Pendulum of Justice: The Supreme Court's Conservative Pivot with Lucas Powe

Discover the seismic shifts within the highest court of the United States as legal scholar and former Clerk to Supreme Court Justice William Douglas,  Lucas Powe, and Shawn unravel the conservative turn of the Roberts Court. We dissect the landmark decisions that have not only redefined the legal landscape but have also sparked debates about the very legitimacy of the Supreme Court. Our discussion ventures into the ethical complexities faced by Justices Alito and Thomas, and how recent rulings may influence crucial elections looming on the horizon.

Join us for a profound analysis of the Supreme Court's ideological journey, where we juxtapose the court's modern conservative ethos with the liberal undertones of the Warren Court era. We scrutinize the court's recent forays into Second Amendment rights, affirmative action, and the unsettling reluctance to adhere to precedent. Through our dialogue, we probe the philosophical underpinnings of originalism and deliberate on whether the court is swaying too far from its historical moorings, risking its own integrity.

As we peer into the intricate dance between the Supreme Court and public opinion, we tackle the question of judicial reform, including the contentious debate on imposing term limits for justices. We seek to illuminate the court's alignment with certain societal values and its consequential role in shaping our democracy. It's a pivotal moment for judicial independence and impartiality, and we emphasize the importance of maintaining these principles to uphold the democratic promise of justice and fairness, particularly as we stand at the cusp of critical electoral decisions.

Recommended:
The Warren Court and American Politics - Lucas Powe

-------------------------
Follow Deep Dive:
Instagram
Post.news
YouTube

Email: deepdivewithshawn@gmail.com

**Artwork: Dovi Design
**Music: Joystock

Transcript

Lucas: 0:00

And the second president Bush. In his administration the motto was no more suitors. Republicans wanted justices who would be reliable. That is, adhere to the Republican position on the Constitution. And the Republican position from 1980 forward had been we should overrule. Roe versus Wade we should hold. Affirmative action is unconstitutional. We should not expand any rights of criminals. And then in this century there's been a decided move on the Republican side of getting more guns and more God out in public. And over the last two years the Roberts Court, as I described earlier, has been implementing that Republican agenda in very rapid succession.

Shawn: 1:02

Welcome to Deep Dive with me, Sh C Fetig. If you've been paying attention to this podcast and you should be you know that I've become particularly cynical about the United States Supreme Court. The current conservative majority is the result of political maneuvering on the part of the Republican Party denying President Obama the ability to cede justice in 2016 following the passing of Justice Scalia, and then ramming through the confirmation of Amy Coney Barrett in record time, just before the 2020 election, after the passing of Justice Ginsburg. Additionally, the way that this current court makes decisions seems unnecessarily egregious and thin. One needs only read the Dobs decision over Turning Roe to get the sense that this current Roberts Court couldn't care less about the fact that it's stripping a fundamental right from a majority of people in the country and, in doing so, advances a flimsy legal theory and, in its writing, needlessly offends wide swaths of the American public. The court is also embroiled in continuing sagas related to ethics and impartiality. The leak of the Dobs decision underpins how far this court has become removed from some of its core and basic procedures, and the steady flow of reporting related to the lavish gifts that both Justices Alito and Thomas, have accepted from people with business before the court, coupled with the fact that Justice Thomas is currently participating in cases that arise from a coup attempt against the country, that, while still remains unclear the extent to which his own wife was involved, and in the past month, the court fast-tracked a hearing to determine Trump's ballot access and strongly suggested in oral arguments that they will ensure his name remains on the ballot, while simultaneously slow-tracking hearing arguments on Trump's claim of presidential immunity, potentially foreclosing any possibility that he'll be going to trial and any of his federal indictments before the election. All of this has muddied and sullied the view of the court, and it's reflected in public opinion. In September of 2000, gallup reported a 62% approval rating for the Supreme Court. In September of 2021, gallup reported a 40% approval.

