Law Professor Answers Supreme Court Questions

WIRED

Law Professor Steven Vladeck joins WIRED to answer the internet’s burning questions about The United States Supreme Court.  Director: Justin Wolfson  Director of Photography: Eric Brouse Editor: Richard Trammell Expert: Stephen Vladeck Line Producer: Jamie Rasmussen Associate Producer: Paul Gulyas; Brandon White Production Manager: Peter Brunette Production Coordinator: Rhyan Lark Casting Producer: Nick Sawyer  Camera Operator: Christopher Eustache Sound Mixer: Sean Paulsen Post Production Supervisor: Christian Olguin Supervising Editor: Erica DeLeo Assistant Editor: Andy Morell

Transcript

00:00I'm Stephen Vladek, author and professor at Georgetown University Law Center.

00:04I'm here today to answer your questions from the internet. This is Supreme Court Support.

00:12At Crypto King asks, why do Supreme Court justices receive life appointments while

00:17every other type of judge has retirement ages? So this is actually a real disconnect between

00:22the federal courts and state courts. Most states have imposed retirement ages on their judges and

00:28justices. The federal courts have not. And so under Article 3 of the federal constitution,

00:33the Supreme Court, the intermediate federal courts of appeals, the 94 federal district courts,

00:38all of them serve during what the constitution calls good behavior. And the idea here was to

00:44provide a modicum of protection against being forced off the bench for anything other than

00:50the kind of misconduct that might warrant impeachment by the House of Representatives and removal by the

00:56Senate. At K Pola Pratik asks, so how do Supreme Court justices get appointed? The appointments

01:02process is actually pretty straightforward. The president gets to nominate anyone, doesn't matter

01:08how old they are, where they're from, what their qualifications are, to be a Supreme Court justice.

01:12And as long as they're confirmed by a majority of the Senate, they get the job.

01:15VAW Navy Vet asks, are confirmation hearings effective in preventing unqualified appointments

01:21or have they become mere formalities? You know, this really does vary and has varied historically

01:26based upon who the president is and based upon which party controls the Senate. There have been

01:30moments in American history where the Senate really has exercised a rigorous oversight role in vetting

01:36the Supreme Court's nominees. There have been some who have been blocked by the Senate, some who

01:40were withdrawn because they didn't have the votes in the Senate. But I think what we've seen lately is

01:44when the president of the same party as a majority of the Senate, there really is a push to get through

01:50the president's nominees. And so I think we've seen less of that criticism from the Senate in recent

01:55nomination processes. ProfessionalCat437, could somebody explain what the 2016 drama of Obama being

02:02unable to appoint a new Supreme Court justice was? So in February of 2016, Justice Antonin Scalia, who was

02:08in many respects the leader of the court's then extant for conservative justice wing, unexpectedly passed away

02:15while he was on the court, opening up a seat for President Obama to presumably fill. President Obama quickly

02:21nominated an incredibly moderate and relatively older candidate, then D.C. Circuit Judge Merrick Garland. But the

02:29Republicans, who at the time had a majority in the Senate, banded together and committed to provide no process, not

02:36even to have a vote up or down on Merrick Garland as a nominee, but rather to keep that seat open through the November

02:432016 presidential election until President Trump was sworn in in January, at which point he nominated

02:48Neil Gorsuch and the Senate confirmed Gorsuch to fill that seat. So the Constitution does not require the Senate to vote.

02:54Really, historically, the expectation has been that if the Senate were going to shirk its duty in such a shameless and

03:01transparent way, it would face political consequences for doing so. If anything, in 2016, the opposite happened, where the Senate

03:08holding that seat open provided a number of folks who might not otherwise have wanted to, with reasons

03:14to vote for President Trump. It's also worth keeping in mind that when the Constitution was written, we didn't have

03:19political parties. Had the founders known that we were going to have really a deeply entrenched two-party system, it's

03:25not hard to imagine they would have done some things very differently.

03:28At Danny Giga asks, the Supreme Court is not apolitical. Has it ever been? We should distinguish here between a court that is

03:35political and a court that is partisan. The Supreme Court has always been political in the sense that it's always been

03:41involved in institutional conversations with the other branches of government. Some of the court's most important early

03:47decisions come as part of a pretty sophisticated inter-branch conversation with President Jefferson, with Congress.

