Advisory Opinions - The Supreme Court Is Legitimate, Actually

Episode Date: October 3, 2024

Kannon Shanmugam, head of Paul-Weiss' Supreme Court practice and friend of the pod, gave a speech recently pushing back against critics who question the judiciary's legitimacy. He joins Sarah and David to discuss the importance of trust in institutions to the rule of law. The full speech follows. The Agenda: —Questioning legitimacy is a team sport —Kanon's speech: revering the court —Good faith ... but wrong —Court packing cycle and term limits —Disagreement galore! (Could it all just be outcome bitterness?) —The criticism isn't just meritless—it's dangerous Learn more about your ad choices. Visit megaphone.fm/adchoices

At Wealthsimple, we're built for whatever you're building. Built for Jane, who wants to break into the housing market. We're built for Ted, who's obsessed with what's happening in the global markets. And built for Celine, who just wants to retire and explore the world's flea markets. So take a moment and think about what you're building for. We've got the financial tools to help make it happen. Wealthsimple. Built for possibilities. Visit wealthsimple.com slash possibilities.

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and we have special guest of the pod. I mean, really bestie of the pod, Cannon Chamigan joining us, head of Paul Weiss's Supreme Court practice. And Cannon, we're going to play a speech that you recently gave that was featured also in the Wall Street Journal, but we thought the whole thing needed some airing and boy, what better podcast to do it on than this one.

But can you set it up a little because this is, well, it's not what everyone else is saying about the Supreme Court. Well, sure. Well, it's great to be with you all. It feels a little bit weird to be with you at some time, other than the end of the term when we usually get together. But it's funny, Sarah, this is a speech

I'd actually been thinking about for a long time, for several months. And that was because, as I say in the speech, I was just increasingly concerned about the tenor of the attacks on the court, and in particular, the attacks on the court's legitimacy. I was concerned about the long-term effects of those attacks on the court as an institution. And so over the course of the summer,

I thought a lot about the subject. I read everything I could get my hands on that had been said and written by critics of the court and really wanted to think about How best to think about and address these attacks and the result of that is the speech that I gave Earlier this fall, you know can and one thing that I think is interesting to me and troubling in a way is I feel like we've seen that the the escalating criticism of the court, criticism of decisions, criticism of reasoning, strikes me as completely fair, completely appropriate. It's a branch of government just like the other two branches of government.

People can disagree. But what strikes me as interesting is it feels as if the disagreement has moved to a level where we're not just saying this decision was wrong or this line of legal reasoning or originalism has flaws and into illegitimacy itself, that this court is not legitimate. Where are you seeing the line between sort of, hey, robust criticism veering into actual attacks on the court's legitimacy itself. And we don't seem to be doing that with Congress. If Congress does something wrong, we don't say Congress is illegitimate. Why is it that you think we're moving from this normal, fair criticism towards something that calls into question the entire branch of government

itself. Well, I can't really pinpoint when that started or what caused it, David. Certainly the changes in the court's membership over the last few years have obviously accelerated that, the circumstances under which the changes occurred. As I say in the speeches, the listeners will hear, I agree that robust criticism of the substance of what the court does, robust discussion about the ethical rules, what the ethical rules should be,

I think all of that is fair game. What I think is problematic is really attacking the institution of the court. And the reason why I find that problematic, separate and apart from the fact that we've seen these increasing threats against the justices themselves, which are obviously concerning, is the potential impact on the rule of law. As I say in the speech, you know, I think we've all operated from the presumption that people will always obey the decisions of the court, that they will always treat them with respect. The Supreme

Court doesn't have an army to enforce its decisions. And yet I really started to worry that the impact of these criticisms is going to be to undermine that. And that is really the foundation of the rule of law, the notion that we will all respect what the Supreme Court does even when we disagree with it. So, Cannon, there are not many speeches about the Supreme Court that go viral to quasi-viral. I don't know what virality looks like in this context, but certainly lots of people are talking about it. What's the reaction been for you? You know, I had no idea what the reaction would be when I gave this speech, but I have to say I've been heartened by it. It's

been overwhelmingly positive in the messages that I've received and I've received probably hundreds of messages about the speech. You know, obviously there have been some that have been critical and I think the one thing that has disappointed me is that I think some of the criticism has been really attacking me rather than the substance of the speech and engaging with the substance of the speech. It's been, you know, attacking me rather than the substance of the speech and engaging with the substance of the speech. It's been attacking me as a Supreme Court advocate with some going so far as to suggest that we really don't have standing to weigh in on any of these issues.