Shawn: 3:08

Approval of the court and the court's legitimacy are not merely abstract concepts. They are the bedrock upon which public trust and the acceptance of his decisions rest. When justices are perceived to be politicians with robes, the very foundation of the judiciary as an impartial arbiter is called into question. But still, I wonder, is this current robbers court that much different from its predecessors? And particularly, I consider a court that I've studied and written about, the Warren Court. In its time, it was considered transformational, disruptive and for many Americans its decisions were illegitimate. Is this Robert's Court different in any meaningful ways? To get at that, today I'm talking to Lucas Powe, a former law clerk to Supreme Court Justice William Douglas and a current professor of government at the University of Texas at Austin. Professor Powe is a towering figure in legal academia and he holds the prestigious Anne Green Regent's Chair in law. He's written many books, including the Supreme Court in the American Elite 1789 to 2020, american's Lone Star Constitution, how Supreme Court Cases from Texas Shaped the Nation and, my personal favorite, the Warren Court and American Politics. These have all garnered critical acclaim and are considered seminal works in the field. Powe was also a principal commentator on the 2007 four-part PBS series, the Supreme Court, which, if you haven't seen it, is worth watching, especially given how the court has changed since the series was made.

Shawn: 4:37

A few housekeeping notes. I'm particularly honored to have Lucas on this episode. He's never done a podcast before but agreed to this conversation because he feels this moment for the court is particularly important in our nation's history. But because he doesn't do podcasts he's not set up for podcasting and you'll notice it in his audio just letting you know. But it's a minor thing and the conversation is well worth it. Also, we recorded this on January 16th, so we do reference some things that happened last week that have now actually happened a few weeks ago. All right, if you like this episode or any episode, please give it a like on your favorite podcast platform and or subscribe to the podcast on YouTube, and if you have any thoughts, questions or comments, please feel free to email deepdivewithshawn a gmail. com. Let's do a deep dive. Powe Powell, thanks for being here. How are you?

Lucas: 5:34

I'm fine thanks.

Shawn: 5:36

So I'm excited to have you here to talk about the court, the evolution of the court and, given some context, what it all means. Because the current Robert's Court is a very conservative one, after years of a relatively moderate court, and it's been transformational in a very short period of time. So in about the last three years it's dramatically expanded our understanding of Second Amendment rights, it's eliminated affirmative action In most areas, it's shrunk the administrative state, it's overturned row embraced originalism, and it's difficult not to see this through the lens of personnel change and politics. But I'm aware of and have been involved in conversations with folks about, other courts in American history that were also very consequential.

Shawn: 6:21

The Warren Court immediately comes to mind, and I'm not sure how to equate this current court to those of the past. In essence, I guess, is this current court truly risking its legitimacy and acting outside of norms and expectations, or does it just feel that way in this moment? So, to your mind, when comparing the Robert's Court to previous courts, particularly the Warren Court, which is known for its decisions on civil rights, criminal justice and individual liberties, what key differences stand out in terms of things like judicial philosophy, decision-making, impact on constitutional law? And then do you think this court is doing anything suspect or unusual?