03:54It's only since 2010 that we have a Supreme Court where every justice's ideology aligns with the party of the president

04:02who appointed them. That's part of why today the court seems so much more divided along partisan lines than was true as

04:08recently as 20 years ago. From Reddit, how does the process of a court case going to the Supreme Court work? Just about every

04:15case the Supreme Court hears has gone through multiple levels of litigation in lower courts. Those lower courts could be lower

04:23federal courts, or they could be state courts. And under both the Constitution and the relevant statutes Congress has passed,

04:29once the case has gone through those lower courts, the Supreme Court has the power to hear an appeal if whoever lost in the lower

04:37courts wants the court to do so. And if it's coming from a lower state court, as long as there's a federal issue in the case, as long as the case

04:44turns on federal law, the Supreme Court has the power to hear it. This is actually a place where the Supreme Court's power and its docket has actually shifted a lot over time. So, for

04:531789, when the Supreme Court was created, until 1891, the Supreme Court actually had to hear

04:59every single appeal that Congress told it to. It's only since 1891 that Congress has broadly given the

05:06justices the power to pick and choose almost all of the cases they hear. That process is given this Latin

05:13term, certiorari, which we abbreviate to cert, because we can't really spell it. And the basic gist is the Supreme Court

05:20votes. And it takes four of the nine justices to agree to hear a case for the court to take it up. What that means,

05:26perhaps surprisingly, is that actually almost all of the cases the Supreme Court decides these days are cases that the

05:32justices have specifically chosen to hear and not just cases that were foisted upon them.

05:38At CS Westbrook asks, do you know approximately how many cases the Supreme Court takes every year? The Supreme Court receives

05:44somewhere between 4,500 and 6,000 requests every year to hear appeals, whether from the lower federal courts or from the state

05:52courts. It only takes about 65 or 70 of them. What that means is that in 98 to 99 percent of those cases, it's actually those lower

06:01courts that get the last word. And the justices leave those lower court decisions intact. So the process

06:06the Supreme Court follows for picking and choosing cases is very secretive. But basically, the parties

06:12file briefs where the party that wants the Supreme Court to hear the case says, here's why you should

06:17take it. The party that won below says, no, here's why you shouldn't take it. And the justices and their

06:21clerks debate internally what to do, and they ultimately vote. Should we hear this case or not?

06:26At Ken Hicken asks, yes or no, can the Supreme Court be expanded? Yes, the Constitution does not provide

06:32any limit on the size of the Supreme Court. It gives that power to Congress. Congress used that power a

06:36number of times between 1789 and 1869 to change the size of the Supreme Court. It's really a question

06:43about politics, whether it's a good idea and whether there are the votes. And at least since 1869, the answer

06:48to one if not both of those questions has consistently been no. An anonymous Reddit user asks, what's the purpose

06:54of dissenting opinions? Sometimes a justice will write a dissenting opinion to make clear to their

06:59colleagues just how wrong they think the majority is. Indeed, we have examples of a proposed dissenting

07:05opinion actually persuading enough justices that it's correct that it became the majority opinion.

07:11Sometimes the goal of a dissenting opinion is to lay down a marker so that even if the Supreme Court's

07:16not going to reach the right answer, maybe other actors can. A famous example of this is when Justice

07:21Ruth Bader Ginsburg wrote a dissent in a case called Ledbetter about pay equity that called

07:26on Congress to fix the relevant federal statutes with regard to pay equity in the workplace.

07:32Congress did and it actually passed a statute called the Lilly Ledbetter Fair Pay Act in response

07:36to Justice Ginsburg's dissenting opinion. And sometimes dissents really are meant more for the public

07:41where the dissenting justice understands that they don't have enough votes for their position

07:46on the court, but they're writing for posterity. They think that one day the law will catch up with

07:51them. And some of the great examples of this are from Justice John Marshall Harlan, who dissented in

07:56cases like Plessy versus Ferguson, which established the principle of separate but equal in a way that

08:01actually we now rely upon that has largely become the law of the land.

08:05At Real Miss Kim asks, which Supreme Court justice retires next and who replaces him or her?

08:10So if history has taught us anything, it's that it's not always who you'd expect.

