The Supreme Court and the American Constitutional System

Standing in as moderator for Dahlia Lithwick—on short notice, no less—the Hon. Christopher McFadden led the conversation. Judge McFadden has served on the Georgia Court of Appeals since November 2010. Before taking the bench, Judge McFadden focused his solo law practice on appellate litigation. Among his lengthy, dedicated service to appellate practice, he served as the 2018 AJEI chair, and continues to serve on the Executive Committee of the Appellate Judges Conference of the American Bar Association.

Prof. Samuel Moyn is Chancellor Kent Professor of Law and History at Yale University where his legal scholarship focuses on international law and human rights, among other things. He completed a doctorate in modern European history from the University of California-Berkeley in 2000 and earned his law degree from Harvard in 2001. Prof. Moyn is a prolific writer, with his most recent book, Liberalism Against Itself: Cold War Intellectuals and the Making of Our Times, released in Fall 2023. His writings have also appeared in The Atlantic, The Guardian, The Nation, The New York Times, and The Wall Street Journal.

Prof. Eric Segall earned his law degree from Vanderbilt Law School. He served as a law clerk to Chief Judge Charles Moye, Jr. for the Northern District of Georgia, and Hon. Albert J. Henderson of the Eleventh Circuit. Prof. Segall currently serves as the Ashe Family Chair Professor of Law at Georgia State University’s College of Law. His books include Originalism as Faith and Supreme Myths: Why the Supreme Court is Not a Court and its Justices are Not Judges. His op-eds and essays have appeared in The New York Times, The LA Times, The Atlantic, and The Daily Beast.

Prof. Stephen I. Vladeck is the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law. He is a nationally recognized expert on topics including federal courts and constitutional law. Professor Vladeck clerked for the Hon. Marsha S. Berzon on the Ninth Circuit and the Hon. Rosemary Barkett on the Eleventh Circuit. He has argued many cases before the U.S. Supreme Court, the Supreme Court of Texas, and various federal civil and military courts. Professor Vladeck is the New York Times bestselling author of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, published in May 2023.

Prof. Stephanie Barclay is a Professor of Law at the University of Notre Dame Law School, and she serves as the faculty director of the law school’s Religious Liberty Initiative. Prof. Barclay served as a law clerk at the Ninth Circuit to Judge N. Randy Smith and on the U.S. Supreme Court to Justice Neil M. Gorsuch. Prof. Barclay’s writings have appeared in the Harvard Law Review, the Yale Law Forum, the Boston College Law Review, and the Florida Law Review, among others. She has also appeared on various national media outlets to discuss First Amendment issues.

Judge McFadden kicked off the conversation asking, “Is SCOTUS broke? If so, has it always been broke? If it has always been broke, are there alternatives to the Supreme Court as we know it that are compatible and consistent with the ideal of the rule of law? If it is broke but has not always been broke, when and how did it break?” Answering first, Prof. Segall opened by referencing his book, Supreme Myths: Why the Supreme Court is Not a Court and its Justices are Not Judges arguing that, because of institutional factors, SCOTUS, as an institution, does not take prior law minimally seriously when it decides the cases before it. In the book, he said that precedent doesn’t matter to SCOTUS when it doesn’t matter to SCOTUS, which is in most cases. Prof. Segall considered the meaning behind a question Judge Posner often posed, “If changing judges changes law, do we know what law is?” Prof. Segall said that history has shown, as to SCOTUS at least, that changing judges has vastly influenced changing law. Prof. Segall believes SCOTUS is a broken institution that was born broken. Broken, he said, because it violates the golden rule of representing a constitutional democracy: “Never, ever give a council of government officials largely unreviewable power for life.” Prof. Segall believes that concept has played out as the rule of people, not the rule of law. He discussed the 1801 Supreme Court having been so controversial that Congress and Thomas Jefferson cancelled it for a year. To note the passage of time regarding Supreme Court scrutiny, he discussed Dred Scott and the Reconstruction Amendments, leading up to 1937 when President Roosevelt told the national media that the United States and its constitution had to be saved from the Court. To illustrate this concept in current times, Prof. Segall pointed to footnote forty-eight in the Dobbs decision. In the footnote, Prof. Segall explained, Justice Alito justified overturning Roe and Casey by saying the Court overturns major cases all the time. He emphasized that Justice Alito’s footnote listed cases the Court has overturned—in a partial list—for two-and-a-half pages, single-spaced. Prof. Segall said the reality is that in almost every litigated area of constitutional law, the law changes when the justices change. He closed, pointedly, saying that if changing judges changes law, he doesn’t know what law is.

