Richard Reinsch:

Welcome to Liberty Law Talk. I’m your host, Richard Reinsch. Today we’re talking with Michael Greve about his new essay in National Affairs entitled “Is the Roberts Court Legitimate?” Listeners of Liberty Law Talk and readers of Law & Liberty will know Michael Greve well. He’s been with us from the beginning, since 2012. He was one of the first podcasts on his book The Upside-Down Constitution. Greve is professor at the Antonin Scalia Law School, author and editor of a number of books, and a great writer and someone who can make you laugh while also making you think. I’ve appreciated his contributions over the years. Mike, welcome to the program.

Michael Greve:
Thanks Richard.

Richard Reinsch:
Mr. Greve, the title, “Is the Roberts Court Legitimate?”. Now, apart from protestors dressed as Handmaid’s Tale actresses shrieking in front of the courts in Washington in protest, Justice Kavanaugh, et cetera, who says the Roberts Court might not be legitimate?

Michael Greve:
The first thing, and you’ll forgive me, but those crazies, the slightly more unhinged members of our public discourse, they in fact have champions in the legal academy as well.

Richard Reinsch:
Names available upon request or …

Michael Greve:
Don’t get me into trouble here. Some of the attacks in the blogosphere and even in law reviews have been dismayingly vehement and slightly unhinged.

Michael Greve:
Underneath that, it seems to me there is a real question about the public credibility of the court at large. Both Justice Gorsuch and Chief Justice Roberts as well as a large number of appellate judges have begun to worry about the talk and the atmosphere and the public debate that has begun to surround the court and the federal judiciary in general to the effect that more and more people believe that the federal judiciary is just one more combatant in the political debate as distinct from, well, an independent judiciary that protects and safeguards the Constitution.

All that stuff has become corrosive. There are legitimate worries about what Richard Fallon, for example, a highly regarded professor at Harvard, has called the sociological legitimacy of the Supreme Court. That is to say its public acceptance and credibility. That’s what most of the essay is actually about. It’s not the crazed attacks.

Richard Reinsch:
On this point, the Roberts Court, I remember just in my lifetime, criticisms of the court are frequently said to be questioning its legitimacy. One thinks of Bush v. Gore and the aftermath of that. I think about Justice Sandra Day O’Connor trying to respond to criticisms of the court and implying they were questioning the court’s legitimacy. This isn’t exactly new, as you know.

Many listeners will say we’ve been wondering about the court for a long time, particularly conservatives, particularly on rights claims where any rights claim that’s been accepted by the intelligentsia, it’s preordained, the outcome when it comes before the Supreme Court no matter how many appointed Republican appointed justices are on the court.

When you say Roberts Court, what is it about this court that people are questioning?

Michael Greve:
First of all, that’s a terrific point. I am actually somewhat critical of the high-mindedness or of an attitude that says any criticism of the court runs the risk of undermining its legitimacy. At some level it’s good to have public criticism of the Supreme Court.

What strikes me as new and a little bit worrisome is several things. First of all is just the vehemence and the personal nature of the attacks on individual justices. Again, that is not completely new. We’ve had these episodes before but it’s reached levels that, I think, are troublesome.

The second thing is that a lot of the critiques of the court that are now being brought forth have no constitutional or legal reference point at all. It’s just whose ox is being gored. While that is always an undercurrent in the debate, the complete disconnect from any kind of serious or halfway serious legal argument, that worries me as well.

The third thing is simply something that has nothing to do with the court per se. It’s just the deep division and polarization of our politics in general. That makes the whole debate more corrosive and troublesome. It increases the difficulties for the court now and going forward, it seems to me.

Richard Reinsch:
Is much of this about Donald Trump, the Kavanaugh appointment, the Kavanaugh battle, the desire to de-legitimize what could be years and years of rule by a conservative majority on the Supreme Court that has not been seen in quite some time and the desire to lessen legitimacy coming from that, particularly on these questions of abortion, religious freedom? Perhaps we see the court for the first time since Roe v. Wade not expanding individual rights every term in some way. All of that strikes me as part of this.