08:15I think for obvious reasons, most of the attention right now is on Justices Clarence Thomas and Samuel

08:20Alito since they are two of the three longest serving Republican appointed justices on the court

08:24and the ones who I think would be most willing to have President Trump pick their successors.

08:29But Justice Thomas is also just a couple of years away from the all time longevity record

08:34for Supreme Court justices, something I suspect he's interested in. If you really forced me to bet,

08:39I would say Justice Alito is probably at the top of the list for the next justice to retire.

08:44But, you know, I'm glad I don't have to put any real money on it.

08:47Wearyfarmer4894 asks,

08:49Did RBG destroy her legacy by not retiring during Obama's presidency?

08:53You know, this is a real debate, not just about Justice Ruth Bader Ginsburg,

08:57but about what a Supreme Court justice's central obligations are.

09:01Famously, Justice Ginsburg did not retire when President Obama was in office and Democrats

09:06controlled the Senate. And that meant that when she passed away after a long battle with cancer,

09:10in September 2020, it was President Trump who was able to fill her seat,

09:14as he did with Justice Amy Coney Barrett. I think it's really tricky to think about this question,

09:19because retiring solely for partisan political purposes, even if it's something the justices do,

09:25is maybe not in the best long-term interest of the institution. If we view the court through the lens

09:30of just who controls which seats, then we really are accepting the premise that the court is a partisan

09:36institution and not just a judicial one. At the same time, justices who care about their legacies

09:41have to care, especially in this day and age, about those partisan politics. Only a justice knows

09:47their body. Only a justice knows their mind. But I think it certainly looks in retrospect like it

09:52probably would have been better for Justice Ginsburg if she cared about such things to step down when

09:57President Obama could have chosen her successor instead of President Trump.

10:00At Poboy Reeves asks, how ugly was the Kavanaugh confirmation? It was pretty ugly. There were

10:05seemingly quite plausible charges of sexual misconduct on the part of a much, much younger

10:11Brett Kavanaugh. You had a rushed FBI report, and you had, I think, a fair amount of railroading

10:17on both sides to the fight over who would replace Justice Anthony Kennedy. And then we have to remember

10:22that part of what was going on there was you had the justice who had become the median vote on the

10:27court. It was his seat that was at issue. And I think that's part of why you saw the emotions get

10:31so high. How do we fix that? Well, I think this is a larger and deeper conversation about our

10:37institutions and about pushing presidents, pushing senators, pushing everybody to a point where we

10:43view the courts in general and the Supreme Court in particular as a critically important check on the

10:49other branches of government, a check where we're going to want judges and justices, not just who

10:53believe things we agree with, but who are going to assert the power of the courts over the other

10:58branches of government. That to me is the real unfortunate consequence of the Kavanaugh confirmation,

11:03is that if anything, it's moved us more into our political corners and not more toward that kind

11:08of institutional understanding. At They Love Sierra, how did Plessy versus Ferguson change law and society?

11:14So Plessy versus Ferguson is the infamous 1896 decision in which the Supreme Court articulated the

11:20a separate but equal understanding for racial discrimination in public places. You can draw a

11:26straight line from Plessy versus Ferguson to the era of Jim Crow, to the idea that you would have

11:32segregated drinking facilities, segregated schools, segregated bathrooms in cities and jurisdictions,

11:38especially throughout the South. I think there's a debate about just how much Plessy itself

11:44caused those changes or how much Plessy at least meant the courts had no way to stop those changes,

11:50which in many respects were already well underway. Indeed, it wouldn't be until Brown versus Board

11:55of Education in 1954 and the civil rights movement that Brown was an early part of that you really see

12:01efforts to push back against to dismantle Jim Crow. The Supreme Court's obviously part of that story.

12:07It's probably a little much to say that the court was solely responsible for it.

