Transcript
Welcome
0:00 First, I'm Nick Schweitzer. I'm the current president of, sort of, board of this organization. First thing I'll do is ask if anyone has brought a visitor or a person who hasn't been here for a really long time. Brian? Brian, you here? Yeah, so- So you don't know. Brian. Uh, James. Uh, James Strommen, longtime friend- Former client
attorney, uh, all kinds of great activities in, 0:30 in our country, yes. I think a couple other people who you convinced to come who haven't been here for a little while. That's what they said. Maury. Recent, yeah. Heck yeah. Okay. And, um, although I will be introducing Skyler, would you like to say something about the person sitting next to you?
Introductions
Hello, everyone. Uh, I'm Skyler Croy. This is my girlfriend, uh, Erica Kleinschmidt, who came with me today. Thanks. Welcome, welcome. Yeah, welcome. 1:00 I will be introducing, uh, James Troupis, whose topic tonight is politics and the courts. I'm also gonna let him talk for himself. He gave me a five-page- ... essay.
All I have. I am going to hit just three or four, no, five or six highlights from it- ... which stuck out for me, which might be of interest to you. Um, he... And unfortunately, I have to go through it two 1:30 or three times. It was good. There we go. Um, after graduating from Northwestern, you became a practicing attorney with Michael Best & after a little bit of practice on your own, I think, but then you worked for Michael Best & Friedrich for twenty-three years.
Um, retired from that. Has begu- has continued to practice law, 2:00 uh, first on another of his own, um, law firms for a while, but now really retired and just doing appellate work. Um, he has been on the Board of Governors of the State Bar of Wisconsin. He's done a lot of things. Uh, was on the board of directors of Legal Action of Wisconsin, which I have in respect, which provides legal access to low-income individuals in Milwaukee.
Um, he 2:30 was on District 9 committee, uh, for the Office of Lawyer Regulation, which I recognize having worked with them a little myself. Um, and
Was appointed a Dane County Circuit Court judge 2015, 2016. Most important though, uh, you gave a commentary to the Madison Literary Club. And that was 3:00 commentator of Randall Diamond's paper, The Uncomfortable Interface of Science and the Law. Huh. This will be published today. Um, after that I... Well, I, I will introduce now, and when you're ready, you can just stand up and, and join the discussion.
But Skyler Croy will be commenting on, uh, Jim's words. Uh, after graduating, uh, from the UW Law School in 2019, 3:30 he, as editor-in-chief of the Law Review, um, he became an adjunct professor of constitutional law, teaching the Reconstruction Amendments. Which I find absolutely fascinating. And you have been practicing now with the Hurley Burish firm in Madison Okay.
The paper: Politics and the Judiciary
Thank you. Thank you. Yeah. It's, it's been a while since I followed this. 2020, it's been a while. I haven't been to your 4:00 meetings, just see you on Zoom, and that's it. So I was talking to Carl and Jay Randy of, um, when we first did the club years ago. I, I actually had been a member for a very long time, so I thought, "You guys haven't seen me around."
Um, and then the world changes and, you know, you, you end up with your grandchildren in the winter, so, you know, shortly I can be here because I'll be back with my grandchildren for the winter. So that's the, that's the way life sometimes works. It's a wonderful, wonderful opportunity, and I really appreciate the opportunity when 4:30 you called and to ask, um, uh, me to speak.
And the reason I say that is because, uh, he's correct. Uh, Randy, uh, Dr. Diamond, um, was a close personal friend and, uh, right into the club years ago. And he had asked me because I had worked with Promega for many years, uh, as their chief outside litigation counsel all over the world. And, uh, Dr. Diamond, Randy Diamond's one of the finest, finest human beings I have ever met.
Um, 5:00 and, and but the idea that he and I had wrestled with all over the world had been science and how it interfaced with the law. And again, I've been very fortunate to get the opportunity to handle cases of human errors all over the world, um, that posed this question. Um, before that, what... Last time I spoke, um, here, I spoke about the O.J.
Simpson trial. And, and and that's-- The 5:30 title of that talk was From Blackstone to O.J.: The History of the American Jury. And I, I find it fascinating, and Randy and I were talking about it a bit ago, that we've come full circle. At the time of that, there was a, this is the nineteen nineties, there was no knowledge about how juries worked and how things could happen.
And the O.J. case posed a very serious issue for the legal system. But in fact, it wasn't a new question. It had been questioned all the 6:00 way back to Blackstone. So just as that was a topic and the, and science was a topic, today's topic is about politics and the judiciary. Um, and, and I obviously it's on everyone's mind that follows the law these days.
And so I thought that that would be a good topic of... We're gonna look at it from a less, uh, um, uh, marginally academic, um, process, and I'll look forward to Skyler's comments, uh, 6:30 with me Increasingly, our American courts are perceived as political bodies. This perception has the potential of undermining much of what the founders had hoped to achieve, and may ultimately bring down the law.
Now, is this hyperbole? Mm-hmm. Is this merely the fearful ramblings of an out-of-touch white approaching his fifties practice Unclear in recording ? Well, uh, perhaps it is, perhaps it's not. 7:00 Uh, but I'm gonna test that proposition To understand the idea of politics in the judiciary, we'll start with a bit of definitional context.
What a “political case” means
Then within that context, it is important to review the existing public perception, and finally, I will address the future alternatives. The term political case has different meanings. In, in one sense, the public perception of politics in the courts is simply a belief, a 7:30 truism of-- that from time to time, individuals and government officials use the courts to achieve a political aim.
Uh, this most recently involves a president taking actions that are immediately challenged by the opposing political party. The birthright citizenship executive orders are an excellent example under President Trump, and the forgiveness of student loans is an equally excellent example under President Biden.
Uh, both actions were properly perceived as 8:00 deeply political. Biden and his political supporters made no effort to deny that providing student loan forgiveness, uh, is a key part of the strategic-- of their strategic goals. It had real appeal, both as a political scheme and as a way to provide financial relief with concomitant economic boosts.
Using the HEROES Act of 2003, an equally political response to 9/11, the Biden administration simply 8:30 rewrote the student loan agreements of more than ten million borrowers, forgiving in the process nearly four hundred billion dollars in, uh, interest, a contractual due. In Biden v. Nebraska, a divided US Supreme Court struck the entire scheme, noting that it was neither contemplated by nor authorized within that legislation.
Congress, it said, not the executive, must make such decisions. Uh, not to be outdone, 9:00 uh, Trump and his political supporters were going to carry out a campaign promise in 2024 by declaring via executive order that going forward there would be no birthright citizenship. Uh, again, the political character of this case is, uh, no secret, and the unhidden agenda to have the courts carry out the political objective was, was not secret.
Again, the United States Supreme Court took control and, uh, found a long history of birthright 9:30 citizenship could not be overturned by, simply by executive action. At the very least, uh, one justice pointed out, Congress had to act Of course, at this point I'm glossing over the intricacies of both these case studies.
I readily concede that there's much, much more that can be said, argued, debated, and ultimately determined. But as to the political nature of each of those cases, and 10:00 many more, there is no debate. Each present in stark terms an attempt to use the courts to achieve an important political check. Thus, we can say these are demonstrating both political use of the judicial.
