Three Supremely Unlikely Changes to the Court

Transcript

Tom Church:

Welcome back to the Libertarian podcast from the Hoover Institution. I'm your host, Tom Church, and I'm joined as always by the libertarian professor Richard Epstein. Richard is the Peter and Kirsten Bedford senior fellow here at the Hoover Institution. He's the Lawrence A Tisch professor of law at NYU, and he is also a senior lecturer at the University of Chicago. Today we're going to overhaul the Supreme Court. You hear that Richard? Article [inaudible 00:00:34]-

Richard Epstein:

I hear, and we're going to get it done in 30 minutes.

Tom Church:

I think. So Article III is dead to... Us? Some people, maybe President Biden and many Democrats who had previously flirted with expanding the Supreme Court. Instead, we're not hearing about that right now. Instead, we've got a proposal laid out in the Washington Post by President Biden, I think motivated by three things. One, the recent presidential immunity ruling ruled six three, conservatives on one side or Republican appointed I suppose, and three on the other. The Dobbs ruling that overruled Roe v. Wade, which has become a sticking point, especially in this upcoming election. And then allegations recently made against Justice Thomas of improper behavior and gifts, and we'll talk about that.

But Richard, let's take these one by one. The first one is actually a constitutional amendment proposed by President Biden. It's called the No One is Above the Law Amendment and would explicitly say there's no immunity for crimes a former president committed while in office. Richard, I'd love to know, do you think there's some validity to the complaints against the court's presidential immunity ruling? And there are-

Richard Epstein:

Always complaints.

Tom Church:

I know there's complaints, but tell me are some of them, do you think valid? And then Article V is the remedy if people don't like what's going on here, a Constitutional Amendment, what do you think?

Richard Epstein:

Well, I mean the immunity question is very easy to state, but it's one of the hardest questions ever to resolve. The general view has never been the Biden position that nobody's above the law IE, that the doctrines of immunity for judges or for other people simply pushed to one side. The debate has always been whether or not the immunity that you get in carrying out certain kinds of official immunities against various kinds of tort actions or criminal prosecutions should be absolute or whether or not it should be qualified. And absolute privilege means that there's nothing you could do within the framework of the criminal system to charge him with either a civil action or a criminal situation. And the qualified immunity position has always been that if these duties are discharged with some kind of malice, hard to define, but more than negligence and not necessarily full-blooded murder, then in effect you forfeit the immunity.

And the battle between these two positions has gone on literally since the beginning of the republic, and it's extremely difficult to figure out which side is correct. And the functional analysis, which I think I and many people favor, it says there are two kinds of errors. One is giving too much protection to an official in a public position so that he or she can abuse authority, and the other is giving too little protection to a public official so that they can be harassed in one form or another by a wide variety of individuals who have nothing but [inaudible 00:03:14] at stake.

And you're always trying to figure out which of these two things turns out to be the best. So let's go back historically a little bit and you could see how this plays out in another context. The case I'm going to start with is a very famous case issued by the judicious Justice John Marshall Harlan in 1959 called Barr v. Matteo.

And it was a defamation case against some public official. The rule that he came down with was that so long as this person is "Within the outer perimeter of his duties, he has an absolute immunity against various kinds of suits." It doesn't mean that he's not going to be subject to political sanctions of one kind or another, or some kind of a bar review hearing or things like that. It's just that you cannot sue him at all. And what he said is, the dangers of harassment coming out of these suits is sufficiently great that what we'd rather do is take the error of somebody being too indifferent and leave it either to a set of political sanctions or some other kind of bar review process to handle those kinds of people. I always thought that that decision was correct, based upon my own sense of which way the danger turns out to be greater.

I do think that people who commit heinous acts if they're basically going to be subject to public ridicule and to impeachment, are subject to sane sanctions. But it turns out that if you try to relax the immunity, it turns out you're going to get a cascade of suits. The leading administrative lawyers at the time generally took the opposite position. Perhaps the most vocal was a man named Kenneth Cope Davis, who was my colleague at University of Chicago for some years, who always thought that qualified immunity was the dominant way.

And in 1978 there was a case called Butts against [inaudible 00:05:03] in which the Supreme Court in dealing with the situation went back to the rule in which it turns out that you only get protection against malicious actions, but you don't get the absolute immunity. It turned out that this was generally regarded as something of a disaster in terms of the way in which it operated because the second kind of error was generally thought to be much greater than the first kind of error, and there was a huge kind of reaction.