Lucas: 6:57

Well, let me say this court was intentionally put together. You had President Bush nominating John Roberts and Samuel Alito and his father putting Clarence Thomas on the court, and then President Trump getting three appointments in just four years, with guests of Stalia and Ginsburg and the encouraged retirement of Justice Kennedy. So what you have with the Robert's Court is one that Republicans, presidents and senators wanted a conservative court, and they very intentionally got it. What makes it different from the Warren Court is that the Warren Court came together by accident. When Earl Warren is nominated as Chief Justice, there are only two liberals on the court Hugo Black and William L Douglas and Warren is nominated as Chief Justice by President Eisenhower, both because I called Warren a favor and I thought that Warren's governing California was gonna be very much like the way Eisenhower tended to govern nationally. That put a third liberal on the court, although it took a couple of years to show that. Then, just before the 1956 election, sherman Minton on the court retired and Eisenhower, with the election in mind, told his attorney general come up with a Catholic Democrat for the seat, and the result was William J Brennan was appointed to the court, and Brennan was another liberal. He met the standard that Eisenhower laid out of being a Catholic and a Democrat. But he surprised Warren. And then, when John Kennedy becomes president, he has Felix Frankfurter, the great conservative justice. Kennedy has Frankfurter's biographer go to Frankfurter and put the proposition if you retire, you will be allowed to select your successor, and Frankfurter turned that down. And then a year later Frankfurter suffers a stroke that forces him off the court and instead of Frankfurter choosing his successor, president Kennedy chose Arthur Goldberg. He was secretary of labor at the time and Goldberg turned out to be a liberal. I don't think Kennedy cared much one way or another what his appointees did, but with Goldberg he got the fifth vote and with five votes the Warren court really comes into being.

Lucas: 9:55

And what the Warren court is is a court that is imposing national values on the South and on other outliers in the United States. In 1965, president Johnson, in an interview with the prominent historian, stated that never before in our history have the three branches of government work better together. And what Johnson was articulating was that the president and Congress were doing what they could do successfully to create a great society and the court was working in areas where the political branches couldn't work or didn't want to work and that comes out initially with dealing with segregation in the South. But it goes beyond. The court is demanding that malapportioned legislatures reapportion themselves on a one-person, one-vote basis. The court is strikes down school prayer, which was a nice Protestant exercise that violated the separation of church and state and made Jewish students feel unwelcome. In that the court liberalized obscenity law, moved it out of the Victorian era and more in tune with mid-century America. And finally, and most controversially, the Warren court entered the world of criminal procedure, which no one had been willing to touch, and made states comply with the Fourth Amendment's ban on unreasonable searches and seizures and saw to it that the poor criminal defendants, those in poverty, both got a lawyer and became aware of their rights not to incriminate themselves. And that was the Warren court that I just described was the most liberal court in American history by far, and President Johnson was celebrating it.

Lucas: 12:16

But, as I stated at the beginning, it came together by accident. Beginning with Richard Nixon, there's been basically a Republican goal Can we get our own Warren court? And the Republicans have missed with their appointments. The first, president Bush, put David Souter on the court and the second, president Bush in his administration. The motto was no more suitors.

Lucas: 12:48

Republicans wanted justices who would be reliable. That is adhere to the Republican position on the Constitution. And the Republican position from 1984 had been we should overrule Roe versus Wade. We should hold affirmative action as unconstitutional. We should not expand any rights of criminals. And then in this century there's been a deciding move on the Republican side of getting more guns and more God out in public. And over the last two years the Roberts court, as I described earlier, has been implementing that Republican agenda in very rapid succession. And while what I described with the Warren court, both Eisenhower and Kennedy had they seen everything, probably would have been surprised at what was happening. But currently, with the six Republicans on the Supreme Court, I don't think Republicans are surprised at all at what they're seeing.

Shawn: 14:01

So one of the things that we take for granted is this understanding that the Supreme Court, one of the things that matters in decision making, is staratous, ices or precedent, and to my mind it seems that precedent actually acts as a backstop, or potentially it's better to characterize it as an obstacle to the conservative experiment with the court. And maybe we've taken for granted the power of precedent because the Roberts Court, especially in the overturning of Roe with their Dobs decision, has been accused of ignoring precedent. And I guess I'm wondering if you think that precedent is under attack with this court or if this was a one-off. And if it is, what does that mean for our structure and understanding of how decisions are made by the court system?