And then depending on one's view of each at hand, each may also provide support for public perception of judicial independence. But the opening question I pose 10:30 is not answered by those credibility cases, because I'm using political here as the general public views the term. In fact, the scholarship on what constitutes a political question is much richer and has a history dating most recently, that is, most recently in the past eighty years, to issues of race and its corollary, legislative redistrict.
Article III and justiciability
Article three, Section two of the United States Constitution 11:00 provides, "The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and the treaties made, or which shall be made under their authority." From this rather straightforward and candidly not very controversial constitutional proposition, there springs an, uh, an intellectual goldmine.
Again, given the limited nature of this paper, um, 11:30 I am certainly not going to go much beyond strip mining the surface. Uh, without a doubt, the seminal discussion of what is a quote political case unquote, that is a case that would fall, not fall outside the limited powers granted to the courts by Article three, is the nineteen sixties case Baker v.
Carr. Um, Baker, uh, has itself been the subject of innumerable academic papers 12:00 and spawned a cottage industry in both redistricting and civil rights law. Here I must simply consider how it impacts what we may consider, uh, a political issue What is not just merely a public perception political, what is a political question?
Well, because Article III limits the courts to its own terms for both 12:30 law and equity, any court that intends to use its power must first and foremost determine if the case is one in law or is it a case in equity, otherwise it has no jurisdiction. While the nature and breadth of disputes among humans and their various and sundry entities are infinite, American courts may consider only a small fraction of these disputes, 13:00 that is those falling under the umbrella of law and equity.
A child's playground, uh, dispute or an adult's bar room debate do not automatically qualify for resolution in a court. The old and often repeated phrase, court of law, is a good reminder of the limited nature of our courts. For lawyers, this principle is referred to as justiciability. A matter must be justiciable for a court to 13:30 exercise its power The 1962 disputed Baker concerned state legislative districts, um, in, in, in...
Baker v. Carr and the turn to one person, one vote
While there had been a handful of legal challenges up until then in state and federal courts, uh, the, the legislative boundaries prior to Baker had, uh, had only been challenged in one very famous case called, uh, the Gouverneur Gerry case that led to the famous term gerrymander. It comes from a Massachusetts 14:00 case, uh, in the 19th century.
Courts had by and large, it was readily accepted, refused to enter the political fray occasioned by the creation of legislative districts. But as the constitutional issues surrounding race percolated in the mid-20th century, the issue was, uh, I believe, inevitable. The legislative districts in Baker were in Tennessee, and they had 14:30 widely different populations.
Some districts had 19 times more voters than other districts, um, a difference that was simply too great to them. Uh, setting aside the purpose, which was almost certainly racial, it, it was until then a nearly universal belief that the US Constitution left to the states the entire field of redistricting.
A matter must be justiciable for a court to exercise its power.
Certainly, that was so as to the states, its, a state's own legislative district. 15:00 After all, this is 1962. After all, uh, um, at least one state, Nebraska, had a single legislative body, a unicameral legislature, and if the legislative body was given the power, then what business was it to the courts if the legislatures chose to exercise it in a particular way?
This was unquestionably a, quote, political, end quote, decision. The courts had no role. Well, the Warren Court 15:30 thought quite differently. When legislative districts do not have the same population, one district with more people provides hypothetically less representation to those in the district than a comparable district with less people.
That is, a district with a million people compared to a district with 100,000 people gives its people less power over the legislative process than the s- its smaller counterpart The constitution, it was reasoned, could not have been meant to allow this 16:00 disparity in the representative population-based house of a bicameral legislature.
The founders provided for a population base, our founders at the federal level, population-based House of Representatives, while simultaneously providing a non-population based Senate. South Dakota in the Senate has an equal say as New York, but in the House of Representatives, South Dakota has only one representative, and New York has twenty-six.
While the 16:30 Constitution at the outset provided no guidance to resolve those disputes, the 14th Amendment of, of Civil War Reconstruction issue guarantees equal protection of the law. That term equal protection. As legislative districts with different populations are not equal, they violate different votes.
But while this simple explanation seems straightforward, it runs into a serious impediment under Article III because 17:00 the act of redistricting is not done on a plain slate. It's done by the various legislatures of each state for congressional district. That, too, is a constitutionally provided for process under Article I, and, and nothing in Article I actually restricts how the legislatures of any particular state must draw districts.
Recall the famous, again, Governor Gerry and his gerrymander, a 17:30 serpentine district. The intrusion of courts into the legislative process of drawing a district was a direct intrusion into the rights and privileges of a separate and co-equal branch of government, legislature. It was pure and simple, a political question, not a question sounding in law or equity, the absolute prerequisite for judicial intervention.
The political question doctrine
To give you a sense of just how difficult, 18:00 uh, it is to get around this conundrum, political versus political case versus law and equity, and how serious semantic games must be played to get avoided, consider the Wisconsin Supreme Court's most recent redistricting decision Here is how the Wisconsin Supreme Court paid homage to the political question problem in its 2024 latest redistricting case.
And I quote, 18:30 "Sometimes the law is that the judicial department has no business of entertaining a claim of unlawfulness because the question is entrusted to one of the political branches or involves no judicially enforceable rights. For this reason, quote, political questions, end quote, are non-justiciable, that is outside the court's competence."
And then it went on to explain why it didn't fall under that barrier But 19:00 let's go back to Baker. The Baker Court did a masterful job of providing a list of matters that were and continue to be political questions, that is, matters that would remain non-judicial. Foreign relations, for example, remain strictly in the purview of the executive.
The president, after all, is the commander-in-chief. As the court noted, such matters uniquely demand a single voice. 19:30 Not surprisingly, given the tensions in the Middle East, even the Ninth Circuit, which is considered our country's most liberal appellate, held in twen- nineteen-- t- twenty twenty-four that as to Gaza, it would not countenance any attempt by private citizens to intrude on President Biden's conduct of affairs involving Israel and the Gaza Strip.
The validity of am- amendments to the Constitution also is an area that 20:00 remains a clearly political question. Once a constitutional amendment process has begun, it is entirely up to Congress to decide when it comes to an end. It can literally last forever. Even more so, the process itself making legislation is an entirely political question relegated to the body making such an act.
We in Wisconsin, as recently as two thousand and eleven, had a 20:30 remarkable illustration of that principle, the principle that a legislative body makes its own rules. When legislators left the state to prevent Act 10 from being enacted, the state Senate president at the time issued actual enforceable warrants to arrest, through the sergeant at arms, the absent legislators under the principle that the body alone had a right to enforce its rules for attendance.
The famous 21:00 case of Adam Clayton Powell being seated in the United States Congress also provides another rather fitting example. The- those pieces are up there, and a host of other examples, including the status of Indian tribes, which to this day limit what a court can hear. The, the, the point to make here is that while we often refer to political nature of cases, within the legal system, the phrase political question is uniquely 21:30 applied to matters that are delegated constitutionally to one branch of government.
Once the delegation is understood, another branch may not usurp government power, which brings us back to the public understanding contrasted to the legal understanding of what may constitute undue political influence on the judiciary A recent spate of stories about the potential outcome of cases in the United States Supreme Court illustrates 22:00 quite a bit.
