Defending Democracy
Sen. Richard Blumenthal on the Fall of the Supreme Court
Connecticut Senator Richard Blumenthal, a former state attorney general, United States attorney and Supreme Court clerk, maps out the transformation of the Supreme Court from a revered institution to one facing immense distrust and credibility issues. Sen. Blumenthal speaks with Marc Elias about the necessary reforms to the Court and what is preventing their passage in Congress.
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This video was produced by Allie Rothenberg, Gabrielle Corporal and Paige Moskowitz. It was edited by Gabrielle Corporal.
- Broadcast on:
- 27 Sep 2024
- Audio Format:
- other
How do we restore trust in the United States Supreme Court? Connecticut Senator Richard Blumenthal is here to discuss. Welcome back to Defending Democracy. I'm Mark Elias. Let's get started. Thank you, Senator Blumenthal, for joining me. Thank you very much, Mark Elias, for having me. I'm delighted with you. So I want to jump right in and talk about the US Supreme Court and kind of your perspective on it. But before I do, you know, you've had a long career and you've had a lot of different perspectives on the courts. But what probably most people don't know is you actually clerked on the US Supreme Court. And so maybe you can just start there and sort of walk us through, you know, kind of how you have experienced through your legal career, the role of the US Supreme Court. So the people can sort of understand where we are today from where we have been. Well, I really appreciate that question, in part, because my perspective now on the Supreme Court is really shaped by my history, my personal history with the court. I was a law clerk to Justice Plattman, who was so rigorous and strict about his personal ethics. He would decline to have dinner with someone who might, in the future, have litigation before the court. He lived a monastic life that certainly was more extreme than was necessary. But it reflected on the ethos of the time, which was that the Supreme Court should be above any reproach. And after clerking for him for a year, I really came away with a reverence for the court, not only for my law school days, but from my experience knowing individual justices and their very high standards of personal integrity. And then I had the great opportunity to be United States Attorney for Connecticut. And I prosecuted cases that involved Supreme Court litigation and principles and decisions of the court relating to criminal law. I became attorney general of the state of Connecticut. And I argued four cases in the court, which were really the high points, or in many respects, the high points of my experience as a state attorney general. And the amount of preparation that went into those arguments, as you well know, because of your own history, was absolutely staggering. I mean, we did moot courts. I spent days and days preparing for all the different questions that could come from the justices. And I responded to those questions with respect, even though sometimes I thought they were a little off the wall. But still, my respect for the court was undiminished. And I think now, to be very blunt, I have views about reforms that are necessary in the court that I never would have imagined, I might have entertained as a law clerk, or even as state attorney general, reforms that are necessary to preserve the credibility and integrity, as well as the legitimacy of the court in this time of extreme challenge. And I know we'll be discussing some of those proposals. But just as a context or background, they come from me, from my heart, from my mind, surprisingly to me, because I never would have thought we'd reached this point where they were necessary. Yeah, it's so funny you say that, because I have this same experience in my own life. I also, I've argued four cases before the Supreme Court. And I have to say, I was not immediately attracted to some of the arguments that people were making a few years ago about court reform, because, look, I wasn't blind to the fact that different justices had different ideological perspectives, but it seemed to me that I would at least get a fair hearing and a fair shake, and the court just had this place in society that it felt like it was hard for me to wrap my head around the idea that I needed to be have a critical eye towards it. And I feel like something really meaningful has been lost in society as a result of that. I think that's a very, very important point. Something lost to our society, to our great democracy, one of the historic experiments in self-governance, where the three branches of government each had a distinct role. And the Supreme Court was to be above politics. Now, it's never been completely above politics. You know, and as a law clerk, I saw that justices had to struggle sometimes to be above politics, but they often concluded, my own justice often said to me, he didn't like the outcome, but it was dictated by the precedents of the court, and he had to respect the precedents of the court. And the idea of stare decisis, all these Latin terms, they have a real meaning in terms of principled jurisprudence. And the court, in our democracy, is supposed to provide that bedrock of constitutional principle that constrains the other branches at times when turmoil politically even threats of violence