Dylan Ris (00:01.39)
Welcome to Personality Crisis. I am your host, Dylan Riss, and we are honored to have the return of Steve Vladik, the constitutional law professor at Georgetown University Law Center, an expert on all things Supreme Court. Steve, thank you so much for coming back and joining us.

Steve Vladeck (00:21.784)
Thanks for having me again.

Dylan Ris (00:23.148)
Yes. so in our last episode we spoke about all that the Supreme Court has bequeathed upon America in their term that's just wrapped. And we wanna now talk as our special inheritance g y yes, passed via our founders through the esteemed minds of Samuel Leto and Clarence Thomas. and here we are.

Steve Vladeck (00:38.178)
To special inheritance.

Dylan Ris (00:51.236)
so here we are in July first, twenty twenty-six. We want to talk about what lies ahead in the near term and in the distant future for people who aren't so happy with how the Supreme Court is behaving and conducting itself. Steve, what what do we have to look forward to, both in terms of upcoming cases they'll be ruling on and in terms of

The the more distant future. What what could we hope for from the

Steve Vladeck (01:24.674)
Yeah, I Dylan, I think I think the place to start is with diagnosing what's really wrong with the Supreme Court. And you know, there is a widespread assumption that the principal problem with the current Supreme Court is its personnel. right. And that, you know, the if only we had different justices, everything would be fine. And so this is obviously one of the animating justifications for court expansion proposals, things like term limits, you know, efforts to try to change who's making these decisions.

And I want to suggest, and maybe this is a bit of a counterintuitive view, that the problem isn't so much the personnel as the freedom the personnel have to maneuver, which is new. and so there's a quote that I think captures this brilliantly. Justice Alito, who is great for nothing else if not saying the quiet part out loud, has this has this wonderful line in an interview with the Wall Street Journal in July of 2023.

Dylan Ris (02:13.077)
Mm-hmm.

Steve Vladeck (02:20.423)
where he says, I realize this is a controversial position, but I'm willing to say it. no provision in the Constitution gives Congress the power to regulate the Supreme Court, period. the period, by the way, is what makes it art. So, you know, Dylan, Alito is literally incorrect. Article 3, Section 2, Clause 2, gives Congress the specific power to make regulations to the Supreme Court's appellate jurisdiction. But Alito's capturing in that quote.

Dylan Ris (02:33.859)
Mm-hmm.

Steve Vladeck (02:49.205)
A vibe that I think is actually a very accurate reflection of where we are. Congress doesn't regulate the Supreme Court anymore, and the justices don't think it should. that's new, right? That like for most of American history, the Supreme Court was deeply, profoundly accountable to Congress. Congress controlled when the court sat, including in 1802, when it kept the court from sitting at all, because it didn't want the justices to decide an important case that was pending.

Congress controlled where the court sat until 1935. The court sat in the Capitol. you know, I it's been a while since I lived in my parents' basement, but I don't remember having a whole lot of independence when that was true. Congress controlled which cases the court heard. You know, we talked in our prior episode about how much control the justices have over their cases. Until 1891, they had none. Congress actually dictated the court's docket to the court.

Dylan Ris (03:27.811)
Yeah.

Steve Vladeck (03:45.822)
for over a hundred years and still mostly till 1925. Congress controlled the court's budget. You know, the Constitution says Congress can't limit the justices' salaries, but it used to limit things like their pensions. Now it doesn't. Congress controls, you know, other features about the court. I mean, Congress used to make the justices ride circuit. basically, they would spend half of their year going out in the country and sitting as lower court judges. That wasn't for funsies, it was because Congress thought that was a way to keep the justices on.

You know, this metaphorically short, if physically long, leash. right. And so all of that created a culture of accountability where the court could do what it wanted in any one case, but where it was generally looking over its shoulder and and across the street. And you know, that persisted, Dylan, well into the 20th century when Abe Fordas resigned from the Supreme Court on May 14th, 1969. By the way, the last day.