The scorecard view of justice
More and more of recent years, the press and the public fixate on the score. By that I mean, how many justices and judges appointed by a Republican president, and how many justices or judges appointed by a Democrat president will rule on a particular case? It's a scorecard view of justice, a game show.
Justice is reduced to politics rather than law. Uh, from a lawyer's perspective, one can be of two 22:30 minds about this phenomenon. On the one hand, bravo if your side is the winner. But on the other hand, it is rather deeply disturbing that something other than the facts and the law controlled it. "Facts are a stubborn thing," John Adams said as he defended the British soldiers he represented during the Revolutionary War.
But are they so stubborn 23:00 if the political bent or political pedigree appointing this or appointing this judge uniformly predicts the outcome? It is not my purpose here, um, the TED on fate raging in the law school Unclear in recording is about the necessity of following the law as written or, or as intended. The idea that a lawyer or a court has a responsibility to consider whether or not a law source is unjust, whatever that is, seems a very far cry 23:30 from the principles ingrained in lawyers for two centuries now.
Since the time of Magna Carta, it has been presumed that the law ought to unifor- be uniformly applied, and protections must exist to stave off any overreach by the monarch, the government or others. It was that principle of equal application of the law independently enforced by an unbiased judiciary that formed the bulwark of our legal system. 24:00
It’s a scorecard view of justice, a game show.
But that recent academic and non-traditional discussions are questioning that underlying principle is an uncertainty. So we now reach the fundamental- By using political to encompass a wide range of judicial behavior, we have gone far astray from the political question doctrine that ought to have limited restraint.
The public has become immune to 24:30 any real understanding of what initially framed the debate about the limits of courts. Instead, the public and the legal profession have come to perceive courts as inherently political. The scorecard is understood, and a deviation from that scorecard is, is, is immediately mentality as an aberration.
Deviation from the scorecard has become a punishable offense for their judicial actions. A judge is no longer the independent arbiter when the underlying issue of the case may be considered of principal or 25:00 important to the party who the judge framed. By ignoring the constitutional admonition requiring case or controversy in law or equity, and thus intruding on the prerogative of other coequal branches of government, that is the political question limitation.
Falling public faith in the courts
The courts have increasingly found their decisions are questioned by the public. How, how do we know this has happened? Well, consider simply polling. The, the lack of faith in the judiciary by the general 25:30 public has been a downward arc for quite some time. National polling has seen a precipitous drop in trust.
In twenty twenty, faith in the judiciary stood already at about fifty-nine percent, but it is rapidly getting much worse. By twenty twenty-four, comparable studies show faith in the judiciary stands at just thirty-five percent. Not surprisingly, the numbers are even worse for the US Supreme Court. I readily acknowledge that 26:00 many, including influential scholars, not only accept this downward spiral, but rather change that they seek is reachable, they would argue, through the courts doing their perception of justice not otherwise attainable through the legislative process.
But this leaves all of us wondering what happens when once political politics and not conforming politics overtakes the judge. That is not 26:30 success by the founding fathers of the court. The long debate that preceded nation's birth included key questions about the potential for one branch of government to become dominant over the others.
The debate on why lifetime tenure of federal judges seemed to devolve to a question of how best to guarantee the independence of that branch. To now find, as a consequence of ever-increasing political bet of the public that I discussed, that such independence is gone, 27:00 or at least is perceived to be disappeared, presents a stark contrast to the founder's expectation.
Where from here
So where from here? The, the obvious solution is the selection of judges who might return to greater independence. That is both obvious and implied. It is almost common, uh, to hear candidates for highly sought after and publicly known judicial appointments claim that they will be 27:30 independent arbitrators.
Each candidate stumbles over the issue and as loudly as possible claims independence. But perhaps in those very outward protestations there is some hope, because at least there is a belief the public itself, without the influence of other elected political actors, does indeed still subscribe to such independence as a goal.
But the problem 28:00 cannot be... Even with that optimism I have tried to illustrate in this brief paper, there is a fundamental disconnect in the language of what is politically Political question to a non-expert voter is a very different thing than a political question to a judiciary itself. It's hard to know whether most people can this time separate their political biases and opinions from the fundamental purposes of the courts.
When the underlying 28:30 issue is, as it was in student loans and in birthright citizenship, so intensely a matter of public debate, can we ever expect the public, or now the judges of the courts, to distinguish the political from the judicial? Yet there is hope, given that in both instances, the Supreme Court at least exercised very clear independence from the political pressures of the day.
Sadly, the debate about whether judges should be 29:00 appointed or elected, a debate that rages on and off here in Wisconsin from time to time, offers, uh, no real solution. The appointment process at the federal level has yielded the same scorecard mentality as the electoral process has reaped in Wisconsin's election system.
All this leaves us with a host of unsatisfying conclusions. The nature of a politically influenced judiciary seems perhaps now to be inevitable. This does not mean nothing can be done, but 29:30 it's fundamental that what began as a straightforward understanding of the limits of judicial power in Article III of the Constitution has now become a daily scorecard of winners and losers.
A real effort must be made to address the problem. Public perceptions of judiciary-- of the judiciary as a political instrument and use of the courts to achieve political goals is a downward spiral that ultimately rejects the founding principles for separation of powers. 30:00 It is a dangerous departure from s- a system otherwise admired for a very long time.
Thank you.
Commentary: Skyler Croy
Thank you, Jim. And thank you to, to all of you for having me today. So, uh, one of the themes of the 30:30 political question doctrine is the relationship between the judiciary and the other branches of government. Uh, so a sort of theme that's repeated throughout Jim’s talk here is that Congress is supposed to make certain decisions, not the courts.
Um, so I, well, I guess one question I, I had for you, Jim, that I was curious on your take, um, there, there's obviously 31:00 also a growing frustration with Congress, and there's sort of this cry that Congress needs to do its job. The student loan forgiveness is, is a good example. Uh, Congress was not acting, and then people felt pressure to file a lawsuit.
Uh, the, the birthright citizenship case is a good example. There there was a justice who, uh, ruled separately to say something that Congress should weigh in on one 31:30 way or the other, right? And that Congress was not answering the key questions of the day. Um, so when that frustration grows with the political branches, that seems to put a very unhealthy pressure on the judicial branch to act, whether or not the judicial branch is the appropriate vehicle to, to do that.
Um- Do, do you have any, any thoughts on that, Jim? On, 32:00 on the, the sort of relationship between dysfunction in Congress or the state legislature and the pressure that's then placed on the courts to try and do something? I don't think there's any doubt. I mean, I think that those of us who have, um, you know, knew a time when, um, political parties didn't automatically go into their separate corners.
In my, my lifetime we certainly saw it. Uh, I 32:30 always t-tell this because it's, it involves this wonderful building. Bill Bablitch, who was the lead Democrat, uh, when he was technically the Senate Democrat for the United States Supreme Court Unclear in recording [Bablitch was majority leader of the Wisconsin Senate before serving on the Wisconsin Supreme Court.] Um, and Bill, uh, and I were very close friends, and, and also that he came to work for me at Michael Best after he got off the court.