Lucas: 14:58

Well, precedent's always been a nice thing. Everyone agrees, at least verbally, that staratous ices should be respected. But key to precedent is how long do you continue a decision that you think is wrong and very wrong? I wrote an article a decade ago looking at just this problem and it turns out that the principal reason for overruling a precedent is the current court stating that case was wrongly decided the day it was handed down. And much has been made of the fact that the current justices all stated in their confirmation hearings that of course Roe versus Wade is settled precedent. Roe versus Wade was settled precedent right up until it was overruled as a descriptive matter. They were correct, it was settled. The question which they wouldn't answer, quite obviously, is do you intend to unsettle it? But I don't find what the current court is doing to be significantly different than what the Warren court was doing. It's just coming out the other way.

Shawn: 16:21

Yeah, I do wonder. I've had this thought experiment with myself, which is, were I living in, cognizant and paying attention during the time of the Warren court and, being the person that I am, would I be just absolutely fine with the outcomes, despite the fact that they were both chipping away a precedent and, in some cases, just outright overturning or ignoring precedent? And so, to that end, I have a sympathetic and only in that context view of what the court is doing. But I do wonder if it's been so jarring that it throws into question potentially what else the court might have in its sights.

Lucas: 17:05

Yeah, I think when I said the Warren court was imposing national values on the South and on outliers. If I look at the last few years of the Roberts court, it looks to me like they're imposing Southern and rural values on the nation. I think the Warren court, at least until the criminal procedure decisions, had pretty solid backing in most of the United States, the South excluded. What the Roberts court is doing does not have that kind of public backing, as the backlash against overruling row shows. And indeed the Roberts court comes about via presidents who get through the presidency by the Electoral College while they're losing the majority vote, and they're confirmed with a Senate that is just hopelessly dominated or influenced by rural America, lacking, again, lacking the population of the majority of the country, and that's, I think those combinations make the outcomes of the Roberts court quite unsettling.

Shawn: 18:24

So one of the arguments that's being made about the result of the Roberts court's current behavior is that it is negatively impacting the court's legitimacy. One measure that we do have is trust in the court. Going back some time and it's at its lowest point, lowest measured point, since it's being measured, suggesting that this court, for the first time in its history I believe that it's consistently under 50% trust in the court. I guess, if we compare that to the Warren court, do you think that people in that era and of that time had generally more trust in institutions and were willing to accept outcomes that they didn't like, more so than they do today? Or is the Roberts court potentially putting itself into some type of danger zone by chipping away its legitimacy?

Lucas: 19:16

I don't know if the Roberts Court is putting itself in a danger zone. There's no doubt at all about the Gallup polls that are showing trust in the court. It is at historic lows. But what that translates to I'm not sure it may be interesting.

Lucas: 19:35

A week ago the Hawaii Supreme Court flat out rejected one of the Second Amendment conclusions of the Roberts Court and it's been a long time since I've seen courts just state you're wrong, a lower court saying that, and I think a lot of Americans may do it. Remember, when Bush v Gore comes down, al Gore within 24 hours concedes the election to George Bush, no matter what the courts would hold in the future. I'm satisfied that a number of Republicans would not concede to the legitimacy of the decisions, and I think a number of Democrats are looking at what the Roberts Court is doing and suggesting indeed just as so to my, or has strongly suggested that the court is undermining its legitimacy. I think time will tell on that, but to the extent the court continues to impose minority positions on the majority of Americans, I think there will come a reckoning at some point in time.

Shawn: 20:52

This is really interesting to me. I've spent some time thinking about this and first, let me say, with the Hawaii Supreme Court decision, I found that fascinating, and tell me if you think that I'm mischaracterizing this, but my first thought was so the United States Supreme Court is leaning heavily into or at least the majority of the justices are leaning heavily into originalism to help them arrive at their outcomes, whether or not they already have a personal ideology that suggests that's the outcome anyway, and originalism is just the excuse to get there. I don't know, but I felt like, in an interesting way, the decision coming out of the Hawaii Supreme Court was almost like them playing with originalism when they said well, this is just adhering to the traditional Hawaiian spirit.