may divide the country. The Supreme Court is supposed to be a rock and an anchor to our democracy, and it's a rock and an anchor only if it has that credibility and trust. It has no armies or police force to enforce its rulings. The mystique, some would say, but it's a reality in many ways that it has a trust and credibility until now has been the source of its power. So I want to talk about the proposed reforms that you have, but before we do that, what changed? Like, what is the, how did we get here? What is it about the court or about the country that led us to this place? Because I read some of the reporting about the court, and I can't imagine what some of these justices are thinking. What's brought us here, I think, Mark, is a series of self-inflicted wounds by individual justices that amount to a stain on the court as a whole. The violations of basic rules of decency, justices taking free trips. Other kinds of financial benefits have created the appearance of really, anything goes. The resistance of the court itself to a code of ethics, I think, has been really instrumental. And then I think a series of decisions that, you know, they're not just wrong. They also overthrow established precedent with such abandon and recklessness that I think it deprives the court of a sense of consistency and constancy that the public expects. Obviously, the Dobbs decision is perhaps the best example, where it just did away with decades of precedent in the stroke of a pen, as though, well, this is just what we do. And in fact, it is just so rare and reckless for the court to overthrow precedent because that respect for the continuity of our law is what makes it law, after all. And for court to substitute its own judgment, you know, we used to have debates about judicial activism. Court embodies activism at its very extreme. And the conservative judges and justices used to say, Justice Harlan, for example, or Justice Frankfurter, we need a less activist court. And they adhere to that principle, even though they may not have liked it. Now we have justices essentially acting as politicians in robes, responding to what they think is the right policy. And they're entitled to their opinion. They're just not entitled to make it the law of the land. Yeah, you know, it's so ironic, frankly, I'm somewhat bitter about it. I spent most of my formative years in law school and as a young lawyer being lectured by federal society colleagues and conservatives that the problem was that liberals wanted legislation from the bench. And that if you just gave the conservatives a majority on the Supreme Court and the federal courts, you would see that they would show judicial restraint, that they would understand that they are umpires, they are not players, their job is to respect precedent, they are not here to make policy, they are just to follow it. And boy, was that either one big lie or a bunch of people who were delusional, but it turned out to be 180 degrees the opposite. And the Chief Justice himself famously in his confirmation proceeding said, our role is to call balls and strikes, you know, and the hypocrisy of that kind of statement, I think, also is a reason why the credibility and trust of the court has sunk to new laws. And of course, the stark blunt fact is, and I think it's another reason for the plummeting approval rate of the court, their decisions actually are deeply unpopular as a matter of policy. Yeah. Most Americans really think that women should be trusted to make their own decisions, and that there is some sense of privacy about those decisions. That principle of privacy as a constitutional tenant of our law is so deeply ingrained in the American psyche, you know, don't tread on us. The whole reason that we got in the Revolutionary War was that Britain refused to recognize any rights of privacy and put soldiers in people's home. And then, of course, on gun violence prevention, where they've struck down common sense laws, 90 plus percent of the American people believe that preventing gun violence is a good thing. They may not agree with every single law, but background checks and other common sense measures are really accepted and supported by the majority of the American people. So it's not just that they are activists, they are imposing on America policies that are deeply unpopular. So I want to ask you about your reforms, but I want to ask you a question, is it introduction to your reforms? Because it's something you said that I don't understand, I just can't get my head around, so I just don't understand. Right now, if I said, and you and I have known each other for years, I don't have any business for the Senate, we've known each other. If I said to you, you know, Senator, I'd like to take you out and buy you an expensive dinner, and it's going to cost $500. You would say, well, under the Senate ethics rules, I probably can't take that. In fact, even if I said it was going to cost $200, you'd say that, right? I don't understand. Like, when people talk about disclosure of gifts at the Supreme Court, what the hell are they doing taking these gifts? Like, why is it okay, why is it okay in the first instance that they are taking these gifts? It is beyond me. It's such defiance of common sense. Now, if you said to me that you wanted to buy me something more, I can't even tell you what the gift limit is these