And, and, and I always think of Bill as one of these people who would have just been so pained by what 33:00 today brings to us, you know, this complete inability to sit in a room with, with people and have a, a civil discussion on the history of this clause that, that it does that. But I think to, to face the question, I think the courts simply are reflecting the, in many ways, the failure of the legislative process to function properly.
I think when we have executive power being exercised so aggressively by presidents of both parties, it's simply a reflection of their frustration. It's a reflection of 33:30 their frustration, the public's frustration with the failure to get it done. They want to get something done. They can't get it done, and then the courts feel an obligation to do it.
So the, the source of it is known. It, it is a failure of-- it's a perceived failure of the legislative branch to do the last count. But maybe it is not a failure of those branches. The original-- the founding principle was to create a Senate that would act as a governor 34:00 on the demagoguery of the Congress, of the House.
Um, you know, the ancient Greek principle of demos is, is that it-- that democracy, uh, democracy doesn't work that way. We're not having a democracy. We have a representative form of government precisely because the founders themselves saw the need to create slowdown process. And, and so perhaps we're just where we were intended to be.
And, and so then we can really question are 34:30 courts overstepping, are the executives overstepping, is Congress not doing its job? All I say is that the remarkable thing about this representative form of government is these things were debated two hundred and fifty years ago. Thank you, Jim. And that brings me into the next thing I wanted to comment on, which is the Baker case that, uh, we talked about quite extensively.
Inside Baker v. Carr
So in this case, which was from nineteen sixties, Tennessee had not redistricted, uh, its state legislature for a very long time. I 35:00 think since like the early nineteen hundreds. So it had been several decades, right? And what was going on is that the rural communities that, uh, tended to be more white, uh, were more, uh, getting smaller and more and more rural, less and less urban.
And then the urban centers, which tended to be, uh, more, uh, minorities, inhabited by African Americans, they were getting, getting larger and larger. 35:30 So to keep the equality in the state legislature, there was a, a big movement or big push to force Tennessee to redistrict. And I think we can all agree there was injustice and that there was a demand for redistricting.
But one of the issues that came out of this decision is that there were a bunch of secondary questions that then needed to be answered. So if the judges were going to be the ones who drew the maps, 36:00 what criteria were they going to apply? How are they-- Because you can draw legislative districts in a basically infinite number of ways.
Uh, and then the other one that's interesting to think about is, how often were they going to do it? So the US Supreme Court said they need to do it once every ten years, uh, when the census comes out, um, on the presumption that populations are shifting. Um, but why not every five years? Why not every twenty 36:30 years?
Um, but this is why, at least since the nineteen sixties, every ten years, we've had these big, uh, redistricting fights. And it seems like, uh, by entering that, that realm of, of requiring states to redistrict, uh, the courts have now become responsible many times, uh, not only for equalizing population, which everyone agrees they should be doing, but also for determining how 37:00 that equalization is going to be carried out.
Um, so I think it's those, those secondary questions then put a lot of political pressure on the court because the Democrats will go, and they'll make their presumption about how to draw the map, and the Republicans will go, and they'll say, "Here's how we want to draw it." And then the court's then left in the middle to pick between, uh, all of the different, uh, all of the different options.
So that just strikes me as a good 37:30 example of some of the, um, some of the follow-up that, that has occurred. Um- The other thing that's become interesting is at confirmation hearings. Um, so Jim, you sort of touched on this a little bit in the paper, uh, where now candidates are being asked to, to make statements on how they're gonna rule on certain issues, uh, which for a long time was at least at the federal level 38:00 sort of unthinkable.
Uh, and they all at least try to pay homage, like you said, to, well, I can't answer that question, but yet it seems like everyone wants them to or expects them to. Uh, and if they say that they're going to just simply read the cases and abide by the law, no one really believes them anyways, and everyone basically everyone thinks they're lying.
Um, so that, that seems to be like a, a 38:30 real issue. Um- I'm, I'm, I think maybe a little more cynical than you, Jim, on, on whether there's really a solution to this. I, uh, going back to the, the Baker v. Carr decision, um, there's, there's a really excellent podcast out there, Radiolab, that really talks about the history of this decision specifically.
Um, and 39:00 there, there was a, a justice, uh, Justice Whittaker, who was only on the court for a couple of years because he was so worried that once this door was opened, there would be no going back. But he also felt so strongly that they needed to solve Tennessee's problem. Um, he actually ended up never voting on the case.
He just simply didn't show up to work one day at the Wisconsin Su- at the US Supreme Court, and he was at a cabin in northern 39:30 Wisconsin. Um, and he stayed there, uh, and then the story gets very sad. He, he had a, a just full mental breakdown and he developed institutionalized basically, uh, for resigning from court.
But there, there was such a recognition at the time that this, if this door was opened, uh, it was going to be hard to close. Um, and I, I, I think we've seen that play out now, uh, with especially with the issue of the district. So 40:00 Jim, I, I think it's just, it's an extremely timely issue, and I, I hope that someone, uh, is able to offer a sensible solution.
Cameras in the Supreme Court
Uh, my, my last comment or question for you, Jim. What do you think about the idea of cameras in the US Supreme Court? For or against? So, so up until COVID, right, up until COVID You all 40:30 know what really happened in the Supreme Court argument unless you went there in person. Now since COVID, you can get the audio, uh, and the audio is, is somewhat interesting.
Um, I think they had done audio before that too, but they weren't live stream, right? You couldn't listen to it live, and you can't now. But they still refuse to allow video, and they're worried that if they allow video, uh, it will actually further politicize the courts because people will look to the, the, 41:00 the, the sound bites and the snippets.
I actually have one. Yeah. Curious. Okay. So you're asking me. So again, some few of us old timers from there when there was no cameras in the courtroom, and, you know, in any courtroom anywhere, and I was on the... I was clerking on the Wisconsin-- Illinois Supreme Court for Mr. Chief-- the Chief Justice, Chief Justice Ryan.
And this all came up late nineteen seventies. And it was a f- it, it was a fascinating time and a fascinating debate 41:30 because let's be honest, lawyers like to talk, and lawyers like to be seen on television. And sometimes it's to the detriment of the whole trial. We're looking. Next. Yeah. Try a new one. Oh, okay.
That was the debate that really took place, took place here in Wisconsin. It took place in Illinois at one point in time, took place here all over the country. And I think there is a good 42:00 argument for putting cameras everywhere, and I think there is a good argument for getting rid of them It unquestionably has led to the scorecard intel.
I mean, we, we just, we watch it, see it, you know, we want, you know, who wasn't glued to their TV, you know, all through the cases? You know. But is that the way we want our independent 42:30 judiciary thinking? I don't, I mean, I'm, I'm, I'm very much of two minds on it. But my, I do, I've tried to reason since so I just, I just say I'm very much of two minds because I think just like you just quoted history, and some of us have lived long enough to see this arc all the way over.
And I, I'm sure, and, and I... But I've always been, been committed to keeping everything open, everything there, everybody out there see it. It's just one of the challenges that you 43:00 have when you're exploring important cases. At least. I, I think people would be surprised how many of the cases at that level are actually very boring-
legal cases. That only Jim and I would be interested in. But I do think that the, the portion of it that would get a lot of coverage, uh, would be the very hot button issues, and it can lead this perception that that's 43:30 kinda, that's kind of all the courts do when there, there is actually a lot. But so. Well, I, I appreciate everyone for, for having me.
