Episode 17 – Court Reform with Katie O’Connor

Alison, Liz, and Rebecca are joined by Katie O’Connor, Deputy Chief Counsel at Demand Justice, to discuss court reform. Katie explains how the Supreme Court and federal courts have been broken, why it’s an existential threat to our secular democracy, and how we can fix it.

Rebecca Markert: Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts, and our work to keep religion and government separate. I’m Rebecca Markert, the legal director with the Freedom From Religion Foundation.

Alison Gill: I’m Alison Gill, vice President for Legal and Policy with American Atheists.

Liz Cavell: And I’m Liz Cavell, associate counsel at the Freedom From Religion Foundation. And if you are a regular listener of We Dissent, then you’ve probably heard us mention court reform and you’ve heard us talk about how essential it is to protecting our secular democracy. And so we finally decided it was time to devote an entire episode to this topic. 

So today we’re gonna talk about what do we mean when we say court reform? Why are we always drumming on about it? And we’re excited to welcome another expert guest to talk through it with us. Our guest is another woman attorney fighting to protect civil rights. She is Katie O’Connor. She’s the Deputy Chief Counsel at Demand Justice. They’re a national organization and they work to restore legitimacy and ideological balance to the federal courts. So thanks for joining us today, Katie.

Katie O’Connor: Hi. Thank you so much for having me.

Liz Cavell: And I wanna just take a really broad view first as we dive into this topic. We’ve talked a lot on this podcast about the need for court reform to push back on this activist Supreme Court and the direction of our federal courts, and especially since the majority of what the court’s doing is out of step with what the American people want. But I wanna break down first what we mean when we say court reform. Who would be in charge of doing the reforming? How does this work under our constitution? How could it happen? How has it happened? Just give us the background.

Katie O’Connor: I will start with what we view as sort of the top priority and the most urgent of reforms. We at Demand Justice are strongly in support of the Judiciary Act, which would add four seats to the Supreme Court. It’s our top priority for a couple of reasons. And I mean, first of all, we think adding four seats is the only way to immediately address this Supreme Court that as you know, and as your listeners probably know, has really gone off the rails in the conservative direction. But it’s also the most sort of unquestionably constitutional of the reforms that we might consider.

So for that reason, adding four seats to the Supreme Court under the Judiciary Act is sort of our top priority in Demand Justice. But there are a number of other reforms that we also support. I think most notably a lot of people are very much in support of the idea of term limits for Supreme Court justices and for lower court judges.

As you know, judges and justices serve for life, and so they sort of get up there on the nine Justice court and they lack any accountability for the decades that they serve. Term limits, I think, solves a different problem than adding justices to the Supreme Court. Adding justices would solve the immediate problem of a court that is imbalanced ideologically. Term limits, I think, solves the problem of a process that’s broken, the process of confirming new judges and new justices to the Supreme Court. So I think term limits is a way of making that a sustainable process. It’s regularizes when vacancies will occur on the Supreme Court and how those vacancies will be filled.

You know, the reason this is not a top priority for for us at Demand Justice is because honestly it would take decades to see the ideological balance returned to the Supreme Court, even if we passed term limits legislation tomorrow.

But the other reality with term limits is that there are questions about whether it can be done by statute or whether it would require a constitutional amendment. Now we don’t concede that it would require an amendment, and I think there are really good arguments to be made that it could be done by statute, but that’s something that would be challenged in the courts. There are a couple of other ways that we could reform the courts to make them more transparent and accountable.

You may or may not know that the nine Supreme Court justices are the only federal judges in the country that are not bound by a code of conduct or a code of ethics. The lack of a binding code of conduct for Supreme Court Justices is how we end up with a situation like Ginni Thomas participating in the efforts to overturn the 2020 election and the January 6th Insurrection, while her husband Justice Clarence Thomas sits on the cases that challenge parts of that.

There’s also been recent news about Jane Roberts, Chief Justice Roberts’s wife taking a lot of money from her recruiting firm for recruiting lawyers who are gonna argue in the Supreme Court and not having any responsibility to be transparent about that with the American people. So a binding code of conduct would force that transparency. You know, other judges have responsibilities to report gifts and they’re not allowed to speak at political events and Supreme Court justices are just exempt from all of these rules. 

A binding code of conduct would certainly bring accountability and transparency to the Supreme Court in a way we think is really necessary. There are a couple of other things I’ll mention quickly. You know, a good government measure would just be to expand the lower courts. It has been 30 years since we’ve had comprehensive expansion of the lower courts and in that 30 years the US population has grown by nearly a third.

The number of cases filed in the lower federal courts has increased by like 40%. So it’s just a way of bringing swifter justice to the American people. But it’s also worth noting that the level down from the Supreme Court, the circuit courts, 30% of the judges on the circuit courts are now Trump appointees. 

So we know what would happen if we expanded those courts and allowed a president who was not President Trump to fill those seats. It would bring a lot of diversity back to the courts and it would probably help to rebalance the courts ideologically. So expanding the lower courts, we fully support and it’s just a really good idea. And if the courts were not so politicized, everybody would agree that we need to do it and we need to do it soon.

Liz Cavell: That administrative sort of reform, just expanding the lower courts in keeping with population growth and the expanding dockets. We’ve talked about that on this podcast because if you do federal litigation, like our organizations, do you know that these cases routinely take five years, is like a normal, average, relatively like swift life of a case in federal court that basically has undisputed facts, right? 

Like we litigate most of our cases on motions for summary judgment and it’s just insane the level of delay that federal litigants just have to accept in federal courts because the district courts are so unbelievably overloaded. Like this is just an administrative move that probably should have already been done by Congress.

Katie O’Connor: Yeah, absolutely. I mean it used to be done fairly routinely. Yes. Just as caseloads increased, as the population increased, there was an understanding that we needed more judges and we needed more staff in the federal courts. And we just haven’t done that in any thoughtful way in 30 years.

Rebecca Markert: I’d wanted to give an anecdote to just the delay in the federal courts. One of the cases that FFRF is involved in and Arkansas involves the Ten Commandments at the state capitol. And that case was filed in 2018 and we just were able to submit motions for summary judgment in that case this year. So we’re looking at almost five years later, we are just doing a motion for summary judgment, which is, you know, one of the first things that you can do in a trial level court.