Lucas: 21:41

Yes, I had the same feeling when I was reading the Hawaiian decision, that they were showing that you thought you were doing. Originalism will show you what originalism is. What I find strange about originalism is the amazing coincidence that a political party in 2024 shares the same constitutional views as Americans held in 1791. What are the odds of that happening?

Shawn: 22:17

You know? What else I find fascinating is originalism almost assumes that the founders are so short-sighted, and perhaps stupid, that they couldn't even imagine the country would change over time.

Lucas: 22:29

Yeah, they don't come across to me as stupid, yeah, no. And to talk about we, the people in the Constitution, when we, the people, meant white males.

Shawn: 22:44

So what I wanted to follow up with, as it relates to originalism and the court taking positions that clearly run against majority opinion or majority support and this perhaps generating some not just tension, but outright disobedience, maybe is the right word on the part of democratic states, maybe democratic cities and I am both sympathetic to that and concerned about it, because we definitely saw some nullification in the South during the period of the Warren Court, and yet at the time there was generally a strong sense that you adhere to the court even if you don't like the outcome.

Shawn: 23:25

And now I think, with liberals being on the other side, I'm sympathetic both to the court. If it stands for anything is that when it makes these decisions, we all essentially live with them, and on the flip side, I'm also extremely sympathetic to the impact that these decisions have on certain people and in certain regions of the country. That just run vastly counter to popular opinion, and it makes me concerned, even when I agree with perhaps blue states or blue cities finding ways around decisions not necessarily outright nullification but what do you think the impact of something like that would be? Are we talking about a constitutional crisis?

Lucas: 24:00

It could be. I'm concerned about the possibilities of nullification because I think, in general, the Supreme Court has served the country well. We live in 50 states. There needs to be some unifying aspects, as well as the diversity that one gets from the fact that there are 50 local governments operating. It would be, I think, a shame and a crisis if a number of localities just deem that what the Supreme Court is doing is illegitimate and start to ignore it. On the other hand, I should note that when Justice Barrett gave a talk to state that the court's legitimacy was intact, she went to the Mitch McConnell Institute at the University of Louisville with Mitch McConnell there, and it was almost, as one person observed, it was almost like McConnell showing off a bass that he just reeled in from the river. I would have thought that any other venue would have been a far superior choice than going to McConnell. Who's the reason you're on the court?

Shawn: 25:22

What do you think is happening there? This is a good point. I think that maybe Kagan and Sotomayor I don't have a read on Jackson as well, but I feel like they do a bit of the same where they're in more friendly venues, but I don't think they're as overtly liberal as Alito, especially, but also Barrett, as you just mentioned are choosing these very friendly, very conservative venues. How does that stack against history and what do you think is going through their minds? Because they're relatively smart people, so they must consider the impact or the visual that this provides to the public when they do this.

Lucas: 26:05

This is a newer phenomena. In the 1960s both Hugo Black and William O Douglas did television interviews. That was precedent breaking. Justices basically stay silent and let their opinions speak for themselves. Harry Blackman followed up. He certainly enjoyed the press quite a bit because liberal press was liking his role versus Wade's opinion. You now have Supreme Court justices seeking out much more publicity. I think that Alito and Barrett they clearly are choosing very friendly venues. I don't have the feeling that Kagan is doing the same. I think she'd be more neutral. But I would prefer if the justices, if they've got to get out and public and say things, would look for more neutral venues to do so.

Shawn: 27:11

So we've talked a little bit about how justices make decisions. We talked about originalism and their justice, interpretation of the Constitution, et cetera, but there are three other areas that potentially influence how justices make decisions, so I want to talk about them, maybe in turn, and I'm hoping we can talk about them in the context of how do you think past courts have been influenced by these things versus the current Roberts Court? And the three things that I'm talking about here are their own personal philosophies, politics and political events and situations, and then the third is public opinion. So let's start with political events, politics et cetera. So how influential do you think political dynamics and polarization in the country has been on the Supreme Court in past, and do you think it's any different now on the current Roberts Court?