And then after a case called Westfall, the United States Congress passed the statute essentially returning to the older rule of Barr v. Matteo and giving some kind of absolute immunity for operations within the system. So that's a kind of historical situation of where the two kinds of errors go.

Now when you get to the president, you have to remember that you may be able to give him immunity from civil suits, but there's still the question of how it is that you treat the question of impeachment, and you certainly get no absolute immunity from that. In fact, the Congress can organize a situation where the house of representative brings the charges and the Senate makes the judgment. This is a criminal trial in a very novel form. How do we know it's a criminal trial? They talk about adverse judgments, they talk about conviction, they talk about crimes like treason and bribery.

The whole thing is kind of a political setting for a trial. And so the question is how effective is this particular remedy? And I think the answer is it's really quite effective. But one thing, you don't get forum shopping, which is an important thing to understand. We don't want red states to go after Democrats and blue states to go after Trump the way it happened in Fulton County, Georgia and so forth. And it also turns out these things are highly expeditious because you can convene an impeachment situation within a matter of couple of weeks and you don't have to worry about all the preliminary motions about jurisdiction, venue, and so forth, all of which have derailed in one form or another the kinds of prosecutions that have been given against Trump. And there's a very strong probability that the Bragg case will be thrown out. The judge should have disqualified himself on any reason for conflicts of interest, which he did not do.

So you have in a criminal system all sorts of really complicated situation. And if you're thinking about getting a prompt and effective relief, you could finish an impeachment trial within a couple of weeks, no questions asked. It turns out you can't finish one of these criminal trials within a couple of years, at which point the whole case festers and nobody knows whether it's right or wrong. So Trump was in fact impeached and he was impeached for the offenses around and associated with January 6th, and he was acquitted. So what should be the consequence of that? Well, we had a faculty meeting and discussion on this yesterday at NYU and the kind of consensus view, which I strongly dissent from is that all of the criminal prosecutions that take place in court may go forward notwithstanding the acquittal in the trial.

My view is that's a hundred percent most emphatically wrong. What happens is you know if it turns out that there's a conviction, it could be followed by a suit in a civil law case. But it's important to understand that the punishment is relatively well-defined in consequence of the act for which it is that the president was convicted. So it's not a question of going to Georgia, going to Florida, going to New York, going to Hawaii, or wherever it is, there is a discrete set of charges. And so the criminal prosecution under that form takes a completely different tone than it would've taken if you'd never had this. So then the question is what happens if it turns out as was the case, there was an acquittal of all charges associated with January 6th? The view that most people say is it doesn't matter. My view is since the first case was manifestly a trial with adverse consequences, an acquittal in an impeachment trial should have the same consequences as an impeachment in any other trial.

So if in the federal system you get acquitted of offense before a military tribunal, the federal government cannot bring action against you in civil court. And so I think in effect what happens is the acquittal means that the double jeopardy bar is put into place, which means that everything else is blocked. Otherwise, you get this very dangerous situation in which we have one free bite at the apple. And if we lose that, then we unleash this whole barrage of lawsuits in the civil setting, which I think turn out to be completely untenable. And so I have now come to the view and that the only way that you can start these cases is through the impeachment processes. These decentralized trials every which way on every kind of theory are simply inconsistent with giving any kind of protection to the president. And I don't think he's above the law if he could be subject to impeachment, but I do think that the prosecutors are above the law if they're not bound by the principles of race judicate.

And so when you look at the Biden proposal, the man is infantile is the only word to describe it. He never talks about the institutional relationships between these various kinds of proceeding. And what we're seeing now is the consequences of no double jeopardy rule. What it means in effect is you could keep having multiple bites at the apple. You could take the original set of offenses and slice them and dice them and this, that and the other way, and you could continue to go with all sorts of irregularity. So I'm just flat out against this particular situation, and I think that the old devices were in fact correct. And what's so striking about my friend Biden is he has no idea of the role that immunity plays within the general judicial system. This is not some accidental tittle that goes in there. It's the same problem associated with so much of the Constitution.

It involves what the late justice Robert Jackson called the great silences of the Constitution. And so if you try to look to the question of what kinds of immunities are available to all people who play a role in the criminal justice system, what is the immunity against private suit by a prosecutor, by a judge, by an attorney who's not a prosecutor, and by a witness of one form or another? And the answer to all of those cases has always been that they're subject to an absolute immunity against various kinds of suits and being brought for civil damages. And you can see why. Suppose we now say, "Look, Adam Bragg brought these charges and they're really terrible charges. If after Trump is acquitted can he now sue Bragg for an abuse of office?" If you gave him a qualified immunity, it's worthless, right? Because malice oozes out of every pore of that man when he ran on a platform that says, "I'm going to get Trump."

