I don't like the sort of a, well, you stole the seats, so we're going to add some more kind of flavor of the argument, but I don't think that's all that's going on here. Yeah, I agree. The court has been nine justices since 1869. In 1869, there were about 38 million people in the United States. Okay. There are about 330 million people in the United States now, and that means that nine human beings receive between seven and 8,000 cases that people want them to hear.

On average, each term seven and 8,000 cases that involve the death penalty. That involve whether you are going to lose your job because of who you are that involve billions of dollars go in front of nine people. And nine people in their staffs have to sort through seven to 8,000 petitions to decide which cases they're going to hear and then to hear them well.

And I think that is ridiculous. I also think there's a lot of room in the entire discussion about federal judges to walk back and ask why we do things the way that we do. I'm not sure that at the district court level one, judge ought to decide. The important issues in front of those judges. I think there's something compelling in the model that we have in our circuit courts where often you'll have a three judge panel here or something and they make a decision.

And then the party can say, we'd like this to go to the full court. I think that might be a nice Supreme Court model. Where we have a lot more justices. I don't think we should go from nine to 11. I think if we increase the number of justices on the court, we ought to look at like 21. Yeah. That gets split into these judge panels where we're rotating the groupings of people.

And they could probably hear more cases, which I think was it'd be a good thing for the country and they can, I could probably decide those cases with a little bit more legitimacy over time. Just like, I think district court decisions might have a little more legitimacy. If three judges were looking at those initially.

There are all kinds of places where we could change things up. I don't think we ought to have lifetime appointments, but I also don't have a good idea for what somebody ought to do with themselves after they've done a tour on the Supreme Court. So maybe we think about justices Ameritas. Maybe we don't bring somebody in to sit on the panel that hears the cases.

Initially, maybe a new judicial appointment decides what cases are going to be heard. You know, maybe you have a class of sort of. Junior justices who sort through those petitions and associate justices who decide the cases and Ameritas justices, who do some of the motion, practice and mentor other federal judges.

I think there are tons of ways that we could get a lot of people smarter than I am in a room together to build ideas about what the Supreme Court in 2020. Knee and beyond needs to look like with the dramatic shifts that we've had in both the practice of law and in the population and what the courts role really turns out to be.

So I'll say to our audience, what I said to my nine year old last night, don't just say, no, I don't like that because there are lots of good questions to ask here. And most of us have. Such limited experience with the Supreme Court or the federal court system or any court system in general that we're not well positioned to answer them.

And I'd like people who are to take a hard look at this. 

Sarah: [00:42:25] I mean, listen, I got lots of ideas of what they could do. They can go teach law, they can run for office. They can go back to the district courts. They can write books, they can take pills, speaking gigs. I will order relate. Like I could come up with ideas all year long.

And for those of you who didn't join us on the nuance nation tour, I'm for upsetting the numbers on everything. There's a lot of numbers we set when we were a country of 38. Couple of million people that are really, really dumb. I want way more representatives. I want some more States. I think it's time for some new constitutional amendments.

Like we are stuck. We are stuck. And does anybody look around and see healthy growth and innovation and our government? And I'm sorry. That's. Often that means getting bigger, but we got bigger. We got bigger as a country and we decided there were only a certain ways that we wanted our government to get bigger.

We wanted our military to get bigger, but not our anything else. You know, we wanted the government to do more, but we didn't want our taxes to get bigger. We want the Supreme Court to handle 7,000 cases, but we don't want the court itself to get bigger. We want our representatives to handle more and more complex issues, but we don't want their staff to get bigger.

And we're not going to give them any more money or we don't want any rep. More representatives, even though in a couple of years, they're going to have about a million constituents. Each that's outrageous, it's outrageous. And so, you know, to me, the Supreme Court, because I get really angry as you probably heard about the Supreme Court, but I went to law school.

I deeply care about this institution. I wanted to be. Valid. I want it to be trusted. I wanted to have legitimacy and I cannot blame people right now when they do not give it trust or legitimacy. And so we need to do something about that instead of basically just thumbing our nose at people and saying, well, it's, anti-democratic get over it.