Lucas: 28:00

I don't know how much politics plays. There's one decision that I can point to that I think is perfectly political, and that was the Supreme Court's decision in Bush v Gore, where I would bet everything that the five justices in the majority had, in November, voted for George Bush and the four justices dissenting had not. What I would hit with Bush v Gore is if everything had been reversed, if a Republican Florida Supreme Court had stated keep counting the votes because Gore was showing a victory and George Bush was needing more votes, I find it impossible to believe that the same five would have reached the same conclusion. So that is a perfectly political case influenced by politics.

Lucas: 28:57

I don't think others are, because I think the justices, at least the recent ones, are coming to the court as pretty firmly fully philosophy intact and they're just applying the beliefs that they have had for any long period of time to the problems that come before the court. So I don't think politics as such does play a role, and I don't think it played that much of a role in the Warren Court. I think the court might have liked, or would have liked very much, to see Congress and the president much more supportive of their desegregation decisions under Eisenhower and Kennedy. They were hoping for a Lyndon Johnson in a Congress that would pass the Civil Rights Act and the Voting Rights Act. That certainly helps, but I do believe that for at least the current justices, I think they have come to the court with a pretty fully formed philosophy, and I think that is less so the farther back we go in time.

Shawn: 30:15

You know, it strikes me and this is tell me if you disagree with me here, but I'm thinking, as you're speaking, about the current environment and I could absolutely be constrained by my limited time and experience on the planet but that as our sphere of political influence has increased and increasingly creeped into every aspect of our lives, it's perhaps easy to see the court making a decision on almost anything as being a politicized court, when in actuality we have maybe expanded the sphere of politics or we've politicized so much in our lives that the court itself couldn't possibly make a decision on anything these days without it somehow being political.

Lucas: 30:58

I think that's a very astute observation. We really have, especially with the culture wars, just turned everything into a political donning group.

Shawn: 31:10

I want to ask you you mentioned Bush v Gore. I wonder. I don't want to. I don't know what. I don't want to do. I don't want to sound histrionic, but do you think that Bush v Gore was a turning point or a critical moment in the Supreme Court history, and do you think it's done damage?

Lucas: 31:27

I don't think it was a turning point and I don't think it did. It did damage. There was a Gallup poll taken in September of 2000, and it showed that 62% of Americans had confidence in the Supreme Court. There was a second Gallup poll taken in May of 2001, and it showed that 62% of Americans had confidence in the Supreme Court. So at least within the timeframe of Bush v Gore, it didn't change public perceptions. What might change public perceptions?

Lucas: 32:09

Note that Bush v Gore is followed up with, a decade later, with Citizens United striking down campaign finance regulations. The Republicans like that, the Democrats didn't. And then, a decade ago, the Supreme Court gutted the key provision of the Voting Rights Act, section 5, which was covered jurisdictions. Those are decisions that really do affect politics as it goes. On the other hand, chief Justice Roberts, as near as I can tell, switched his vote in the Obamacare case from striking down Obamacare to upholding it at a time that Obamacare was not particularly popular. And I think one can commend Chief Justice Roberts for that vote, which may have been influenced by politics, in the sense that if you have Bush v Gore striking down campaign finance, gutting the Voting Rights Act, it would be quite something to take the singular Democratic achievement of the past 20 years and strike that down.

Shawn: 33:26

So you mentioned that we are living in a time when Supreme Court justices are confirmed, with their ideologies pretty much baked in.

Shawn: 33:36

We know what we're for the most part we know what we're getting, which leads me to a question about how much those ideologies are influencing the decisions that they make, because it sounds obvious, right, that somebody's personal beliefs, their experience, their ideology, their partisanship are going to influence the way that they think about things. I think that we have this vaunted idea that the Supreme Court, or the courts generally, are applying maybe complex but law and legal history legal tenets to their decision-making process, but yet they're confirmed, with us knowing quite a bit about their ideologies. So I do wonder about their personal philosophies and their backgrounds, their experience and their ideology and how that influences, or the extent to which it influences, the decisions that they make and the opinions that they write. And I immediately think about Alito's decision in Dobs, which the decision itself reads as very personal to him and his beliefs, but also seemed written to personally speak to both supporters and opponents of abortion, as opposed to taking a very constitutional legal approach that seemed really rooted in some type of legal tenets.

Lucas: 34:48

Yeah, they've got their personal philosophies, and their personal philosophies tie in with their views of the Constitution. And Alito's view of the Constitution is that it says nothing about abortion, and textually it certainly doesn't. And if we apply the common idea of the Republicans and originalist Constitution, he looks back and says well, abortion wasn't protected in 1868. There though, it's not protected now, while another side of the centers, even if they didn't want to say sorry to Cises, could state at this time in our American history, the idea that a woman's autonomy could be controlled by legislatures is just contrary to the American spirit that a woman needs to be able to control her reproductive life in order to control all other aspects of her life and achieve full citizenship.

Shawn: 36:00

We talked a little bit about public opinion and historically, public opinion perhaps that ran counter to war and court decisions were primarily region-based, which is probably true to the current court as well, in that primarily blue states and cities. Popular opinion runs counter to a lot of the decisions that the court is making and it would suggest that the Roberts court, it seems anyway, is not necessarily taking into consideration public opinion in a way that we maybe would want them to. But what role do you think public opinion has played on the Supreme Court in the past, how it plays on the Supreme Court now, and do we want the court to be considering public opinion?

Lucas: 36:45

For the most part I don't think the court does consider public opinion. I think the justices are deciding cases as they believe are correct and just and the public will have to adjust to that decision. Now it's nice when you can align with public opinion, as the court more or less did in desegregation, certainly did with its reapportionment cases but was out of step the war and court was out of step with the criminal procedure cases. And here Dobbs is certainly out of line with public opinion. But it appears that the Harvard, north Carolina cases striking down affirmative action lines up pretty well with public opinion In the case of public opinion and guns. That is such a rural urban divide on that where, as I was mentioning, the Roberts court seems very sympathetic to southern and rural values and much less sympathetic to urban national values.

Shawn: 37:58

So something else that's being part of our political discourse as it relates to the court in the past handful of years is a lot of talk about constraining the court via maybe expanding the court, imposing term limits, maybe age limits or limits on the types of cases that the court can hear, et cetera, and I think it would be easy to say that liberals or Democrats are all in on constraining the court right now and conservatives are not, but I haven't found that to be true. I have found there to be quite a bit of deference on both sides of the aisle to the court, although the rhetoric about constraining the court has definitely ratcheted up a bit. Where do you come down on this, and are there any reforms or safeguards that you would propose to ensure the effectiveness and impartiality of the court moving forward?

Lucas: 38:45

I'm on the record for the past 30 years as favoring term limits for Supreme Court justices. I've taken the position that life tenure should be limited to college professors, and I would very much like to see term limits where each president during his four-year term would get two appointments. A justice can stay on the court for 18 years. I think a result of that would be we'd probably see the appointment of slightly older justices men and women who've got more experience and more wisdom rather than seeing how young we can go so that we can have this person for 30 to 40 years. Congress also has the power to shape the jurisdiction of the court and has done so periodically. I'm more skeptical about doing that. I would prefer to see the justices limit themselves rather than Congress do it, with the exception of term limits, which I really, as I state, I've been on the record for 30 years about that and I believe strongly that that would make a more representative and probably a more legitimate Supreme Court.

Shawn: 40:06

I often wonder what it is about the court that we venerate so much, and I don't mean the authority or power that it has, and I don't mean the fact that it is the final arbiter of adjudication in the United States.