12:11Atstevo2385 asks, when did the left ever have control of SCOTUS? Seriously, when was the last

12:17time there was a liberal majority? So I think there's actually some debate about this because

12:21until 2010, you had a long history of Supreme Court appointments that were not necessarily party

12:27and ideology aligned. For example, Justice William Brennan, who for a long time was the liberal lion of

12:33the Warren Court, was appointed by a Republican president, by Dwight Eisenhower. The last time that a

12:38majority of the Supreme Court included justices appointed by Democratic presidents, which might

12:43be one way to think about this question, was May 14, 1969. That was the day on which Justice Abe Fortas

12:50resigned from the court. Actually, Republican presidents would have the next 11 appointments

12:55to the Supreme Court. It's a big part of why there was such this profound shift in the court's

13:00jurisprudence starting in 1970. Reddit user asks, at the time of Roe versus Wade, was the Supreme Court

13:05overwhelmingly liberal. Not necessarily. I mean, the Supreme Court in 1973, when Roe versus Wade was

13:11decided, was in some respects a court in transition. And so you had a seven to two majority in that case,

13:16but there were multiple justices in the majority who had been appointed by Republican presidents.

13:21And one of the two dissenters, Justice Byron White, was actually a Democratic appointee. He was appointed

13:26by President John F. Kennedy. At the time Roe versus Wade was decided, the question of the

13:31constitutionality of protections for abortion just didn't quite divide us so strictly into ideological

13:39camps as it came to in the years and decades to follow.

13:42At Core Flatus asks, how did Citizens United affect elections? So the Supreme Court's decision

13:47in Citizens United is actually part of a larger series of decisions in which the Supreme Court has

13:52interpreted the First Amendment to prohibit a number of restrictions on campaign finance,

13:59and to prohibit a number of campaign finance reform initiatives enacted by Congress. The result has

14:04been a much larger amount of dark money in our elections, local elections, state elections,

14:10federal elections. The real impact here is not that it's obviously pro-Republican or pro-Democratic,

14:17it's pro-money. Money interests have had much more say in our elections in the last 15 or 20 years,

14:24certainly than was true for a long time before that. At JSC 1835 asks, Trump is asking the Supreme

14:29Court to partly allow birthright citizenship restrictions. Will the Supreme Court allow

14:33this breach of the Constitution? This is getting a bit into the weeds, but one of the things that's

14:37really tricky about the three birthright citizenship cases that the Supreme Court is deciding during its

14:43current term is that the court is being asked not to uphold the policy, but rather just to let it go

14:48into effect as applied to at least some people through a procedural debate. Basically, the argument

14:54is the lower courts ruled too broadly in blocking President Trump's efforts to limit birthright

14:59citizenship. I suspect that the court is going to narrow those lower court rulings in at least some

15:06way, but also that either the Supreme Court or the lower courts pretty quickly are going to reach the

15:11end of this case and rule conclusively that the President's efforts to limit birthright citizenship

15:17are in fact unlawful, which will mitigate the effect of a procedural ruling that makes those lower

15:24court decisions less effective. At Juliet FES asks, in the country's history has a Supreme Court

15:29justice ever resigned? So a number have resigned. Perhaps the most notorious resignation was in 1969

15:35when Justice Abe Fortas resigned because of alleged improprieties with a financier named Lewis Wolfson.

15:41But there actually have been a number of justices who have resigned for other reasons, for health

15:45reasons, for personal reasons, in some cases because they wanted or were appointed to different jobs.

15:50It's really only in the last 10 or 15 years that we've seen high profile deaths by sitting justices.

15:57We actually had gone a very long time from 1954 to 2005. There wasn't a single justice who died on the

16:04bench. The norm had become resign before the actuarial tables catch up with you.

16:09At TheDriveIn47 asks, what are the duties of the chief justice? So the chief justice is in some

16:16respects the first among equals. He doesn't have special extra powers that the other eight justices

16:23lack. What makes him special is he is the senior justice. He basically presides over all of the court

16:29sessions. He gets to decide whenever he's in the majority who's going to write the decision for the

16:33court. And he is in various respects the ceremonial figurehead of the judicial branch as set out in

16:39Article III of the Constitution. But when the justices are in their conference room and they're

16:43voting on cases, the chief justice really is just one of nine.

16:47At Cristo532-94495 asks, can you tell me in U.S. history which president has appointed a justice

16:53representing the opposite of his beliefs? Perhaps the most famous of these is President Eisenhower

16:58appointing Justice William Brennan in 1956 as a Catholic Democratic state court judge from New Jersey,

17:05not because of his ideology, but perhaps despite it. But in general, I mean really until the 1950s and 1960s,

17:11there are a lot of examples throughout American history of presidents prioritizing geographical

17:16diversity, other types of experience, of presidents cashing in political chips, or even in some cases

17:22of presidents using Supreme Court appointments to neutralize the folks they were, you know, rivals

17:27with. It's really only in the last generation that we've come to think of Supreme Court appointments

17:32as being purely about maximizing ideology. A Reddit user asks, why did LBJ nominate Thurgood Marshall?