And I guess it's a little bit disappointing because I think in some sense, to the extent that people have attacked me, it reflects the same presumption of bad faith that I really suggest in the speech that people should not be starting from. I would much prefer it if people would engage directly with the substance of what I had to say. I think the one thing I will say is that I know Justice Alito earlier in the year had said that members of the bar should rise to the court's defense.

My own view is that the court can defend itself. The court does defend itself. Members of the court can do speeches. The thing that actually moved me was an interview that Judge Tom Griffith, the former judge on the DC Circuit gave, where he said that members of the bar are officers of the court. And I think as officers of the court,

I think we have an obligation to speak up when we think the court is being unfairly attacked. And I didn't give this speech in any expectation that other members of the bar would speak up on this. That's obviously for them to decide. And I think it is a fair thing to say that there are limits on how critical members of the bar of the court can be, because we obviously appear before the court.

That having been said, I think that when it comes to actually speaking up on these issues, I don't think that we are obligated to remain silent if we have views. And it took a lot for me to give this speech, because as I say in the speech, I don't often give speeches about the court. But again, I thought that we were in a moment

where it was really important and necessary for those of us with a little bit of gray hair to speak up about these attacks. Well, without further ado, let me introduce Ken and Shamigam's speech that he gave this month. And I'll just add, you know, it seems to me pretty obvious that as the three branches,

at least change how they're using their assigned constitutional powers, the Supreme Court has been pulled more into those political fights. And so as we head into an incredibly contentious election season, I don't think it is surprising that people attack the legitimacy of the court I don't think it is surprising that people attack the legitimacy of the court as just another part of our political process in which it's team sports, it's tribalism, it's all of those things. And yet, Ken, I think you make a compelling case that the Supreme Court should not be part of those tribal warfare moments.

So let's hear it from you. The Federalist Society's main purpose is and always has been to promote fair, serious, and open debate on the legal issues of the day. As I will discuss later in my remarks, never has such debate been more essential than it is now. Now, the title of my remarks today is the legitimacy of the Supreme Court. And I have to confess that standing here, I feel like a fish out of water. That may seem like a strange thing to say, since after all, I engage in public speaking

for a living. But while I often serve on panels and talk about the Supreme Court's handiwork, I very rarely deliver formal speeches like this one. In fact, the last time I did so was five years ago, almost to the day, when I gave the 2019 Constitution Day speech at the Library of Congress. In that speech, I addressed the constitutional separation of powers.

And I predicted that the lawmaking vacuum left by gridlocked Congress would place increasing pressure on the executive branch to fill that vacuum and on the judicial branch to police the executive branch's exercise of that authority. I'll leave it to you to decide whether those predictions turned out to be correct. That occasion aside, however, I have been reluctant to give formal speeches about the law in general or the Supreme Court in particular. You see, I've always thought of myself as a practicing lawyer, not a pundit, and a country lawyer at that, the kid who probably went from a trailer park in

Kansas to a corner office on K Street. As a lawyer, my job is to play in the game. I leave the task of color commentary to others. But today I am breaking that habit to address the recent criticisms of the Supreme others. But today I am breaking that habit to address the recent criticisms of the Supreme Court's legitimacy. I'm doing so for a simple reason, because I revere the Supreme Court. I had the fortune of a lifetime to clerk for one of the greatest justices of this generation or any other, Antonin Scalia. Since then, I have devoted my professional life to the court, having spent the last 20 years arguing cases there.

My wife and I actually got engaged on the Supreme Court's front steps. And I firmly believe that for all of the challenges it faces, our Supreme Court is the finest high court in the world, a model for other countries to follow. And perhaps for that reason, I have found the recent attacks on the court to be dispirited. At the risk of giving away the punchline to my remarks, I believe that the criticisms of the court's legitimacy are unfounded.