Questions from the floor
We're going on and taking questions. Okay. And certainly I can do everything. I don't plan to moderate really, but I'll be here if you get into fights. Um, feel free to maybe raise your hand, and he calls on people. Go ahead, ask. Yeah, 44:00 thanks, Jim. Um, I appreciate it. You know, there's an elephant in the room that is we live in, we live in a state of exception.
We live-- we do not live in an ordinary time, and the attack on the rule of law is not coming from a divided political, um, it is coming from the executive, and we all know who it is. Uh, they attacked our votes in Wisconsin twenty twenty, and that, and that was clearly 44:30 to thwart by, uh, this president in twenty twenty.
Um, he's established some funds of almost two billion dollars as an out-of-court settlement for, for a not even a, a matter of law. It was a case of controversy before a court. But the attorney general said it's gone to the platform. He paid off people who, uh, attacked, uh, our, uh, political process on January sixth, and, uh, who were 45:00 convicted and who've been targeted by this president.
So we live in a state of exception. These, these are not normal times. This is not a normal president. The attack on the rule of law has not come from politics as usual, from divisions among the people. It has come from this president. Now, as the courts, uh, in times of exception, the courts have, uh, may have acted exceptionally traditionally by making some Bush v.
Gore, 45:30 um, uh, very resourceful calls. But there are times when the court will have to be asked to make decisions, um, beyond constitutional bounds for the good of the public, um, um- What was the point about law? Law. So then, the rule of law is 46:00 necessary, but it is not sufficient. It requires legitimacy And in our system, legitimacy is the, uh, will of the people.
It's in the Declaration of Independence. In fact, the Declaration says we have a duty, uh, government by the consent of the government. We not only have a right, we have a duty to overthrow government that abrogates that right 46:30 So, uh, the question is, and we have, we have an election coming up. We have conservative justices, uh, uh, retired justice- judges questioning whether the administration will interfere with this election such that it will not be fair.
And if it is not fair, if it is not legitimate, if we do not have a legitimate will of the people to send to the government undermine our legal processes, what is left two months? 47:00 The Declaration of Central Revolution Um, so when I started practicing, um, I had a, an incredible group of interns. Um, okay, now I'm 73, and I think about how lucky I was to have been circuit educated.
I think I was lucky with that. Justice Ryan, I mentioned a little bit ago. Um, uh, there was another guy, his name was John 47:30 MacIver. And some of you know John. John was the chairman, uh, for years of the Wisconsin Political Commission. He was the chairman of the Milwaukee Life Desk. And, and, um, when I came to Wisconsin in 1987, we did, um, the district meeting, the district meeting case, but I was only young.
Oh, no, God, David Brininger and I, I took on legislative districting Unclear in recording in Illinois in 48:00 1980. We want to look it up, uh, for Judy Koehler. Judy Koehler was a state legislator who had had the temerity in Illinois to vote against the pay raises for her colleague. So she was as hated by the Republicans as she was the Democrats.
And in Illinois, let me tell you, they don't get along in politics, and they drew an early district that was 125 miles long, four states, 14 counties, six miles wide at the center. Um, and, and 48:30 so Judy was kind of like, "What am I gonna do?" And I was on a committee doing law school, and she sat on it with me for trying to incorporate.
And she called me up, and, um, excuse me, it's not a law school. "And, um, and would you take on this, take on this case?" And I did. I did. I asked my dad, I was practicing with my dad at the time. And, and he said, "Go for it. Go for it." And we did, and went to the state supreme 49:00 court in, in Illinois. And, um, he... It was every law firm from the city of Chicago on one side, and my dad on the other side.
And me and my dad at the big table. They had no range of whites, you know, I mean, besides Sandy Bill and the students Unclear in recording . It's a state supreme court, as you know. And you-- And, um- And I, I also 49:30 remember that. What they didn't know was that I knew every member of the state Supreme Court. I had lived... You know, going, lived in the corners.
I had clerked for them on the top floor, the third floor of that building for the state Supreme Court. They all knew me. I loved it. And they, they could trust that I was trying to do what I thought was best for my friend, and that it was a good idea. 50:00 And I begged the other side to join me, have that thrown out.
It, go back with the opinion. They threw out Chinese District Unclear in recording . They reconfigured the problem, and they said at the end, "No other party joined in the argument, Ms. Koehler, or we would have found the entire ban." It was a great moment. I'm excited. This kind of goes to thoughts. When I came to 50:30 Wisconsin, um, I had been the mayor of a city in Illinois.
Um, I had been the, um... When Denny, Denny Hastert was running for governor Unclear in recording , he didn't announce for the House of Representatives until I said I'd lost. So I was a young politician and the mayor of a big city. I had-- And I chose to come to Wisconsin to get off. Does it, it'll eat you up 51:00 Big John. I come to John and I in 1980, and I said, "John, we gotta get involved in the district.
Michael Best guy in office, got involved." And you know me talking about political fronts, case political fronts. And I persuaded John that I was on a committee with Haley Barbour and people at the White House at the time. I was building, 51:30
uh, uh, and, and I want this to do that. And he did. We became involved in, in that, and I ended up trying, at one point I had tried more interesting cases than any other lawyer in the United States. And, but John gave me a piece of advice in 1989 that I have repeated over, over He said, "Jim, you gotta make a choice.
You can either be a politician 52:00 or you can be the voice of the politician, but you can never be-"
And that's what they did. And I think I separate that to tell you that I'm not going to comment any of the politics on YouTube. Are they brutal, ugly, mean, horrible, and I'm sickened by it? Yes. Thank you. 52:30 But yet, I'm trapped, so, so strongly. I've been listening this last week to Rick Atkinson's spectacular book on the revolution.
Rick Atkinson.
And he wrote it for the anniversary. And, and, and he, and he s- one of the principles of it was that at the, the 53:00 darkest, darkest time of the revolution, in late seventeen seventy-six, sort of crossing the Delaware, you know, Washington had lost it. Every battle, everything, they'd lost everything. And Congress met, and they gave him absolutely tremendous authority Yeah, so they, they, they literally need to see And they did it for hope. 53:30
Said, and he will add to the, the, his re-responses, no republic can survive without virtue. They trusted in his virtue and pursuit of right. Unfortunately, we're in a world, not so virtuous. We are not so virtuous. And so by Lincoln saying that is a truth. Cannot survive without virtue. Cannot survive without lawyers doing their 54:00 jobs and doing impressively well and representing their clients.
Can't do it without judges. Can't do it without legislators that take their job seriously that said to us about this. That's just the reality. Bold to look at it. I, like my colleague, am optimistic we'll get through this, I hope. How? How? By the truth. That's serious. No, I, I do. I do. I, I, I don't s- I don't 54:30 know.
I don't know. I, I, I, I have a, a real optimism that hasn't disappeared yet, but how? I’m not Cincinnatus. I'm not nothing. I can only tell you that the public wants me to talk like it tonight. Public wants me to do it. That's what they want. So, so we can find our way to that, this issue. If we, if we don't, it is 55:00 gonna be all right.