Michael Greve:
Yeah. I think there’s a great deal to that. My sense is that we would have had that problem even with a president who is somewhat more within ordinary American politics and standards of political decorum. Any conservative president would have appointed justices who are very much like Justice Kavanaugh and Justice Gorsuch. I don’t think there’s any doubt about it.

The more structural, serious issue, which you alluded to is, and this is something that is rather unprecedented I think in American politics, you are looking at a court that will have a conservative majority very likely for quite some time in a very, very divided country that is divided, so a 50/50 where either party may gain control of the White House and of the Congress at one time or another.

It’s a court that has an identifiable political coloration in a very divided country. That’s something new and something worth thinking about. I’m sure that that is on the justices minds for much of the time.

Richard Reinsch:
You have this term you use in the essay, “the court’s latent legitimacy.” Talk about that and perhaps the waning of that latent legitimacy.

Michael Greve:
I didn’t make that up. It’s the political scientists.

Richard Reinsch:
So they made it up.

Michael Greve:
They made it up, yeah. What they mean by that is if you look at public opinion polls, Gallup polls and a lot of other polls, approval of the court, confidence in the court correlates, obviously, at some level quite highly with partisan affiliation. Currently, Republicans are very high on the court and have a lot of confidence in it, and Democrats not so much.

What political scientists mean by latent legitimacy is an undercurrent of public sentiment that yeah, we trust that these guys and gals on the court will by and large try to do the right thing and enforce the law as they see it even if we don’t agree with this, that or the other decision that comes along so that the court doesn’t constantly have to look to the partisan implications of whatever cases before them but can have reasonable confidence that its rulings will be accepted as lawful, conscientious, and legitimate.

Richard Reinsch:
Something I kept looking for in your essays, I think John McGinness has written about on Law & Liberty a few times is how much of the court’s work isn’t really traceable to partisanship in a wide number of areas where it’s really hard for someone to look at this and think there’s an ideological outcome, that there is, in fact, real judicial craftsmanship going on. You talk about that some later on in some cases. Do you see that, that there’s a huge mis-story here and what we really just see are a couple of opinions in June every year?

Michael Greve:
Yes. That’s my strong opinion. Justice Gorsuch has made this point repeatedly and it’s a terrific point, it seems to me. The indeterminacy in the law and the extent to which law is or can be driven by the justice’s ideological intonations is grossly overstated. There are hundreds of thousands of cases rattling around in the federal judiciary. Relatively few of them are appealed to Courts of Appeal.

When they are, even those decisions are mostly unanimous. When they get to the Supreme Court, which due to its discretionary dockets, picks cases where lower courts have disagreed or cases that are genuinely difficult, even then you get a ton of unanimous or near unanimous rulings, cases in which the justices don’t vote or rule in an expected way.

It’s only a relative handful of highly visible cases over really incendiary issues where those kinds of things break down. When you look at the tragedy, so to speak, of our immobilized political discourses, of course, people then focus on those particular cases and that drives public perceptions of what law and the Supreme Court and the federal judiciary are all about. That’s a gross and wild misperception, and it’s hard to counteract

Richard Reinsch:
I suppose the exceptions prove the rule because the nature of politics is to rule, to command, to order, and reshape a society. Some of these opinions do do that, particularly over time. They shape the way we think, live, talk, what we think we can say, what we think we can’t say, think. All these sorts of things come out. I suppose in a way it’s a small part but it’s really the biggest part, it seems to me.

Michael Greve:
Yeah. I don’t deny that at all.

Richard Reinsch:
You make that point at one point in your addressing Richard Fallon. You’ve already mentioned the Harvard Law professor who wants to lessen the power of the court but except not over rights cases.

Michael Greve:
That’s one major or one theme of this essay. What the Supreme Court’s rights jurisprudence over the past several decades has done is simply turn rights into trumps and instruments of interest group and identity politics. There’s no easy way out of that. My advice to the court if it wants it and even if it doesn’t want it is to tread lightly in those domains.