But more than that, I believe that attacks on the court's legitimacy are dangerous, undermining public confidence in the court and imperiling the rule of law. Finally, I believe that critics of the current court would be better served engaging with the court's work on the merits. Now, I'm aware that in defending the court, I will inevitably be subject to criticism myself, specifically the criticism that I am kowtowing to the court before which I practice. I hope that my track record refutes that criticism. I have never testified for or otherwise endorsed a Supreme Court nominee.

In fact, with one exception for a long-time colleague, I have never signed a letter supporting a judicial nominee at any level. And I am at the stage of my career where I have little to gain personally from weighing in on these issues. But if I am criticized, stage of my career where I have little to gain personally from weighing in on these issues. But if I am criticized, so be it. I believe that those of us who practice regularly before the court, and who thus have a unique familiarity with the court and its work, should speak up when we believe that the court is being unfairly attacked.

I pause here to note that the opinions to follow are my own. They are not those of my firm, my clients, the Federalist Society, or anybody else. And so let me turn to the subject of my remarks today, the recent criticisms of the Supreme Court's legitimacy. Some conservatives have simply dismissed those criticisms out of hand as being made out of bad faith. But I start from the premise that everyone is acting in good faith.

And over the last few months, I've studied those criticisms closely. In order to analyze them, it is important first to break them down. Over the last few years, those criticisms have evolved and they now fall into three primary categories. Critics of the court's legitimacy initially attacked the way the Supreme Court was chosen. They focused on the events following the death of Justice Scalia in 2016 and Justice Ginsburg

in 2020. Those critics argued that the Senate acted improperly in each instance by refusing to act on a nomination for Justice Scalia's successor until after the 2016 election, and then by acting quickly to confirm Justice Ginsburg's successor before the 2020 election. The Senate, however, has the power to act as it chooses when it comes to nominations. To adapt the line from my favorite Jane Austen novel, the President has the advantage of choice, the Senate only the power of refusal. There can be no serious doubt that the Senate acted constitutionally in each instance in exercising its power.

Instead, each party argued that its position was consistent with some carefully crafted historical norm for the Supreme Court nomination process, with the party's flipping sides between the two vacancies on the need for speedy confirmation. But politics has always played a role in how the Senate has exercised its confirmation power. The Senate, after all, is part of an executive branch, a political branch. And while the role of politics has waxed and waned, the Senate has used its confirmation power in virtually every conceivable way at some point in our nation's history. If you have any doubt about that, Millard Fillmore would like to have a word. He nominated no fewer than three candidates to fill John McKinley's seat on the Supreme Court in

1852, only for the Senate not to act on any of them. So it is this criticism of the nominations process, really a criticism of the Senate rather than the court, that has led to proposals for so called structural reform in the form of changes to the court's composition. Initially, critics of the court argued for court pack, that is increasing the size of the court, presumably up to a point where critics would be satisfied with the court's output. That proposal point where critics would be satisfied with the court's output.

That proposal died a quick death. Even President Biden refused to back it. And for good reason. As every student of the court knows, court packing has a sorted past, with President Roosevelt's effort to pack the court in the 1930s ranking as one of the sorriest episodes in the court's modern history. But beyond that, any effort to pack the court would inevitably trigger a cycle of retribution. If a Democratic president with a Democratic Congress increased the size of the court,

there would be nothing to stop the next Republican president with a Republican Congress from increasing the court size still further, in an all-too-familiar cycle of nomination with retaliation. I for one would not relish the opportunity to argue before a 37-member Supreme Court. I have a hard enough time with none. More recently critics have suggested a different approach, imposing term limits, typically 18 years, on Supreme Court justices. Of course, the fundamental obstacle to such a proposal is that it would surely require a constitutional amendment, despite creative efforts to upset the settled understanding that Article III of the Constitution requires life tenure.

Putting that aside, however, one could reasonably debate whether a system with term limits would be preferable to a system with life tenure. As advocates of term limits have argued, a single 18-year term would reduce the incentive in a life tenure system to choose younger nominees who may lack the breadth of experience of older ones. And term limits could also mitigate the trend towards strategic retirements, whereby justices and increasingly lower court judges time their requirements so that their successor can be nominated by a president of the same political party that nominated them. As liberals and conservatives alike have noted, if we were back at the Constitutional Convention of 1787 and designing a judicial system from scratch, term limits would have a respectable case.