17:38Justice Marshall, when he was nominated to the court in 1967, was the first justice in the court's

17:44history who was not white. And this was a really important step by President Johnson. President

17:49Johnson thought it was long past time that the Supreme Court have a black justice. Indeed, he actually

17:54manipulates the circumstances just to create a seat for Justice Marshall. He took Ramsey Clark,

18:00who was the son of a sitting Supreme Court Justice, Tom Clark, and he appointed Ramsey Clark as the

18:04Attorney General. That would have meant Tom Clark would have had to recuse from every case in which

18:10the federal government was a party. LBJ knew he wouldn't do that. LBJ knew that Tom Clark would

18:15resign from the court, thereby creating the seat for Thurgood Marshall.

18:18At Puny Citizen asks, how does the shadow docket work? The shadow docket is a term that was coined by

18:24a University of Chicago law professor, Will Bode, in 2015. And it was meant to describe everything that the

18:30Supreme Court does other than the 65 or so cases it decides after briefing an argument every year.

18:38So that includes all of the rulings where the Supreme Court declines to take up an appeal. And it

18:43includes this other chunk of decisions where the Supreme Court is asked to provide something called

18:49emergency relief. Emergency relief is when you have a case in the lower courts that has not gotten to the

18:55Supreme Court yet. But one party, presumably whoever lost below, wants to change the status quo while

19:02the case works its way to the Supreme Court. And that's become an increasingly prominent part of

19:07the Supreme Court's workload. It's why the shadow docket has become so much more, I think, a subject of

19:12popular interest, especially as we've seen during the second Trump administration. So many cases where

19:18the federal government is asking the Supreme Court to temporarily pause. Lower court rulings blocking

19:24various policies while those cases work their way through the courts. A Reddit user asked,

19:28what was the first Second Amendment Supreme Court case? Really, the first time the Supreme Court

19:33discussed the Second Amendment in detail was in the 1930s in a case called Miller, where the court

19:38basically said that the Second Amendment didn't protect an individual right to self-defense. It was

19:43mostly a collective right to resist tyrannical government. Of course, it was that understanding

19:47that the Supreme Court overruled in 2008. Since the Supreme Court's decision in its 5-4

19:53decision in Heller, what we've seen is a lot more litigation challenging and succeeding in

19:58striking down limits on gun sales, gun possession across the country. Yuki Kola asks, what do the

20:05U.S. Supreme Court justices actually do during a regular workday? Most of the justices' work goes on

20:12in their chambers. In the Supreme Court's official headquarters in Washington, a building, by the way,

20:16the court has only had since 1935. The justices each have their own chambers. They have their own

20:21staffs. They have four law clerks who are recent law school graduates. And of course,

20:25they have administrative support as well. And most of what they're doing is reviewing cases,

20:30either which cases they're going to choose to hear or not, or in the subset of cases the justices have

20:36chosen to hear, reading the briefs, preparing for argument, writing opinions, reviewing other

20:42justices' opinions. The justices really only gather in person formally when they're on the bench,

20:47hearing arguments or handing down decisions, or when they are back in what's called their

20:52conference, where they decide how they're going to rule on specific cases. Blank to hide from wife,

20:58can the U.S. Supreme Court in practice make law? This has been really a bit of a metaphysical debate

21:03among scholars for a very long time. Everyone agrees that judges, and the Supreme Court in particular,

21:10have a responsibility to interpret the law. The difference between that and what we might call

21:15making law is often elusive. And actually, there are contexts in which we expect judges to do more

21:22than just resolve ambiguity, perhaps to fill in language that Congress or the state legislature

21:27has left out. So yes, I mean, I think there are lots of contexts in which the judges and justices

21:34are and should be allowed to make law. We just tend to think of those in the context of interpreting

21:40statutes, constitutional provisions, and other legal texts. Haggisman asks, ideally, should the

21:46Supreme Court lean toward originalism or living constitutionalism? This is an age-old debate about

21:52how judges and justices should interpret the text of the Constitution when that text is ambiguous. No one

21:58really disputes that when the Constitution says the president has to be 35 years old, it means 35.

