BILL KRISTOL: Hi, I’m Bill Kristol. Welcome back to CONVERSATIONS. I’m very pleased to be joined today by… For the second time, by University of Chicago Law Professor, Will Baude, Director of the Constitutional Law Institute at Chicago Law School. Author of many important works, both for popular audiences and for his fellow legal scholars. Constitutional liquidation is something I really want to talk to him about at some point on a conversation, but every time we schedule one of these conversations, there’s so much to talk about that’s happening in the real world for now, that Madison and constitutional liquidation gets shoved aside.
But we will do that. We will do that sometime soon. Will has an excellent podcast, Divided Argument, with his colleague Dan Epps, and you should listen to that and read everything he writes. Will, thanks for joining me again today.
WILL BAUDE: Thanks for having me.
BILL KRISTOL: And we had a good conversation a year ago, which I highly recommend to people, because it stands up very well. You were worried, you said you were alarmed but not alarmist, but still worried that the peaceful transfer power can no longer be taken for granted. We focused on the whole question of the peaceful transfer power, election denial and so forth, elections subversion. You said we blew through a lot more of the safeguards than people expected.
So it’s a year later now. Things have happened in the political world and the legislatively things may be about to happen on the Electoral Count Act, and there’ve been some judicial developments. How worried are you? I just want to get to the current state of the Supreme Court more broadly and the last term and the next term in a minute, in a few minutes. But just on the question of the peaceful transfer of power ,and recognizing the victors in elections, are you more worried, less worried than you were a year ago?
WILL BAUDE: I mean, is it possible to be more and less worried at the same time?
BILL KRISTOL: Totally. Much of life is that way.
WILL BAUDE: So on the one hand, one of the things I was worried about is that this was going to sort of catch us by surprise, the way it sort of did in 2020. And just a lot of the institutions weren’t really kind of coup-proofed. And I’m less worried about that now, in the sense that I think we’ve paid a lot of attention to it. You see people in Congress, you see the Electoral Account Act reform maybe going to happen, which we can talk about. So I’m less worried that we’re sort of not taking this seriously.
But at the same time, it seems like it’s not going away. It seems like if we were hoping there was going to be a kind of broad, bipartisan consensus that we don’t try to steal elections. I’m not sure we’ve gotten there.
BILL KRISTOL: Yeah. So the political situation is not improved, though maybe the safeguards are a little… If the Electoral… I assume an Electoral Account Act, some version of the Senate and the House Electoral Account Act, — they’ll compromise or whatever, or accept one or the other. And you think that’s a pretty good thing, some strengthening of the safeguards from what you know of the current legislation?
WILL BAUDE: Yeah. I think there are two aspects to it. So one is kind of the formal legal technicalities, which are pretty good, and which sort of close some loopholes and change some numbers and make things work a little better. But the other is just the fact that it’s possible. And I guess I won’t — I’ll hold my breath until it passes, but the fact that we’re inching towards a sort of broad, bipartisan consensus in the Senate, that’s a good sign. That’s a very good sign.
BILL KRISTOL: Yeah. I’ve been talking to some of the people involved in it and they get slightly obsessed of course on, “I don’t really like this provision and that bill and shouldn’t it be a third of the objectors instead of a fifth? Or should it be… How could we really foolproof it against state legislatures causing trouble?” And I think you probably can’t ultimately foolproof these things. You can strengthen the safeguard some, but just the bipartisan act of passing this legislation will have its own effect on the political culture. Maybe, or maybe not.
WILL BAUDE: Yeah. Hopefully. And hopefully, so one of the key points that held last time, but that could have been close was sort of “what was Mike Pence going to do?” Because the position of the vice president was kind of ambiguous and if he stood up and started trying to delay the count, I don’t know what would’ve happened. The Electoral Account Act sort of takes the firm position that that’s not his role. Now, would that stop a vice president who thinks, “No, I have the Constitutional role to count the votes and do whatever I want.” Obviously, he could say the statute’s unconstitutional. But it probably makes it a lot easier for the next vice president. The next vice president to say, “Look, I’m just following the path here”.
BILL KRISTOL: And how much do you think we’re ultimately still though, in this end as in other cases in our democracy, as some people put it, on the honor system? I mean, how much can these safeguards be really structurally strengthened to resist bad actors? And how much, at some point do you just have to have a limited number of bad actors?
WILL BAUDE: Yeah. I mean look, the whole country’s on the honor system. It always has been. That’s sort of the nature of constitutional government is you recognize that everything’s on the honor system. But you try to set up enough different people and enough different structures that you’re not putting one person too much to the test, too much of the time. And that’s sort of what I think’s going on here.
BILL KRISTOL: But in terms of the overall political culture, and I guess we’re talking mostly probably about Trump and that side of the Republican party, it doesn’t seem — it’s not less respectable today in electoral politics, at least Republican electoral politics, at least Republican primary electoral politics, to be pretty frank about what happened: “January 6th should have succeeded. And we’ll do it again if we feel we need to.”
WILL BAUDE: Yeah. That’s my impression. Again, I was sort of hoping we’d get the point where it was sort of a taboo to say, “I won’t respect the election.” Now, it seems like it’s the macho thing to do, to say, “Of course, I’m going to…” Now, maybe that’s all bluster. Maybe people just sort of say that as their way of signaling that they’re on the Trumpy wing of the Republican party. That’s my hope, but I’m not yet done worrying.
BILL KRISTOL: And the courts, which were important in 2020, I think just to repeat … Perhaps, I’m sure you could say which particular decisions were important, but from just the outside, as a non-lawyer, just the steady drumbeat of the election deniers losing in court, mostly federal court, I guess in state courts too, was helpful, I think, in de-legitimizing the effort. Do you feel the courts and legal doctrines remain sort of pro election respecting and…
WILL BAUDE: Yeah. I still think the court is one of our healthiest branches of government. They’re not going to save us, if we get to the point where a huge number of election deniers sort of seize power, the Supreme Court is not going to unilaterally stop a coup. But they’re not going to help and they’re probably going to increase some friction because they still take this law stuff pretty seriously.
BILL KRISTOL: Well that’s good to hear.
So let’s talk about the courts because I guess one question is, if the courts are important, and if the courts themselves become the object of huge political pulling and hauling and pulling, whatever the metaphor or expression is, that itself then damages one of the institutions that’s had the most credibility, I think. And been most effective in supporting the constitutional democracy.
