We Have to Burn Down the Supreme Court to Save It

Author David A. Kaplan explains how the rest of 2020 might play out on the Court

In the days since Supreme Court Justice Ruth Bader Ginsburg died, countless Americans have pointed out how undemocratic it is that the future of so many civil rights issues rested on one woman’s shoulders. It’s part of a broader point that author David A. Kaplan makes in his book about the court, The Most Dangerous Branch: Inside the Supreme Court in the Age of Trump.

For the book, which was published in 2018, Kaplan spoke with a majority of the justices on background, so he can’t say which ones he talked to and therefore whether Ginsburg was one of them. “But I had met [her] decades ago and had seen her on various occasions as a Justice, occasions having nothing to do with the book,” he tells GEN. “I liked her. I greatly respected her, and whatever one’s partisan or ideological leanings, she’s impossible not to respect.”

GEN caught up with Kaplan to talk about what Ginsburg’s passing means for the future of issues like Roe v. Wade, why a 4–4 court on Election Day would not lead to a constitutional crisis, and the case for packing the court if Democratic presidential nominee Joe Biden wins.

GEN: You call the Supreme Court the most dangerous branch. What is the danger right now?

Kaplan: The gist of the book is that the Supreme Court has become too triumphalist, too interventionist, too involved in American life and has been so for 50 years. I argue that’s bad for democracy, and it’s bad for the Court. That’s not a liberal position; that’s not a conservative position. I criticize Roe v. Wade, Bush v. Gore, the Citizens United campaign finance decision, the Shelby County voting rights decision, and the Heller gun-control ruling. So I criticize decisions that are regarded as both liberal and conservative victories.

My criticism of the Court isn’t ideological. I happen to be extremely pro-choice. I support extremely liberal pro-choice positions and legislatures. I just don’t think the Supreme Court in 1973 should have inserted itself into that political controversy, just as I think the Court should not have gotten involved in the relative merits of the Voting Rights Act several years ago.

And of course, the court shouldn’t have gotten involved in a tied presidential election in 2000 when the Constitution itself, as well as federal statute, called on Congress to resolve that dispute. Oftentimes, the Court ought to stay out of issues and simply say, “Go across the street to Congress” or “Go to your state legislatures and let them resolve it.” By inserting themselves so often in so many issues, the justices have not only enfeebled Congress but have helped place the Court at the center of a storm.

When they do that, they raise the stakes in confirmation hearings so that we get something like the Kavanaugh hearings, [or something] like we’re going to get, presumably, with the hearings over Ginsburg’s successor. That’s bad for the Court, and it decreases the Court’s institutional capital for when it needs to insert itself into issues — for example, Brown v. Board of Education in 1954 when the Court outlawed segregation in public schools. And there are other instances where the Court should aggressively be getting involved, but too often the Court inserts itself simply because it can, not because it should.

I’ve come to the conclusion though, that, assuming the Ginsburg seat is filled by Trump over the next month or two, which I think will happen, the proper remedy is if the Democrats take the White House and take back the Senate, they ought to pack the Court. They ought to raise the number of seats to undo what’s happened in the last few years.

In the short run, whether that’s five years or 50, that will be terrible for the Court. It will just confirm to the public that the Supreme Court is just another partisan institution. And if the Democrats pack the Court, when Republicans take power again, they will attempt to undo what Democrats have accomplished. Eventually, you have an unsustainable game over Court membership. But my hope would be that over time, both sides figure out that they need to disarm, and we return to a time when the Court is less central in American life. But for now, I think we may have to burn down the institution to save it.

How do you see the rest of 2020 going with regard to the Court? How do you see the nomination process going? What role might the court play in adjudicating the election?

Things could change, but right now with Romney on board and with Grassley on board, the Democrats don’t appear to have four votes to block consideration of a Trump nominee. The Republican conservatives have been waiting for this moment for decades, to staff the Supreme Court in a way that they think reversing Roe v. Wade is possible or even likely. I think most, virtually all Republicans, don’t want to give up that moment.

What could change that dynamic? I don’t think much, but I think if the vote on confirmation didn’t take place by Election Day and if Trump loses or if the Democrats retake the Senate, you could see a different political dynamic that might make a post-Election Day vote on a Ginsburg replacement tougher politically.

We also don’t know who the nominee is going to be, and you don’t know what hiccups there are going to be on their public vetting. We know a fair amount, say, about Amy Coney Barrett, the federal appellate judge in the Midwest who seems to be the presumptive leader, but the presumptive number two choice, the Cuban American federal appellate judge down South, Barbara Lagoa, not as much is known about her. We have certainly learned with various nominations that information comes out about a nominee that an administration didn’t know ahead of time.

What will be the effect in terms of possible Bush v. Gore style litigation at the Court? Certainly, given what we’ve read about the closeness of the election, the disputes already percolating up in battleground states about whether to count this ballot or that ballot, the issue of mailed-in ballots, you could certainly imagine how litigation could make its way to the Supreme Court, and you could imagine the Supreme Court once again inserting itself in the way they did in Bush v. Gore.

Now, would the Supreme Court, as it did then back in 2000, be entirely happy to overrule proceedings in lower courts, like at the state level in 2000 in Florida? Who knows. My own view is the Supreme Court largely ought to be staying out of it. Presidential elections, despite being federal, are ultimately state affairs. It’s not up to the Supreme Court to say what Florida election law is.