So George Washington, he declined the, the honor. Yeah. Thank you. He said, "No, it's supposed to-- I'm gonna accept it." So our Supreme Court cannot, uh, mind themselves. There's all kinds of conflicts. They're not independently. Um, decisions that we- 55:30
No republic can survive without virtue.
Legislative branch is for what? Going on vacation. They're not doing anything. They're making no effort to monitor themselves. Uh, executive branch, nothing is happening. They didn't get their 200. Sorry If they can't do their own requirements, how are they ever going to put checks and balances on each other?
Where do the people come in?
And, and where, where do the people come into that? 56:00 Like in the middle of this pattern? Yeah. Yeah. I mean- So just to back up for a minute, I, I do think we tend to romanticize the courts, right? We, we sort of hold them out as the, the judicial heroes who, who should be, in a lot of people's minds, resolving all of these issues.
And, and one of the... And, and there are a lot of very famous examples. Probably the most famous is Brown v. Board of Education, 56:30 right? Where that's an example of the judiciary doing good. Um, and that was obviously a correct decision, right? But I think what Jim and I are saying, um, there is a category of cases, a relatively narrow category, uh, where the judiciary is simply not the right one to decide.
And you can look back at times and see where the judiciary kind of just paved it off, and things went extremely haywire. Uh, 57:00 probably the most famous one that I've taught in my classes is the Korematsu decision, right? So Korematsu is a very famous example. Uh, in the, in the 1940s, during World War II, the US government basically just said, "We're gonna round up every one of Japanese descent, and we're gonna put them in essentially concentration camps, like internment camps, uh, because we view them as a security risk."
And there, there was no due process, there was no anything. Uh, 57:30 that decision got to the US Supreme Court, and the US Supreme Court said, "Well, we think it's necessary," right? Like, it's a national security threat we're, we're going to allow. Um, you can, and you can think back of, of, of lots of times in, in constitutional history where, uh, particularly on issues of race, so the court has not been the cure.
Um, 58:00 so the idea that the court is always the best place to resolve these disputes is, is, is not true. Now, the problem then becomes how do you get the other branches to do the right thing to resolve these? And by the way, a lot of times for something to go really, really bad, all of the branches kind of have to fail, right?
And Korematsu is a good example of that. It's not only the court said we're going 58:30 to intern the Japanese, right? All of the branches played a role in that, in particular, uh, FDR on behalf of the executive branch played a very big role. So- Sometimes the idea that the court is going to be the check on the other branches, uh, is, is, is just not true.
Um, that, that's-- that also doesn't really answer your question other... But- There is a point. You mentioned Korematsu. Th-there's no indication 59:00 that Korematsu was not justiciable. It was justiciable. It was just decided the wrong way, number one. Number two, we currently have concentration camps. Yeah. We currently have concentration camps that the executive is not allowing Congress into, to, uh, e-exercise its oversight function.
Uh, as I said at the beginning, we live in a time of exception. We live in a, in a, in a time of exception. A-and yes, you're right, the court has a horrible history, Dred Scott, 59:30 which we for- yes, we should, should not look at. But the point is, Korematsu was just-justiciable. The court, hell, took the wrong holding, but, but the, the damn point is we are living in a country with concentration camps now without any congressional oversight whatever.
But that, that's the difference that I see, that Korematsu was... That was for the time. So in that circumstance, they, they thought that was okay to do. 1:00:00 But- What's happening now is not this temporary thing. They're systematically taking away all the systems that make decisions, not... I mean, I'm not blaming this all on the courts.
All, all the branches. But they are making decisions that are not gonna be reversible. Th-this is kind of at least what I was trying to get at a little bit in my comments, was that when the political branches fail, there often does become the push on the judicial 1:00:30 branch to, to step in and do something, regardless of whether it is actually that particular court's- job to do that.
And my point is, Court Posner Unclear in recording , your, your recollection of that is correct, but it, it's just an example of when this idea of necessity and a great evil, uh, sort of overtook the court and made it, uh, frankly reach an outcome that it's, it's 1:01:00 at odds rather than just apply the law Well, I have a question about the elections and how they end up in courts, and I think you've had some personal experience with that.
And how, how does that all fall into, uh, you know, what the court should do? Who's gonna decide that? 'Cause like I said, it's not these elect- Yeah, I, I, I would say election disputes are, are, are uniquely involved, a 1:01:30 traditionally question. They're a judicial question, um, because they already will be... They, because they, because the other two branches each are elected, you're again looking at the federal system too.
Elections, enforcement and the limits of courts
I think it was always anticipated that if someone had to resolve a dispute, someone has to resolve a dispute. If they take a more common election dispute, say that we had here in Madison on occasion where there's a question of who won the election, how many votes count, and can you recount them, and there's four votes that are in question, you 1:02:00 know, there's law of averages here.
And you know, a judge has to make a decision. Somebody has to decide. Somebody has to decide. It can be decided by the legislature. It can be decided by the alderman. So, so it's decided by the court. So election disputes are a pretty classic example, I think, of a what we would call a judicial, judici- justiciable controversy that is essential that, that they step in.
Now, what's, what's fascinating, I mean, historically is that courts, of course, have no enforcement power. 1:02:30 Mm. They depend entirely on other, the good faith of the other branches of government to, to enforce it. But what happens when an executive refuses to enforce a judicial decree? What happens when the, the, the Congress refuses to enforce its own rules?
What happens when a court makes a decision and the decision is ignored? And, and, and, and there you just come back to the sort of faith that one has to have, that there's enough people that will still stand by it and enforce the 1:03:00 law. But there's always gonna be a tension. But elections are a really good example of where the courts have exercised good judgment in thousands and thousands of cases all over the country.
But that is not for twenty twenty because there were like sixty cases filed against the president, but he kept litigating- Yeah ... on no basis at all. And in fact, uh, uh, if we take our Wisconsin board here, uh, uh, held laches. What the court was saying is, uh, judicial 1:03:30 restraint Uh, this is not an issue that should, should have come before them.
It's an issue that should have remained with, uh, legally and appropriately appointed officers, people who run our elections in a, in a time of extraordinary, uh, crisis. COVID, uh, Trump's president, itself a crisis. The decision should have been left to them. And the, and the courts, many courts will actually sidestep the issue, 1:04:00 exercising judicial restraint, saying, "This is not...
Courts, of course, have no enforcement power. They depend entirely on … the good faith of the other branches of government.
It may be justiciable, but this is not an election that the courts should get involved with. The, the decision should be left up to, uh, those, uh, people who were appropriately appointed acting under the law." That's better. Christine. And then, um, invest more in outputs. Yes, Dave You brought up two cases, one with President 1:04:30 Biden, uh, perhaps- I was just trying to be fair, so No, no, for sake of argument, let's, let's say that he did overstep, uh, his power with an executive order or two.
Um, and then President Trump, uh, in, in cases to do with birthright citizenship. Now- Maybe President Biden went too far. If 1:05:00 he did, if he aggrandized too much power to the executive Isn't that a function of the court, of a court? Who, who exercises checks and balance? That's- And when President Trump directly contravenes Amendment Fourteen, Article Three, and says, "I can get rid of birthright citizenship."
