HOLDING COURT These are the current justices of the U.S. Supreme Court posing for their
ofɿcial photo together after the conɿrmation of Brett Kavanaugh in November 018.
Periscope THE NEWSWEEK INTERVIEW
2005-2006 term, when Chief Jus-
tice John Roberts Jr. joined the Court,
through the end of its 2017-2018 term.
They were all decided by 5-4 or 5-3 votes,
along conservative-versus-liberal fault
lines. He argues that in 55 percent of
them, the conservative majority disre-
garded one or more principles of con-
servative judicial philosophy, including
originalism, textualism and respect for
precedent.] That’s a hell of a record.
Back to your original question of
what’s wrong with packing the Court.
If what you mean is changing the
number of seats to achieve a result, I
think that the Court is entitled to a
chance to “heal thyself.”
When you look at the flagrant deci-
sions—Citizens United [striking
down key restrictions on corporate
campaign expenditures]; Heller
In the 3 cases, the ɿve conser-
vative-leaning justices voted to
further what most people would
consider the Republican Party’s
favored outcome. But, correspond-
ingly, the four Democratic-appoint-
ed justices voted for the Democrat-
ic Party’s preferred outcome. So
it’s not surprising.b
It’s not fair to say, well the four Demo-
crats didn’t do it, and therefore they’re
just as partisan as the five Republicans
who did, because what we’re talking
about is changes in the law. Citizens
United was a very big change in the
entire American political system.
Shelby County changed the way
that voting rights had been enforced
for decades.
Heller changed our consideration
of what gun rights were and went
to an idea that a previous retired
chief justice [Warren Burger] had
described as a fraud. And Janus undid
40 years of precedent.
So when five judges are willing to
go on a jaunt like that, it is really not
fair to say that the four who didn’t
were being equally partisan. Not fair
and not accurate.
With respect to the role of—and
I’ll say Leonard Leo, because the
Federalist Society formally says
“We don’t take a position on judicial
selectionsŪŤb
Yeah, ha ha ha.
But I assume Republicans would
say that Democrats also have their
power brokers and their funders
and, you know, everybody does it.
No, that’s not an apt comparison.
Because I don’t think the Democratic
side has ever put out anything like
the type of apparatus that is used to
control judicial selections and nom-
inations. We’ve never applied the
kind of brute, political force to kind
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[holding that the Second Amendment
confers a right on individuals to bear
arms]; Janus [holding that unions
may not collect fees from non-union
members]; Shelby County [striking
down key provisions of the Voting
Rights Act of 1965]—the real sort of
marquee partisan exercises, and then
you see that, my God, there have
been 69 others, all under Roberts,
that sends a pretty strong signal.
I’ve been an appellate lawyer. Argued
in the Supreme Court. Argued in
two of the circuits. I’ve spent a lot
of time in front of the Rhode Island
Supreme Court. Watching this Court
behave the way it behaves has really
disturbed me. And I have enough
residual respect for the institu-
tion that I want it to have a chance
to heal itself.