Judge McFadden turned to Prof. Vladeck and asked whether the standard of review for fact-finding that SCOTUS applies to the cases it hears contributes to the Court’s brokenness. For example, he said, the Georgia Court of Appeals applies a deferential standard of review, but SCOTUS’s standard, by comparison, is more like “Well, we defer unless we don’t feel like it.” Prof. Vladeck first discussed that his perspective on the Court’s brokenness differs somewhat from Prof. Segall’s. Prof. Vladeck discussed that a robust inner-branch dynamic has allowed a counter-majoritarian Court to exist for most of our history. He said that dynamic has kept SCOTUS from straying too far from its responsibilities. He discussed Congress’s prior control over the Supreme Court—which included control over the size of the Court; where the Court sat; the Court’s budget; and the justices’ pensions, or lack thereof. Most importantly, Congress used to control the Court’s docket more extensively—entirely until 1891, largely until 1925, and partially until 1988. But last term, the Court decided fifty-eight cases and the justices picked fifty-seven of those cases. Prof. Vladeck believes these changes show a decline in the Court’s accountability, but not a wholly broken system. In other words, the brakes that used to keep the Court in line have been eroded. Prof. Vladeck recognized several areas where the current Court’s practices have changed significantly from years past including granting certiorari before final judgment in lower courts; granting emergency relief far more often and in cases that have broader societal impact; and deciding merits questions at earlier stages of litigation. These changes, Prof. Vladeck said, show that the Court no longer looks over its shoulder at Congress because it is no longer accountable to Congress. Prof. Vladeck discussed Justice Alito’s recent assertion in the Wall Street Journal that there are no provisions in the Constitution giving Congress the authority to regulate SCOTUS. Prof. Vladeck highlighted that at least four provisions in the Constitution give Congress authority to regulate SCOTUS. But what troubles Prof. Vladeck is that a sitting justice making that assertion shows a decline in checks and oversight that once kept the Court in line for much of its history.

Judge McFadden asked Prof. Moyn whether it is fundamentally unrealistic to imagine we have rights that are beyond the SCOTUS majority’s reach to undermine. Prof. Moyn began by saying that courts are sites of power; and appellate judges affect people’s lives, often for the worse. Prof. Moyn said his primary question asked: What should we do with a Supreme Court designed to wield tremendous power that affects people’s lives? He believes courts have always been political, and they always will be. The trouble here, Prof. Moyn believes, is that we are trained as lawyers to believe that judging is not a political act. But more honesty in our law school training would help us all because we already know there is partisan competition to control our courts, and courts are extensions of political agendas and competition. What would our lives be like if people were just more open about this concept? As for rights, Prof. Moyn believes there are all kinds of rights that have been imagined and articulated through Congress. The purpose the idea of a right serves is to protect individuals the majority will oppress. But history suggests we should be less glib about this idea because it’s hard to figure out what the content of a right is. Who defines what a right protects, what its limits are, and what happens when rights collide? Prof. Moyn recognized there is disagreement as to all those things. But, he said, the notion that we must count on judges when rights are at stake has set America back.

Judge McFadden turned to Prof. Barclay and invited her thoughts on the prior discussions. She pointed out that criticism of either SCOTUS or our country’s political institutions isn’t new. Prof. Barclay believes that strong criticism of SCOTUS decisions is no indication that the Court reached a wrong decision. For example, she said, Brown v. Board of Education was a widely criticized and controversial decision when the Court decided it in a counter-majoritarian way. But now, the decision is revered. It is important for us all to consider what criticism means and how it guides our opinions on the validity of what the Supreme Court does today. One of Prof. Barclay’s takeaways from having clerked for Justice Gorsuch was just how often the court endeavored to find common ground when deciding cases. Interpretive methodology can take the justices in different directions. Prof. Barclay discussed some SCOTUS-related worries that people have—some worries she believes are warranted and others not warranted. There are aspects of originalism, she said, for which we ought to be grateful for more restraint, not less. And she believes there is room to think about how originalism is being used as a methodology. Considering how our Supreme Court fares in terms of other constitutional systems and interfering with democratic processes, Prof. Barclay’s view is that SCOTUS is not the worst. She believes it is important to avoid losing sight of how many SCOTUS decisions aren’t political or divisive. But the media, she said, focuses on the divisive ones.

Next, Judge McFadden asked whether the Supreme Court arrogates power to itself at the expense of the other branches of government and the lower courts. If so, he asked, how should the other branches and the lower courts respond? Prof. Segall believes the Court is absolutely usurping the other branches’ authority. The justices’ ideologies drive cases, not text, history, or precedent. And the Bruen decision is the most anti-originalist decision in American history—written by six originalists. Prof. Segall said the Court has taken legislative authority away from Congress and executive authority away from the president. He pointed to his thirty years of advocating that anything we can do to weaken the institution—the Court—would be a good idea.