But the fundamental problem with the recent proposals for term limits is that they are designed not to address those deeper structural considerations, but rather simply to affect the makeup of the current court. The best evidence of that, the vast majority of those proposals are designed in some way to operate on the current members of the current court. The best evidence of that? The vast majority of those proposals are designed in some way to operate on the current members of the court, either by adding new members to the current court, imposing term limits on

the current court, whose senior members are conveniently all Republican appointees, or both. One law professor recently proposed creating a Supreme Court A, which would consist of legacy members of the court, but would have jurisdiction only over original jurisdiction cases, mainly disputes between states, and a Supreme Court B, which would consist of term-limited members and would have the court's traditional appellate jurisdiction. But what would stop a subsequent president in Congress dissatisfied with Supreme Court B from creating a Supreme Court C and limiting Supreme Court B to another small subset of the Court's cases, say its Orissa cases?

However creatively it is designed, any proposal that limits or dilutes the authority of existing members of the Court is just a more nuanced form of court packet. Now the second category of criticism of the court's legitimacy is that the court is no longer doing law. This line of criticism, which is not new, goes something like this. The court is no longer deciding cases in the same way that it used to. Because of the recent changes in the court's membership, the court is now acting as a group of politicians in robes, deciding cases based on preferences for particular outcomes rather than the even-handed application of legal

principles. In its current iteration, this line of criticism picked up steam in the aftermath of the Court's decision two years ago in Dobbs v. Jackson Webbons Health Organization. But it too seems to be based more on dissatisfaction with particular outcomes the current court is reaching, and a presumption that certain justices must be acting out of partisan motives than any objective assessment of the court's output. To be sure, the originalist approach to constitutional interpretation and the textualist approach to

statutory interpretation are now in the ascendancy. But while the court may be reaching different outcomes on certain issues, the court's opinions look much the same as they always have. If anything, the homework of the current court is not a difference in the way the opinions are written, but rather a proliferation of disparate reasoning and separate writing. Last year, for example, there were more concurring opinions per case than ever before in the court's history. Critics have focused in particular on President Trump's three appointees to the court.

Of course, all three of those justices were in the majority, and perhaps the court's three biggest recent decisions, Dobbs, Students for Fair Admissions versus Harvard College, and Loper-Bright Enterprises versus Raimondo. But the similarities between those justices end more quickly than critics would care to admit. Although Justice Gorsuch is generally labeled the most quote unquote conservative of the three justices, he has consistently joined with the court's three Democratic appointees on questions of criminal justice, immigration, and Indian law. And he notably wrote the Court's opinion in Bostock v. joining the Chief Justice in adopting more limited reasoning than the court's other Republican appointees. And Justice Barrett is emerging as perhaps the most independent member of the current

court, breaking from the court's other Republican appointees last year in important cases like Ohio versus EPA and Fisher versus United States. The statistics bear out those anecdotal observations. Last year, the three justices who voted together the most often were not President Trump's appointees, but rather the Court's three Democratic appointees who voted together in 90 percent of the Court's cases. I don't hear any of the Court's critics suggesting that that is evidence of partisan bias, and it would be quite wrong to do so. And beyond the fact that nearly half of the court's decisions

were unanimous, a number in keeping with recent norms, the court often broke down in unpredictable ways. While there were 11 6-3 decisions with all the court's Republican appointees in the majority and all the court's Democratic appointees in dissent. There were 11 more 6-3 decisions with some of the court's Republican appointees on each side. And perhaps the highest profile decision last year on a hot-button constitutional issue, United States versus Rahimi, the Chief Justice wrote the majority opinion rejecting a Second Amendment claim over a dissent from Justice Thomas. The emerging narrative of the current court is not of a monolithic partisan majority marching in lockstep,