Liz Cavell: Right? It’s a pre-trial motion. So that’s five years later we’re filing pre-trial motions. In this case, it’s crazy. And this is Arkansas, so like, you know, probably not the busiest court in the country, but here we are.

Rebecca Markert: Right? And that’s not the only example. I mean it’s one of the most extreme, but we have had cases sit and languish in courts in Kentucky and in Tennessee. I mean, these delays are just very common now and they weren’t even ten years ago.

Alison Gill: Another problem with this lack of judges in some areas is in some courts you only have one judge who’s very ideological, which is very useful for the conservative side for forum shopping. And I’m wondering if we’re talking about expanding, you know, the number of judges, if that could also remedy some of these one judge courts district divisions as well. Like, could that be part of it?

Katie O’Connor: So I was actually reading about this the other day, and I think it is the local courts that kind of get to decide how their judges are dispersed through the districts. I don’t think we can say for sure that that would fix the problem of forum shopping, which is obviously a problem, but it certainly wouldn’t hurt and I think it would very likely decrease the number of divisions of federal district courts where there’s only one judge

Alison Gill: I had another question about one of the earlier measures you talked about, which is the code of ethics. And I know there’s legislation for this. I think both of our groups are supporters of that legislation, the Supreme Court Ethics and Recusal Act, if I recall correctly. Can you, can you, like how is it enforceable, how do you enforce for the Supreme Court if they, you know, if they fail to abide by the, the conduct code of conduct or ethics or they fail to recuse themselves, what sort of remedy is there?

Katie O’Connor: Yeah, so we fondly refer to that as the SCERT Act, but there are a whole bunch of pieces of legislation that would bring that kind of accountability to the Supreme Court. So that is one that we have also been really supportive of. There’s another bill that was introduced earlier this year called the Supreme Court Ethics Act, and I know Senator Whitehouse has introduced a couple of different bills. There’s a bill that was introduced by Representative Jayapal and Senator Warren.

So we have a lot of options and we had demand justices sort of taken the tack of all of the above. Anytime we’re talking about how to bring accountability and transparency to the federal judiciary and to the Supreme Court in particular, that’s a good thing. So we’ve been really supportive of all of this legislation, but there are different enforcement mechanisms depending on the piece of legislation.

For instance, the Supreme Court Ethics Act, which was already introduced in Congress by Senator Murphy in the Senate and Representative Johnson in the House, that would actually create a position like an investigations council at the Supreme Court. So anytime there was a complaint against the justice, the Investigations Council would have a responsibility to create a report about whether there was a violation there.  I think the other enforcement mechanism that we have seen in a lot of these pieces of legislation, including that one and the SCERT Act is justices would have to announce and make a written understanding of why they did or did not recuse from cases, which is what we’ve seen is really problematic. 

They just don’t have to answer at all. There’s not a currently existing way for litigants to ask a justice to recuse. So we’ve seen motions in the Supreme Court asking a justice to recuse, but there’s no formal process for that to happen. So forcing Justices to be a little bit more transparent about why they will or will not recuse, I think goes a long way towards bringing a little bit more accountability to the Supreme Court.

Alison Gill: That’s super helpful. Thanks.

Rebecca Markert: I had a question too. When we are talking about term limits, I feel like the other alternative to term limits is a mandatory retirement age. People are either for term limits or for, you know, not necessarily term limits, but instead let’s make them retire at a particular age. They’re still appointed for life, but then, you know, they have to retire when everybody else has to retire or has the option to retire. And what do you at Demand Justice think about a mandatory retirement age for federal judges instead of term limits?

Katie O’Connor: That’s interesting. I hadn’t heard a lot about the idea of a mandatory retirement age, but I think it kind of gets, you know, I think the thing that is appealing about term limits, at least as they’ve been envisioned in the legislation that’s been introduced, is that they really would like set up this very regularized process of filling vacancies on the Supreme Court. So every two years there would be a vacancy and every president would have two vacancies to fill per term. 

So I don’t know how a mandatory retirement age would play into that, but I think in general it seems like that could be another good idea. The problem is that justices now just gave the system so that they’re able to, you know, I mean if you look at Justice Kennedy for instance, he probably handpicked his successor and that’s not how the process is supposed to work. So I think whether it’s mandatory retirement age or term limits, anything that kind of gets rid of the gamesmanship that we now see with Supreme Court vacancies is a good idea.

Liz Cavell: I have a question, Katie, and this is sort of both to maybe explain what the conversation is around term limits. So you mentioned that that is obviously the most susceptible to constitutional challenge. 

And I just wanna break down for listeners and myself assuming that that’s because the words federal judges serve for life appear in the Constitution as opposed to any of these other things like the number of judges on the Supreme Court or ethics or like the size of courts or the number of district courts, none of those logistics are in the Constitution, but explicitly the idea that federal judges serve for life or during good behavior is explicit in the Constitution. And is it right, that is why term limits is the most susceptible reform?

Katie O’Connor: Yes. Yeah, that is correct. So in terms of changing the size of the Supreme Court, it is, as I said earlier, sort of unquestionably within Congress’ purview to set the number of justices on the Supreme Court. And so actually the number of justices has changed seven times in our nation’s history. It is only sort of in the modern history that that is considered really taboo. It happened, you know, seven times and each of those times it was a mix of practical concerns and political concerns.

So even the idea of like adding justices to rebalance the court ideologically is not all that radical when you look in at our entire history. There’s really no basis for anybody to challenge Congress’ authority to do that. I think a lot of the other reforms that we talk about have varying levels of vulnerabilities legally and constitutionally. So term limits, certainly because the Constitution explicitly says that judges and justices serve while in good standing or whatever, there would certainly be a challenge to a term limits bill that didn’t come in the form of a constitutional amendment.

I think the same can sort of be said for ethics reform. I do think that there are some legal and constitutional vulnerabilities for ethics reform because there’s a separation of powers concern, and that is part of why Congress has never implemented a binding code of conduct on the justices. So, you know, I don’t think that that’s as vulnerable as a statute that enacts term limits, but I do think that there are questions that would arise should Congress get pretty deep into ethics reform for Supreme Court justices and lower court judges.

Liz Cavell: So where does the judicial code of ethics for lower federal judges come from Congress or from a self-policing inter judicial type of body? Where does the authority there come from?

Katie O’Connor: Yeah, so it is a self like a, it’s basically like Chief Justice Roberts and the Judicial Conference. So it’s the judges.