So where do we stand, do you think? It was a pretty unusual term. It’s one that certainly law professors will be teaching about for a long time, I think. With Roe, of course, in particular Dobbs, the decision on overturning Roe after almost was 50 years. Where are you, where do we stand in terms of the Supreme Court? And so where are we going do you think?
WILL BAUDE: Yeah. No, I mean obviously the Supreme Court had one of the most dramatic terms. And probably is not going to stop there, particularly. I think there’s always regression toward the mean, so next term probably won’t be as big as last term. But I don’t think it’s a one-off either. I’m not as worried about the long term health of the court as maybe a lot of people are. I think the court is still very serious and trying very hard to work out these kind of basic principles of constitutional law. But there are going to be some big cases still to come.
BILL KRISTOL: So talk a little about those cases, and where do you expect the next big controversies to come. It seems to make a big difference to have one controversial decision, but ultimately one — overturning the decision —t hat a lot of people thought was problematic and so forth. Or to have just a series where people start to think, “They’re just sort of out of control and out of touch with the electorate.” They’re supposed to be counter-majoritarian, I understand, but there’s counter-majoritarian and then there’s really counter-majoritarian.
WILL BAUDE: Yeah. Although… So there’s a funny thing. I’ll just say as a point of historical context, you think of the New Deal era as time we had a really counter-majoritarian court, and obviously the closest we ever came to serious court packing in the 20th century. But what was happening there was the court was repeatedly striking down popular acts of Congress. Congress was acting and the Supreme Court was saying no. So it was standing athwart the most democratic, most powerful branch in the government.
And that’s not what the court’s doing. In part… I mean, Congress and the President aren’t unified enough to pass a lot of major legislation outside of the kind of tax and spending context. And so the things the court is doing are just in a way more modest. I mean, they matter a lot. We hear it in the headlines, but it’s not like the Supreme Court struck down the Affordable Care Act. Even in the most recent challenge they had to do that, it was seven to two and maybe not even really two. So I think it’s important to see the court is not being as counter-majoritarian as it could.
And for instance, one of the biggest cases on the docket for next term is obviously the Court’s affirmative action cases about the affirmative action programs at Harvard and North Carolina. And the Court will probably invalidate their admissions programs and that’ll make a lot of Court watchers and journalists very upset, but it’ll probably be popular. In the scheme of things, the court might actually build up some credibility just in terms of where public opinion is.
BILL KRISTOL: I am struck that a lot of the commentary doesn’t distinguish, as you just very helpfully did, between overturning congressional laws and overturning their own precedents that were perhaps always controversial or overturning applications of laws but letting Congress then fix it. I think that’s an important safety valve, right? That sort of distinction has been lost some. They threw out various EPA … with too much discretion, I guess, to put it in layman service, when they expanded the Clean Air Act as much as they did under President Obama.
On the other hand, I think, clearly, the court left the door open to Congress to say, “No, we want to pass legislation that allows the EPA to regulate this and this.” And if they just say that that’s the purpose, that’s constitutional, right? Is that generally the character, you think a lot of what they’re doing?
WILL BAUDE: Yeah. I think that’s right. I think if Congress wants to step in and sort of patch the holes in the administrative state. Or even make policy itself, just decide what we should do about climate change, I think the court would defer to that. So in a way, it’s a symptom of the general decay and fracturing of our institutions that we just forget about that, we assume that’s off the table. “Obviously, Congress is not going to do this.” The question is whether our administrative agencies will do it. I think the Court is putting the ball back in the people’s court a little bit.
BILL KRISTOL: Now, I suppose that in so far as the Court’s finding these as constitutional rights or prohibitions, as would be the case, I guess in the affirmative action cases, those would be 14th amendment cases, not violations of congressional law. So that does close the door to, I guess, public and or private universities doing certain things. That’s a little more dramatic, do you think?
WILL BAUDE: That’s right. That’s a little more dramatic. Again, it’s more in line with a lot of public opinion, for better or worse. I’m not sure the Court should care that much on public opinion, but it’s there.
There are some arguments in the case that are going to be more statutory. One of the looming facts of this area is that the Civil Rights Act passed by Congress has an explicit ban on taking race into account. The court read that to allow affirmative action, but one of the arguments in the case is maybe they should just decide it on statutory grounds. I don’t think that’ll happen, but there are still ways that it could be even more in the democratic category.
BILL KRISTOL: What other areas do you think the court will cause an uproar in the next year or two? Is it…
WILL BAUDE: Yeah. Well, so two others that I think are in this category of the things most to watch for, the court’s going to hold things unconstitutional, maybe take them off the table. One is the kind of recurring conflict between anti-discrimination law and free speech, free exercise. They have a recurrence of this question that came before them a couple years ago in Masterpiece Cakeshop, about whether there’s a right to opt out from anti-discrimination law. This time it’s a custom wedding website designer who doesn’t want to design websites for gay weddings. That’s obviously the Court stepping into a kind of cultural war problem and stopping some states and localities from opposing discrimination norms, and that hits a lot of cultural war buttons. That’s probably a long simmering issue of the Court.
The other one, which relates to something we talked about earlier, is election law. There is a case that resurrects some doctrines that were at issue in the 2020 election and at issue in the 2000 election of Bush versus Gore, that people call the Independent State Legislature doctrine. Which sounds weird, but which goes to some fundamental questions of federalism and states’ abilities to control their own elections.
BILL KRISTOL: Yeah. Let’s come back to that in just one second, because that is very important and I think does tie together the different parts of our conversation. But on the religious… I’ve always thought, but maybe I’m just wrong, that the religious freedom stuff is controversial of course, and difficult, probably, as a matter of actual judging, or from my point of view, even thinking about what the right outcome is, leaving aside, in a way, the constitutional arguments, if it were subject to legislation. But it does seem somewhat on the margins, no? I mean, that if some people are exempted from having to do certain things, we’re not getting right to the — the bulk of the country will chug along in certain paths that are pretty well set. Or am I underestimating how controversial these religious liberty cases could be?
WILL BAUDE: I mean, I do think it depends on how far they go, right? The more and more every person has a kind of religious opt-out from every government program, the harder it is to do things. We saw this in the many, many cases about COVID responses and vaccines and shutdowns. In a way, maybe you say, “Well look, it just doesn’t really matter ultimately, if some people don’t comply. We’re dealing with the majorities here.” But the further it goes, the bigger effect it has.