On which a majority of justices had been appointed by Democratic presidents. He resigned because he was worried about Congress, because he was worried that Congress was going to come after him and and through him the court. No one talks like that anymore. No one thinks like that. No one remembers that this used to happen. And so you have, you know, what Leah Littman calls the YOLO court, the court that can do whatever it wants whenever it wants. That's what I think we need to change. And if you diagnose the problem that way, I think the conversation about specific reforms shifts as well.

Dylan Ris (05:02.017)
Mm-hmm.

Steve Vladeck (05:11.767)
Sorry, that was a very long answer.

Dylan Ris (05:13.117)
No, that but but you it's a wonderful summary of history that that many listeners aren't gonna know. and you know, it it it is it is sort of part of a larger theme of of Congress despite being the article one institution in the co in the constitution, definitely seems to be the the branch of government that has been the most neutered, the most defanged in in

recent decades and as you're explaining that applies to its oversight of the Supreme Court. it also seems that as you've said, you know, in quoting Alito, that that the court as a whole has never been either more hostile toward Congress or at least more believing that Congress is not going to step in and exert its own will. So the unitary executive and the Supreme Court are going to be the ones who are making the decisions for me.

Steve Vladeck (06:11.117)
Well, and this is the point, right? And so, you know, I think two things are true at once. One, Congress has stopped pulling those levers. And two, the Supreme Court has made it harder for Congress to pull those levers. and so, you know, the the question is how do we get that back? And it seems to me that part of the way to do that is again where we started this conversation, is to start by actually really taking a moment to diagnose the problem. And if the problem is an accountability problem, then it's a question of how do you restore accountability.

and if it's about accountability, I think that's less of a conversation about personnel, Dylan, and more of a conversation about Congress's other levers. So reclaiming control over at least some of the court's docket, right? Telling the justices at least some of the cases they have to hear. reclaiming control over the court's budget. again, not the justices' salaries, but like as of twenty twenty-six, the justices' salaries are less than two percent of the Supreme Court's total appropriation from Congress.

That's a lot of leverage that Congress could utilize if it wanted to. not that long ago, Congress used to actually make the justices come testify in support of their budget every year. in 2001, this led to this remarkable exchange between Congressman Jose Serrano from the Bronx and Justice Anthony Kennedy, where Serrano's like, What the hell was Bush versus Gore, man? And Kennedy had to actually publicly defend Bush versus Gore. And he actually, I mean, he didn't persuade me, but he did a pretty good job, right, of explaining what the court thought it was doing.

Dylan Ris (07:30.208)
Mm-hmm.

Steve Vladeck (07:39.864)
Congress doesn't do that. We haven't had a single justice testify in, I think, the House since 2019 and in the Senate since 2011. Right? That's something Congress could do. For all the talk about the justices' behavior off the bench and ethics, how about an inspector general? right, not just for the Supreme Court, but for the lower federal courts. Why not have someone inside the judiciary who could monitor the justices' compliance with the relevant financial disclosure and ethics rules?

Instead of repl instead of relying on ProPublica, right, to be the ombudsperson. you know, there's so much Congress could do that Dylan, I think, would not be like Democrats versus Republicans, would not be like disempowering this court, taking away its jurisdiction, but would really just be about restoring those lines of communication to get the court to look over its shoulder again. That's where I think the conversation has to start.

Dylan Ris (08:34.445)
But you mentioned, you know, questions of is this a personnel issue? My question is, is there a personnel issue in Congress that would allow this to happen? It does seem that, you know, maybe we've maybe this wave has already crested, but there was definitely a period around the the Tea Party movement of Americans choosing to, you know, essentially like send their local village idiot to Congress, people who did not know how Congress worked, people who

if they had any guiding principle was to defang Congress and and to just neuter the the government. So my question is, yes, Congress might have that power, but what's more realistic in our immediate future? For Congress to seize that power or for better people to serve on the Supreme Court?

Steve Vladeck (09:23.575)
So I guess what I would say is, Dylan, neither. but but as relevant to our current conversation, right? It would take Congress to get off of its, you know, rear end, even to do the more aggressive reforms that Democrats are calling for, right? Changing the size of the court would take a statute. right, life tenure or you know, getting rid of life tenure would at the very least take a statute, and even that would be tricky.