Liz Cavell: I’m sorry, actual Chief Justice Roberts?

Katie O’Connor: Yes.

Liz Cavell: The Chief Justice of the Supreme Court helps develop the judicial code of ethics for the federal courts?

Katie O’Connor: I don’t know how in the weeds he is, but he’s something of like a figurehead for the judicial conference, which is the entity that comes up with the, you know, code of conduct for federal judges and with whatever enforcement mechanisms exist to enforce that code of conduct.

Liz Cavell: I just find this like so interesting parenthesis, infuriating, because it feels like when we’re talking about court reform broadly, the idea that part of what we’re talking about is maybe the Supreme Court should have it like a code of professional responsibility that they adhere to. It just feels like the biggest no-brainer that, you can’t imagine anyone not supporting. And now that you mentioned like separation of powers, now I’m mad because I, there’s like a fig leaf reason why partisans could separation of powers, and it’s really important.

That makes sense to me as an argument sort of, but I get really fed up with that because it’s like the whole idea of checks and balances, there has to be like some kinds of checks and balances on the judiciary. I preach on this podcast in like everywhere when people are just so scandalized by the idea of supreme court reform that like the Supreme Court is just part of the constitutional order and they’re one of the three branches of government and they’re supposed to be part of the system of checks and balances and where are the checks.

 It just seems like a judicial code of ethics is the bare minimum that that litigants and members of the profession would expect as having the Supreme Court justices be part of this system. It just seems like a no-brainer. I don’t understand actual opposition to a code of ethics.

Katie O’Connor: Yeah, I mean I share in your sort of disbelief in this, but I think in Congress, the only reason there’s really any controversy over passing a code of conduct for Supreme Court justices right now is because Republicans and the people who support justices like Chief Justice Roberts and especially Justice Thomas, see this as an attack on those justices and not a piece of legislation that makes sense.

So if it weren’t for the Ginni Thomas January 6th stuff, I think we could have a much more robust conversation and perhaps see some movement on ethics reform. But because it feels like a target against conservative just justices republicans in Congress are less willing to have the conversation. But yes, I mean that’s pretty remarkable when you think about it like this is a Supreme Court, these are nine people, they are nine lawyers, nine lawyers who can strike down an act of the executive branch and act of the legislative branch, but then bristle at any notion that they should, they should have to be held to account by those branches themselves.

And I mean even, you know, we think of Chief Justice Roberts as conservative, but at least reasonable. But he has pushed back on the notion that there needs to be a binding code of conduct.

Liz Cavell: Really?And so what is the, is the fig leaf just like we need to have separation of powers.

Katie O’Connor: We need to have separation of powers, we can police ourselves just, just let us do the work.

Alison Gill: I wonder if that would change if the SCERT Act, you know, got some traction. I I was just curious if, if they would, if they would see the light and be like, okay, we’ll just do this so you don’t impose something on us.

Katie O’Connor: Yeah, I mean I do think that they are, they are clearly feeling more pressure than they have in a long time to do something and all this legislation and the traction that it’s getting. There were a couple of articles a few weeks ago about failed attempts internally at the Supreme Court to come up with a code of conduct, like the justices couldn’t agree on what they should do. But I think there is a sort of growing sense of consensus that even among the Supreme Court justices that we have to do something because people were unhappy with us.

Alison Gill: Why is that so hard? I mean, there’s 50 state supreme courts, I mean some of them have sure have codes of conduct, judges themselves have codes of conduct they imposed in other courts there. It’s not exactly hard with the legal profession to find codes of conduct. Why is this so challenging?

Katie O’Connor: I know, and I mean, the other thing that’s surprising is the Supreme Court justices, and especially Chief Justice Roberts, when he’s sort of speaking on behalf of the court as institution, they say, you know, we look at the code of conduct that applies to other federal judges. We use that as guidance. We take it into account when we are making our own decisions. So if that’s true, then why not be bound by that code of conduct.

Liz Cavell: I don’t get it.

Katie O’Connor: It just, it doesn’t feel like you can have it both ways. You know, either you’re willing to follow that or you’re not.

Liz Cavell: A big thing we all learned in law school, that is the essential principle in judicial ethics is like avoiding the appearance of partiality, right? Like you want to not just be impartial but appear impartial because that matters for all of the litigants and the lawyers and just for the system to function with legitimacy. And that is what has been lost on so many fronts, but it just feels like a code of ethics is the, the absolute most basic thing that would take the smallest step towards creating that appearance of fairness and partiality that you just need. 

It just feels like there are conflicts of interest. You don’t know what they are, but you know, there’s ties between the lawyers that work at some of these groups and the Supreme Court justices and it’s all just like in the shadows. And I don’t understand why the justices and elected officials wouldn’t want to do better, at least in that one little area. Like it’s the smallest thing that builds legitimacy that we could do.

Katie O’Connor: Yeah, I agree. But I also think Alison’s point is well taken, that the more we talk about these bills, the more likely it may become that the Supreme Court will do something to police itself, something meaningful to police itself because it knows that people are tired of the total lack of accountability.

Rebecca Markert: Well, and just the education about what’s going on at the court when we’re talking about appearances, I feel that generally the American people have always had this sense that the justices of the Supreme Court are up on this pedestal. They’re beyond reproach, and why would they need a code of ethics? Because they are supposedly the best and the brightest and the most ethical. I mean, they’re the ones who are the final arbiters of our law. People have always just sort of thought that they wouldn’t be this way. And now that we’ve seen things like Ginni Thomas being involved in January 6th, we’ve seen the leak at the Supreme Court about the Dobbs decision.

I mean, more and more news stories are coming out about the big shadow network that is praying with them before major cases come down and things like that. The more and more the American people are educated, the more momentum these bills will get. And, like you say, the court would act to do something on its own because they do care about legitimacy. Chief Justice Roberts seemingly cares about legitimacy. Alison, you’re kind of laughing, I don’t know if you’re laughing at the Chief Justice Roberts cares about legitimacy.

 Alison Gill: No, I think that’s true. I think Chief Justice Roberts does care. I’m not convinced any of the other members of the conservative block care. But I do think Chief Justice Roberts cares about you know, the appearance of impartiality.

Liz Cavell: Well, I wanna take a minute and just talk about the why we need court reform. We are always talking about that sort of as the conclusion of every episode. But I want both Alison, Rebecca, and I to give our pitch to our listeners about why we think court reform is really essential to the project of state church separation and secular democracy.