That's how the framers intended like we do about the United States Senate. Like I just, to me, that's, you know, Anger is a secondary emotion. And I think what it is masking for me is heartbreak because I cared deeply about these institutions and I want them to be healthy and I want them to be legitimate.

And I want the American people to be able to place their faith in them, you know? And I think those moments over the last 10 years, when it felt like we could, including where Neil Gorsuch wrote the opinion. Saying that you could not discriminate against somebody in employment based on their sexual orientation.

Like we get glimpses of that and I don't want it just an identity politics, and I don't want it just in civil rights. I want it to be. I want to feel that every time they put forth a decision and I know that's not realistic, I know it won't agree with everything. Even at 21 members Supreme Court does, but I feel like I wish it happened more.

I feel like I wish there was, I felt legitimacy even when I disagreed with the decision. And I don't think the lack of legitimacy I feel is just because I disagree with the decisions. I think it has to do with the fact that. Five of the justices are appointed by presidents that didn't win the popular vote.

I think it has to do with the fact that we have a president serving that didn't win the popular vote for what it's worth. And I just think we have to ask these hard questions and I think you are so on the money, like saying just because it is doesn't mean it has to be speaks to such a deep part of my soul.

Like it feels like my, every cell in my body is going, yes. 

Beth: [00:45:52] Well, I also think it's important to just ask ourselves why a lot of what is established law feels absurd. So the best example to me, the clearest example of this is that in our existing common loss, that judge made loss. There are not statutes that require this.

We say to someone who is facing the death penalty, If you want us to stop an execution that is cruel and unusual. You not only need to show that the way the state is going to kill you is cruel and unusual, but you person who is going to be killed need to offer a feasible ready, available, alternative.

That's more humane. You need to show up in court and prove that you have a better way for the state to kill you. That is absurd. That is horrific. And I often think, 

Sarah: [00:46:49] and it should outrage every person of faith. It should outrage every person of faith. 

Beth: [00:46:54] If there were more people in the room. Would we not have better sense than this?

Would we not have, have done better by ourselves?  then this over time, I surely hope that we would. And if there were more people in the room, could we have some people who didn't go to Harvard? And if there were more people in the room, could we have someone who was a public defender instead of a judge?

Could we make more space for perspectives that have clearly been absent? In our jurisprudence for a very long time, not so that the court operates as a super legislature. I truly only in my gut and my brain believe that you could still have justices with a conservative judicial philosophy in such a court and still do the work of courts, not a super legislature, but do it much, much better.

If we alter aspects of this process, it came up me that our best ideas all happened in the 18 hundreds. And I'm a person who really likes the way our government is structured and thinks there's some brilliance in it. But I don't know how you could live through the past five, 10 years and not think, Ooh, like we could probably bring some new thoughts to the table here and it would be helpful.

Sarah: [00:48:16] Let me go back to my initial statement at the beginning of this podcast. That I find aspects of Amy Coney Barrett appealing, which I know is shocking, but here's why, what you said, help me understand what I think I was trying to articulate at the beginning of the show. I have no problem as a feminist with a woman holding.

Deeply held religious beliefs that are very different from mine. I have no problem with a woman believing and strict traditional gender roles. I really have no one problem Bluhm with deeply conservative women serving in our judiciary with those particular beliefs. I would not mind at all. If Amy Coney Barrett was one of 21 Supreme Court Justices.

I think that her view is a minority view, but I don't think it's without worth. I think it would be worth wild to have on the Supreme Court naughty views that are more extreme than where most Americans are. I think, you know, we used the car in the break and I don't think there's anything wrong with some with she's clearly very intelligent.

She's clearly feels deeply about her particular approach to jurisprudence and, and truly, I wouldn't, I'm not opposed to her sitting in a room with Elena Kagan and Sotomayor or John Roberts and making her case. I just don't think she should, it should be a false majority because I don't think it's a majority of how most Americans feel.