An interesting question over the next six weeks until the election is whether a) Democratic voters regard the importance of the Supreme Court in the way that Republican voters have long done so and b) whether Democrats, from Joe Biden on down, finally recognize that if they’re to confront the Republican obsession with the Supreme Court, are they going to respond similarly? The Republicans are really good at being bad. They demonstrated that on the Merrick Garland episode in 2016, and now it remains to see if the Democrats can get better at playing the game. But Democrats have historically been bad at being bad.

What do you think about this concern of a 4–4 court on Election Day or shortly after Election Day? Do you think that’s a real concern, that we could have a constitutional crisis if the seat is not filled?

Even-numbered courts are not ideal because you can have ties, but it’s not by any stretch a constitutional crisis. A constitutional crisis is something caused by uncertainty as to what happens or a battle between branches of the government that seems unresolvable.

If the Court is tied 4–4, we have a procedure for that: The lower court’s decision stands. It’s very straightforward. It may be unsatisfying for some, but that’s how the law works.

We have two constitutional amendments that deal with what happens in a disputed presidential election. Real simple: Congress decides. We even have a federal statute that was passed after the deadlock of 1876 involving Tilden and Hayes. That statute calls for Congress to get involved, and indeed when Congress was debating that back in the 19th century, they explicitly said the Supreme Court shouldn’t get involved.

Now, would it have been a drawn-out process in 2000, maybe leading into 2001? Maybe. Would it have been entertaining? Maybe, at least for journalists. Is it a constitutional crisis? Of course not. And if the dispute dragged on, when Inauguration Day had passed, January 20, the Constitution has a provision for that as well as to who becomes president. No constitutional crisis at all.

When people use the phrase “constitutional crisis,” it’s usually as an excuse to argue for the intervention of the branch of government or the individual that they want to be making the decision. So all the talk that we need a ninth justice sworn in by Election Day to deal with election disputes is complete malarkey.

When you think of someone like the front-runner, Amy Coney Barrett, how would a justice like that change American life and law? How would a strong conservative majority affect future legislation like a Green New Deal or universal health care or child care?

Predicting what justices are going to do over the long haul is a foolish business. Nobody would have anticipated, for example, earlier this year that Justice Gorsuch would have been the decisive vote to say that [transgender people] and gays and lesbians are protected under Title IX of the Civil Rights Act. What’s going to happen on future decisions involving issues you raised? Who knows.

But I think that long-range thinking Americans should realize that as important as Roe v. Wade is, there are other big-ticket structural issues that a dominant conservative majority on the Court could affect, most significantly the role of the federal administrative state. All those federal agencies — OSHA, the Securities Exchange Commission, the Environmental Protection Agency — which have vast discretion and power. They implement the generally worded statutes of Congress, but Congress isn’t in charge of implementing its law. And you know, there is a lot of litigation that takes place on how these laws are implemented. Bureaucrats handle this. Well-meaning, educated bureaucrats. That’s just how it works in a big regulatory democracy.

And conservatives, particularly those for whom Roe v. Wade is not the most important issue, have been arguing for nearly four decades that the way to dismantle the administrative state is through litigation. You don’t know what a “Justice Barrett” would do or a “Justice Legoa” would do, but I’d bet lots of money on them being extremely sympathetic to the ongoing conservative project to cut back on the agency state. Because all conservatives are. That’s where the big loss for liberals is going to be. And it’s a harder issue to explain to people, and when you hear deconstructing the federal administrative state, it’s the best way to put people to sleep, but it’s an important issue.

How do the justices think about retiring from the bench versus dying on the bench?

Of recent justices who’ve left the court either voluntarily or in a box, the average amount of time they’ve been there is about 30 years. Most of them recognize it’s a fantastic gig. You run the country on so many issues. Yet you have summers off. Your court only hears 60 or 70 cases a year. Your staff, your law clerks include some of the best young, most talented, smartest, hardest-working minds in the country. You work in a marble temple in Washington. Why would you want to give it up?

Now, should we have a system of, as has been proposed, a single 18-year term for justices? I think of course we should. The idea of life tenure is anachronistic. It might have been one thing to have it in the latter 18th century when people lived to be 65 or 70. It’s another issue when life expectancy is so long now. And is there a benefit to having octogenarians on the court? No, no, no, not at all. But it would take a constitutional amendment to have term limits.

The other benefit of term limits, for example, on a nine-member court, if it was an 18-year term limit, over time, once you cycled out all the current justices that you can’t kick out, then it would mean that a new justice would be named every two years. Every president in a term would get two nominations. It would reduce the stakes of the nominations, and it would reduce the temperature of individual confirmations.

But my hope would be that maybe if you pack the Court, and over time both sides come to realize the benefit of disarmament, that what might come with that is the idea of term limits. So to answer your question, few people want to confront their mortality, and I don’t think justices are any different, and they really like the job. And certainly, Justice Ginsburg loved the job and even her detractors would acknowledge she gave every indication of being able to do the job famously well and working famously hard until the very end.

This interview has been edited and condensed for clarity.

Director at Medium working with authors and books. Formerly a staff writer and editor at Time.

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