And it also would turn out that you could get the Attorney General Leticia James because she too had these bad motives, and this is just an intolerable way to run the kind of system. And so what would happen is the way in which you deal with Bragg is you ask yourself, do you want to conduct some kind of an inquiry about general fitness to serve in the bar or to be a prosecutor? And you also have the electoral sanction against him, but these immunities are so pervasive and the history has always been after the Butts case and that the immunity that's only qualified is worthless in these cases. And I'm running on too long.

But let me explain to you, the immunity that you hear is lost by malice. If you're talking about a traffic accident in which one diplomat hits somebody else, nobody thinks for the most part that these are malicious cases. You don't know the other guy, you don't like the other guy, you don't dislike the other guy. It was an accident, pure and simple. And so what happens is that immunity really holds.

But in this particular case, the moment you have somebody who's going to be charged with various kinds of offenses of moral turpitude or various kinds of criminal activity, the activity that they are being charged with is always going to involve judgments about whether or not the person so charged has engaged in this, that or the other kind of behavior. And if you bring a suit like this and the only protection you have is a qualified immunity, it's not very hard to show malice. Just think of what would happen with a qualified immunity with Alvin Bragg. He wouldn't be able to last it for a dime. And so the general view has been in cases in which you're involved with political actions, the absolute immunity is the only thing that works.

Nothing else works at all. And so you don't want to completely upset a system. So what about the Constitution? One of the things that we understand about the Constitution is, well, we don't get a lot in there. There's nothing which talks about immunities apart from the speech and debate clause. And you have to do it out of a general situation relating to your view of separation of powers and checks and balances. And if you really want to have the situation where you're going to have an independent president, you can't constantly have a situation in which anybody on the face of the globe could come after him. And this then tells you about the reforms. The idea that was proposed by Justice Kagan, which was mindless and now taken up here is, well, maybe the executive branch can't tell them what to do, but we can have people inside the judicial branch who run roughshod over the Supreme Court by questioning them one way or another, and everybody has standing to bring a charge before this panel and they can then go after the president.

It doesn't work that way. The only protections that you have are any good are those which are absolute. And I remember when we talked about this yesterday in the faculty meeting, many of my colleagues said, "The impeachment system is broken," to which my response was, "It's only broken if you think it's supposed to give you a conviction." But if you ask me, "Well, what were the procedural irregularities that took place in it that makes you think that the whole thing was rigged? It doesn't look like Mr. Maduro counting the vote in Venezuela. It turns out that they couldn't get the Republicans to go along with that, and they think it was just terrible that Trump got out of this thing and they may well be right.

There's an election which is taking place and he's paying a very heavy price for some of the moronic things he did at that time. And of course with some of the moronic things he says right now. But as far as I'm concerned, Biden, he said he's had all these years on the experience. This is a man who served for a long time and as best I can tell, knows absolutely nothing whatsoever about the institutions on which he so proudly declaims. He is just a hopelessly misguided person on this material.

Tom Church:

In his Washington Post Op-Ed, he claims, and he may be right, that he is overseen more appointments than any living person because he was in was Congress for 36 years and the Senate doing advice and consent and over appointments.

Richard Epstein:

And also he was head of the committee, the Judiciary Committee.

Tom Church:

Indeed he was. So he's going to fight you on that characterization.

Richard Epstein:

Oh, I mean, let me give you my little story about Mr. Biden, one of the people who was in the cross hairs when he was on the committee. It was me.

Tom Church:

Yes, it was.

Richard Epstein:

I mean, back in 1999, this learned man before Anita Hill becomes a serious issue, holds my book in front of Justice Thomas to be, then Judge Thomas. And says, "Anybody who believes a word that's in this particular book doesn't deserve to be on the Supreme Court." Well, I take that as a great flattery to have somebody who has no legal education whatsoever taking after a book, which I still take great pride in. And what was this basic situation? It turns out that people do believe that if you follow very precise interpretations of the takings clause, being a fairly strict textualist understanding as well, the general principles of implication, what you do is you come out with a constitution wholly apart from the miserable issue associated with slavery, which is what we call a classical liberal constitution. Strong system of property rights, strong government subject to separation of powers and checks and balances principle.