days, but I just decline all gifts. It's not just the United States Senate, and not just the United States Congress. It's not just the federal executive branch. It's all the other judges on the federal courts. The Supreme Court is the highest court in the land. It has the lowest standards of ethics. And what these justices have done is say, in effect, we're accountable to no one. Nobody can tell us what to do. And in fact, if we want to take a luxury cruise on somebody's yacht, if we want to take a free plane trip, if we want children's tuition paid, which none of us could do in the United States Congress and still stay here without some kind of ethics violation, I just don't know what is in their heads. And to be fair, Mark, let's face it, it is not every justice. It's mainly two of them. And they have really thrown into complete disarray the integrity of this court. Yeah, I think that's right. And for the people who I hear saying, well, it's because the Supreme Court, they're in the Constitution, and, you know, therefore, well, you know, that's in the Constitution, U.S. Senators. So I asked this question over the U.S. Senator, because that is a lie. The idea that somehow the Supreme Court justices can't be bound by an ethics code, because they are constitutionally mentioned, in fact, only the Chief Justice is actually in the Constitution, but is not is not true, because members of the House, members of the Senate are also constitutional officers in that regard, and they are subject to ethics code. So what do we do about this? All right, so we got this big problem. What's the solution? Well, the first kind of easiest solution is a code of ethics that is enforceable. And to their credit, justices Kagan and Jackson have both endorsed the idea of a code of ethics, Justice Sotomayor has handed out it as well. So there's some dissatisfaction with the resistance of the other justices to an enforceable code of ethics. And I emphasize the word enforceable, because as you know, the Chief Justice has issued a kind of set of rules that they would do voluntarily. But there's nobody to say, well, you know, that rule means Justice Alito or Justice Thomas, that you can't take that gift, you can't do that kind of free cruise. And if it's unenforceable, as I know, as a former prosecutor, it has no deterrent effect. In fact, it has no effect. Now, your point about the constitutional issue is very, very important. Not only does the Constitution mention other branches of government, just as it does the Supreme Court, but it also makes rules for the Supreme Court. Jurisdictional rules, the courts aren't just this separate body floating out there accountable to no one. The judicial conference is created by who? The United States Congress. The judicial conference imposes rules on the judges. And so do we through jurisdictional requirements. So there is an interplay here. And the justices are saying nobody can tell us what to do about anything is simply dead wrong. And I think it's a real discredit to the court. I thought that the Chief Justice did a real disservice to the court. You know, I think that he had a moment there where he could have said, you know what, I'm subject to congressional oversight. I actually oversee the judicial conference. I also oversee the entire judiciary. I should come to Congress when they ask me. If Congress is concerned about ethics, I should be responsive to that and should lead this parade rather than look like I am being dragged into it. And I think he's done a lot of damage for his own chief justice ship and his reputation candidly and also for the court. But you've introduced what I think is like the premier and most important piece of legislation around this, the Supreme Court Ethics Recusal and Transparency Act. And so like how would that solve this? It would solve it by requiring more disclosure, adherence to rules, same kinds of ethical standards that apply to senators, to members of the executive branch, to lower court judges, courts of appeals, and district court judges. I've also introduced, by the way, a bill that would establish an inspector general. And, you know, every other branch of government, particularly in the other agency, has an inspector general who can actually investigate potential violations. They don't like the idea of Congress investigating. They say that's a violation of separation of powers. When we investigate members of the Supreme Court violating ethical standards, well, they can have their own inspector general in the judicial branch, in the judicial conference. So I've introduced that legislation. And another reform that I feel very deeply is important is reforming the shadow docket. Amen. Amen. I thought you might favor that one. Yeah. So let me ask you that one in a second, because I got a lot of questions about that one. I had a lot of thoughts about that one. But on your, on the inspector general point, this is one of the, again, one of the places where I really, it saddened me, honestly, that Chief Justice Roberts did not react differently. I mean, the fact is, as a member of the United States Senate, you have participated in oversight hearings of the executive branch, a co-equal branch of government. As the US attorney, I don't know if you ever had a case that involved a member of Congress or a member of a legislative body. But, you know, there are processes by