And then I want to talk with Katie too about why do we need federal court reform writ large. What is, what has happened to the institution of the Supreme Court, the federal judiciary that court reform could fix? And how? So what is our best elevator pitch for why our listeners and supporters should care about court reform initiatives if you care about state church separation.

Alison Gill: Sure. Well, first of all, I think Katie said it was a conservative imbalance on the court previously, and I don’t agree, I don’t think these are conservatives. They’re not following conservative legal principles like stare decisis or traditional, you know, precedents. What we see is a radical block that’s using the court to seize power they cannot otherwise achieve in our country. And it’s lawless like they’re ignoring decades worth of precedent. 

And that’s, we’re willing to just say conservatives rule by fiat and religious people always win in court, and we all just get to be second class citizens for the next 30 years until we maybe manage to fix the courts quote unquote natural way, then, you know, this is the only choice. It’s not like there’s a whole bunch of other options for us if we want to have civil rights in this country and not, you know, destroy our democracy.

There’s but one choice and that is to reform the courts. The conservative movement has been successful. Mcconnell’s play to achieve control over the courts has worked and now we’re dealing with the consequences of that. And we can be realistic about that or not. And I think we should be, I think we have to be willing to use whatever tactics are necessary within the bounds of the law, including, you know, eminently reasonable ones. 

Like for example, changing the number of seats on the courts. I think that’s perfectly reasonable. It’s provided for in our federal laws and the Constitution. We’re not even talking about like amending anything at this point that’s just following the laws as written. So I think that’s what I would say as, as my case.

Liz Cavell: I think that’s very compelling. Rebecca, do you wanna give a pitch?

Rebecca Markert: My elevator pitch is just generally, you know, we talk about the fear of the court packing this idea from FDR that he was going to pack the courts and then the next president would come in and they would just do the opposite and it would be this tennis match of we’re always packing courts with ideologues. But I don’t think that’s the concern because it’s already happened. The court has already been captured by Christian nationalists and the court is already politicized and we are not fearing something that could potentially happen. It’s already happened.

And the reality is that every single issue that any of our listeners care about is going to be decided by this court, which has been captured by extremists. If you care about religious liberty, if you care about anti-discrimination statutes, if you care about gun rights, if you care about immigration, anything that you care about, it’s going to be decided by the court. So if you care about that issue, including the separation of church and state, you also have to care about court reform. They go hand in hand at this point. And like Alison mentioned, you cannot save civil rights and democracy in our country unless we embrace court reform.

Liz Cavell: Very compelling. Love this. I don’t have much to add to that because I think that says it all. But Alison you mentioned, and I think it’s so important that it, it’s not about like we need to put our own four justices on the court and then, you know, we need to do these things that are going to sway the court in a different partisan direction. And what Rebecca said is so true, you have to acknowledge what has already happened in the past few years, which is that ideologues radicals have gone outside of our normal process, right?

 The reality is, like Rebecca said, the court balance has been shifted outside the normal order of appointments. The seat that was supposed to be filled during President Obama’s term was, was actually that was not normal. What happened? That seat was held empty for a year in order to be filled by a specific party.

That’s not how that was supposed to happen. So that was court packing, right? That was holding open a seat so that you could pack it with your own ideologues. On one side of the partisan divide, what has happened to the court is a threat to democracy. It’s a threat to minority rights. We’re just never going to see a true hearing of our civil and constitutional rights if the court is not reformed to reflect our democratic processes and values. Like this court basically has said that it doesn’t think the separation of church and state is an important or enforceable constitutional principle

Rebecca Markert: Or exists.

Liz Cavell: Exactly. And that’s just like, that’s just a fly on their back. I mean, that’s nothing, that’s not even a target in their crosshairs, right? This court is truly radical and is a threat to democracy and to all the constitutional principles that are really important, not only to secularism, which is the crown jewel of American democracy, but all the things that keep our democracy going, which is minority rights, true democratic rule. I don’t see how you could be truly looking at the picture we have in front of us and not acknowledge that the court as an institution is really broken and undemocratic. But it is.

Katie O’Connor: You hit the nail on the head there, Liz. I mean, I think a lot of people who, so talking about Supreme Court expansion specifically, but I think any of these Supreme Court reforms, you know, a lot of the pushback that we hear from people who are posted to the reforms is, well, this is just normal back and forth and you’re just unhappy with the results that we’re getting from the Supreme Court. And you know what? That’s right. Like, I am a woman, I am a queer person. I am not happy with the direction that this court is going in. 

You know, I do see it as an existential threat to our fundamental human rights. I see it as an existential threat to our ability to address the really critical issues that we face in the world these days. I mean, you think about climate change and gun violence prevention and these things that an overwhelming majority of Americans want to address, want their elected officials to address.

And the Supreme Court is basically like putting a stop to that before it can even start. So yes, I disagree with the outcomes that we’re getting from the Supreme Court, but what you just alluded to, Liz, is it’s not just those outcomes that we disagree with, it’s that this court is weakening our democracy in really tangible and meaningful ways.

 Earlier in my career, litigated voting rights cases for ten years. And so I’ve seen this Supreme Court chip away at the Voting Rights Act for over a decade now. John Roberts came into the Supreme Court with sort of a vendetta against the Voting Rights Act. This is the most successful piece of civil rights legislation we have ever had in this country. And there is a very good chance that in June of this year, there will be a final nail in the coffin for the Voting Rights Act.

The Supreme Court also has, you know, Citizens United and all the cases that have come after that opened the floodgates to corporate funding and elections, like really shifting power away from everyday Americans and towards like corporate interests and the wealthy and the powerful. And I think the other example that I have is the court sort of green lighting, partisan gerrymandering, which is fundamentally anti-democratic and is weakening the power of voters to elect their candidates of choice. So yes, I disagree with the outcomes of this court, but I also think this court is weakening our ability to function as a democracy.

And sorry for being on my soapbox, but I will say, you know, I think everyone in this country understands on some level that we are sort of at a precipice when it comes to our democracy. We had an armed insurrection a couple of years ago, and so there is this understanding that we are in desperate need of democracy reform to shore up the workings of our democracy. And I just really hope that people understand the Supreme Court is a threat to our democracy. And so Supreme Court reform and court reform generally has to be a part of that democracy reform that we talk about and that we do really urgently need.

