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What Might The Supreme Court Look Like In The Future?


What might the Supreme Court look like in the future? One answer comes from the Senate Judiciary Committee today. Republicans on the committee advanced the nomination of Judge Amy Coney Barrett to the full Senate. Another answer comes from Democrat Joe Biden. In a new interview with "60 Minutes," he says, if elected president, he'll appoint a bipartisan commission of scholars to look into reforming the court system.


JOE BIDEN: Because it's getting out of whack the way in which it's being handled. And it's not about court packing. There's a number of other things that our constitutional scholars have debated.

SHAPIRO: To talk about some of the proposals that progressives are pushing, we're joined by Samuel Moyn. He is a professor of law and history at Yale University.


SAMUEL MOYN: Thanks for having me.

SHAPIRO: Do you agree with Biden that the courts are out of whack? And what does that phrase mean to you?

MOYN: You know, he may have just been playing for time. This is such a contentious issue. But I strongly think that we have an opportunity, because of Mitch McConnell's high jinks, to rethink the role of the Supreme Court in our democracy and, of course, the broader federal judiciary, which is now thoroughly Trumpified (ph).

SHAPIRO: When you say rethink it - I mean, Biden says it's not about court packing. There are a number of other things. Before we get into what those other things might be, tell us how court packing, expanding the court, might work in theory if somebody were to choose that path.

MOYN: So personnel expansion was attempted by Franklin Roosevelt in 1937. Essentially, it requires both houses of Congress to pass an expansion bill, and then Joe Biden would sign the bill. Then there'd have to be confirmation hearings for each new justice. The question is whether we want to aim for a really contentious debate in order to get an outcome that is sort of the Supreme Court the way it was five years ago or the status quo ante Neil Gorsuch, when there were so many rulings that many of us find terrible.

SHAPIRO: You're using the word we, and I just want to reiterate to listeners that you're coming from a particular perspective here. So let's talk about some of the other options that progressive constitutional scholars such as yourself are talking about. You've written that changes to who is on the court are less effective than changes that take away some of the court's power. What might that look like?

MOYN: So the reality is nowadays that Congress has ceded a lot of its legislative authority to the courts to sometimes delete parts of the law or rewrite parts of the law, as in the changes that the Supreme Court made to the Affordable Care Act. And the question is whether we want to rein in that power and make the Congress the place where lawmaking is done, you know, for good.

SHAPIRO: But does reining in the power necessarily make Congress more active? I mean, if the court is sort of begrudgingly filling the role that Congress doesn't fill because Congress is always in a deadlock, does disempowering the court necessarily mean Congress would do any more?

MOYN: Not at all. It just opens up the possibility. And, you know, the fact that we've ended up resting content with a dysfunctional legislature doesn't mean we should outsource its role to other actors.

SHAPIRO: So how would you do that? How would you take power away from the judiciary?

MOYN: Well, there are a few different mechanisms that have been discussed. One is called jurisdiction-stripping. The Constitution actually gives a lot of authority to Congress to structure the jurisdiction of the courts to decide what cases it can hear and not hear. There's also the proposal of a supermajority rule, which would say that there's an essential role in a democracy for a Supreme Court to strike down legislation that hurts minorities, for example. But there ought to be a strong majority of the court that agrees that's what's happening, rather than five or six conservative justices.

SHAPIRO: You know, commissions are a tried and true way for a president to dodge a difficult issue. This is something Barack Obama said during his 2008 presidential campaign.


BARACK OBAMA: A commission - y'all, that's Washington speak for, we'll get back to you later.

SHAPIRO: Professor Moyn, do you think that's what Biden's trying to do here?

MOYN: As an optimist, I hope he's postponing the debate for a more propitious time than right before what could be a very close election. But I think Biden knows, along with a growing number of Democrats, that this is a problem that won't go away. And so it has to be solved some way or other.

SHAPIRO: Professor Samuel Moyn of Yale University - his forthcoming article in the California Law Review with Ryan Doerfler is called "Democratizing The Supreme Court."

Thanks a lot.

MOYN: Thank you. Transcript provided by NPR, Copyright NPR.