As an initial matter, for example, you can have all sorts of opinions about same sex marriage but that’s mostly water under the bridge. It seems to me a huge reliance interests at stake now. It would be not a good thing for the country, let’s put it that way, if the court or somebody else were to reopen that particular can of worms.

This is true of rights, debates, wherever you look. They’re mostly zero sum games. They’re so now intermingled and so closely connected to identity politics and interest group politics that the Supreme Court is just superintending compromises among those groups. That’s by and large not a good thing. It’s a very, very difficult arena where I think the court ought to tread lightly.

What I have in mind is, and what makes me a little more hopeful is that I think the predominant theme of the Supreme Court’s jurisprudence now and going forward is the courts and the judiciaries relation to the executive. That is an area where it’s not zero sum and where interest group coalitions and constellations are a lot more fluid, where there’s a lot more room to do productive work in the sense of reconstitutionalizing American politics to some extent.

Richard Reinsch:
I want to get to that. I want to get to that in a minute because there’s a lot there. I also want to think; one, about Congress and the court. You’ve written on that. And also this term you introduced and maybe we’ve been talking about it, “constitutional rot.” Are we in danger of constitutional rot?

Michael Greve:
Yeah. There has been a lot of agitation. We’re having a constitutional crisis. You read the newspapers, and this has come up. Lots of people, law professors and politicians and bloggers and pundits …

Richard Reinsch:
Whose ox is getting gored? We’re having a constitutional crisis.

Michael Greve:
The various fears and I fear this will come up again in this presidential election. The country is coming apart and it’s a constitutional crisis. I want to resist that a little. To me a constitutional crisis is tanks on Pennsylvania Avenue and we’re not remotely there.

What I think is worrisome and worth thinking about this gradual disintegration of constitutional norms that were once taken for granted by and large observed by partisans on both sides because they figure, look, one of these days we may lose an election and then we’d want our opponents to treat us with respect. There’s some value in having those constitutional norms obeyed and preserved.

A lot of those unwritten small c-constitutional norms have I think eroded over the past decades and that’s not a good thing. That’s what I’m a little bit nervous about.

Richard Reinsch:
The constitutional rot question. Let’s talk about Congress and how that affects your analysis.

Michael Greve:
To borrow a phrase from Yuval Levin, Congress is a platform, not an institution. It consists of 535 political entrepreneurs. It has become immobilized to a dismaying extent. There are lots of examples of this. The president’s tariffs. Everybody understands that the unbelievable amount of discretion that the president enjoys in imposing tariffs on just about anything and anyone for any reason he sees fit-

Richard Reinsch:
And statutorily …

Michael Greve:
You ought to be able to cobble together some bipartisan coalition that says, “No, wait a minute. This is not a good idea. We ought to put some limits on it.” Apparently, it can’t be done. That stuff is being litigated.

The same is true over the diversion of funds or whatever you want to call it, the reallocation of funds for building a wall and on and on and on. While the executive motors on, Congress sits on the sidelines, and that’s not a good thing.

Richard Reinsch:
You mentioned a case that was a big deal and still is from, what, six years ago, King v. Burwell, five years ago, on the creation of these healthcare networks which by statute could only be created by the states but were created by the federal government and the Supreme Court blessed it. Very strange opinion. You note that one of the assumptions you could say that the court had there was this is a mistake, but the Congress wouldn’t fix it so they had to.

Michael Greve:
Right. That’s a good example. Look, during the oral argument, this came up. General Don Verrilli, who was then the solicitor general, was faced with questions along the lines of, look, if the statute is misshapen, it’s not our job [to have] Justice Scalia fix it. I think Congress might want to fix this. General Verrilli says, “Yeah, well, this Congress.”

The courtroom laughed. That included a number of illustrious senators and congressmen and congresswomen who were in the audience there. I didn’t find it amusing at all quite frankly. That’s a breakdown of the system.

We used to have this image of the relation between Congress and the court. It’s a dialogue. The court interprets statutes as written. If it gets it wrong or Congress thinks it gets it wrong or sees some reason to fix it, Congress will come back and will, in fact, fix it.