Alison Gill: Right on. You mentioned democracy reform and one of the big packages that the previous Democratic Congress had talked about, I think was HR 1 I believe was full democracy reforms. And you know, that I think I’d moved forward so many of the President’s administrative actions, I think we talk about this a lot, but anything that the government tries to do in a positive direction on any of these issues is so vulnerable to the Supreme Court right now. 

They’ve shown a complete willingness to throw aside the rules and take things from the lower courts, use the shadow docket, take whatever means they’re necessary to rule on things that normally they wouldn’t touch that. So I don’t know, I we’re going back to why this is important, but the just the audaciousness of just throwing aside the law and pulling up whatever they want to and, and ruling on it, it just, it imperils every single area of policy that we might care about anyway.

Katie O’Connor: I agree. I mean it’s, it’s devastating to me that we can’t even budge on the filibuster for something like, you know, the Voting Rights Advancement Act or HR one, you know, these, these bills that we know we need and that, you know, a majority of Congress want to see and we have these procedural rules in place that prevent us from doing that. But yes, the reality is even if we’ve passed HR 1 or the

Liz Cavell: What you’re getting at in your point that you just made is that yeah, the court, the Supreme Court itself, and even honestly the federal freaking district courts are like so wildly encroaching on the other branches of government power to the point where it’s beyond just the federal courts being a check on the unconstitutional exertion of power by the other branches. It’s really, at least to me, feels if you’re following the things that presidents and elected officials are trying to do, speaking to the will of the people, it is so infuriating how easy and frequently opposition groups can get those actions just batted down by the federal courts and the Supreme Court.

It just feels like there’s such an imbalance of power. It just, I don’t know how it got to this point, Katie, but it just doesn’t, it just feel like the Supreme Court and even the lower federal courts have so much power, even if you’re just a regular person, that you don’t really understand why you just read the news and you’re like, oh my gosh, Biden’s doing low forgiveness and then like four months later, oh no, the federal court said that we can’t do loan forgiveness.

It’s just every single thing that happens to the good of the people the Supreme Court struck it down. There’s so much power just that has just aggregated to the federal courts and there’s really no answer to that.

Katie O’Connor: Yeah, and I think this goes back to something I was talking about earlier, which is like, it’s not just that we disagree with the outcomes that the court is issuing. So, you know, I think of a couple of cases in particular where the outcome was basically contrived. Like the case should never have been in the Supreme Court. 

So a good example is 303 Creative, this website designer who has never actually been asked to make a wedding website for a same sex couple, but has said like, under no circumstances will she. And it’s like, but that’s not a case. So the Supreme Court is like making law in the most, in like the grossest and most fundamental way in a case like that. The same thing with the student debt cancellation case. I mean, there’s no reason the states or the individual borrowers who are challenging that plan have standing to even be in federal court.

And yet, you know, we’re probably going to see the Supreme Court strike down that plan that most Americans want to have. In a fair world, in a normal world where the Supreme Court was taking a case, the way that the Supreme Court’s supposed to take a case and deciding the case on actual law, if it’s struck down the student debt cancellation plan, I would be disappointed in that. But it’s so much more than that. It’s the Supreme Court ignoring procedural requirements. It’s the court making up its own facts like in Kennedy versus Bremerton. I mean, it’s just the Supreme Court crafting the case that it needs to make the policy that it wants.

Liz Cavell: Yep.

Katie O’Connor: That’s not how the courts are supposed to work. That’s not how the Supreme Court’s supposed to work. And so that is yet another reason why we just can’t, we just can’t keep doing this.

Alison Gill: It feels to me like you’re talking about a consolidation of power, you know, by the Supreme Court is just what we’re seeing is basically them consolidating power, taking it away from other branches, accumulating it in itself. Both the lower courts, but especially the Supreme Court. It’s not done just through these manipulative tactics and taking certain cases. It’s also done through shifts in the doctrine. I think in some ways too, the court, like for example, a lot of the previous presidential tests, like the Lemon Tests for example, have been struck down. 

And instead we have these new vague tests that who knows what they mean, like the history and traditions test or no balancing tests at all, or just stuff the court just gets to sort of make up. So by making vague vagaries the law, they’re able to manipulate it and basically assume power rather than relying on logic.

Liz Cavell: A couple years back, president Biden formed this commission on court reform. I don’t remember exactly what it was called Katie, but it’s supposed to be this Blue Ribbon Commission looking into this problem and what the potential reforms are. So did anything useful come out of that? What was it tasked with and what did it produce?

Katie O’Connor: So it was sort of doomed from the start for a couple of reasons. I think first of all, the commission was not tasked with making recommendations. It was just tasked with doing some studying and completing a report that lays out all of the options without weighing in on behalf of one or the other. And I think the other problem that we saw with the commission was that it, its members were all sort of members of the legal elite. 

So it was like lots of fancy litigators and law professors and not the people who have so much to lose from this out of control Supreme Court. You know, we were at first excited about the idea that, you know, President Biden would at least care enough about this to put forward a commission. But once that commission was kind of formed, we realized there were not gonna be a lot of great outcomes from it.

You know, I think the one interesting thing that’s sort of an anecdote is that several members of the commission, after the commission ended came out in support of Supreme Court expansion and said that they had not been on that tack to begin with. But after studying the problems with the Supreme Court for several months, they decided, yes, actually we do need to add seats. 

So that was Caroline Frederickson and Kermit Roosevelts, Nancy Curtner, and a couple of other people. So that I, you know, I thought that was really compelling that okay, these people, you know, they couldn’t get it in the report and they weren’t asked to make recommendations in the report, but after studying and assuming that they wanted the Supreme Court to stay basically the same came to the conclusion that it needed, that it needed reform and quickly.

Rebecca Markert: Interesting. Is there any follow up to that report now? Is Biden asking for more after that or did it just kind of die after it was released?

Katie O’Connor: It essentially just died after it was released. There was some controversy. I think there were some members of the commission who very much wanted for the report to make clear that the court didn’t need to be reformed. And so there was one draft of the report that leaned pretty heavily against term limits and against adding seats, and that ended up being changed. So it was much more neutral because there were clearly members on the commission who think it does need reform. But that was pretty much the end of it.