But I think part of it may just be symbolic. So maybe, this is agreeing with you. It’s not always about policy. Most people can find a custom wedding website designer, even if the first person or the second person turns them down for whatever reason. There are a lot of website designers on the internet. But it seems to be the kind of emotional and symbolic stakes seem to be really high, and that’s putting the Court in a kind of awkward place where it’s being asked to pick sides between the right and the left.
BILL KRISTOL: I suppose those cases are more controversial if you’re forcing Yeshiva University—to take a case that’s current—to do something as opposed to exempting people from having to do things. Or maybe not. Maybe, as you say though, if the exemption become broad enough, they, in itself, becomes a kind of big culture war matter.
WILL BAUDE: Yeah. It’s always hard to tell what counts as the neutral position and what doesn’t. Yeshiva would say, “We just want to be left alone to pursue our own vision of Torah.” But then the students say, “No, here we are at Yeshiva, we want to be able to pursue our own vision.” That’s part of where you end up with these kind of zero sum conflicts.
BILL KRISTOL: Federal funds are being used for Yeshiva and so forth, so there are plenty of reasons why you could argue that it’s not simply a private actor doing something on its own time, so to speak, right?
WILL BAUDE: Yeah. I mean this is one of the problems with the 21st century regulatory state is that there’s nothing that’s kind of totally free from government regulation and totally free from government subsidies. We’re all kind of entangled in the state to some degree.
BILL KRISTOL: Right. That does make, I mean, some of these decisions difficult as a matter, I suppose, with line drawing, right? It’s always going to end up looking, to people on the outside who want to be critical and to make fun of most of the courts, “Oh, look at this arbitrary thing. They’ve got a two-step test here and a four-part test here and a…” But of course, at some point, it’s going to have to be like that, right? Unless, they’re simply going to go 100% one way or the other in some of these murky areas.
WILL BAUDE: Yeah, exactly.
BILL KRISTOL: Conflicting areas, I guess, maybe.
WILL BAUDE: Yeah. This is part of what gets to the Court’s broader role, is that we end up in constitutional law giving the courts all the problems that we are too conflicted about to just settle completely democratically. And then the Supreme Court ends up getting the hardest of those cases, the ones that the lower courts disagree about or where we can’t quite iron out a clear rule. So if you ask the Supreme Court every year to resolve some of the most controversial social issues in the country, it’s unsurprising that at the end we yell at them for not doing it the way we all wanted.
BILL KRISTOL: I mean, we moved very quickly past Roe and Dobbs, so let me come back to that for a minute. I mean, what happens politically happens politically, I suppose, and states will make their decisions. Does that come back to the courts in a big way or is that now really a political fight both at the state and federal level?
WILL BAUDE: I do think constitutional abortion rights are going to come back to the court a lot. They were trying to settle the Roe question, right? Not proceed by half steps, not say, “15 weeks is okay, but 13 weeks is not okay,” in the hopes, I think, of kind of settling this once and for all and taking it off their docket. But there are just a lot of other constitutional questions surrounding this that’ll come up, like can Congress act if Congress decides to pass a national abortion ban or a national right to abortion? Is that within Congress’ enumerated powers? Or how do the states interact when you travel from one state to another? Which state controls what parts of it? I think they’re going to be cases about the money, because you see a lot of attempts to give funds to support people to get an abortion or travel to get an abortion. And then we’re going to have a lot of questions about is money protected by the Constitution, is it something you can regulate? And probably more, depending on how aggressive the states want to be.
BILL KRISTOL: I mean, I was somewhat surprised even after the draft opinion leaked, Alito’s opinion in Roe. But feel free to convince me that I’m wrong— in the sense that I just feel like as a matter of institutional self protection by the Court, and not just protection but kind of appropriateness, let’s just call it, from a kind of old fashioned conservative Frankfurter, Alex Bickel-ish type point of view, I don’t know, throwing out a 49-year-old case, that’s been affirmed in the meantime and obviously is very much part of the country’s fabric, rive to four… it was 6-3 technically I guess, because Roberts concurred in the decision, but I mean, 5-4 in terms of overturning Roe. With a 5-4 decision with three judges put on by the most recent president, one of them very controversially, eight days before his election day in 2020, it just feels like that’s asking for trouble in a way that a seven-two decision in Roe itself with judges appointed by Republican and Democratic presidents on both sides. Obviously, 9-0 in Brown v. Board. There have been some very controversial 5-4 decisions, but pretty rare actually in the big ones like this.
I don’t know, am I… I was very sympathetic to Chief Justice Roberts concurrence, if that’s the right term for it, concurrence/dissent or whatever. But on the other end, maybe that just would’ve kicked the can down the road and been no solution at all. I don’t know. I’m just curious, how much do you think the particular way in which it was done made a difference or was it just always going to be wildly controversial one way or the other?
WILL BAUDE: Yeah, well, I’ll say, first of all, I don’t think there’s any uncontroversial way to overrule Roe vs Wade. I don’t think slowly, quickly, 5-4, 7-2. I think they’re all going to be controversial. And the same thing, Justice Alito wrote a very long opinion going into detail about every historical mistake made in Roe vs Wade, and some people criticized that tone. But I don’t think if he’d done it in 10 pages, Brown vs Board of Education style, that people would be impressed with the statesmanship. So in that sense, that’s just kind of the position the Court’s in. Look, Obergefell was five to four, making a big transformation in laws across the country and overturning precedent to do it. But there, the court happened to be kind of in line with the trend in public opinion, especially elite public opinion a little better. So there wasn’t as much hand ringing, but that was a big case too and in some ways a bigger case, right? Because that took the question off the table everywhere, whereas Roe puts the question on the table everywhere. I mean, Dobbs.
BILL KRISTOL: No, that’s a good point. I mean it was in line with the trend in legislatures as well, so it was little less… whereas this one, it was or wasn’t. You couldn’t tell. I mean, we don’t know yet which one the real trend is in terms of legislation. But I agree, Obergefell comes to mind as the biggest 5-4 decision that fits into that pattern, I suppose. But then standing back from both, you could say, “Geez, we can have a Court that’s now going to go 5-4 on very fundamental questions with, let’s just call it partisan decisions in the sense that the judges are all on the side of whichever president or whichever party put them on the court.” That’s not kind of ultimately very good for the Court, is it?