It’s very hard to have a dialogue with an actor that’s mute. That puts enormous pressure on the court, it seems to me. There’s so much at stake in every single statutory case. Not cases that involve grand constitutional questions. Those have a different configuration, but statutory cases where the court is increasingly tempted to sort of say, “Let’s rewrite this statute. Let’s fix it on our own because Congress can’t be trusted to do anything about it.”

Richard Reinsch:
One, to state the obvious, the separation of powers idea from the founders assumed a certain amount of competition and pushing among the branches, between the branches. If one isn’t pushing or competing, then the other two branches can also see, not just a, “We have to step in and correct this” but “We must” and it’s good that we have to do it. You see those dynamics get altered in a negative way.

Michael Greve:
Look, that’s obviously a very central problem of American politics, probably the central institutional problem. Lots of smart people have begun to pay attention to it. That’s all to the good. But everybody realizes that that is a long-term project. For the foreseeable future, we’re stuck in this constellation where the game that really matters is between the White House and the Court.

Richard Reinsch:
Thinking here, so we go to the absence of Congress, you suggest, you outline one feature of the constitutional rot is the incredible amount of power in the executive branch and the administrative state. You note, these are problems the court will also have to deal with. That also builds on this Congressional problem and the way they design and craft statutes and allow for enormous amounts of power like what you were talking about earlier, the incredible amount of power the president has to enforce tariffs.

Even, you note in the essay when Donald Trump called on American businesses to remove their operations from China, many people said how can he say that. He doesn’t have the power to say that. He’s just blustering. You cite William Galston, that perhaps he did have the power statutorily to say that, which is incredible. With regard to this executive power issue, that is a way perhaps the court could restore not only its legitimacy but repair constitutional rot, what path forward do you see there?

Michael Greve:
Let me put it this way. Even that is an enormous problem for the court, in particular, under this administration, but I don’t think the situation would really change under the Sanders government. The problem is this. With the executive so powerful, the court runs a risk in those kinds of cases that involve relations between the judiciary and the executive.

To be seen as either caving in to an overbearing executive or else as torpedoing [the] goodwill of the people. That is to say we now have this plebiscitary presidency. It’s something close to a coup d’etat if the courts force the president in a really big way on some issue that really matters. That’s a very, very difficult position for the court to be in. You see this in lots of cases involving high visibility issues from immigration to Congress’s authority to issue subpoenas to the president and on and on and on.

That’s a reason to be nervous. The reason to be a little bit confident about it-

Richard Reinsch:
Let me ask you this, nervous because you don’t really think the court could act in such a way to thwart the executive or whichever way it acts, it’s going to be seen as partisan and just contribute to the problem you’re describing.

Michael Greve:
There has been alarming rhetoric it seems to me surrounding the court and its relation to this administration and the president himself has not been particularly helpful on this, quite frankly, for example, in suggesting that certain justices should recuse themselves from cases involving his administration. There have been similar scurrilous suggestions from the other side. None of that is very helpful. All of that is, to my mind, playing with fire.

The one thing that gives me a little confidence and reason for hope is that our politics is so closely divided and at the same time, the justices, most of them in any event, can expect to be around and on the court for quite some time.

Even if they wanted to play political games and be very tactical about their decisions, they can’t afford to do that because they always have to think about “how will the rule or the rule of decision that I announce today play out under a different administration in a different political context and environment?” It seems to me that that is an opportunity to re-introduce a somewhat more long-term perspective and orientation into American politics and institutional politics.

Richard Reinsch:
You’ve taken the position in the past that there’s very … not very little, that these grand questions of administrative state power that conservatives have been preoccupied with now for decades, ending Chevron deference, say, the court really could end Chevron deference but in a way it wouldn’t really matter because the administrative state is so large it’s still going to find a way to do what it wants but with limited oversight from the courts. Are you now revisiting that with this essay or are you saying this is the best we can afford given current conditions?

Michael Greve:
No. What I criticized in those writings that you alluded to is the preoccupation with Chevron indeference canons. There are deeper issues about the separation of powers and the structure of the executive branch and on and on and on that would really make a difference and that the court could attend to.