but rather of disagreements about how far to take the prevailing originalist and textualist approaches and how fast. Now, it's certainly fair to say that given that so many of the major issues of the day are now ultimately resolved by the judicial branch, presidents nominate justices in the hope that they will vote in particular directions on those issues. There can be no doubt that the current court is reaching outcomes that more often, though not always, please conservatives. But it does not follow that once confirmed, today's justices are any less independent. If anything, today's justices are less entangled in political life than their predecessors, who would often come from political positions, advise politicians while

serving on the court, and even leave the court to run for political office. Here too, I believe the criticism misses the mark. And that brings me to the third category of criticism of the Court's legitimacy, claims that the Court is acting unethically. In recent months, critics have been increasingly focused on this line of attack, with particularly close scrutiny of some of the Court's Republican appointees. And as I will discuss shortly, this line of attack has been accompanied by some of the most rancorous rhetoric about the court, with critics describing the court not just as illegitimate, but corrupt.

Now, it's beyond the scope of my remarks today to address all of the specific allegations that have been made. Instead, I want to make just a few general observations about this line of criticism. At the outset, it bears noting that many of the allegations are transparently insubstantial. Take the claim that a Justice's law clerk helped him with house hunting when he first joined the court, or the claim that another Justice's law clerk paid small sums to defray their shares of the cost of a Christmas party hosted by the Justice's chambers. Just last week, we had the claim that there was something nefarious about a justice and his spouse attending a concert

with a quote, eccentric German princess. Is there any other kind? Even though the justice had disclosed the concert tickets on his financial disclosures. The proliferation of these insubstantial complaints suggest that at least some critics are more concerned with targeting particular justices than with policing the conduct of the court as a whole.

More broadly, the fundamental premise of this line of criticism is that the court is not subject to any ethical rules, that when it comes to ethics, the court has been operating in some sort of lawless zone. But that was simply untrue even before the court's recent adoption of a code of conduct. There are two rules that are particularly salient. The core ethical rule applicable to the court concerns recuse. A justice cannot sit in a case in which the justice's impartiality might reasonably be questioned. That rule is codified in a federal

statute, 28 U.S.C. section 455, and it applies by its terms to Supreme Court justices as well as other judges. Critically, the rule contemplates that a justice's impartiality is assessed from the perspective of a reasonable person, not someone who presumes the justice is acting in bad faith. Another ethical rule concerns disclosure. A justice must make annual disclosures concerning gifts, outside sources of income, and stockholdings. That rule is also codified in a federal statute, the Ethics in Government Act, and it too applies by its terms to Supreme Court justices as well as other judges. Notably, the Ethics in Government Act gives the Judicial Conference of the

United States, the policy-making body for the federal judiciary, the power to interpret the Act's provisions as they apply to the judicial branch. Most of the recent allegations implicate those two rules, particularly the Disclosure Rule. In my view, in order to assert that the court is acting corruptly, critics bear the burden of showing, at a minimum, that the court's members have been intentionally violating those rules. That is a high burden, and I do not believe the critics have met it. As to the allegations implicating the recusal rule. Those allegations largely center on the conduct not of the justices themselves, but of their spouses.

Among other things, such allegations raise a difficult question of whether a spouse's political activities can be properly imputed to a justice for purposes of the recusal rule. And as to the allegations implicating the disclosure rule, which involved individuals who have personal relationships with justices, but who did not have business before the court, the Ethics in Government Act exempts, quote,

personal hospitality, end quote, from disclosure. And until recently, the Judicial Conference appears to have interpreted that exemption broadly to cover travel relating to personal hospitality. At most, those allegations reflect genuine ambiguity about the meaning of the then-existing rules, not any systematic effort to breach them. Now, I do not mean to suggest that there should not be healthy debate about what the ethical rules for the Court should be going forward. Last November, the Supreme Court issued its own Code of Conduct, which supplements the rules I have discussed

and largely tracks the code of conduct that previously applied only to lower court judges. And earlier this year, the Judicial Conference issued guidance tightening its interpretation of the personal hospitality exemption to require greater reporting of travel paid by others. While not perfect, these changes will ensure more transparency and help dispel the misunderstanding that justices

were not subject to any ethical rules. Critics of the court's legitimacy have singled out certain issues as subjects for potential ethical reform. For example, by proposing to outsource the enforcement of the ethical rules, presumably including determinations about whether justices should sit on particular cases or be sanctioned for ethical violations. But if those issues are to be considered, I would respectfully submit