WILL BAUDE: No, it’s not good for the Court. I mean, it’s not quite clear what the individual justices are supposed to do about it.
BILL KRISTOL: Right.
WILL BAUDE: You don’t see Justice Kagan joining the majority in Dobbs to help the Court’s legitimacy either. She’s not going to switch sides just to make things seem more legitimate, just as the conservatives won’t.
I think one other difference about Dobbs that might make it a one-off is just how much energy was sort of pent up for so long. Roe wasn’t controversial the day it was decided, but it quickly became controversial and then Casey was controversial. And then for decades, there’s just been so much kind of interest group, political energy, emotion built up around this issue that then when it finally happens, it sort of all comes pouring out. In some ways, that’s the consequence of doing it slowly is that we’ve built up just more fervor over this issue than almost any other political issue.
BILL KRISTOL: I suppose the question going forward is how much this was kind of a one-off, and we go sort of back to something resembling normal? Though normal in our current polarized politics isn’t quite normal. It may be the politics of the ’50s or ’70s, maybe more like the ’30s. So I’m curious, I mean, which… maybe affirmative… but if you have affirmative action this year, what about the Independent State Legislature doctrine? How far will the courts go in letting state legislatures decide not to simply rubber stamp popular vote results in their states?
WILL BAUDE: Yeah. I think Dobbs is this indication that the court is less incrementalist, cares less about public opinion, cares less about precedent than maybe a lot of people are used to. And so that’s going to be true in every case. That doesn’t mean they’ll go as far as they can in every case.
So in Independent State Legislatures, the most radical position would be that state legislatures can do whatever they want and nothing in the state constitutions and nothing in any other part of the government can control them. They’ll really be sort of wholly unchained. I doubt the Court will go that far.
Part of it, I doubt they’ll think they need to. And I suspect as they look at it, they’ll find even just sort the historical and textual case for going that far is not as strong as it seems. I think they’ll do something. There’s sort of a range of intermediate positions that the court may take to say, “Look, state courts, you can’t just get away with anything you want either. You can’t just call this constitutional interpretation and then take over the process. But at the same time, we’re not saying that state legislatures are just sort of totally unchained.”
BILL KRISTOL: So the Court could, for example, say, “You can’t change the law after November 8th,” or whatever election day is, right? That sort of would be one-
WILL BAUDE: Yeah. Well, so that’s already sort of built into the Constitution, in that the Constitution says that Congress gets to pick the date for the selection of presidential electors. And then if the new Electoral Count Act amendments pass, they clarify even more what that means. That means that everything has to be judged by the rules that were in place at the time things happened. So I’m not so worried about independent legislatures having an impact on that kind of shenanigans.
I think one of the big questions is more things like partisan gerrymandering, which the Supreme Court has said are not a federal constitutional matter, but are up to the states. Well, how much are the states allowed to do something about it, right? So in the North Carolina case, the North Carolina Supreme Court concluded that the legislature was engaging in partisan gerrymandering under state law. Normally, that would just be something we would leave to the states. The legislature was trying to get the Supreme Court to step in and give them a constitutional right to gerrymander. Which would be, I think, a little bit corrosive for our political institutions if there is such a right.
BILL KRISTOL: Yeah, I would think so and I would think… I mean, so if the court has this in-between position on Independent State Legislatures, but seems to okay a certain amount of flexibility, let’s say. And then Kari Lake is the governor of Arizona and they have Republican majorities, I’m making this up obviously, and they decide to pass a law that says vaguely, presumably in the case of irregularities, the state legislature, we ahead of time say that the state legislature can reconvene and take actions to deal with these irregularities, in terms of who the electors, which slate of electors is sent, and that seems to be a, I don’t know. I mean, wouldn’t want to imagine a dynamic whereby late 2024 before election day, we’re looking at a genuine possibility of real turmoil in the sense of what’s going to happen again. Or it just gets back to our original discussion, sort of how much the guardrails — Could we be unstrengthening some guardrails at the same time that we strengthen others?
WILL BAUDE: Yeah, I think that’s possible. I think there are several steps there so it’ll depend on the federal statutes, not just the Constitution and the Arizona legislature won’t get any power over interpreting the federal statutes. You do have the federal courts acting there as watchdog. But an additional guardrail would’ve been the Arizona Supreme Court and maybe the independency legislature doctrine will slightly diminish the power of the Arizona Supreme Court.
Maybe another way to think of it concretely for 2024 is if this election is within the close margins, the margin of shenanigans where a little bit of trouble can swing the election, the Supreme Court may well be asked to resolve it. And they managed to duck it last time, in part because the election wasn’t that close in the end, but we may not be so lucky in 2024.
BILL KRISTOL: That’s interesting. It’s what worries me. I guess just on the broader question of the Court, I’m struck that you say they’re going to, more or less aggressively, but sort of chug ahead on the path they’re on. I mean after Roe v. Wade, you know this history much better than I. I remember it, I’m older and saw it in real time, so to speak. Watching it, people like me who were kind of conservative and sort of proto-originalist, I suppose you might say, on Court interpretation issues, we thought, “Oh my God, we’re going to have a huge crisis and we need to all be writing, explaining the alternative, the conservative alternative to this kind of out-of-control Warren or post-Warren court liberal jurisprudence, living constitution. But then the Court did pull back in important ways, I think, in practically important ways. I don’t know if the cases were that important. In ’75, as I recall, they didn’t go ahead as it looked like they might and require inter-district busing for the sake of racial balance in schools.
Then on the death penalty, which they had decided to find unconstitutional, although I guess it’s mentioned twice in the Constitution I think, they kind of reversed themselves based on, I don’t know if they literally reversed themselves, but they basically reopened the door to the death penalty. Maybe that was around ’76.
I remember thinking, I was in grad school writing a little bit about the Courts at that time, taking a law school class or two and thinking they’ve sort of prudentially pulled back from the brink. And then Carter had no appointments, and then Reagan had Sandra Day O’Connor in ’81. And I think the steam went out of the, except for the particular issue of abortion, Roe, which the steam did not go out of. But in the broader sense of “it’s out of control, it’s this is not counter-majoritarianism, and this is just legislating from the bench.” It didn’t become a central, it sort of faded a bit as a central issue politically.
But it doesn’t sound to me like you’re saying the courts are going to pull back quite in that way. But maybe I’ve got the history wrong a little bit too. I don’t know.