And that this was essentially overdone completely by the administrative state and the revolution of 1936. The federal government got infinite powers. It didn't take away from the state. They got infinite powers too. And then both of them had to deal with the preemption question of how you coordinate their power. And federal jurisdiction became absolute under the Commerce court. I regard this as basically a major structural flaw. I said it in 1985, it's now 39 years. I really haven't changed my particular mind. And when you ask Justice Biden, Senator Biden, what's wrong with it? The man is literally inarticulate. He does not understand anything other than waiving a book. And then he got Laurence Tribe to say, "Anybody who believes in natural law as a source of authority, doesn't understand how the Constitution is working." That mistake is so enormous. The entire constitutional conditions at that time was essentially a natural law tradition.

Some of the basic guarantees were explicitly written into the Constitution and others of them are only inferable if you understand the international and widely understood principles of law, which talks about the need for just compensation, takings only for public use and so forth.

In fact, in a case called Gardner against the Village of Newburg, Chancellor James Kent in 1816 said, "I don't see any takings clause in the New York State Constitution, but I'm reading it in anyhow because everybody knows that this is essentially a minimum condition for states and it is done as a matter of natural law." And I recently wrote this long paper going back to the Roman system and so forth, explaining how it is that this natural law tradition starts to work. And what happens is you see modern lawyers who don't study medieval law, they don't study international customary law. They certainly don't study Roman law, and they don't study early English law. But you know what? They know everything about a system and they have this form of positivism, which was rejected by every person who drafted the constitution.

Tom Church:

Richard, we got two more parts we got to get through here, so maybe we'll go quicker on these. The next one here is something maybe you might find reasonable, instituting term limits for Supreme Court justices. The 22nd Amendment has, we passed that to do that for presidents, why not Supreme Court justices? It's basically appoint a new justice every two years. Let them serve for 18 years. Anything wrong with that proposal?

Richard Epstein:

I made the proposal myself.

Tom Church:

Oh, you did? Oh, so you're on board.

Richard Epstein:

Yes. I mean, no, I'm a leader in this one. Look, one of the things that you discover historically in the United States is the only courts that are explicitly provided for in Article III have lifetime tenure, IE tenure during good behavior. If you look around at the new courts that have been created, they're all oxymoronic courts. They're Article I courts. They're not under Article III. And if you look at the tax court and the bankruptcy court, they have term limits 15, 16 years or whatever it is. Anybody wants to talk about the creation of a new court. The only thing they talk about now is doing it through Article I rather than doing it through Article III. And the explanation is, again, the perils of getting people out too short and too long. The great mistake in the term limits movement for legislatures was the silly Libertarians thought that you could run a Congress with three terms in the house and two terms in the Senate.

But that's just a resolving door, and it's so short, you cannot run a body in which the new membership is going to change at least a third every year. Just be crazy. And so my term limits provision was what you do is you have 12 terms in the house. 24 years and I don't care, 24, 18 in the Senate because you're trying to figure out where the real damage is, it's from people who hang on too long. Like Robert Bird and so forth. They have no... Jesse Helms. They have no business being around that long. So if you basically shut them out with a thing at the end, all of the huge influence that accrues to long-term and seniority can be blocked. And the reason you have to do it by a constitutional amendment is Tom, neither you nor I can vote against a worthy senator from West Virginia.

And his own citizens will say, "He may be a danger to the nation, but by God, this man is a blessing in disguise for us. So we're going to keep them around." And since you can't vote out the guys who are most dangerous, you happen to have a generalized rule which stops them from taking over. But you have to get the terms right. And 18 is not a bad term. And I've certainly proposed that, and it's very close to the terms that we see with respect to bankruptcy and tax court. The difficulty is what do you do with sitting judges and organizing a transition? If you've been on there 22 years, you have to leave tomorrow? Or do we say to anybody who's a current sitting judge gets at least five more years no matter how long they've been on there. There are a whole variety of permutations, none of which is dominant, and the inability to figure out what that's going to be work may scuttle the whole idea and leave people deeply skeptical about it.

And I think it's very troublesome. These people stay on much too long. It turns out the fights over them are really epic because everybody says this man or woman is going to be on the Supreme Court for the next 30 years. If you knocked it down to 18 years, it'd still be an eternity, but maybe it would be a little bit lighter and you wouldn't have things like the Carter freeze out. He was essentially president for four years and got zero appointments on the Supreme Court because of the way in which the various terms and retirements went. There was Harry Truman and Eisenhower, and oddly enough people forget this, but people like Sherman Minton and so forth and Whitaker, Charles Whitaker, they basically resigned after six or seven years each because they were either too old or they didn't like the job. Harry Truman's appointments were notably undistinguished, and I regard him in many ways and far and fast as the greatest president who ever lived, a genuine genius. But this was just not his forte in terms of the way in which it went on.