Dylan Ris (09:27.939)
Okay.

Steve Vladeck (09:49.304)
You know, I think we're all assuming a Congress that actually does some minimum of work to talk about court reform. Otherwise, this whole thing is sunk. And, you know, before sort of everyone throws up their hands and says, well, you know, it'll be a cold day in Hades before that happens. we have examples throughout American history of the political tides shifting very, very quickly against the Supreme Court. And, you know, the the example I come back to the most.

Is the election of 1936. This was FDR's first re-election. And, you know, FDR had come into office in 1933 with the New Deal, a whole bunch of aggressive statutes that were trying to restructure the economy to get us out of the depression. And the biggest obstacle he faced was the Supreme Court, which had at the time, stop me if you heard this before, a six to three conservative majority. right. And

Dylan Ris (10:39.309)
Mm-hmm. Mm-hmm.

Steve Vladeck (10:43.617)
The court blocked him left and right. There was, you know, one day in 1935 known as Black Monday because of just how bad it was for FDR. So in 36, FDR runs as much against the court as he runs against the Republicans. He gets this enormous landslide. He's swept back in with a whole bunch of Democrats. And what does he do? He proposes expansion. But that was incredibly controversial because plenty of Democrats, FDR's own party, worried.

That expansion would actually destroy the court. That if you know, if you change the number of justices for the sole purpose of putting your partisans on the court, it would basically give up any remaining vestige of the court as this neutral arbiter of judicial decisions. So instead, the court blinked, right? Before the court packing plan went anywhere, Justice Owen Roberts switched his vote in a relatively modest case, Dylan, but one everyone understood was a bellwether.

there's a satirist from the time who called it the switch in time that saved the nine. right. But the court was immediately responsive to the shift in public sentiment that the election of 1936 reinforced. And I think, you know, it's not that difficult to imagine the court being in that position again. In a world in which you had strong democratic majorities in both chambers and court reform was in the water.

Dylan Ris (11:44.291)
Mm-hmm.

Steve Vladeck (12:08.449)
the most obvious thing for the court to do would be to reform itself before that happened. That's what took the wind out of the sails in thirty seven. And I think that's not that unrealistic, right? Not tomorrow and not in twenty twenty seven, but maybe in twenty twenty nine.

Dylan Ris (12:18.36)
Yeah.

Dylan Ris (12:22.251)
I just fear that the idea of you know, perhaps in the House it's possible, but a strong democratic majority in the Senate, just given that, you know, in the thirties rural states voted for Democrats and today it's incredibly difficult that, you know, that for for either party, but particularly Democrats to have a filibuster proof majority in the Senate, seems seems very difficult.

Steve Vladeck (12:46.381)
So I I agree with that, but the flip side is, right, a universe in which the kinds of structural accountability reforms I'm talking about are offered as a compromise to the kind of, you know, court blowing up reforms that a lot of folks are proposing. Dylan might be one where you attract at least a handful of Republican votes in the Senate too. that and I think that that's that to me is the point, right? That, you know, we should accept as a sort of

compromise, one that in the long term I think is best for the stability of the federal judiciary, reforms that are going to be less about immediate short term benefits for Democrats and rather more about long term stability of our system.

Dylan Ris (13:29.12)
Which of these do you think are th that you've outlined are the most attainable? Obviously the Supreme Court's not going to move back into the Capitol building, but maybe maybe that would be fun. They they've still preserved that space as a little thing for tourists, I don't know.

Steve Vladeck (13:38.861)
That would be fun.

Steve Vladeck (13:43.457)
Yeah, and I don't I don't think we're putting the justices back on horses either.

Dylan Ris (13:46.74)
No, no, I don't. But but sending them out into the to the country at large to to you know, rule on some regular everyday cases might do them a lot of good, you know. G get them out of the private clubs.