WILL BAUDE: I think one thing’s similar, one thing’s different. The thing that’s different is that the Court, the justices really have a real theory of law and they really believe in it. I think in a way, I mean that sounds sort of anodyne, but in a way that actually can mean the Court’s more radical because once you’re sure you know what the Constitution requires, you’re a little more willing to just, you see the precedents as real problems. You see public opinion as something you can’t kind of bow to. I think the Court’s sure of itself in a way that maybe wasn’t as true back in the day. That’s a difference.
I do think there’s still a kind of level setting that happens. You get a new majority. There are a bunch of precedents that are out of step with what the new majority thinks. The first few years there’s a kind of calling to accounts where you kind of overrule a lot of things, kind of change the basic place of doctrine. But then once you’ve done that, then there aren’t as many big changes to make in the short run. It’s not quite that the court runs out of steam, it’s that we hit the new normal.
The Second Amendment case from last term is radical. It’s the first time the courts really applied the Second Amendment to limit gun control outside of the home. That’s obviously what people care about most, because we spend a lot of our time with other people outside of our homes. But on its face, the court says, “Well look, this is what we’re doing.” Justice Kavanaugh says, we’re not necessarily going to imperil the concealed carry regimes in a lot of states, but we’re going to have a kind of level set where we get used to what laws are okay, what laws aren’t okay. But we’re not necessarily just going to keep going until we reach the Wild West.
BILL KRISTOL: I guess a lot of depends on how far they go, practically. What it feels to people, in terms of how far they’re going in sort of these areas. And whether at some point ,you just never know whether there’s a kind of tipping point, where it’s sort of — You can do this in one or two areas, where you’re doing it in on abortion, and you’re doing it in on guns, and you’re doing it on maybe how elections are going to be determined, and you’re doing it on affirmative action. I don’t know, I mean it’s very hard to tell ahead of time of what that feels like politically. And whether people emerge or politicians emerge, in this case it would be more on the left on the right, but to say, “It is time to think about radical remedies. We need radical remedies, because we have a radical out-of-control court.”
WILL BAUDE: But I mean you think of the Warren Court, they did desegregation, and election law reform—one person, one vote—and totally reformed the way the criminal justice system works in a ton of ways, and expanded Congress’ power. Again, those things all kind of petered out in the end, but the core accomplishments are still there. A lot of those doctrines changed and people got used to them. We might be in for a new Warren Court. I mean it might be a lot of changes in a lot of areas. I’d love to see if people get used to them.
BILL KRISTOL: It was a big political issue I mean for Republicans and for Nixon. I mean people make fun of the John Birch Society and ‘Impeach Warren’, but I mean it was a real issue in ’68 for example, that we need a tough president who will appoint tough-on-crime judges and so forth.
WILL BAUDE: That’s the thing, I don’t want to make it sound like I’m saying nothing big is going to happen, but it has precedent. The thing that’s different now that I don’t know what to make of, is I think the level of sort of elite structural criticism of the Court seems a little different. It’s not the John Birch Society saying ‘impeach Warren.’ It’s Larry Tribe saying, “Pack the Supreme Court.” That we’ve gone from it’s not just like the Court got this wrong, the Court got that wrong, but the whole thing is rotten and we have to throw it out. I don’t know where that goes.
BILL KRISTOL: That’s part of, don’t you think, a broader polarization that’s not just of the public but of elites too? So I do think — I mean you said Justice Kagan obviously didn’t decide to join the opinion to give it more legitimacy, but I mean Chief Justice Burger probably did actually write Roe in order to give it legitimacy but also limit it sort of in some ways, or give it to Blackmun to write I guess, and join the opinion. So it is a different mood it feels to me — not just among the judges, among the, as you say, the elite commentariat, I guess among elite law professors too.
WILL BAUDE: Definitely. Definitely. It relates, it’s a little bit of the, I mean not to make this about both sides, but it’s a little bit of the fuzzy mirror image of some of the election stuff we’ve been talking about. You can’t just lose a Supreme Court case now. You lose it and you have to ‘pack the court’ and say ‘the court is corrupt and illegitimate.’ You can’t just lose a presidential election now. You lose it and it has to have been ‘stolen’ and the whole thing. It’s like everything has to get leveled up so we can’t just take our wins and losses and keep going like normal, but we have to turn it into a fight the system moment.
BILL KRISTOL: I mean, as someone who was on the conservative side of most of these things for most of my adult life, I guess I am a little struck, but again, tell me if you think I’m overacting to this, that originalism was supposed to be a kind of bounding of the court I mean against the “living constitution” or whatever. Then we go back and get back into a really grounded set of interpretations based on, and then there are many complicated issues of original intent and what’s intent and textualism, but leave all that—and I don’t even kept up on those debates, you know them all extremely well. But leave that aside for a minute. But I think it was supposed to be a kind of stabilizing doctrine. Though it could, everyone understood it could have radical interpretations, implications in the short term and overturning a bunch of precedents.
The degree to which I do feel like even among conservative judges, certainly lower courts, a few lower court judges, maybe the justices too, certainly Thomas, I’d say maybe Alito, have just — originalism now seems to be this weapon to be wielded. Not to, I mean it just wipes out obviously in the case of Roe, 50 years, and the gun cases arguably 100 years of legislative precedents or court precedents. It is somewhat arbitrary and it doesn’t seem that grounded or that limited because guess what, you get to then decide, it turns out it’s not really originalism, it’s kind of the historical understanding at the times, so they’re all going to become amateur historians. Is that really any more limiting than Warren or Douglas deciding — whatever the phrases we all made fun of when I was — deciding what “the penumbras” of different amendments were.
I do feel that the conservative side of it has less of the advantage that conservatism sometimes does have, of a feeling more prudent and incremental and frankly defensible in a certain way in constitutional law. Have I overstated that?
WILL BAUDE: Well, so I think this was always there in originalism. So I think one of the, before even your time, the most famous originalist on the Supreme Court was Hugo Black who was the sort of absolutist on free speech who sort of led the charge to incorporate tons of rights against the states, including the criminal procedure revolution, who had really radical views and who would ground these, who would do amateur history where he would go through the Congressional globe and produce a long appendix with the original meaning of the privileges and immunities clause that prompted law professors to write books in response. That kind of radicalism I think has always been there.
I do think that there was this time period where the Court was seen as so liberal and activist and out of step that you could be both — originalism and judicial restraint were kind of two themes together. But those were always actually kind of in tension I think, and now the tensions become clear and so maybe the party has to split up a little bit.
