Newsweek - USA (2019-11-08)

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.