If you look at the current docket and the cases that rattle around in the cert petitions, there are serious questions about the Consumer Financial Protection Bureau and its structure. There are serious cases about the enforcement authority, especially of financial agencies, the CFTC and the Federal Trade Commission and so forth. They don’t directly involve Chevron or judicial deference at all but they are really, really meaningful in terms of what is the executive allowed to do by way of messing around with people’s livelihood on a daily basis. It’s on those issues that I think there is some real cause for hope.

Richard Reinsch:
You do talk about a recent case which you say may have, without naming it as such, brought our deference to a heel, that being where agencies can interpret their own regulations if a question is presented. Talk about that maybe as another path for what you see for the court limiting the executive branch.

Michael Greve:
What that case is about is …

Richard Reinsch:
The Kisor case.

Michael Greve:
What the Kisor case is about is should agencies get judicial deference, that is to say when they interpret their very own regulation. This has been cause célèbre in the law reviews for quite some time and much discussed pro and con.

The reason why I mentioned that case in particular is it’s, to the larger public, unless you’re a law dork, you don’t know anything about it and you have no reason to know anything about it. But what’s striking about the case is the mere unanimity. The votes were divided in the usual fashion, one might think. But the fact of the matter is that the liberal justices severely pulled back on our deference to the point where it’s not really worth having anymore for agencies because it’s so hemmed in.

That is part of a re-think. I hate to sound partisan about it but what was dismaying about the Obama years and the Supreme Court’s jurisprudence in this area was that the liberal justices were just completely in the tank for the administration. That wasn’t a good thing. In a weird way, the Trump administration has, I think, brought it home to a lot of people that there are two sides to it. There may be a real problem in giving the executive that much leeway, and that’s a good thing

Richard Reinsch:
On a separate note, I know, this essay, you’re focusing on the Supreme Court. What about all the federal district courts, I think, acting, and you’ve read about this on Law & Liberty, rashly to thwart Trump executive policy with a single district court issuing a nationwide injunction to stop the implementation of a policy. How do you see that playing out here?

Michael Greve:
That is a disturbing phenomenon all by itself.

Richard Reinsch:
Citing anything, is it pretextual reasons or things that the president said on Twitter, etc., to support their judgment?

Michael Greve:
Yeah. I don’t think that’s a problem with [the] good judiciary at large. It’s a problem with the vein [in] which these kinds of cases are being litigated. Highly organized litigants frequently state they know their just judges, so to speak. Then they can go to four, five favorable district courts and the administration has to run the table and they have to win only once to get a nationwide injunction.

What that does in turn and has done in turn is to compel the administration to seek rather extraordinary relief from those kinds of measures. That’s what Justice Sotomayor complained about, which is permanent emergency appeals to the United States Supreme Court. She has a point there. That shouldn’t become a habit. On the other hand, you can see why the administration feels compelled to do it because there is this larger pattern out there. My hope and my general sense is that slowly, slowly, slowly the Appellate Courts are getting this under control.

Michael Greve:
And that district courts will slowly but over time will get the message. It’s a disturbing thing to my mind but not something that warrants any great alarm. The Supreme Court frequently has monitoring problems and enforcement problems in making sure that lower courts don’t step over the line. There’s just one of those occasions, and it’s overloaded with partisan hype and politics but it’s not something that the Supreme Court and the Appellate Courts can’t get under control. I expect that they will pretty soon.

Richard Reinsch:
It seems Chief Justice John Roberts, and maybe you can help me describe it, but the way his jurisprudential reasoning to decide cases on the smallest grounds possible to now cast forward with new doctrines or new scope of reasoning, something like that, that could be useful here also in writing in the executive state or not. What do you think?

Michael Greve:
Yeah. You can view that from at least two vantages, I suppose. On the one hand, you can say, look, there’s way too much of tactical maneuvering there and that on its own threatens to undermine the Supreme Court’s legitimacy. Ilya Shapiro from the Cato Institute has made that point repeatedly. That’s just one example. There are lots of people who share that view.

On the flip side, one has to acknowledge; one, that the chief is operating in a very, very difficult environment; and that, two, several of his decisions have been small steps but steps in the right direction.