So it's kind of tricky on all of that. So I'm not sure you could get it through. I'm willing to entertain any transitional proposal. I'm adamant that you keep the court at nine, you start getting it larger, and then it fragments and you're going to have to use panels, which you cannot do for a Supreme Court. And it changes the way in which all the deliberations run. When Biden put together his own commission headed by Bob Barr, and I forget her name, basically they were a remarkable report, very conservative in terms about the way in which they wanted to put things out. That's the only change you want, the idea that you're going to have these guys subject to a review for the ethics commitments, and there's going to be no standing limitation on who can file what with whom. And no rules to tell you whether or not if a report is now followed with a committee of chief Justices, whether they have to act on it, whether they require somebody respond to it, if they require a Supreme Court judge to respond to it, can he hear the case yes or no?

Because essentially this is an effort to get disqualification. This is malice of forethought. Sheldon Whitehouse is one of the most irresponsible thinkers with respect to American constitution, who ever graced the earth, and he should be smacked down as hard and as conclusively as we can.

I don't think it's going through, I'm pretty sure it's not going through. I regard the whole thing as just a general menace. What's happened in the United States is people don't like conservative Supreme Court justices. I think they take them as a monolith when they're not. As you know, I've had many objections to many of the opinions written by Gorsuch and Thomas and Alito and everybody else, some of which I think are quite horrible.

But if they're deciding 60 cases a year, and I disagree with 5% of them, no matter how important, if that says, "Oh, they got to get off because they got 5% wrong," and everybody has the same view, nobody can survive the kind of scrutiny that they put into place. And what we have to do is stop playing the game of delegitimation. And that seems to be important.

Let me make one comment. In the Israeli situation where the court is liberal, every piece of judicial reform there that's designed to basically pry away from powers that no Supreme Court anywhere else on the face of the earth have, has always been regarded as anti-democratic. IE, keeping the judges in charge of the situation. So you see political influences running in both places. Look, I'm not a Democrat. Nobody would ever mistake me for that. But it's important to understand that I'm not a Republican either.

I'm a classical liberal. And so you stick with your principles and you attack the justices when they deviate from them and you applaud them when they don't. And things like Chevron, I'm strongly in favor of. I wrote against the situation in Roe v. Wade when I was a youngster 29 years of age, and basically in the Supreme Court Review saying the whole thing was a complete mistake. And I still believe that. Just to give you one ironic, to show you just how confused Harry Blackmun was, he quotes the famous sentence from the Holmes descent in Lochner against New York and saying, "In a country like this, in the whole diversity of opinions, they have to figure out how everybody gets their way." And it turns out that Holmes meant that to saying in favor of legislative dominance. And Blackman used it in favor of legislative evidence. He didn't know that the quote was being used in the opposite direction.

And look, just to put it there, if you're talking about guns, there isn't a Democrat who believes it's a constitutional right to have anything. You're talking about an abortion, they all believe that you have deep constitutional rights, and they may be wrong on both cases. But what's clearly going on with this is you figure out your issue and then you have tropes which say, "Ah, this is a case in which we are now in favor of the independence of the judiciary to protect individual rights." Or we have the other trope which says, "This is the situation where democratic responsibility is more important than everything else." And you could trot out these things in every case for every issue on every side, and it's extremely important to figure out how you do this responsibly. And you don't do it by denunciation.

You have to look very closely just as we talked about, the close ways in which you start to review the various kinds of claims for absolute or for qualified immunity. In those cases, you can do this, but it requires a degree of patience and a degree of knowledge. And what happens now is we have so many people who are talking heads. Who are so confident that they're right, that what you do is you basically don't have a discourse. What you do is you have a series of talking points, none of which make a whole lot of sense.

Tom Church:

That'll do it for the Libertarian Podcast with Richard Epstein. As always, you can learn more if you head over to Richard's column, the Libertarian, which we publish on definingideas@hoover.org. If you found this conversation thought-provoking or helpful, please share it with your friends and rate this show on Apple Podcasts, Spotify, or wherever you you're tuning in. For Richard Epstein, I'm Tom Church, and we'll talk to you next time.

Speaker 3:

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