Alison Gill: You raise a good point and that’s that lawyers who are often people that are very invested in the legal system and frankly, you know, have almost sometimes have a psychologically a need to believe in the legal system because they base their careers on it, are sometimes people that are less willing to accept the, the idea the system’s broken and needs to be reformed. So it’s at least in my experience.

Katie O’Connor: Yeah. You know, it’s interesting having come from a voting rights, litigation backgrounds, you know, I think there are a lot of litigating organizations that are reluctant to endorse any kind of court reform and especially something like court expansion. But I see at the same time those organizations having fewer and fewer options for litigation. 

So if you think about voting rights in particular now that the, you know, voting Rights Act is so weakened now that the Supreme Court has said, we’re not gonna get involved in partisan gerrymandering and the flow or federal court shouldn’t either. There are fewer and fewer options for even challenging voting restrictions. And so if you’re basically being like cornered out of the market of voting rights litigation, yet holding up your status as a litigator who might litigate in front of the Supreme Court, I don’t know, at some point that has to give.

And I think it’s kind of the same. I mean you may even be feeling some of this in, in your subject area expertise, but I think it’s kind of the same thing in the reproductive rights, reproductive justice world. Like there’s no more Roe versus Wade. And so there are fewer options for challenging abortion restrictions especially in the federal courts. 

And so if you were holding off on endorsing some kind of Supreme Court reform, because you might have to argue in front of the Supreme Court one day, well that’s probably just not in the cards for you anymore. And I think more and more sort of progressive civil rights oriented litigators are gonna have to come to that conclusion.

Liz Cavell: Well, let’s take a minute though to talk about the good faith arguments in opposition to court expansion and other court reform measures. Okay. I have heard several kind of different strains of pushback against the idea of court reform. One of the big ones is just that it’s a partisan idea. Like I said before, it’ll sort of foster instability in the makeup of the court. 

You know, every time a new political party gets into power, they’ll change the makeup of the court or the size of the court and it’ll just be kind of a tit for tat back and forth for all time. What is the answer to someone who believes that that’s a good reason not to tamper with the size of the court in good faith?

Katie O’Connor: Yes, that is definitely the argument that I hear most frequently in opposition to Supreme Court reform, but especially Supreme Court expansion. And my first response is like, this is a risk that’s worth taking. When we see how rapidly our rights are deteriorating in front of the Supreme Court, like I personally think it’s a risk worth taking to add seats in order to shore up our democracy. 

You know, but my other responses are that like we’re already kind of in that, we’re already in that tit for tat. In 2016, like the size of the Supreme Court was changed for a year so that President Trump could fill the seat instead of President Obama. Republicans would absolutely add seats to the Supreme Court at the very moment it benefited them. And not one second later. So we are already in that. The other thing that I think is actually pretty compelling is that Republicans have gotten the court that they want by playing hardball.

And I don’t see the conservative legal movement or Republicans in Congress being willing to make any concessions or any negotiating as long as they have this court that is exactly what they want. And so I do really believe that we are in need of playing a certain amount of hardball in order to bring parties to the negotiating table and come up with a sustainable future for the Supreme Court. I totally agree that what we’re doing right now is not sustainable. It cannot be a knock down drag out fight every time there’s a vacancy on the Supreme Court.

And it can’t be that every time a new party has control of Congress in the White House, more seats are added to the Supreme Court. But I do think that we are gonna have to do something different to get these longer term solutions negotiated that they’re not going to happen without a certain amount of hard will.

Liz Cavell: What about the idea that lifetime service and lifetime appointments is really important to the independence of the federal judiciary?

Katie O’Connor: Yeah, I mean I, you know, I am not a scholar of like international law but I do understand that we are fairly unique among other democracies in having lifetime appointments with Supreme Court.

Liz Cavell: Oh, interesting.

Katie O’Connor: And yet I think you could argue pretty compellingly that we have justices who are more in the political fray than most other you know, democracies, Supreme Courts. I don’t think that the evidence would bear that out. And especially if there were, you know, term limits, so everybody knew what to expect. Term limits that were long by the way, like 18 years, so you’re ready to retire after 18 years, you know, but my biggest response to that is just like, we’re already, like the justices are acting as politicians in robes and I don’t think there’s a good faith argument against that notion.

Liz Cavell: Yeah. That’s one that sounds like it would make sense in theory, but in practice you’re right, the proof is in the pudding. It obviously has not worked. If anything it’s had the opposite effect. It consolidated too much power.

Alison Gill: It just makes judicial selection so much more key. I mean the focus is on judicial selection and they just go through this, I mean, the Federalist Society and the mechanisms they use to verify these people are just, especially after Souter are just like doubled and triple checked and they have to have this record and, you know, it’s amazing. But that’s where the effort is on the front side and they just picked the most rapidly partisan people possible. Right. So it’s, it’s irrelevant how long they’re there, they’re already picked.

Liz Cavell: Yeah, yeah, you’re right. One that’s like very realistic and not necessarily an argument against, but it’s sort of a defeatist, which is, aren’t all these reforms just gonna be struck down by the Supreme Court themselves? Do you think the Supreme Court is going to allow Supreme Court reform legislation to stay in effect?

Katie O’Connor: Yeah, I, so that’s why, that’s why I personally and Demand Justice as an organization think we first need to add four seats to the Supreme Court in order to have a court that is legitimate. And that’s taking cases, way cases are meant to be taken and not acting in plainly partisan political ways. I do think that, you know, the other reforms have varying levels of vulnerability, but I think with a more reasonable Supreme Court, certainly ethics reform, and we didn’t talk about this earlier, but like there are also proposals to strip the Supreme Court of jurisdiction over certain types of cases in order to just limit the power that the Supreme Court wields. 

And I think those sorts of proposals, jurisdiction stripping and ethics reform, there’s no reason they shouldn’t be safe at the Supreme Court, except that this is a Supreme Court that has sort of gone off the rails.

Liz Cavell: You mentioned jurisdiction stripping, and that is kind of a good segue into what I wanted to touch on before we wrap up, which is what actual concrete legislative proposals exist right now? Like what has been proposed, what is out there in legislative form?

Katie O’Connor: So this Congress, not a lot has been proposed yet. In the last Congress there was a Senate bill and House bill to add four seats to the Supreme Court, it’s called the Judiciary Acts. We do expect for it to be reintroduced in both chambers this year in the Senate it is sponsored by Senators Murphey, Warren, and Smith. And in the House it was sponsored by Representatives Johnson and Nadler who were both on the Judiciary Committee and there were about 60 co-sponsors. So we fully expect for that to be reintroduced in the coming months, probably before the end of the Supreme Court term. 