I think there's a space for, for the minority view to be articulated, be articulated clearly. I'm not sure. I'm not in a position where I want it silenced. And I really liked the idea of a young mother articulating that position on some level, like articulating a position that's usually articulated by older white men.

It's just that I don't think it should be the controlling view because I don't think it is the controlling view in America or the majority view. And it's not that the Supreme Court is supposed to be, like you said, some sort of super legislator. But the idea that there is one jurisprudence and that every Supreme Court decision is not an argument.

I think that's what always bugged me about Scalia is that. He's not saying this is my approach and I'm willing to argue for it. This is my approach. I've revealed the right way to interpret the law. And I reject that. I still think it has its presence on the court. I just don't think it should be the majority because it's not open to argument.

She can say all day long, she's open to argument, but I don't actually believe her. And so I guess that's what I was trying to get at. Like, I like the idea of having a young conservative woman on the court of 21. Where she's not the majority, because I do think it's worthwhile to articulate. And I think she, it's an important sort of breaks in the process that people need to hear and take into account.

But I just think right now it is, it holds disproportionate weight. It shouldn't be a 63 with the majority of the Supreme Court appointed by a president who lost the freaking popular vote. Like it, just to me, that presents a fundamental legitimacy problem. 

Beth: [00:51:55] You know when Pete Buddha judge started talking about changing up the court, I was very resistant to it.

I've had to spend a lot of time thinking about this, and I think it's helped that I read so much Supreme  opinion and I've started reading more of justice, the Monday dockets, where they show. Pages and pages and pages of all these cases that won't be heard and notes about the disposition of motions. And just the more I learn about the court, the more compelled I am to say, like someone needs to get in and study this.

A lot of people need to get in and study this and offer some recommendations to Congress. And through a transparent process. I think we need some reform. I mean, if you want to talk about court packing, the court pact, the federal courts are packed entirely because Senator McConnell held up so many seats during the Obama administration, not just Merritt Garland's that was his first rodeo.

There were lots of seats. Judges weren't confirmed for in the Obama years. And he has turned the Senate into a judicial confirmation factory during the Trump years. So the courts are pretty well packed right now. The difference is 

Sarah: [00:53:03] say to the point where they're pointing people with no experience, they basically like ran out of people.

That met their conservative litmus test. And so now they're appointing people, like what was the last one? I read like six years out of law school. Who'd never practiced or argued before a court. I mean, that's how I just want to put emphasis on how extreme that process has become. 

Beth: [00:53:23] And so the question is, do you like the court being packed that way or do you like it being changed through a transparent legislative process where everybody involved is going to be held accountable?

And I think that's important. I have one more thing I want to say about this because. The proposals that I have walked through in my mind all would require a lot more spending on the judiciary. And I think over time we have asked our courts to do more and more. We've asked that branch of government to play an even bigger part in our society. And we have done that well, especially at the state level. Basically starving courts out. 

Courts do not have the resources that they need. A lot of what happens in the legal profession is maddening. It takes so long. It's so archaic because courts aren't properly funded. And I really believe that our entire society would benefit from an infusion of cash into the judiciary.

More people, more resources, a better process where cases get heard faster. The administration of justice does not take years and years. You know, how many litigants case gets to the Supreme Court and the original litigant is dead? It's an astonishing number because it takes way too long. And that's, it's not just either.

There are lots of things that we're just getting wrong in our justice system. And I think starting to look at the setup of the federal courts from district court, all the way to the Supreme Court is a question that Americans of all political stripes could find a couple of reasons to do. 

Sarah: [00:55:00] Mm. Hmm. 

Beth: [00:55:01] Well, we are looking forward to hearing your thoughts and ideas about the court.

We're so glad that you joined us today for the Supreme Court extravaganza. It's certainly my, one of my favorite things to talk about. 

Sarah: [00:55:11] And we have t-shirts if you really love it, we have t-shirts Supreme Court stand t-shirts that you could go check out on our website, Pantsuit PoliticsShow.com, where you can also find information about our live virtual event on October 23rd.

We hope you all have the best weekend available to you. We will be back in your ears on Tuesday and until then, keep it nuanced, y'all.