So when- 1:05:30 The, the Constitution says no. Who would adjudicate that? Yeah. So that's a very good question. So one of the problems... I, I actually don't like the, the phrasing political question, because it's the academic legal phrasing that's been adopted, right? But the problem is- What do you prefer? Uh, I, I like to just say non-judicial.
Um, non-judicial just meaning the courts have said this is not a, a proper matter for us to adjudicate, and it's precisely because of this problem. So in 1:06:00 both of the cases, and I think this is why Jim brought it up, the court did adjudicate, right? It said in both of those cases the president can. Part of the problem is the, uh, if the-- I think Jim's trying to highlight here is the, the, the one vocabulary really.
If lawyers are trained to think about a political question in this much narrower way, it does not mean the same thing as a hot button controversial topic. Um, so, uh, really 1:06:30 these political questions are questions that, um, for legal purposes have been assigned to another branch. So I-I'm gonna give an example that I think might be more popular, but, but, but so, so there were a lot of what I would call borderline frivolous lawsuits filed against President Obama, right?
Yeah. And these were lawsuits saying that he was not a natural citizen. 1:07:00 Okay. And to become the president, you have to be not only a citizen of the United States, you have to be a natural-born citizen. Okay? I think courts universally labeled that a political question, a non-judicial political question, and they said, "We are not going to even adjudicate this."
If the Electoral College and Congress, when it performs its, its, its counting of the Electoral College votes, has said someone is president, that, that is where-- that 1:07:30 is the time to have those debates about whether someone was a natural-born citizen. The time to have that debate is not in a court of law, because think about what that would have meant.
It would have meant that the courts were taking evidence and, and adjudicating, um, whether a sitting president was actually qualified to be president. Well, it's also because of the Constitution anticipating such realms, and that's why the Electoral College determines the outcome. Not, not- Right ... to the 1:08:00 court decision making impact, no.
But the actual choosing of a president by the Congress as electors on the specified dates. A- another very famous example of this is impeachment. Okay, so when President Trump was impeached, I think he was impeached twice. Ga- Gaddis wanted himself. Gaddis wanted- Take him, take him Unclear in recording ... he, he had no right to go to court and say, "Court, I want you 1:08:30 to adjudicate a fair set of proceedings for me in this impeachment," because the courts have said that the Constitution assigns impeachment to the Senate to hear the trial and decide what happens, and therefore, um, he, he couldn't, for example, run to court and say, "I wanna challenge this impeachment proceeding."
The, the courts would have said that's a political question that's not for us to decide 1:09:00
A local election story
I just wanna share a local election story from 20 years ago, which caused me great disappointment. Um, we were helping somebody run for school board, and she lost by, I think, 35 votes. There was a recount. Some of us participated in the recount. And I learned then, and, uh, Mike was helping us a bit, um, that if...
At the time, if you registered to vote, they had to send a, a postcard to that address. 1:09:30 And then the postcards came back if they were returned undeliverable. They were given to the district attorney, who was supposed to investigate. So the margin, I think there were 750 postcards that came back at elections, and the difference was 35 if somebody did.
And I think she ended up losing in the recount by, you know, 30 or so, whatever it was. So I called the district attorney at the time, I think it was Brian Bro, and I said, you know, "What do you do?" And the answer was nothing And I thought, interesting, you know? So here 1:10:00 we have a system, whether it's a presidential election or a local election, whatever, we have a process, we have rules, but then the official elected to deal with it does nothing.
And I, you know, what was I gonna do, sue? You know, whatever. But you know, I'm just wondering if you can comment on that. I think that's one of the big frustrations of many in society is they see, you know, whatever the issue is, right? And then you have either elected officials, appointed officials, you know, staffers, uh, whatever, who either act or don't act, and then there's 1:10:30 really no other outcome that's possible because it's just inertia, I suppose.
Yeah. Oh, geez. Um, well, so, so, yeah, I mean, if a district attorney chooses not to prosecute someone- Mm-hmm ... that would actually sort of be like a... I, I would, I would probably describe that as inaction. Right. That, that's my point. Right. In the sense that the, the Constitution 1:11:00 vests in the executive, um- Mm-hmm
the decision-making with charges. Now, it's a little more complicated. It's not so... You could do a lot. There is proceedings that would allow someone to get around that, but, um, if they choose not to, you know, that would, that would actually probably, in my opinion, honorable, be very wrong, that. Mm-hmm. If, if it- It was my thought too.
Right. And it did work like that. I mean, there's always gonna be a 1:11:30 handful of these situations where we wish someone would've been prosecuted who was not prosecuted. Right. But I think it would be a... it would open the floodgates if, for example, um, every citizen wanted to could run for it and say, "Court, force that prosecution to happen."
I think that, that would be- Worse ... that actually probably cast off. Yeah. Yeah. No, for sure. Um, it'd probably be all 1:12:00 the courts we knew actually. That's right. We have people trying to bring, like, private prosecutions. Mm-hmm.
So I, it's one of those things where it probably sometimes does cause some problems. Um, but if the, the alternative might- Worse and Sure. I'd like to get your, uh, comments on the declining public approval of the Supreme Court, 1:12:30 particularly, I refer you to your remarks, uh, among the sector of the American public that pays attention to the courts, too.
Are larger social forces at work?
You talked specifically about the scorecard mentality, so here's my question. Um, you talk in the court, and I think rightly, the increasing polarization among people who pay attention, court watchers, as to whether judges are political or not. Do you feel that the declining popularity of the 1:13:00 courts and the increasing perception that judges are political animals is due to larger social forces?
Uh, just briefly and specifically, you can make a good argument that the entire cultural history of this country since the eighteenth century has kind of evolved to about between those who, uh, applaud the increase in individual rights that we've seen in areas like gay rights, women's rights, things like that, and people who kind of 1:13:30 heartily yearn for a simpler time when generally all pulled together, but at the same time they all had shared values.
So that's kind of a long-winded way of asking you, do you feel that larger social forces are what's causing the increased unpopularity in the courts and the increased perception of judges as political animals? And if so, do you see those larger social forces and their effect on these problems changing?
Uh, 1:14:00 I, I don't think it's in question, in my mind, that larger social forces are at play. At work everywhere in the world, not just in the United States. Um, there are consequences of things that go on out here, but there are also consequences of things that go on elsewhere. I had the great privilege of teaching in Russia, yeah, fall, um, and, and several times, and in serving two very interesting student groups.
Um, 1:14:30 and, and I would always ask the students, um, I would tell you, I, I would give them examples of government, um, need for government control. And I would ask the question, should the government be able to ignore them? So I'd ask this question And yet I asked it when I talk at the States, I've asked it students here too.
Um, and it's the, the, 1:15:00 the famous Jack Nicholson thing, "You mind not have power before our military leaders to those students." Unclear in recording It's always fascinating to me how that's changed over time, how perception is drawn from where we are. Russian students, um, uniform thought government should be able to set it. So fair, these are, I mean, these are authority came to the government.
Why? 'Cause 20 1:15:30 million Russians died in- No, still, I mean, there's a-- the same thing happened in all surveys. And so it's very fascinating. So to your question, the courts, just like I said, so, 'cause that was the perception of the law. I was asking them this, "See how would you judge them? How would you decide that?"