In the last Congress, there were also two bills that would implement term limits for Supreme Court justices. So one of those was introduced by Representative Ro Khanna and the other was introduced by Representative Johnson and a handful of senators. Both of those bills would contemplate 18 year term limits for Supreme Court Justices and the every two year filling a vacancy.

There were also bills in the last Congress increase the size of the lower courts. So in the last Congress, representative Johnson introduced a District Court Judgeships act and a Circuit Court Judgeships Act, which would basically sort of in a comprehensive manner add seats to the circuit courts and the district courts. So it follows sort of a formula for how many judges are needed for what kind of population, and it just applies that nationwide. 

There was also a bill by Senators Coons and Young that would take a more conservative approach to adding seats to the district courts. I believe that all three of those bills are gonna be introduced this Congress, but none of them have been introduced yet. And then I mentioned earlier there have been a number of ethics reforms. I think the only one that’s been introduced this Congress is the Supreme Court Ethics Act.

But we expect sort of the whole lot of them to be reintroduced in the coming months. I will say finally, there is a really interesting piece of legislation that was introduced by Representative Casten called the Judicial Separation of Powers Act. And that is a bill that I think it’s imperfect, but it has some really interesting ideas about stripping the Supreme Court of a lot of its jurisdiction and instead making the DC Circuit Court sort of the court of last appeal for a lot of cases. And it would create a panel of judges to hear cases that deal with federal statutes and federal constitutional issues.

So that would definitely be a way of sort of diffusing the power of the Supreme Court and it would sort of create a, a rotating panel of judges on the DC circuit to hear some of the most consequential cases. So I think there would have to be a lot more conversation and study about how that would work in practice. But I’m really excited to see, you know, a member of Congress talking about it.

Liz Cavell: Is there any Republican support for any of the ethics bills or the lower court staffing bills?

Katie O’Connor: So for the ethics bills, I mean, I think there is some sort of tepid support from some Republicans, but especially with a Republican house, I wouldn’t expect for those bills to move at all. Again, I think that’s primarily because the timing makes Republicans think that this is about attacking Clarence Thomas and Ginni Thomas when no, it’s actually just about, you know, a desperate need for a code of conduct in the Supreme Court. 

As for increasing the size of the lower courts, I mean, I think there really is consensus that that should happen. I mean, there are some members on the fringe who don’t want that to happen, but most senators and most representatives have in their districts courts that are under-resourced. So they want to take care of that. The rub there is who gets to fill those seats. There’s constant gamesmanship about, you know, should we create the seats now but not let them be filled until 2025? So some of it is definitely budgetary issues like, how much of this do we wanna pay for? But a bigger part of it is who’s gonna get to fill these seats?

Liz Cavell: Right.

Alison Gill: Speaking about filling seats, I’m curious I’d love to hear a little bit more about how the nominations have gone under the Biden Administration and what they’re doing to reverse some of the changes Trump made to the judiciary.

Katie O’Connor: We saw a lot of problems with all of the success that the Trump Administration had getting judges onto the bench. You know, those judges were overwhelmingly white and overwhelmingly male, and a lot of them had serious ideological underpinnings when they got onto the courts. So we’ve, we’ve seen that bear out in the decisions that they’ve made. But Biden has done a really great job of sort of counteracting that takeover of the court.

Biden has gotten through a little over a hundred judicial nominees in his first two years, and we expect for that pace to keep going. He’s done a really great job in terms of nominating a majority women, a majority of people of color. He’s also done a really great job of nominating people with professional diversity. So what we’ve seen in the past several decades is that most presidents nominate, you know, people with experience as prosecutors or partners in big law firms because those are sort of the safest people to dominate.

And, Biden nominated a bunch of civil rights lawyers and public defenders, labor attorneys. So all of that is really exciting and we’ve been happy to support you know, both the volume of judges that the Senate has confirmed in the past two years and also the value of those judges. I will say that we are somewhat concerned that it’s slowing down a little bit, and that is to a large extent, because of this Blue Slips practice. 

This is pretty in the weeds, but the way that judicial nominations have happened in the past is that the two home state senators for whatever seat is being filled have a literal piece of paper that is called a blue slip. And that has at times been used as sort of an advisory. So the senator can say, I like this person, or I don’t like this person, here’s my concern with them.

But it is also at times been used as basically a veto. So a home state senator can veto the nomination that a president makes for a seat without much explanation. And we are down to, I think there are like 50 ish seats on the federal bench now that are empty and don’t have nominees yet. And about 40 of those are in red states. 

So unless we do something to amend or eliminate the blue slip process so that it’s not used as a veto we’ll probably come to an end to the vacancies that we can fill relatively soon. So we’re certainly looking at, you know, encouraging Senator Durbin and Senator Schumer to at least sort of amend the way that they handle blue slips so that Red State senators can’t block all of Biden’s nominees.

Liz Cavell: Is the blue slip being used as a veto in those places where it’s just any nominee is just a no from these home state senators?

Katie O’Connor: So not in every state. I mean, we have seen a number of purple states and even a couple of red states get nominees through in the past two years. But there are some examples. I mean, a good example is there’s a vacancy, it’s a district court in Mississippi and the president has nominated somebody for that vacancy. And we’re seeing Cindy Hyde Smith just refused to bring her blue slip back, even though Senator Wicker has returned his blue slip. So that’s already one example of a nominee being held up and we are not even getting the courtesy of knowing whether she’s actually objecting to him or just obstructing his confirmation.

Liz Cavell: This is so dumb. Like why, how is this a thing? Isn’t this just a quote unquote norm or a courtesy?

Katie O’Connor: Yes, absolutely

Alison Gill: And it’s why the Republicans threw away, right?

Katie O’Connor: So Republicans threw it away for circuit court seats and to his credit Chairman Durbin did not try to revive it for circuit court seats, but it’s still a bar to district court vacancies. You know, I think the frustrating part, I mean it’s obviously frustrating to see this sort of obstruction generally, but it’s also frustrating because the blue slip process has not always been used as a veto. 