Steve Vladeck (14:00.397)
So I mean I I think from a from right from a political palatability perspective, and that was a lot more alliterative than I meant it to be. you know, I think docket reform is probably the lowest hanging fruit because it'll seem so technical and so, especially if the categories in which we're making the court take up cases are not selected for ideology. So let me just give you one example. there are a number of circuit judges, these are the intermediate federal appeals courts.

who complain every year about particular issues the Supreme Court won't take up. So, you know, one of the proposals is to let the circuit judges pick at least some of the cases the Supreme Court has to hear. you know, that's not a Democrat versus Republican thing. That's a lower court judge versus higher court judge thing. And I think that that I think would be very hard to attack, right, on partisan grounds.

I think an Article III Inspector General, if designed correctly, would also, I think, have a chance of bipartisan support. the proposal to create such a position, Dylan, originally actually was a Sensen Brenner Grassley thing. although they were focused on the lower courts. But I think you could adapt their proposal in ways that ought to be palatable to Democrats and Republicans alike. So again, if you change the conversation about the Supreme Court from how can we get rulings we like more to

Dylan Ris (15:06.645)
Mm-hmm.

Steve Vladeck (15:23.895)
How can we make the court look over its shoulder more, even the same justices? I think there are some possibilities, not in this Congress, but actually maybe sooner than we might expect.

Dylan Ris (15:35.329)
Are there who who in who in Congress is leading that call for reform?

Steve Vladeck (15:42.786)
I mean, there are a lot of, especially Democrats who are talking a lot about court reform. You gotta really sort of peel away the layers to find some of the nuances. So, you know, Senator White House I think is probably leading the charge on the ethics side of the reform conversation, although some of what he's proposing is a little more aggressive than what I think is is best. docket reform is something that actually folks like Congressman Jamie Raskin, my former law professor colleague at American University, is starting to make more noise about.

Dylan Ris (15:45.483)
Yeah.

Steve Vladeck (16:12.195)
you know, I think the it's it's part of the challenge here, Dylan, is education. And and so, you know, court reform sounds great, but actually talking about why and talking about the shortcomings of some of the more popular proposals is something that we're just really starting to do on a large scale. so you know, to take one example, right? Why is someone like me, who is as as we learned in the last episode, so critical of the current Supreme Court, why am I against expanding it to to 13 seats?

Dylan Ris (16:37.859)
Mm-hmm.

Steve Vladeck (16:41.969)
and I guess there are two reasons, right? The first is if you really think the problem is accountability, there's no guarantee that four more justices will make the court more accountable. They're just gonna vote more the way that I want them to. right. That's you know, that might be a good policy result for me, the person. It's a bad systemic result, right, for me, the law professor. But in any event, even if you don't buy that, if the Democrats were somehow able to add four seats to the court, let's say in 2029.

Right. The Republicans would add 14 the next time they have control of all three branches. The Democrats would then respond by adding 10 of their own. And all of a sudden, in 20 years, the Supreme Court has 47 justices and no public credibility. right? Because it will just be so transparent that the court is just a font of power for whoever held all three, you know, levers of power in Washington at once. Dylan, I don't doubt that there are people for whom that is a feature, not a bug.

But I'm not one of them. And, you know, part of what I look at when I look at the first 18 months of the second Trump administration is how important the courts have been in stopping what the Trump administration has been doing. And mostly the lower federal courts, federal district judges, to disempower the Supreme Court, I think is very, very difficult, maybe even almost impossible to separate from disempowering the courts as a whole. And I worry a lot about, you know, sort of throwing this particular baby out with the bathwater.

Dylan Ris (18:11.735)
What about another proposal that would create a form of term limits, not term limits as federal judges, but term limits on this particular court and perhaps they cycle on to other courts? Wha what's the viability of that? And what are your opinions on that?

Steve Vladeck (18:29.377)
So I that one is I I have less I have fewer concerns about the sort of race to the bottom problem in the context of term limits. The the problem is if I can be a constitutional law nerd for a second, the the knee-jerk reaction from folks on the right is that you can only ch impose term limits through a constitutional amendment. I don't agree with that. right? That insofar as the justices hold offices, those offices are created by Congress. And Congress has the power to change the terms of the offices.