And, and, and that informs the answer to your question, because in this time, from 1:16:00 a lot of social forces, you know, whether it's the soul, it's not... We have much more communication with. I mean, I'm astounded at what kids don't know, right? But they can be astounded what I don't know. Um, but it's just that a remarkable movements of, of, of ideas in different and expanding ways that we clearly don't understand.
We don't know how we're gonna deal with it. We-- I 1:16:30 think we-- that'd be utterly naive to think that we know how AI is going to ultimately affect us. In fact, the term we put on the end of this, because this has been happening my entire law-- entire life, right? Plus, we've seen this speeding up, speeding up, the failure to sit, the failure to talk, the failure to do these things.
And so those societal norms have pushed and pushed and pushed. So I think the courts reflect the societal norms that we're seeing now. 1:17:00 Um, and, and, and that can-- and that's why I came back, in my take, to the more optimistic view, the very optimistic view about our country, and sort of that, that we'll find a way out.
Do I know the way out? No, I'm not that smart. But, but I, I believe it, you know? We-- this is an incredible place, and we-- we're living in an incredible point in time. It always feels harder if you're seventy-three years old than maybe when I was full of piss and vinegar in front of the 1:17:30 state Supreme Court when I was twenty-seven years old.
You know, I could defeat the world. I could win anything. I was smart enough to know I wasn't supposed to either. And, and I think, I think that there's a humility that comes with, with that. So very much to your question, I think there's no issue that now courts are being affected by many other things that did not affect, affect me when I was young, as I mean.
And I don't know this, but I'm optimistic 1:18:00 with the basic of our country that we'll find a way out. This is not necessarily . Well, in my view, that way ultimately has to get back to the rule of law in a real sense, in a real sense of independence, in the courts, as I see them. Oh, I know. Sure. Uh, yeah, I'll s- the, the one thing that I'll tack on is that, 1:18:30 uh, I, I do think law, whether it's Congress or the judiciary or the executive, can't be the solution to, to all.
Um, and in fact, uh, I, I, I think that generally- When society kind of comes together and, and tries to develop new social norms, those are the kinds 1:19:00 of things that then end up creating very positive results in the law. But that only happens once society comes together. So I'll just give an example that's been, that, that, that's been on my mind.
Um, the, the gay rights movement. Um, that was a, a social movement that was extremely effective, and that brought a lot of people together. At that point, they were able to go and get changes in the law, but the changes in the law didn't happen 1:19:30 first. They happened in society. And then once the changes in society happened, right, there was a, a more accepting culture.
Well, it's a question of is the-- are things the court, of course, a leading indicator or a trailing indicator, right? Right. And that's a-- that maybe it varies by issue. Yes sir. Is it not the job of the court-- and you're a scholar of the Civil War amendments. Is it not the job of the court to protect our civil liberties against the majority?
So, so I, I do agree that 1:20:00 constitutional rights, by their nature, are about protecting minorities, whether they be political minorities, religious minorities, ethnic minorities. The, the entire point of constitutional rights, and I would totally agree with what you're trying to say here is- Do you think Roe v.
Wade was correctly decided? I think- Roe v. Wade was correctly decided? I, I am not gonna-- I don't, I don't want to touch that. I do, I do think- You teach at law school, you don't want to touch 1:20:30 that? What do you teach your students? Um- So it's not a Reconstruction Amendment. Well, it, it, it is. So, oh, yeah. I'll, I'll, I'll, I'll, I'll say this, and, and this is something that Justice Ginsburg herself said on.
Um, I think had there been a more successful long-lasting broader social movement for a right to abortion, uh, 1:21:00 there would be more protections today for abortion. I, I-- and this is something that even she said was, "Hey, the Supreme Court probably got ahead where a lot of people were socially, at least at that time, and it created a huge backlash.
We've had fights about it ever since." That's not to say that it was right or wrong, but I do think had that case been delayed for ten or fifteen years while people had the social movement on the ground- 1:21:30 And, and laid that framework, it probably would've-- it, it probably-- there'd probably be a lot more protections, uh, for, for patients nationwide than there are It possibly integrated.
That's critical. How do you explain then now that society basically has, uh, prior to that, we're going back to- Well- That's a few exciting question 1:22:00 that I'll be asking too. But- I, I do think a lot of state legislations across the country have, have legalized abortion on some level. Um, I think, yeah. I don't have the map in front of me, right?
But I, I do think it's, it's legal on s- it's legal in most states. Um, so, you know, it did, it did return the issue again of where, um, 1:22:30 folks and Congress did what she did. Getting close to nine o'clock, so we only have time for one more question. We may have to adjourn if you'll be able to stick around and enjoy some conversation, but try to end at nine.
Redistricting after Rucho
One more question here. Short question, maybe a short answer, too. The role of the U.S. Supreme Court as redistricting, is it totally up to the states? Is there some overlap there? What does the 1:23:00 future look like? Yeah. So it's a very good question. So there was a decision in twenty nineteen called Rucho, uh, R-U-C-H-O that said that it, uh, redistricting when it comes to the politics of it, right?
Whether a particular m-made up of, of, uh, whether partisan makeups of a map are fair. They said that's a non-judicial question, so we're not gonna play it. 1:23:30 They also though said, states, you're allowed to weigh in on that question if you want to weigh in. Right? So states, uh, can, if their state constitutions allow, if their state supreme courts want to, weigh in on whether a map is, is fair.
That's not, you know, it's gonna depend, depend on state law, but a lot of those cases that were for a while being filed in the federal court system are now being filed in state court systems, including, uh, two right now that are 1:24:00 pending in Wisconsin with the Wisconsin Supreme Court, um, more or less on whether maps are put there.
What will still remain for the federal courts is the question of population. Okay? So like the, the districts do have to have essentially equal or at least approximating equal populations. The reason that's not being considered a, a political question or a non-judicial question is largely because there's considered a more 1:24:30 administrable standard.
You just look at the districts and say, "That's equal, that's not equal," as opposed to whether those maps are fair or not fair for one reason. Um, the other thing that will still remain for the federal courts, um, although- Proving it is, is very hard, right? It's often tough to prove, but is, uh, what's called racial gerrymandering.
So if there is a belief that, um, maps have been drawn not just in a 1:25:00 way that's fair or not fair for one political party, but where, where, uh, it's actually disadvantaging voters of a certain race, and that that was intentional, there was an intentional disadvantage, um, for a particular race that was baked into a map, that will still a, uh, judicial controversy.
It can be decided and affect race. The reason that's, I think, 1:25:30 going to become harder in the future is that the court has made the standard of proof in most cases pretty, pretty high. For a while you could kind of, uh... There, there was a couple decades there where you-- they would kind of, uh, presume a racial animus or a racial motive, and now they really want to see something concrete, which of course is, is hard because if someone's doing something very racist, they're often not going to stand up and say, "I'm doing a 1:26:00 very racist thing."
So if that's the test, those cases probably are gonna become fewer and farther between. But inevitably someone will screw up and say something, if... We'll have something like that. Um, spoken like a lawyer. That's a 12. It's, it's the emails, man. Yeah. It's the emails. So I say thanks both of the presenters.
Really