that there are others that should be on the table as well. The Court may wish to consider whether to impose caps on the amount of gifts the justices can receive, similar to the caps that apply to members of Congress and other government officials. In light of the difficulties posed by individual stock ownership, particularly because there is no mechanism for substituting in another justice when a justice is recused, the court may wish to consider whether to require justices either to divest themselves of individual stocks or to place them in a blind trust. And in light of recent reports that justices are receiving book deals that dwarf their annual salaries,

the Court may wish to consider whether to close a loophole that exempts book income from the limits on outside income. I do not here take a position on whether new ethical rules should be adopted in these or any other areas. Rather, I identify these issues because they implicate the conduct of justices across the court, not just the particular justices who are the subject of critics' scrutiny. Yet most critics of the court's legitimacy are not talking about them. As with the other criticisms, it is hard to escape the conclusion that many critics real me is with the outcomes the current court is reaching, and with the particular

justices responsible for them. In the first part of my remarks today, I have expressed my view that the criticisms of the court's legitimacy are unfounded. I want to turn now to why I believe those criticisms are not just meritless, but affirmatively dangerous. To be sure, as I noted earlier, attacks on the court's legitimacy are not new. As great law professor Richard Reed explained in a recent op-ed, those criticisms are not dissimilar to the ones conservatives leveled at the Warren Court in the 1960s.

Well, what is new, I would suggest, is that the attacks have been accompanied by unusually toxic rhetoric. Consider statements like these. The extreme far-right MAGA majority on the Supreme Court is totally out of control. This activist, extremist MAGA court faces a legitimacy crisis. The problem is not just that the Supreme Court is conservative. The problem is that it is corrupt. We must restore justice and balance to the rogue, radical Supreme Court. The Supreme Court is a cesspool of corruption, devastating our communities. These statements do not come from random people. All of them come from members of Congress.

And it does not take much imagination to realize what the rhetoric elsewhere looks like. As observers across the political spectrum noted in the immediate aftermath of the first attempted assassination of former President Trump, the rhetoric in American public life on both sides has more generally become overheated. Indeed, we practicing lawyers, myself included, sometimes cross the line too. But I believe that the attacks on the court's legitimacy and the accompanying rhetoric are having two deeply concerning effects. First, as the two distinguished recent leaders of this school's Balch Judicial Institute, David Levy and Paul Graham, have recently

warned, attacks on the court's legitimacy are contributing to the threat of violence against judges in general. And the same can be said with regard to the Supreme Court in particular. Most obviously, a man has been charged with the attempted assassination of Justice Kavanaugh after allegedly turning up at his home with a gun and other weapons. The man is pleaded not guilty and is awaiting trial. Others have recently been charged with or detained for making threats against the Chief Justice and Justice Barrett. Now it's impossible to draw a direct link between the attacks on the court's

legitimacy and any of these recent alleged crimes. But when even members of Congress are threatening the justices will pay the price and won't know what hit them if they issue decisions reaching certain outcomes, it is not unreasonable to conclude that the rhetoric around the Court's legitimacy risks adding to the problem. Beyond threats to the justice's safety, the attacks on the Court's legitimacy are also contributing to a broader culture of harassment, seemingly designed to make certain justices' lives as unpleasant as possible, and possibly even to deter them from acting independently. Protests at justices' homes have become commonplace.

One group has even offered a bounty to anyone who spots one of the court's Republican appointees at a restaurant, presumably for the purpose of attempting to interrupt their meals. Justices now have to travel everywhere with security. In public remarks just last week, Justice Barrett vividly described coming home from the court with a bulletproof vest. And earlier this year, a self-described journalist, dishonestly portraying herself as an outspoken conservative, secretly recorded conversations with two justices and a justice's spouse at the Supreme Court Historical Society dinner. To their credit, the justices didn't take the bait, politely explaining the appropriate role of the courts.