22:04But when the Eighth Amendment says something like, there can be no such thing as cruel and unusual

22:09punishment. That, of course, raises questions. What makes a particular punishment cruel and unusual?

22:14Throughout the court's history, one of the ways we've addressed this issue is by having justices

22:20who were diverse, who were from different parts of the country, who were from different backgrounds,

22:24who had different methodological commitments. And it's really only in the last generation that there

22:30has been this concerted push toward the idea that there really can only be one accepted way to

22:36interpret the Constitution. I'll just say that I think the better answer is different people

22:40are going to have different commitments based upon their own views, their own experiences,

22:44their own background. And part of why we have nine Supreme Court justices and not just one,

22:49part of why we have humans interpreting these texts and not machines, is because those differences,

22:55that diversity, is actually a really important part of the project of legal interpretation.

23:00At DJ Verse Everybody asks, how do states' rights fit into having the Supreme Court have the ability to

23:05overrule state courts? The Constitution divides sovereignty between the federal government and

23:10the states. One of the ways it does so is it leaves questions of state law up to state Supreme Court.

23:16So if the Missouri Supreme Court interprets Missouri law in a particular way, the Supreme Court has no power

23:22to disagree with them. The difference is when it's about federal law. And so if a state court interprets

23:28a federal statute or the federal Constitution, or if a state court interprets state law in a way that

23:34is inconsistent with federal law or the federal Constitution, that's where the U.S. Supreme Court

23:39is able to come in and is able to reverse that decision. AMREC asks, how does the Supreme Court go

23:45about overturning a previous ruling? It's actually not that complicated procedurally, it's just fraught in

23:51the sense that it tends to be controversial when the Supreme Court overturns a prior decision. There's nothing

23:56that actually prevents any justices in any case from saying, hey, we actually think this prior decision

24:02is wrong and should be overruled. You need a majority, of course, and presumably you need some

24:07compelling reason why that older decision should be overruled. The principle of stare decisis is the

24:13idea that all things being equal, courts should follow the decisions of their predecessors. If and when

24:19there are especially persuasive reasons to overrule a prior precedent, that's when the court is, I think,

24:25more free to do so. Quirtix asks, why does the U.S. Supreme Court rely on precedential cases? This

24:31isn't just the U.S. Supreme Court, this is actually a feature of any so-called common law legal system.

24:36And the idea is that precedent is itself part of our law, that what separates judges and justices from

24:42ordinary politicians is that they're not just voting their preferences in every individual case, that there

24:49is actually this abstract idea of what the law is that binds not just current judges but future judges,

24:56until and unless there's some compelling reason to overrule it. That's not just a sort of principle

25:01of laziness. It's actually a really important foundation of what separates judicial power from

25:06ordinary political power. At Andrevin 20, do I think the Supreme Court was always nine seats?

25:12How did it get to nine? In fact, I know it wasn't. The Constitution itself says nothing about how big the

25:18Supreme Court ought to be. Congress, when it created the court in 1789, started with a very strange number

25:23with six. That was really based on how many lower appeals courts there were. Between 1789 and 1869,

25:31the size of the court fluctuates seven times, between as many as 10 justices for a brief period

25:38in the 1860s, and at one point as few as five justices. It's only in April of 1869 that Congress,

25:44for the first time, hardwires the number nine into the identity of the Supreme Court. And we've been

25:50set at nine ever since. There have been proposals at various points in the recent past, especially during

25:56the Biden administration, to pack the court by adding perhaps four seats. Practically,

26:01you're never going to be able to do it unless the same party simultaneously controls not just

26:06the White House, but both chambers of Congress and has a filibuster-proof majority in the Senate.

26:12And in the long term, I mean, if you're expanding the court solely to maximize short-term partisan

26:17political advantage, I think that probably redounds to the detriment of the integrity of the court,

26:22of public faith in the court. Even if part of why folks are proposing that as a reform is because

26:26they think that damage has already happened. I'm not sure this is an example of two wrongs making

26:31a right. At myopinion6810 asks, how do Supreme Court justices get impeached? Has that ever happened?