which the executive branch holds members of Congress and the like to account in four things that they do. And of course, courts will invalidate laws that Congress has passed. It'll hold, it'll invalidate actions that executive branch passes or promulgates. So the whole system assumes that there is some measure of oversight and check and balance. And it seems like they want to be a check, but have there been no balance or them to be checked? Very well said. I think that, you know, what they're ignoring here is the fact that separation of power does not mean unaccountability. They still have to answer to someone. And in fact, as US attorney, I investigated, pull up, corrupt public officials. States are sovereign, but I investigated state officials as an oversight body. We commonly call congressional officials to appear before us. And the Supreme Court has resisted appearing before Congress to testify. We're still in a debate about that issue. But whether they can be subpoenaed or not, they certainly are not completely above the law, just because they're the highest court doesn't mean they are totally above the law. So I think the point here is that, you know, there is an interplay of different branches of government, different layers of government, and that's the genius of our system. So accountability is one of the, you know, means of check and balance that the constitutional framers felt was absolutely sacrosan, because their greatest fear was that one of those branches would seek to be absolute. And right now, the Supreme Court seems to be saying, you know, nobody can hold us accountable for anything. Yeah, okay, so I said I wanted to get back to you because I got a lot of thoughts about the Shadow Dockets Online Act, which some might act which you have introduced. I think one of the great unappreciated scandals of the US Supreme Court is the way in which the shadow docket has grown and the number of unbelievably consequential actions that they take, and which the lawyers, and I'll just tell you, someone who litigates election cases that get decided in the shadow docket, we are left piecing together through little fragments of guesses and innuendo what the hell the Supreme Court is doing and why, and it is absolutely an outrage. So for people that don't know the shadow docket are our motions that come up to the Supreme Court, they are not fully set for argument, they are decided and originally it was an idea, originally it was for things like, you know, death penalty stays, right? Someone's going to be put to death so the Supreme Court will rule and issue a stay so that that person's appeal can be heard. Well, that has now become abused in ways that it is used for conservative justices to do their will and there is very little, like I said, that you can even figure out as litigate as to what the hell happened. So what are you, tell me how we solve this problem? Well, as you well know, the emergency docket, as it's called, used to be for emergencies, I actually have sought emergency help from the Supreme Court when I had a death penalty case and my client was about to be executed in the Supreme Court issued an emergency stay. It wasn't a final ruling. It was a stay and the numbers of cases has grown exponentially. It did under Donald Trump. I'll just give you a few numbers here. Under Bush and Obama, there were eight requests for an emergency ruling. It works out to less than one a year. Under Trump, the number is 41 in just four years. So you had this explosion eight over 16 years as opposed to 41 over four years and the court gave the Trump administration in whole learned work what it wanted in 28 of those cases. An example, the district court enjoined or stopped Trump from using money to build the wall. The court summarily, without an opinion and without a vote count, nobody knew who voted which way, struck down that order. That's an example of the emergency docket. The Texas abortion cases and other, the COVID restrictions are another. These rulings are unsigned and they are unexplained. No opinion. So as you said very well and you've done such immensely important valuable work on voting rights cases, you can't piece together what the court is doing. There's no statement of principle. There's no citation of cases. There's no explanation whatsoever. There's just the ruling. And I think justices are beginning to say, you know, we've gone too far and we need to cut back. But in the meantime, my proposal would very simply require that these opinions be explained by an opinion by some written statement and that there be a vote count. So you know who voted which way seems kind of basic. That's what courts should do. And I think the use of procurium opinions by lower courts is encouraged by this bad practice by the Supreme Court. And remember that the emergency docket was supposed to be used for emergencies to in effect maintain the status quo. So that later, there could be a full ruling on the merits. But as Professor Vladek has said, often there is no later because the emergency docket ruling, the shadow docket ruling becomes in effect the rule of the court. And litigants like yourself who are doing important work in the courts are left to kind of try to piece together what the law is. Yeah. And you know, I can tell you from personal experience, you know, and I fear, I hope not, but I fear that in the coming