BILL KRISTOL: But the tension arguably, I think that’s very true about the tension. It’s certainly sparked observers and analysts said these are ultimately different — But you could also argue the tension made it more palatable or more manageable in a certain way as an actual year-to-year kind of making of decisions process.
WILL BAUDE: No, I think this is part of how this is in on the politics side, this is sort of in the nature of coalitions. You think maybe of the same thing of fusionism in the Republican party that for a long time we could put the social conservatives and libertarians together and that kind of moderated them both and improved them both. But at some point those tensions come to a head. Maybe we don’t always like who wins.
BILL KRISTOL: But it does sound to me as if you’re saying, this is very interesting, I haven’t really thought about this. I mean we’re going to have, it’s going to be choppy, right or wrong, right there or not. We’re not going into — we’re staying in choppy waters or the ship is continuing to not avoid the difficult passages, or whatever metaphor you want for the next few years, at least, you think? I mean just the nature of the thing and the way they’re thinking is — we’re not settling down.
WILL BAUDE: That’s right. We’re not hitting the iceberg, but it’s not smooth sailing. It’s not smooth sailing either. Of course, as advocates get a better sense of what kinds of cases to press, sometimes that’ll take us new places too.
That said, the other thing is it just takes a little bit of chance to change things a lot. A couple of close elections, or a couple of issues with the justices health, and suddenly it seems like a big change again. It’s kind of macabre to speculate, but you don’t know exactly how long this is going to happen. Maybe that also affects the Court. If you’re on the current majority and you don’t know exactly how permanent the current situation is, then you might not be eager to hold your fire or take your time. You might think, “Now’s the time to get things as right as we can.”
BILL KRISTOL: I think the question is the broader public, and by which I would include senators and presidential candidates and stuff, did they look at all this? Did they look at some of these individual federal district judges embracing fairly radical versions of doctrines, both on the left in the past—and that was people like me who were always unhappy about the ninth circuit and all this—and on the right now, and as I say, originalism becomes this — seems to sort of justify not a kind of steady path to consensus, but the opposite.
You have these injunctions that one judge can enjoin something apparently, I guess for the whole country. And that seems a little crazy. Then you can have judge shopping and then you get — It all feels a little bit, together, to be producing a situation where it’s not going to be beyond the pale for presidential candidates, respectable presidential candidates to endorse things in terms of court reform—let’s talk about that a minute since you were on the Biden Commission on this—that we all would’ve been really ruled out by both sides 10 or 20 or 30 or 40 years ago.
WILL BAUDE: No, I think that’s all true. There are healthier versions of that instinct and less healthy versions. Should Congress pass nationwide injunction reform? Definitely. They actually, this is a problem we had 100 years ago when federal courts first started issuing dramatic injunctions against state laws and Congress for a long time required you to go to a three-judge panel before you could get an injunction. There were all these kind of procedural reforms, and over time those changed. And it may be time to go back and try to reign in the courts’ power a little bit in a bipartisan way. That would be good.
BILL KRISTOL: Is that happening? I mean, is there people even introducing legislation? It seems like a sensible thing to me.
WILL BAUDE: There have been some hearings about it. It has the problem that at any given time it’s a partisan issue, but the partisanship flips every time. So the liberals wanted to be able to issue nationwide injunctions against Donald Trump, and now conservatives want to be able to issue them against Joe Biden. It requires a little bit of perspective. But there have been some hearings, there’s been some legislation introduced. I’m not holding my breath.
I think Justice Kagan just came out and made some remarks about how this really isn’t sustainable and something needs to be done about it. Maybe the court could do it. That would be good.
The thing that is less good, and that in some ways is more tempting, is rather than trying to reduce the power of the courts, is just to try to capture the courts as much as possible. That’s kind of the court packing instinct rather than defang the court: let’s just put as many of our guys there as possible and then we’ll use all the power. That’s nuclear proliferation. Over time we just keep trying to push the courts more and more for our partisan views until the whole thing blows up.
BILL KRISTOL: That does seem to be the mood to some degree on both sides now, and with some respectable support on both sides.
WILL BAUDE: That’s the thing that worries me about the future of the Court and the future of the politics of the Court. The Court could be checked by politics. In some sense the Court won’t go on forever because we won’t let it. But whether we check the Court in a healthy way or an unhealthy way will determine whether we still have a Court worth respecting at the end.
BILL KRISTOL: If different members of the Court were listening to this conversation, do you think the Chief Justice might be nodding as you say some of these things? Or maybe some of the things I say? How many of the other justices have any instinct towards … Again, this might be a good or an instinct some people don’t approve of, but it’s just as an analytical matter, have a kind of instinct towards, I don’t know what you’d call it, institutional self-preservation and of not picking too many fights at once? As opposed to, “Look, this is the law, and I’ve got four very good law clerks who are proving to me that this was what people intended at X amount of time, and here’s a very important law review article that justifies this, so I’m just going with it.”
WILL BAUDE: I don’t know. Obviously I’ve never been in the conference room. My guess is it doesn’t really come in at the day-to-day level. You don’t think, “Oh, well, Roe versus Wade is wrong, but our approval ratings are a little low this year, so let’s wait until after the midterms.” I don’t think the Court really thinks about it that way.
But I’m sure that in the kind of deeper sense that they grapple all the time with questions about deference to Congress and precedent and liquidation and things like that. And I’m sure that in the deeper sense, their judicial philosophies are shaped by their view of what the role of the Court should be, if that’s true.
BILL KRISTOL: And would you say that the current justices, and more broadly, just the current judges in the country and the current respectable law professors who could become judges and so forth, where’s the breakdown on that? On both right and left, how much are we in on the right, let’s call it, pure originalism as opposed to prudential restraint and self-limitation? And on the left, I don’t know what the exact analogy would be, pure let justice be done as opposed to let’s be a little careful here?
WILL BAUDE: Yeah. I think it’s too soon to tell. On the right, you see people, a lot of people, complaining that the court isn’t going far enough. You get this whole move towards common good constitutionalism kind of animated by the idea that the Court’s not radical enough, that it’s too captured by the moderates and needs to go farther. I don’t think that’s going to take off, but the fact that it’s even a serious part of the conversation is a sign of how much things have gone wrong.