That it by statute chose to create. Here's the problem, Dylan. There's a line of cases that I think are correct that say Congress can't change the terms of an office and have those changes apply to incumbents. right? Because that then you're basically sort of retroactively changing the position that someone was nominated for and confirmed for. I think that's right. And so to me, you could do term limits by statute. There are just two problems. One,

Dylan Ris (19:14.243)
Mm-hmm.

Steve Vladeck (19:28.779)
It would have to be prospective. And so it wouldn't apply to any of the current justices when that reform were adopted. And too, Dylan, even then, I mean, you gotta ask people, what will term limits accomplish? Will term limits make the court more accountable? Not necessarily, right? Will they make will will they lower the temperature of confirmation battles? I have a hard time believing that just because we're gonna have more of them, confirmation battles will all of a sudden be less.

Politically divisive and content. If anything, right? Knowing that if you just wait two years, you'll get another seat might actually empower even more hardball tactics by whichever party is in charge at the relevant moment. So it's not that term limits cause the problems that I think expansion does. It's that I don't think they solve the problems they're meant to solve. And even if they would, it would take 30 years for that solution to have any real impact.

Dylan Ris (20:20.897)
Well, to the first point, the two most problematic members of this court are also the oldest. So, you know, at least you'd be getting rid of them before some of the other ones. I I do think that the advantage to the term limits, though, is that if you pace them out such that every presidential term, you know, comes with its own Supreme Court nominee, then at least the will of the people is more reflected in the court. You know, you have this accident of of Trump getting three appointees in one term.

Steve Vladeck (20:26.381)
Mm-hmm.

Steve Vladeck (20:49.005)
That's right. But but Dylan, I mean, that assumes a Senate that will vote up or down on nominees, right? And so, you know, the that that whole theory only holds if the Mitch McConnell ploy is never repeated. And my concern is that term limits will actually make the Mitch McConnell, you know, ploy from twenty sixteen more common because now you know exactly how long you have to wait to get yet another seat.

Dylan Ris (21:12.769)
With so so you you don't favor the term limits, you don't favor court expansion, you do favor various forms of of congressional oversight. what if we end up in this situation where it seems that, you know, the the the court is already tiptoeing its way toward to the the the court trying to veto Congress's ability to regulate the court that that we have this little

Steve Vladeck (21:37.133)
Yep. Yep.

Dylan Ris (21:42.743)
Vicious cycle.

Steve Vladeck (21:44.662)
It's the right question and and it's a fair question. the the short response is the court cannot exist without Congress. and and the best example of that again is the budget. You know, I I I got into a I had a funny exchange at an event last year where someone said, Congress will never I I will bet all the money in my bank account that c that this Congress will never pass a statute about the Supreme Court. And I said, Sir, I'm not gonna take you up on that bet, but I but you're wrong.

Dylan Ris (21:45.975)
Yeah. Yeah.

Steve Vladeck (22:13.985)
Because it will pass the court's budget. right? Like Congress doesn't have to do that. And so what that means, Dylan, is that yes, the court can win individual battles with Congress. It cannot win a war. Because at the end of the day, it is actually entirely dependent upon Congress to function. And so if you had sufficient, how do I say, momentum and energy and investment on the part of Congress, each time the court strikes down one of those measures,

Congress would respond with a greater threat and with a larger set of checks on the court, so that eventually the court is basically pressured into obeisance. That is not new. That is how things worked in the 19th century and in much of the 20th century. When the court got too frisky, Congress pushed back. And usually the court desisted. And when it didn't, Congress pushed back harder. And so, you know.

Dylan Ris (22:45.837)
Mm-hmm.

Steve Vladeck (23:11.137)
That we haven't seen this dynamic in modern times doesn't mean it's not capable of replicating. It doesn't mean that's not the way the separation of powers is supposed to work.

Dylan Ris (23:19.631)
As a non-historian though, I will say it does seem that that the trajectories of, you know, the Article One branch and the Article III branch have never you know, been more apart. It just seems that the Congress has gotten weaker and weaker. The courts, certainly if you compare what role they have in society to what the text of Article III in the Constitution is, you know, i I mean, it's it's remarkable how much stronger they've made themselves or that.

Congress has by by negligence, you know.