26:37So it's the exact same process in the Constitution for impeaching a Supreme Court justice as it is for

26:42the president. It takes a majority of the House of Representatives to impeach, two-thirds of the

26:46Senate to vote to convict and thereby remove. It's happened exactly once with the Supreme Court

26:52justice. In 1804, the sort of Jeffersonian-controlled Congress impeached and tried to remove Justice

26:59Samuel Chase, who has perhaps the greatest nickname in Supreme Court history. He was known as Old Bacon

27:05Face. And Justice Chase was impeached because the Jeffersonians thought that he was basically

27:10a partisan hack. But the Senate refused to remove Justice Chase. It wasn't that they decided that he was

27:17not a partisan. It was that they decided that wasn't enough. And that to remove a Supreme Court justice,

27:22you need actual misconduct. And that's really stood as a pretty important precedent for judicial

27:27independence ever since. Oddflower2744, what actually happens if Supreme Court decisions are just ignored?

27:34What mechanisms actually enforce a Supreme Court decision? It depends on who's doing the ignoring.

27:39Of course, if it's private parties, there are lots of ways to compel their obedience to Supreme Court

27:44decisions, whether it's monetary sanctions or otherwise. It is, of course, trickier if the

27:49relevant party is the federal government. Historically, the way the Supreme Court has been allowed to,

27:55been able to, effectuate its mandates is because the political consequences of a president defying the

28:01Supreme Court have just been too high. President Nixon turned over the Watergate tapes, including

28:07the tape that led directly to his resignation, because he concluded, with the support of his advisors,

28:13that he couldn't defy the Supreme Court. President Eisenhower sent the army into Little Rock in 1957

28:18to desegregate Central High School because he was persuaded that he couldn't not enforce the Supreme

28:24Court decision in Brown versus Board of Education. That's why the Supreme Court's legitimacy, why public

28:29faith in the court is so important, because if we get to a point where a president could stick his thumb

28:34in the Supreme Court's eye and have no similar political backlash, that would be the point where the

28:40Supreme Court's power as an institution would be critically and perhaps irrevocably damaged.

28:45At Ajebo Lawyer asks, do I know the difference between the Supreme Court of a state of the United

28:50States and the Supreme Court of the United States? In fact, I do. So every state has a Supreme Court.

28:56Actually, Texas and Oklahoma have two, one each for criminal cases and for civil cases. But those courts

29:02are principally tasked with interpreting state law. Sometimes you can have federal issues come up in those

29:08cases. A state criminal prosecution, for example, can raise Fourth Amendment issues. But typically,

29:13the state Supreme Courts get the last word on the meaning of their state's laws. And the U.S. Supreme

29:19Court gets the last word on the meaning of federal law. A Reddit user asked, what government entity has

29:24oversight over the U.S. Supreme Court that's now showing almost open corruption from payments for

29:29housing, vacations, and payment of schooling for children? So this has always been a little tricky.

29:32I mean, the Supreme Court is an independent branch. It is not supposed to be subject to oversight.

29:38In quite the same ways that maybe lower courts might be or the executive branch agencies.

29:42Historically, the way this has worked is there has been a healthy but sometimes heated back and forth

29:49between the political branches and the Supreme Court. Congress controls the Supreme Court's budget.

29:53Congress controls the Supreme Court's docket. And those have been levers that historically Congress

29:59has pulled as a way of pushing the justices to behave better. One of the things that has really

30:04happened in the last 25 or 30 years that has gotten us to where we are today with the Supreme Court is

30:10Congress has mostly stopped pulling those levers. And so when we talk about problems with the current

30:15Supreme Court, when we talk about opportunities for reform of the current Supreme Court, I like to

30:19start with the accountability question. How can Congress impose more accountability on the justices

30:25without interfering with judicial independence? Maybe part of that starts with an inspector general

30:30within the judicial branch, someone who could supervise whether the justices are complying with the

30:35relevant ethics and financial disclosure rules. Maybe it starts with getting back into the norm of

30:40having the justices testify before Congress, something that used to happen with somewhat more regularity.

30:45Whatever you think the specific answer is, though, I think a big part of how we've gotten to where we

30:50are today with the Supreme Court is we have a court that is not and does not think it ought to be

30:56accountable to the other branches the way that was true for most of American history.

31:00Well, I think that's it. I've tried to answer all your questions. Hope you've liked the answers.

31:04Thanks for joining us. Until next time.

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