And then you see people on the left say, “Well, look at what people on the right are saying. We would be chumps if we weren’t doing the same thing.” So I guess, I think we’re at a moment where it’s time to try to de-escalate, but that’s not a popular position. So I hope we can do it.
BILL KRISTOL: Yeah. I can’t say this conversation is really cheering me up as much as I had hoped, but it’s very interesting. I mean, Common Good Constitutionalism, which I guess is Adrian Vermeule and some of these other … I mean it’s fine if you want to say that I would prefer a regime in which that elected officials did A, B, or C, or in which we didn’t have certain constitutional protections and separations of rights to privacy and so forth. But it’s a little weird for me to say that this is a legitimate form of constitutionalism. It’s a legitimate form of political philosophy. You know? It just seems hard to … I don’t know, does Vermeule pretend that he’s interpreting the Constitution in a way that anyone ever intended? Or is it just this is the right outcome, so we might as well just use this current constitution to get to it?
WILL BAUDE: I think it doesn’t depend on what people would’ve intended. It’s not a form of originalism. But it purports to be legal interpretation. Now, I mean, I’m with you. I think the constitutionalism part of Common Good Constitutionalism is not really there. There’s not a lot of interest or attention to the dilemmas we’ve been talking about, about some of our constitutional structures and who has what kind of power over what, which seems to be a big problem.
BILL KRISTOL: I’m struck, before I let you go. I mean think the failure of Congress really is so central, isn’t it, to this whole discussion and conversation though? I mean that of all the branches of government, I’ve thought Congress is the most broken, and it then leads to brokenness beyond its borders. Is that a fair statement, do you think?
WILL BAUDE: I think that’s absolutely right. I mean, for instance, again, in the New Deal era, Congress was organized and incredibly popular. And that meant that there were limits to how much the Court could push back against it in the end. But for all the amount people bellyache about the Court, people think even less of Congress. And then the fact that that’s kind of the expectation of Congress is kind of self-fulfilling. So when Congress wants to accomplish something, they almost have to do it in secret so that we don’t become too polarized about it.
BILL KRISTOL: I was struck, I was in the first Bush administration, George H. W. Bush administration, when Justice Scalia, I believe, wrote the opinions basically saying, “No, you don’t get to claim a religious exemption to laws, was at the … I don’t know, it was some weird case.
WILL BAUDE: Yeah. Smith.
BILL KRISTOL: Smith is the name of the case, but whatever the particular thing was. But it had pretty big implications that religion wouldn’t have, let’s say, any special standing or whatever. You couldn’t just say, “My religious belief leads me not to want to do X.” And Congress did react, thinking this was … Whatever the Constitution merits of it, as a matter of First Amendment of constitutional interpretation, that they didn’t … Congress wanted to provide more exceptions, you might say, or leeway for religious institutions, if I’m not mistaken, passed in a pretty bipartisan way, the Religious Freedom Restoration Act, whatever it was called in what, two or three years later, I can’t remember?
And it feels like that’s sort of how the system’s supposed to work. I mean, I don’t know if Scalia’s opinion is … McConnell thinks it was the wrong interpretation of the First Amendment, whatever. But that Congress was able to, in a sense, mute the unhappiness and arrive at an outcome which it, itself, produced, of course, a lot of litigation, I suppose, over the 30 years since. But it’s sort of a reasonable way of handling the situation, it seems to me, where there clearly are competing imperatives and considerations, but that doesn’t seem to happen much anymore.
WILL BAUDE: No, it doesn’t. But people still demand change, and that pushes the executive branch to do indefensible things or really push the envelope. And then that puts the Court in the position of having to really push back. And the constitutional system doesn’t function if we only have two branches, the executive branch and the courts, and no legislature. But that’s kind of where we are.
BILL KRISTOL: And if they’re just fighting with one another as opposed to, in a sense, I don’t know what the term is, but reacting to one another but in a way that leads to a tenable sort of outcome down the road.
WILL BAUDE: Right.
BILL KRISTOL: I mean, I guess one thing that … So let’s come back to concretely in the next year, because I think one thing you’ve really brought to light, which I hadn’t really focused on, is just what a turbulent year it could be just in terms of headline. I mean, leaving aside, again, legal doctrines almost, but in terms of headlines.
And I guess another one would be, is there a pretty good chance the Supreme Court will overturn President Obama’s DACA, the rights for the Dreamers, so to speak? I gather that that’s finally coming. That case seems to come up every two years and then go away for some reason. It’s is never quite resolved. But isn’t that finally coming back to the Court? I think it is. Whether he was within his right, whether that was a matter of executive discretion or not?
WILL BAUDE: Sort of. Yeah, there are a set of questions about executive discretion over immigration that don’t perfectly overlap because the versions of policy keep changing. But in which, yeah, the question of are the courts going to set aside the executive branch priorities are going to come back again? And executive branch might well lose. There’s some complicated jurisdictional issues too.
But again, this is all … Immigration is a huge political issue in which the courts and the executive branch are constantly going back and forth and sort of trying to work with it. And you would think with such an issue, maybe we could at some point get some sort of political resolution, but instead, Congress just lets everybody else fight about it so they don’t have to compromise.
BILL KRISTOL: Yeah, immigration’s particularly bad case in that area. So we could be next year, the term’s beginning soon, I guess next week … I don’t know, two weeks? We’re talking on what, September 28th? Couple of weeks, I guess. We could have a year in which the Court rules against affirmative action programs. I don’t know that that will entirely mean you could never take race or diversity into account, but certainly throws out the current programs at major universities, in which they throw out the Obama administration’s—or limit a lot— the executive order protecting the Dreamers who are now here. I assume we’ll have more of the administrative law disputes about whether agencies have overreached in using their discretion in certain ways. What am I missing? Some other big-
WILL BAUDE: Big changes in election law and the Voting Rights Act.
BILL KRISTOL: Yeah, big changes, possible big changes in election law. We’ll have issues, I guess, maybe produced by the whole Trump investigations and quote, “executive privilege” and –
WILL BAUDE: Could be. They have a case we haven’t talked about, sort of asking to throw out all of Indian law, which way may seem like a niche issue, but that’s a big issue.
BILL KRISTOL: Well, I mean, that one seems to cut across the normal ideological —
WILL BAUDE: Indeed, which can make it unpredictable. And then we have regulations on social media now bubbling up in the lower courts. So yeah, it could be a term in which — Nothing will ever get the same headlines as overruling Roe, but it could be a lot.