Steve Vladeck (23:50.841)
So so the I mean, listen, there I I I agree with every word of that. The the Supreme Court is no longer the least dangerous branch, which is what Alexander Hamilton promised to the people of the state of New York. but it's worth again being clear-eyed about why. And that story has two parts. One is absolutely the arrogation of power by the court, but the other is the abdication of power by Congress. And, you know, I just want to go back. I I'm I'm I'm beating a dead horse, but the fact that the court

literally depends upon Congress for more than ninety-eight percent of its budget. is a cudgel that really drives home how conscious Congress or maybe not conscious, how clear it is every year, right, that Congress could pull the plug if it actually wanted to. And so yes, it's hard to imagine Congress like waking up one day and saying, we are gonna go back to the way it was in 1884. but it wouldn't take that to actually

move the ball pretty aggressively. All it would take is the beginning of Congress even trying to reassert itself at the expense of the court. And all I'm trying to do in my work is suggest that like folks should be invested in that, whether they like what the court has been doing lately or not.

Dylan Ris (25:06.189)
That's that's a great and perhaps more pragmatic way to to to imagine a r a reform to the Supreme Court that I think that so many just feel has completely divorced itself from from Americans' everyday lives. Steve, where can our audience you know, read your work, learn more about you and and and what should they be

Following in general to keep abreast of all things support.

Steve Vladeck (25:39.299)
Yeah, so I mean I guess the the most direct thing to do I I write a newsletter about the Supreme Court with the not so clever name One First, a play on the Supreme Court's physical mailing and mailing address in DC. so one first is on Substack at Steve Vladic, S-T-E-V-E, V-L-A-D-E-C-K dot com. I'm also on Blue Sky, although I really shouldn't be. and and that's probably the two bless best places to get, you know, relatively real time commentary from me.

Dylan Ris (26:06.039)
That's great. And what should we the last question, what should we be looking ahead to for the Supreme Court's next term that we should be aware of?

Steve Vladeck (26:15.378)
wow. So the court's added about 10 to 12 cases to its dockets so far. You know, by recent standards, that's probably only about Dillon 20 to 25%. So, you know, it's probably we probably don't know yet what the really big cases are coming for next term. I'll I'll just say two the two issue areas where I think we're most likely to end up with pretty big Supreme Court disputes next year. One is elections. you know, we have some, I I hope, coming up in November. And and if there are really are efforts to mess with that.

Dylan Ris (26:40.809)
Mm-hmm.

Steve Vladeck (26:44.386)
you know, it's inevitable that those lawsuits will end up in the Supreme Court. I hope that doesn't happen, but but that's where we are. The other is spending. I mean, I think the, you know, if you if you look below the surface, the most comprehensively unlawful thing the Trump administration is doing involves money. whether it's spending money Congress hasn't appropriated or not spending money Congress has. And, you know, the Supreme Court's had a couple of those cases on its emergency docket, hasn't had a merits case yet about it.

Dylan Ris (27:07.403)
Mm.

Steve Vladeck (27:14.698)
I think that's probably only a matter of time. And those are really important cases because we spent a lot of time thinking about the Stephen Miller Trump agenda, the sort of the social issues, but actually it's the executive branch bureaucracy and the money where I think we're seeing the most systemic effects being wrought by this administration. Executive power got a big boost this term from the Supreme Court. What'll it do about money?

if and when those cases really get to the justices on the merits, perhaps as soon as this fall.

Dylan Ris (27:45.133)
Well, when we find out we'll be looking to your voice to help us make sense of it and hopefully hopefully rejoice in some good news. We'll see. Yeah.

Steve Vladeck (27:56.014)
That would be nice for a change. I I you know, I tell my I tell my wife that it is r things must have gone really wrong for me to end up on podcasts like this. So, you know, every once in a while, maybe we'll have some good things to talk about.

Dylan Ris (28:03.875)
That would that would be great. We would we would like to welcome you on happy terms. So we'll see. well thank you, Steve. Steve Laddock. It it's been a real honor to get to pick your brain about all things Supreme Court and to give us a little hope perhaps for the future. Thank you so much.

Steve Vladeck (28:25.208)
Thanks, Dylan.