weeks we will see this again as we head towards election. You know, the fact is that if you get a if you get a ruling on the emergency docket involving election rules, that is you can say it's a temporary ruling, but it is in fact going to be the rule for the election and it can have enormous consequences. And as you say, they are not just to preserve the status quo. Like like they I can point you to real life examples of where they have changed the status quo to the detriment of voters. You know, the Alabama redistricting case was an example of a case that black Alabamians were denied fair legal and constitutional districts for two years because the Supreme Court on a shadow docket case decided that it was going to block the ruling of a three judge panel, two judges of whom were appointed by Donald Trump. Okay, but they they state it. And the net effect for the voters was not the preservation of the status quo. It was the reversal of what that three judge panel had done. And again, you are left trying to figure out, okay, I mean, the common wisdom is that that was because of Purcell doctrine because of the it was too closely election. But but as you point out, I don't even know the vote count. I mean, we assume the vote count, but because we're sort of figuring, well, these justices probably lined up here, these justices brought, but what is the harm with the justice is at least telling us who voted which way. My votes are all recorded. And here's the tragedy. And I use that word without exaggerating because it goes back to your initial question, how did we get here? How did the courts approval rating plummet? How did trust and credibility get lost? And it's partly the result of the shadow docket because how can people have trust in an institution when the nine people won't even take ownership for what they're doing individually? And here's another point I know I'm talking a little bit too much like a lawyer, but the okay, you got the right you got the right podcast for that. The process is important as you and I know, because we've litigated, you go to the United States Supreme Court after extensive briefing, there's oral argument. And, you know, for an hour, we're standing there having to answer really tough questions without knowing who's going to ask what and we've been grilled in that way. But there's also the opportunity for amicus curai briefs, you know, interested parties can file with the court. It is a really in-depth, very scholarly process. And all of it is lost when there's an emergency docket, no oral argument, no real briefing, and the possibility for just the individual political views of the justices to hold sway. And that's probably why these justices have become so addicted to the emergency topic. So I have to ask the, you know, I understand we're in a hyper-partisan world. So the answer is, the Republicans don't want to do anything that's productive, fair enough, got it. But what is their argument for opposing some of these reforms? Because some of these, like, the thing that has always surprised me about Republicans in Congress is how willing they have been willing, how willing they have been to seed their own power to other branches of government. You know, usually the first impulse of each branch of government is to aggregate its own power relative to the other branches. And, you know, whether it was the Republicans in Congress willing to accede some of their power to the Trump administration or here, it surprises me. But your Republican colleagues also live under disclosure and vote counting and gift rules. Why would they, you would think they would be like, well, I have to do this. Why don't the justices? Like, what is their argument for why they don't? And why do you think they really don't support these things? And you and I recall the days you've alluded to them when Republicans were the ones who said courts should not be so activist. Courts should be held to high standards. Part of the right wing, remember their mantra, impeach your award going back to the days of the initial pre-Reagan right wing and the Republican party. But to its great credit, the Republican party was in favor of a court that read the law and followed the principles of the constructionist jurisprudence that made sense in that time. And the answer to your question is they have no principal reason. What they say is, oh, separation of powers. We shouldn't be telling the judges what to do. But the real reason is they don't want any kind of law that impunes this Supreme Court because, obviously, it's the result of Donald Trump's cult, the two who were there joined by the three that he appointed, plus Chief Justice Roberts, give them, in effect, cover for whatever they want to do. And I think it's purely political. So you've called on Justice Alito and Thomas to not be assigned opinions or to have to recuse. I think the recusal arguments in some of these cases is pretty overwhelming. But are you surprised that the chief has not been more active? Do you think I was a naive to think that he would act differently? And what is the solution? I'm really surprised in a very personal way that the Chief Justice has kind of abandoned leadership. Because I know him personally. He's someone I have respected. He's a decent, thoughtful person. And I've been so disillusioned and disappointed that he hasn't taken a stronger