The practical effect of all of this will be to leave the justices unable to have any semblance of normal life, to reduce their privacy, and to render them even more remote from the people they serve. Critics of the court's legitimacy would be well served to ask themselves whether that is, in fact, in anyone's interests. That brings me to the second reason why the attacks on the court's legitimacy are so troubling. Those attacks are undermining public confidence in the court and imperiling the rule of law. As to public confidence, polls have indicated a decline in the court's approval rating, although it remains more popular than the political branches. Notably, there is a marked difference in the way Republicans and Democrats view the court, with a decline

in approval occurring overwhelmingly on the Democratic side. One recent survey indicated that 73% of Republicans, but only 24% of Democrats, have a favorable opinion of the court. Now, it may well be that much of that decline is attributable to other factors, such as disagreement with the outcomes of recent decisions, which probably explains the partisan gap, or the overall decline

in the approval of government institutions. But again, it seems reasonable to conclude that the attacks and the rhetoric accompanying them are at least contributing to the decline. In my view, however, the greatest danger the attacks present is to the rule of law itself. The phrase rule of law has rather lost its meaning, with both sides in the political debate often using it simply as a shorthand for decisions with which they agree. But what the rule of law truly connotes is that we live in a society where all of us adhere to the law, including judicial decisions.

Justice Breyer has frequently spoken about how remarkable it was that when the Supreme Court effectively resolved the 2000 presidential election in Bush v. Gore, everyone immediately agreed to abide by it. And when I was first asked about whether the Supreme Court was legitimate on a panel at NYU almost exactly two years ago, I expressed skepticism that there could ever come a time when elected officials or citizens would refuse to obey a Supreme Court decision. But now I am less confident. Over the last two years, we've seen the President criticizing the Court in the wake of adverse

decisions, in increasingly strident terms. I believe we are not so far from a President saying, in the manner of Andrew Jackson, John Roberts has made his decision, now let him enforce it. If you're unsure about that, ask yourself this question. If the court ever has to resolve another presidential election, how confident are you that either side would simply acquiesce in the court's decision?

In my speech to the Library of Congress, I said that the greatest danger to our judicial system is the growing perception that judges are simply politicians in robes, that the judiciary is not a neutral forum for adjudicating disputes according to objective legal principles, but rather a third political branch, with law simply being politics by another means. I have never felt more strongly about that than I do today. And while today's critics of the court's legitimacy may see this line of attack as being in their interest in the short term, I question whether it is in the long term. After all, history teaches us that the court has oscillated between being more liberal and being more conservative throughout our nation's history. Some say that because we have a relatively young court at the moment, the court may not

become more liberal for a generation. I'm not certain that is true. It will depend, as the court's makeup ultimately always does, on the outcomes of the next few presidential elections. But regardless of when that day comes, whether in 10 years, 30 or 50, the same critics who are dissatisfied with the current court's outcomes will want the public to have confidence in the court. Indeed, those critics may come to see even the current court as a bulwark against the political branches. Once confidence in the court is destroyed, however, it will not be easily regained. Today's

critics may rue tomorrow's consequences. In saying all of this, I do not mean to suggest that the critics of the court should be silenced. Quite to the contrary. But if what those critics are really unhappy about is the outcomes the current court is reaching, I respectfully submit that they would be better served engaging with the court's work on the merits. In the final part of my remarks today, I want to turn to why I think that engagement is not only appropriate, but important, and to offer some thoughts as to why I think it is currently lacking. In particular, and especially because I am here at one of the nation's very best law schools, I would like to talk about the important role of the legal academy in engaging with the work of the court.

The familiar charge against the legal academy is that it focuses too much on theoretical subjects and not enough on practical ones. Hence the Chief Justice's famous quip that quote, the first article in any law review is likely to be on the influence of Immanuel Kant on evidentiary approaches in 18th century Bulgaria. And that does continue to be an issue, at least to some extent. When I argue a case before the court, I always check to see if there is any academic literature on the question I'm arguing. In recent cases, I have been surprised at how often the answer to that question has

been little or none. But I worry that the issue is more profound than that, that many in the Legal Academy are not particularly interested in engaging deeply with the work of the current court. To be sure, a number of professors are still producing important scholarship on the court. Justin Driver and Leo Littman come to mind to take but two examples. But it is telling that the Legal Academy has not produced a methodological alternative that rivals the now predominant originalist approach to constitutional interpretation. In fact, many of the most interesting critiques

of the Court's current approach have come not from liberal law professors, but rather from the very few conservative law professors at top law schools, such as Wilbode and Steve Sacks. At times, the legal academy seems to be at risk if devolving into an echo chamber of grievance. In recent news articles, law professors have griped that the Court's recent decisions required them to update their syllabuses. Others have gone so far as to suggest that changes in the court's jurisprudence be teaching impossible. And as I was preparing for these remarks,