BILL KRISTOL: Yeah, and so by a year from now, or 9, 10 months from now, let’s just say the summer of ’23, I suppose you kind of have a situation where there’s real unrest, you might say, political unrest on both sides, at the federal level and at the state level, in some of these cases, in which the courts are sort of implicated. I mean, I don’t know that they’re exactly the direct object, but kind of a sense of the courts increasing the instability of the system, not resolving issues.
WILL BAUDE: That’s right.
BILL KRISTOL: I wonder how that plays out then, in a polarized environment, and that maybe a divided Congress or a Congress partly divided from the executive branch in terms of —
WILL BAUDE: Yeah, if you’re Joe Biden facing a tight reelection campaign, it may be that vilifying the Supreme Court will be one of the best things for you to do. If you’re Ron DeSantis or Donald Trump, you’re not exactly going to be standing up for conservative judicial restraint either. So it could well turn into a pretty ugly conversation.
BILL KRISTOL: Yeah, and I mean, whatever Biden, maybe he’s old fashioned enough not to want to go in that direction, and the commission he set up sort of took the steam out of that. But of course, if it’s an open, Democratic primary, it could become a huge issue though. And we’re seeing it even this year with just the fights over abortion policy, which is that’s a legitimate policy question at the state level.
I mean, do you think … Well, just one last thing on abortion, just to get back to that, since that has been the most the crux of it, the most dramatic. Do you think it’s — I mean, I guess I thought 20, 30 years ago, “Well, yeah, it really is a state issue,” and people like me didn’t like Roe, wanted it back to the states to be healthier. Of course, once the federal government, once Congress has passed various limitations on abortion, partial birth and so forth, is it credible anymore to say that if either side prevails in Congress and the executive branch — which for now would have to be the abortion rights side since Biden is president, but conceivably in 2025 could be the opposite: a national law limit or ban abortion. Is it credible that the court might say, “No, the national government doesn’t have this authority,” or is that kind of resolved?
WILL BAUDE: No, they might. They might. I mean, I think if you asked me to predict, I think the Court would uphold most national regulations in either direction, that Roberts and Kavanaugh would sort of see that as within Congress’ discretion. But that’s not obvious from the text of the Constitution or even from some of the precedents. And of course, that’s setting us up for a really big democratic conflict.
BILL KRISTOL: Right. So if Democrats pick up … It’s hard to know how many seats you’d have to pick up because I don’t think everyone’s being entirely candid about the filibuster. But let’s assume they could overcome filibuster issues and pass a quote “codifying” of Roe v. Wade, whatever exactly that is, and Biden signed it, I guess that would go right to the courts. I mean, that would be a pretty massive thing if a conservative Supreme Court though decided, “Well, no, the federal government can pass laws just like the state governments can.” And then huge reaction on the right, presumably, to that, right?
WILL BAUDE: Yeah, I mean, so the coda to the Religious Freedom Restoration Act story you were talking about is that it went back to the court and they struck it down, as applied to most of the states, even though it was a big natural majority, even though they probably shouldn’t have.
BILL KRISTOL: I forgot about that. So they struck it down, but then there is still a law, right? I mean, RFRA, or whatever, which –
WILL BAUDE: Yeah. So it’s struck down as applied to the states. The main thing it was supposed to do was … But it still applies to the federal government’s own operations. So you end up with a kind of compromise. So it governs Obamacare, but it doesn’t give you rights against the State of Texas or the State of Massachusetts.
BILL KRISTOL: I’m just thinking about this as a very parochial, but a little issue I knew about here in Virginia in terms of our synagogue and certain things. So I guess that was based on a state religious rights law probably that they –
WILL BAUDE: Exactly.
BILL KRISTOL: They couldn’t arbitrarily limit the size of congregation because the neighbors thought it was noisier than they liked on some days.
WILL BAUDE: Well, it’s also special federal regulation about zoning and prisons. Those sort of got a special carve out. So land use and prisoners’ rights have their own … You end up with this sort of messy tapestry of laws. But that’s why the Yeshiva University case isn’t just resolved under some sort of federal statute that governs this.
BILL KRISTOL: I see. So we could have abortion issues, election issues, race issues, affirmative action, racial discrimination issues, administrative law issues, which are going to get pretty fundamental though if they’re on major aspects of administrative law, climate change and so forth. I’m sure I’ve forgotten — immigration issues, all with the courts, and the Supreme Court in particular, all in the mix in a pretty visible way in the next year.
WILL BAUDE: Yeah. Never a dull moment.
BILL KRISTOL: Yeah, that’ll be good. People really do need to listen to your podcast every — Is it every two weeks now? I think you need to do it every week, you know, every –
WILL BAUDE: We try to follow the courts. When the court is quiet, we’re quiet, but when a lot’s going on then we have to do a lot.
BILL KRISTOL: We’ll have to have our own conversation here in early next year or maybe, certainly at the end of term, but maybe even halfway through at the rate — When are most of these decisions — This is sort of trivial, but you follow this stuff closely. The rest of us don’t. When do these decisions come down? They don’t all get held till the end of term, right? I mean –
WILL BAUDE: No, although more and more of them do. I think you’ll usually get a few big decisions by January or February maybe, and then some in April as they’re sort of trying to clear the decks. But then a lot of them happen in the last month.
BILL KRISTOL: So June, 2023 in the midst of it. God knows what else will be going on in the country and in the world. We’ll have a whole bunch of things. Not quite the magnitude of Roe, but not small either. Right?
WILL BAUDE: Exactly.
BILL KRISTOL: Okay. Something to look forward to. Well, thank you, Will, for really very illuminating, I think, conversation, for those of us who don’t follow this the way you do, and not entirely … Well a chastening one, but a serious one about … It’d be nice if we could fix some of these problems, I mean, by just passing legislation in some of these areas, as you say, and fixing some of the obvious issues as opposed to letting it all boil to a kind of head and have it become a massive showdown in which the court then gets implicated.
WILL BAUDE: Yeah. Well, call your congressman.
BILL KRISTOL: Yeah. Yeah, that’s new. Thank you for that advice. Very useful from Chicago Law School. Will Baude, thank you for joining me for this very interesting conversation. We’ll do it again in less than a year, I think.
WILL BAUDE: Thank you. Sorry they’re never more cheerful than this.
BILL KRISTOL: Yeah, no, it’s okay. Reality is important. And thank you all for joining us on CONVERSATIONS.