stand. Now, you know, people, law professors say to me, well, the Chief Justice is just a first among equals. But he assigns opinions. For example, he could say, I'm not assigning any opinions to Alito or Thomas until they follow and support a code of ethics. He has inherent powers in that institution that he could use. And he also has the ability to lead other justices to put pressure on. That's right. He could speak out. He could speak out. And frankly, it is his court. He will be stuck with his legacy on this court. And I think to your point earlier, he missed a moment when he could have acted. He still has the moment. It may be more difficult now, but he still could act and show some leadership and frankly, backbone. Well, I have you in the last few minutes. I can't not address the upcoming elections. So what gives you hope? What do you worry about? How do you think things are going? I'm enormously energized and excited by the candidacy of the first black woman to be United States president. And I believe that she will be what I see around the country is that people are getting to know her, feel more comfortable with her. And by contrast, resent the chaos and potential threat that Donald Trump poses to our democracy. And since we're talking as lawyers here, obviously, the rule of law came very close to being shredded under Donald Trump in his presidency. The last time around, he came very close to using the military in ways that would violate basic constitutional principles and the Department of Justice in a way that exacted revenge on his political adversaries for so many reasons that people listening to this broadcast will understand without my explaining, he is a clear and present threat to our democracy. I think the American people are understanding that point and also that the economy, prices, inflation, you need a plan. You can't just rail against Joe Biden. Kamala Harris has a plan on issues relating to our national security. She clearly has strong principal stands to preserve our fight against autocracy and preserve democracy elsewhere around the world. And I think as well on reproductive rights, Americans really believe these individual choices should be made by a woman. They trust women to make those decisions. They don't want Donald Trump or any other politician, including Richard Blumenthal telling women what to do with their bodies and their futures. So I'm very hopeful about the future. And I also believe that Kamala Harris, as President of the United States, will appoint justices and will support reforms, including maybe, I'm not speaking for her, term limits for justices. You and I spoke at the beginning about things we never thought we would support. I'm now supporting term limits in court justices because I think we need some turnover on the court. And the founders never thought that justices would live to be 75 and 80 and still be on a court lifespan in those years was way shorter. And service on the court was started at older age. So I think for all kinds of reasons, some kind of term limits proposal makes sense. And I believe Kamala Harris will at least entertain or consider that kind of proposal. Last question. The question I get the most from people when they write in or they, you know, they email me is they say, well, you know, I hear you talk to, you know, U.S. Senator, a lawyer, someone who's argued before the Supreme Court. And I understand what he's going to do. But like, I'm just a voter. You know, I'm just, I just, I'm living in, you know, in Fairfield, Connecticut, working, you know, in Stanford. And what, what do I'm nervous? I'm frightened. But what do I do? What do you tell your constituents when you get asked, like, what they can do to help? You know, first of all, let me thank you for the great work that you've done to defend the integrity of our elections and our campaign finance system against tremendous odds. You know, Citizens United is still the, the bane of our existence in this world. First and foremost, you can contribute. You know, you can make donations of funds. But you can also work for candidates. My wife, we live in Connecticut, obviously went to Pennsylvania just about 10 days ago to do voter registration. It's a one day drive. You can go down in the morning, go back in the evening. You can work for candidates in a virtual world. You can make phone calls. You can do so much that was never thought possible before because of the internet and because of modern communications and technology. And you can actually go to places like Ohio and Michigan and some of the battleground states and Montana, Montana. Well, Montana is very close to my heart. Even though we're not going to win against Trump in Montana, we need John Tester back in the Senate. Please work for John Tester in Montana. Thank you, Senator Richard Blumenthal. Thank you for everything you have done. You are an amazing public servant. And you are one of my heroes. You are also the senator from my wife's home state. So all of that and more. Thank you. And thank you for joining me today. Thank you so much, Mark. And thank you for all your great work. Great. Thanks for listening to this episode of Defending Democracy. Please make sure you're subscribed to Democracy Knuckets free daily and weekly newsletters. We'll see you next time Defending Democracy is a production of Democracy Knuck at LLC. [Music]