I checked in on Law Professor Twitter, only to wander into what seemed like the digital version of a bar fight, with liberal professors accusing conservative ones of making misrepresentations about their work, complete with allegations about who said what to whom at conferences. representations about their work, complete with allegations about who said what to whom at conferences. Just last week, a law professor was boasting on Twitter about his efforts to oppose the creation of a Federalist Society chapter at his school. These episodes and others like them have left me feeling disheartened by the current state of the academy.

I wonder whether there is a deeper explanation for the reluctance to engage with the work of the current court. Even before the recent changes in the court's membership and attacks on the court's legitimacy, there was a growing intolerance on the left toward conservative legal positions. At first that intolerance was limited to positions on certain hot-button issues such as abortion and same-sex marriage. But over the years that intolerance has swollen to include disfavored positions on virtually every legal issue. If you have any doubt about that, check out the increasing vitriol directed toward lawyers who practice before the court,

even in lower profile cases. Well, many of those disfavored positions are now the law of the land. And if you believe not just that the court is illegitimate, but that the positions being adopted by a majority of the court are themselves illegitimate, then you will not feel any need to engage with those positions. While there are shining exceptions, the Divided Argument podcast, which features hosts from both ends of the spectrum, comes immediately to mind. Too many seem to dismiss the court out of hand, substituting SNARK for scholarship.

And if the left simply withdraws from the intellectual battlefield into a walled fortress, all of us will be worse off. I want to finish where I started on a personal note. I am a lifelong political conservative, having grown up as a Reagan Republican. But I've spent essentially my entire adult life in overwhelmingly liberal institutions, including an Ivy League university

and three big law firms. I have found that being surrounded by people who disagree with me has sharpened my own views by forcing me to defend them and allowing me to test them against competing opinions. I always look forward to talking politics over a drink with my partner Bob Schumer,

my favorite of the Schumer brothers. Much has been written over the last few years about the increasing polarization of American life and politics. But with the rancorous criticisms of the court's legitimacy, I worry that such polarization is overtaking the legal profession as well. I am quite proud of the fact that conservatives and liberals happily work together in my own practice.

In fact, I worked with associates and summer associates who have clerked for all nine of the current justices. Some of my all-time favorite associates share a few of my views. But I see young lawyers today increasingly engaging in the ideological equivalent of assortative mating, choosing between big law firms based on their perceptions that some are more conservative or more liberal. Spoiler alert, they're all basically the same. I firmly believe that the best legal work comes from the free exchange

of ideas from deep engagement with the strongest arguments on the other side. Now, some may find this hopelessly romantic, a throwback to the bygone era of Scalia and Ginsburg, Reagan and O'Neill, and perhaps it is. I may finish my legal career in an era of polarization. All of you are starting yours in one. But I strongly believe that it is time to move away from these attacks on the institution of the Supreme Court and its members and to move back to the battle of ideas, which, after all, is what the development of the law is supposed to be about.

And having spoken with many liberal friends over the last few months as I have prepared for this speech, I know that more than a few of them agree. And that truly brings me back to where I started. Remember that according to its website, the Federalist Society's main purpose is to promote fair, serious, and open debate on the legal issues of the day. My charge to all of you today is to carry that purpose forward. Do not be afraid to express your views during your time here, but do so respectfully and listen to, engage your classmates and professors who have different views.

Disagree agreeably and be humble enough to take those views into account in developing your own. But above all, do not accept the premise of the critics of the court's legitimacy. The law is simply politics by another means. The law is, and I hope always will be, something nobler than that. Thank you for listening to This Country Lawyer and thank you for inviting me to your very special law school.