Judge McFadden turned next to the Judiciary Act of 1925 and asked whether Congress should threaten to repeal it. Prof. Vladeck said repealing the Judiciary Act of 1925 was “pretty far down” on his list of things Congress should do. To roaring laughter, he said electing a Speaker of the House was a good start. Adding to the arrogating power question, Prof. Vladeck said that in the three-ish minutes he had available to speak, he couldn’t do justice to how significantly Taft had misled Congress in the run-up to the Judiciary Act of 1925 on the kind of discretion he was asking Congress to give the Court. To say the least, he thinks Taft was not fully transparent. But there are other areas where Prof. Vladeck believes SCOTUS could reasonably be accused of arrogating power. One is substantive review. Another is statutory review and the rise of the major questions doctrine. He also mentioned standing under Article III as a rightful candidate for arrogation of power. On standing, Prof. Vladeck found the Court’s most troubling analysis last term was the majority opinion’s standing analysis in Biden v. Nebraska, the student loan case. The problem, he said, was the opinion suggested that standing—a critical doctrine that limits the Court’s power—can be manipulated so transparently. Prof. Vladeck finds the Court’s standard of review another concerning area on arrogation. He said the Court is reaching the merits of preliminary injunctions in a higher percentage of cases than it has in the past. But historically, the Court has addressed preliminary injunction questions as whether the lower courts had abused their discretion. For SCOTUS to reach the merits on those questions, Prof. Vladeck said, is to arrogate the power of district court judges. Last, on the Court’s emergency docket, Prof. Vladeck believes the idea that there are any constraints on what SCOTUS does is belied by the OSHA case—which was an emergency application where the job was to balance the equities. In its majority opinion, Prof. Vladeck emphasized that SCOTUS summarized the parties’ competing arguments on irreparable harm and said it was not the Court’s job to weigh the trade-offs at issue. But Prof. Vladeck believes weighing the trade-offs was the Court’s only role in that case. Prof. Vladeck closed with his larger point saying that, historically, when Scotus would step out of line and there were concerns about usurpations and arrogations, there was some specter of pushback from other branches of government that we don’t have today. The pushback suggested that consequences would befall SCOTUS if the justices trampled on the prerogatives of lower courts and other branches of government.

Judge McFadden asked Prof. Moyn about his writings concerning statute-by-statute jurisdiction stripping as an available remedy to reform SCOTUS. He asked whether there were any questions about its constitutionality? Prof. Moyn believes no one doubts that Congress could pass ethical rules, not just for the federal judiciary, but for SCOTUS. It’s just an example of the power Congress could wield under Article III to reform the Court. Prof. Moyn believes we’ve seen congressional abdication rather than judicial usurpation. The “jurisdiction stripping” proposal, which he prefers to call “jurisdiction channeling,” is one among a laundry list of possibilities available. Prof. Moyn also mentioned legislative override as an alternative option. One of Prof. Moyn’s favorite reforms, known as “voting rules,” bears out by raising the number of judges required to overturn or radically reinterpret a statute so that responsibility would no longer fall to a bare majority. Prof. Moyn pointed out that we already know most adjudications don’t take place in Article III venues because Congress has shifted many judicial responsibilities to other actors. Last, Prof. Moyn mentioned the Congressional Review Act and discussed that Sen. Sheldon Whitehouse (D-RI) has recommended expanding the Act so that highly debatable cases of statutory interpretation would trigger Congress’s lookback at those decisions. Then, Prof. Moyn says, Congress could take its rightful authority to decide what the law says and means. Prof. Moyn closed by saying there’s no right answer about which of the possible reforms makes sense. But unless we have a public discussion about how to design our courts, we will have abdication as well as usurpation.

Judge McFadden asked Prof. Barclay whether she believed the Supreme Court has arrogated its power. She began by addressing Prof. Vladeck’s point about the major questions doctrine saying that some of the issues causing heat stem from actions the executive branch, particularly the administrative state, is taking. That idea, she said, warrants discussion on how democratically accountable that process is. She pointed to the UK’s constitutional system where its judiciary is doing less, but its administrative state is much more accountable to Parliament. One of the problems in the U.S., Prof. Barclay explained, is that Congress has lost, given up, or delegated too much of its power. She believes conflicts between the judiciary and the administrative state have resulted from that root issue. The major questions doctrine, Prof. Barclay said, helps motivate Congress to be clearer on the types of authority it intends to give administrative agencies. To alleviate any worries about the Supreme Court interfering with democracy, she pointed to Dobbs as an example in which SCOTUS got it right. In that case, she explained, the Court acknowledged that Roe had interfered with the political process and made the abortion issue more divisive. She believes Dobbs gave that process back to the states. Prof. Barclay trusts that the Court is concerned about its role in democracy.

The discussion in this AJEI session was engaging and informative. Judge McFadden best captured the discussion’s overarching theme in his opening question: “Is SCOTUS broke?” The panelists didn’t necessarily agree on the extent to which SCOTUS may be broken, or how it might have become broken. But they all recognized that it is an imperfect institution with remedies available to induce meaningful, productive reform. Along with highlighting a few possibilities for SCOTUS reform, this session invited voices from those affected most intimately—judicial officers, appellate staff attorneys, and appellate advocates—into the conversation.