So even like President Biden, when he was chair of the Senate Judiciary Committee, you know, you could withhold a blue slip or turn in a blue slip that objected to a nominee and he would take that under consideration, but it didn’t mean that that nominee didn’t get a hearing and didn’t get a vote. And so we, we just think it should, you know, sort of return to that process. 

You know, there are, there are people on both sides of the aisle who like the process of blue slips because it does give home state senators input into who’s gonna sit on the bench in their states. I think they don’t necessarily have to eliminate it all together, but go back to the practice of just thinking of it as an advisory instead of an absolute veto, I think would probably be best.

Alison Gill: And a lot of cases the home state senators are responsible for helping identify nominees too, right? Isn’t that how it often works for senator in different states?

Katie O’Connor: Yes. Yeah. I mean, so for the district courts, the White House really relies pretty heavily on the home state senators or some sort of home state congressional group that makes recommendations and the White House will nominate from those recommendations. But I think there’s a really good argument that it would benefit both sides if as long as the White House acted in good faith with the home state senators took into account their input and then nominated, you know, someone that felt like a consensus pick that that should be enough. And the home state senators shouldn’t still be able to veto that pick.

Liz Cavell: Seriously, this is a courtesy, this is absurd. It is the most unfair obstructionist thing where it’s just you let the most terrorizing person in the situation just control the entire outcome. This is not even like reasoned opposition. It’s not like I’m handing in my blue slip and here are my concerns. And then maybe you’re giving the administration a chance to respond or put up a different nominee. It’s just completely blocking.

Rebecca Markert: It’s very toddler esque. Like totally. I’m not going to tell you why. Or you’re just gonna have to guess as to why I’m not returning this. Am I lazy or do I oppose?

Katie O’Connor: Exactly.

Liz Cavell: And also, if you didn’t do the thing that’s the rule, then the thing goes ahead without you, you don’t turn in your thing, Cindy, then the thing goes on without you. Like why does that block the whole process? That’s absurd. No one would ever think that that would make sense. That’s not a way that you do business or your job or anything.

Katie O’Connor: I totally agree and I will say, you know, sort of substantively the result is pretty devastating too because I mean, we’re already seeing like this huge rift between blue states and red states in terms of like the types of laws that are being passed and the quality of life of people living those states. We already have like legislatures who are behaving vastly differently depending on which state we’re in and and who’s electing them. And so the idea that like the federal courts in those states would be as fundamentally unfair as like the legislature might want to be.

I mean that’s really creating two different systems of justice in this country. One for blue states and one for red states. You know, when when Donald Trump is in office, we get a Judge Kacsmaryk in Texas and when Biden is in office, but we get good judges in New York when there’s a democratic democratic president and good judges in Texas when there’s a Republican president that’s just furthering the sort of rift in fairness between red states and blue states. We all know already exists.

Liz Cavell: That’s such a good point.

Alison Gill: Yeah. In prep for this, we talked about possibly talking about different cases just so the audience know different cases that are relevant to show examples of why we might need court reform. And I looked at the cases and they were all from Texas, which is just funny. Ust to illustrate that point.

Liz Cavell: Well I like I touched on the loan forgiveness. It’s all these cases where federal district judges are just striking down actions of the Biden administration or refusing or blocking power the executive would normally have over immigration policy and all of these things. And you just have these single federal district court judges in Texas by and large or you know, or wherever issuing nationwide injunctions blocking laws for everyone everywhere. And like Alison was saying, we were looking at those cases to sort of guide our discussion of why is it so important who’s sitting in these federal district court seats as much as some of the appellate court seats?

Is there a specific reason why Demand Justice has settled on four seats as their target for expansion?

Katie O’Connor: So we view this court as a threat to our fundamental rights, a threat to our democracy. And four is the number of justices that would be needed to sort of bring that ideological balance back so that we could have a true dispensation of justice on the Supreme Court. Four is the number that would do that.

Liz Cavell: Do we all agree in society that we need an odd number of of justices, in which case it’s either two or four, and two doesn’t feel like a very substantial number, but four is a very substantial number and it’s as simple as that. Or I’ve heard maybe it would be good to have an even number of justices and then ties could produce some sort of more thoughtful deliberative process of settling really controversial decisions.

Katie O’Connor: Yeah, I will say two things. First of all, there is an argument that, as I mentioned earlier, you know, the size of the court has changed seven times in the past and most of his times it was in conjunction with an addition of a circuit court so that the number of circuit courts matched the number of justices, thirteen justices would match the number of circuit courts. I think that’s right. That is an historical reason for adding four seats. 

But I also think it would be disingenuous to say that that’s the only reason we’re asking for four. The most compelling reason for me is just that there are six members of the Supreme Court who are sort of hostile to our democracy and adding four seats is the only way to create a majority on the court that is going to protect our democracy.

Liz Cavell: Yeah, good enough for me.

Rebecca Markert: So I just want to ask a quick question because a lot of our listeners and the members of our organizations know a lot about these issues, probably not so much court reform. I think people are really gonna appreciate your discussion of the blue slip because I think that’s sort of beyond a lot of people’s understandings of what’s going on, but many of them are activists and they want to know what can we do?

Like we know things are bad, but we want to help support this work or be active in our own communities. So what do you have for them? What would you say that they could do to support the work of Demand Justice and move forward with court reform efforts?

Katie O’Connor: So you can definitely go to our website, www.demandjustice.org. There’s all kinds of information there about getting active in the court reform arena, you know, but I also think that your supporters are subject matter experts with their own. And you know, the nice thing about advocating for court reform is that the court impacts all of our issues. 

And so I think it’s really important to have people in organizations like yours telling their own stories about why the Supreme Court impacts the issues that they care so much about. So getting involved in court reform advocacy is important, but telling the story about why court reform matters to you is also really important. And I think that’s what your supporters can, can bring to the table and what encourage them to do so.

Liz Cavell: Excellent. That’s it for today’s episode. I wanna say thank you so much to Katie O’Connor at Demand Justice for joining us today for this important discussion. I’m Liz Cavell.

Alison Gill: I’m Alison Gill.

Rebecca Markert: And I’m Rebecca Markert. To please follow us on Twitter and on Facebook and find out more about the podcast online we-dissent.org. We dissent is a Joint production of the Freedom From Religion Foundation and American Atheists. It is hosted by attorneys Liz Cavell, Alison Gill, and me, Rebecca Markert. Other production support comes from Greta Martens. Audio Engineering provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening.