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Constitutional lawyer Michael Waldman says that there’s an increasing distance between the American people and the Supreme Court. He points out that Democrats have won the popular vote in seven of the last eight presidential elections, but Republican presidents have appointed six of the nine justices now on the Supreme Court.
“In a sense, the country is moving in one direction and, with this locked-in majority supermajority, the Court is moving fast in another direction,” Waldman says.
Waldman is president of the Brennan Center for Justice at the NYU School of Law. His new book, The Supermajority: How the Supreme Court Divided America, reflects on the transformational changes wrought by the conservative supermajority, which now dominates the U.S. Supreme Court.
Waldman argues that the conservatives justices, including three appointees of President Trump, have defied longstanding precedents and rendered far-reaching decisions on gun control, reproductive rights, environmental regulations and voting rights — with more to come. He says that the principle of “originalism” — whereby conservative justices purport to govern according to the intent of the country’s founders — is fundamentally flawed.
“We can’t really pretend that we can know what to do now, today, in 2023, by asking what the guys in powdered wigs in 1791 thought,” Waldman says. “This was a time when women could not vote for much of that time, when Black people were enslaved and so forth. It was a very different time with very different values and visions of what kind of country we were going to be.”
On how the lack of a swing vote has changed the Court’s ambitions
There’s often been a swing vote, and for a long time, for example, it was Sandra Day O’Connor and then it was Justice Anthony Kennedy. But with six very conservative justices usually moving in lockstep, the arguments came out differently. They were sort of triumphalist rather than trying to make a case to that one individual justice. It turns out the numbers matter quite a bit and it changes the tenor and the ambition of the Court when there’s a solid majority, when you can even lose one justice and still push through really dramatic rulings. And it’s all part of a kind of a pretty significant potential gap between the Court and the country.
On disputes within the Court being more public and hostile in 2022
The Court depends, for the decisions it makes, on a sense of calm, of sobriety. They really want to build up this mystique. They wear robes even though they’re not wizards. They’re not a religious institution, but they want to have that aura. But as they prepared to make these really big rulings in June of 2022, the first full year of this supermajority of conservative justices, they didn’t have that quiet aura. They were sniping at each other.
It was nonstop controversy, everything from the leak of the Dobbs opinion on Roe v. Wade, they started giving speeches attacking each other. Justice Clarence Thomas said basically this was a great place to work until John Roberts became chief justice. We learned about the activities of Justice Thomas’ wife, Ginni Thomas, and her deep involvement in the efforts that ultimately led to the insurrection at the Capitol on January 6 — and all of this was happening in public. It was once the case that somebody in an earlier era likened the Supreme Court justices to nine scorpions in a bottle. This year, the scorpions were crawling all over the table. It was all happening very much in public view.
On SCOTUS decisions released online rather than publicly announced in person
They were girding themselves for what they knew were going to be really significant, really controversial and, in many ways, really extreme decisions. Some of this was due to COVID. They didn’t have oral arguments in person for a long time, but I think there was a building up of a mental fortress around the Court as well. After the Dobbs leak and there were protests, they put up a big fence around the Court to keep people away. And it used to be the case throughout the whole history of the Court, that when there was a ruling, it would be read or summarized in person by the author, and sometimes there would be a dissent, a very passionate dissent read from the bench by one of the other justices. But last year and, so far, this year they’re just issuing PDFs on their website, so that Roe v. Wade was overturned with a “send” button at the Court’s website rather than in a hearing where somebody would be saying those words and the public would hear it. There’s no television. But now we are able to hear the audio from the Court. And I think that’s a deliberate decision in some ways to try to dampen the public response to some pretty controversial rulings.
On the recent interpretation of the Second Amendment to be about personal gun rights
The Supreme Court never said that the Second Amendment reflected an individual right to gun ownership for self-protection … until 2008. It was quite recent. That was the Heller case. But that case allowed gun regulation, allowed public safety laws. That was written by Antonin Scalia. And Scalia was asked, what’s the difference between you and Justice Thomas? And he said, “Well, I am an originalist, but I am not a nut.” Well, this ruling was written by Justice Thomas, and it was by far the most sweeping, the most extreme Second Amendment ruling in the country’s history.
I wrote an earlier book about the Second Amendment and really studied its development over the years. And there’s nothing close to this. It didn’t just strike down this New York law of over a century governing the carrying of weapons. It said, in effect, that you cannot consider public safety when looking at a gun law, only what is called history and tradition, by which it meant some law, some rule from the colonial era or from the founding era.
Now, the history here is actually not actually what the history is. There’s a long tradition before and after the Second Amendment was ratified of restrictions and even bans on carrying weapons. It was always treated differently from having a gun in your home, say, or having something for self-protection in your home. So the opinion kind of hopscotched around and rummaged in the closet to find supportive evidence. So the history wasn’t even the real history. But what it has led to is this situation where dozens and dozens of long-standing laws on firearms, on public safety are at risk of being struck down. And using this really, I would argue, bizarre, almost satirical new standard.
On the Second Amendment being about public safety
The Second Amendment, when it was written, was all about public safety. The militias are not like anything we have right now. In fact, that era was different in so many ways. Every adult man was required to serve in the militia for their lifetime and was required by law to own a gun and bring it from home for their military service. There was no police force. There was no U.S. Army. That was the public safety force for the country. And Justice Scalia, when he said, no, this is really about an individual right for self-protection, he said, you can tell that because [of] the word[s] “bear arms.” He used dictionaries from back then. He said “bear” means carry, therefore, that it must be something you can carry. So it must mean something like a pistol.
Well, after that ruling, a bunch of scholars created a database of all the writings from the founding era, I guess, so that we could go push a button and find out what to do now. And they pushed the button and it said “bear arms” means serving in the military. It refers to serving in military service. That was what it meant back then. So again, there’s an absurdity to the notion that we’re going to govern ourselves now, either by what this computer tells us, or by trying to have a séance with what they did back then. We have had guns and we have had gun regulations from the very beginning. It was illegal to have a gun in the city of Boston because they would have safety issues. There were all kinds of things at the time. And we’ve balanced the goal of freedom and the goal of security all throughout our history.
On the importance of state courts and state constitutions right now
State courts and state constitutions can be and should be a strong bulwark for protection of rights, for advancement of equality, for promoting democracy. As you say, the state constitutions have stronger protections on voting rights than the U.S. Constitution. And this kind of thing is true on a lot of different topics. You even see abortion rights upheld in a place like Oklahoma and other states. What we need, though, is for state courts to step up, not to just say, well, whatever the federal courts say … we’re going to follow that, too — which has often been the case in the past. But to live up to their obligation to be an independent force to protect people’s rights. That is a long-term project for lawyers, for scholars, for activists and for judges. It’s something my organization, the Brennan Center, is deeply involved in advancing. And I think all Americans need to understand that the U.S. Supreme Court is not the only court in the country. Everybody’s got to do their part. …
This very extreme group of six justices have the ability to make significant changes in our country going forward, but we have the ability to hold them accountable. We have the ability to push back. … I’m optimistic that changes can happen. But it’s a moment of decision. This is a big, big deal for the country. It’s going to be a big part of our politics going forward. It will be important in 2024 and beyond. And if everyone engages and understands the Constitution is not for lawyers, it’s not for judges, it’s not for professors, it’s for we, the people, to decide what it means. That’s what gives me hope.
Heidi Saman and Joel Wolfram produced and edited this interview for broadcast. Bridget Bentz, Molly Seavy-Nesper and Meghan Sullivan adapted it for the web.
This story originally appeared on NPR