Shawn: 40:19

What I'm talking about is, across not just the globe, but the United States itself. We have numerous constructs to adjudicate cases. We have courts that have a lone judge making a decision. We have juries of different sizes making decisions. We have benches of courts in different situations making decisions, and over the course of the Supreme Court's history, it's evolved. The number of justices has changed over time. They've sat in different places, they've had different responsibilities. They don't ride the circuit in the same way that they used to. So it's not as if this current configuration and the job duties associated with it, and even the jurisdiction of the court, has just been set for time immemorial. It has been something that's evolved. So why do you think that we are so? We venerate the current composition and structure of the court so much that it is unsettling to us to consider changing that.

Lucas: 41:18

Brown versus Board of Education. If it weren't for the Supreme Court, the South would still be a segregated area of the country, with their African-American citizens being discriminated against in all facets of their life, and I think what the court has managed to do in the area of civil rights in the 50s and the 60s just gave an incredibly strong legitimacy to the Supreme Court. The current court can bask in that reflection, because what the court did in the case of desegregation was so correct, so just and overdue that the court that's where I think the warmest feelings about the court come from.

Shawn: 42:11

Okay, lucas. Final question Are you ready for it? Sure, what's something interesting you've been reading, watching, listening to or doing lately.

Lucas: 42:20

A really good book that I asked for as a Christmas present and then read over the Christmas break was Tim Alberta's the Kingdom, the Power and the Glory. Tim Alberta grew up as an evangelical Christian and remains an evangelical to this day, but he's writing about what has happened with evangelicalism over the past decade and I thought the book was just excellent and compelling and scary right. Yes.

Shawn: 42:54

Yeah, very scary.

Lucas: 42:55

A belief that, a belief in one man, more so than the tenants of the 10 Commandments or the Sermon on the Mount.

Shawn: 43:06

Speaking of really good books, I don't wanna let you go without telling you that I recently finished the Warren Court in American Politics, which is why I kept referring back and asking your opinion about this current court to the Warren Court. I just wanna let you know that I loved that book. It was so well written, it was so informative, so well researched. So I don't know if I'm thanking you for writing the book, but I just wanna let you know that it was a great read.

Lucas: 43:32

Well, thank you, it was a labor of love by me. It's my favorite book.

Shawn: 43:37

Lucas Powe, I appreciate your time. I appreciate your thoughts and the conversation. I've enjoyed it. Thanks for stopping by Sure.

Lucas: 43:45

you're welcome.

Shawn: 43:51

The judiciary's role as the guardian of the rule of law and protector of individual rights cannot be overstated.

Shawn: 43:57

It is the judiciary's independence and its impartiality that ensure decisions are made based on law, in fact, not swayed by the winds of political change or the pressures of the moment.

Shawn: 44:08

In a hyperpolarized, in many ways radicalized America, the question of whether our courts can avoid politicization and maintain independence and impartiality is more pressing than ever.

Shawn: 44:19

The judiciary's role in a democracy is not for the personal benefit of judicial officers or one segment of the public or political party, but to ensure that all individuals have access to fair and impartial justice. Protecting the independence and impartiality of our courts is essential to maintaining the public's trust in the judiciary as a fair arbiter of disputes and a defender of the Constitution and the rights it guarantees. So, as we head into a critical election that has incredible implications for the future of American democracy, it is crucial for all stakeholders, including the judiciary, legal professionals and the public us to engage in efforts to preserve judicial independence and impartiality by understanding the challenges facing the judiciary and advocating for measures that protect its ability to function without undue influence. By electing good civil servants, dedicated to the promise of democracy over party, we can help ensure that our democracy survives and, hopefully, thrives. The judiciary's independence and its impartiality are not just legal principles, but a promise of justice and fairness for all.

Shawn: 45:24

All. Right, check back soon for another episode of Deep Dive Chat. Soon, folks, we will see you in the next one.