Richard Reinsch:
No, I was just going to say a slow recovery of legitimacy maybe, moving carefully.

Michael Greve:
Yeah. There’s a case several years back. It’s called Free Enterprise Fund. It has to do with the president’s power to remove inferior officers. That’s John Roberts opinion. Nobody at the time believed that this was any big deal but lo and behold, here it is. In the ongoing controversy over the Consumer Financial Protection Bureau, that case looms very, very large and it’s the starting point of any serious brief on that particular issue. That’s an example.

On some issues that come quite readily to my mind at least, the chief has been strikingly firm and insistent. That’s particularly true with respect to broader issues of the separation of powers.

Richard Reinsch:
I want to end. There’s a section, the last section of your essay, an Executive Under the Law. You quote from certainly one of the more famous cases in the court’s history, Youngstown Sheet & Tube Co. where you say has a lot of similarities to our present situation regarding Congress and the court and the executive and the political environment there.

I’ll just read for those listening. This is from one of the opinions because there were how many just separate opinions, six in that case?

Michael Greve:
Yeah, six.

Richard Reinsch:
Six. Justice Robert Jackson …

Michael Greve:
For the majority.

Richard Reinsch:
For the majority. I’ll read this, then I’ll let you comment on why you ended with this opinion. I found it alarming, interesting at the same time. “Men have discovered no technique for long preserving free government except that the executive be under the law. Such institutions, speaking of constitutional institutions, may be destined to pass away but it is the duty of the court to be last, not first to give them up.”

Michael Greve:
That’s from Robert Jackson’s opinion in the case which is the most celebrated of those opinions. The reason why I mentioned that case or why I went back to it and why it actually made me think is, first that is perhaps the most, short of Marbury v. Madison, it’s the most dramatic confrontation between the court and the executive in our history.

Michael Greve:
What the court was afraid of … This involved President Truman’s seizure of the steel mills during the Korean War. What the court was afraid of was-

Richard Reinsch:
When he sees the steel mills, literally government agents went on private property and were closing it down or were about to?

Michael Greve:
They had to break a strike. President Truman instructed his cabinet officers, “Look, keep the steel mills open. Bring the workers back to work and let’s go. We need the steel for the Korean War.” That was the situation. In many ways it bears some resemblance to the current situation. The reason why the court … The Supreme Court almost never stops the executive in the middle of a war from doing anything at all. What it’ll do is make some noises, let the executive fight the war and after the war, try to pull back a little. That’s one of the things that makes this case so unusual.

The reason why they were willing to do that I think was that they thought to themselves if we permit this, if we let this go through without any legislative authority, then it’ll be impossible to articulate any firm boundaries that … legal constitutional boundaries, that will control the executive and that we cannot have.

They had all kinds of theories, none of them very convincing and compelling to my mind, why the president could not do this what he had just done. At the end of the day, they pulled the president back and it was on all accounts, or most people think, it was one of their finest moments.

Richard Reinsch:
You think coming out of that also it seems is a realization not just anything could happen but for so long … the year of this was 1950?

Michael Greve:
Yeah.

Richard Reinsch:
That for so long the executive had had its way and they had to actually pull back. You see a parallel maybe now at this time.

Michael Greve:
Yeah.

Richard Reinsch:
A rough parallel maybe.

Michael Greve:
Parallels break down, okay?

Richard Reinsch:
Yeah.

Michael Greve:
The reason for seizing on that particular case in this particular essay was to impress that, look, I don’t think the confrontation between the court and the congress is … which is what much of our constitutional law and law revolve around that that is the central issue going forward. This is around a confrontation between the executive and the court. I think that is what we’re looking at now for the foreseeable future.

Do I foresee a dramatic confrontation between the court and the executive on that scale? No. It’s much more small bore I think and will be for some time. The larger issue there, an executive that slips the legal reins. That’s the same issue and that is what I think we ought to be watching.

Richard Reinsch:
Michael Greve, thank you so much. We’ve been discussing your essay, “Is the Roberts Court Legitimate?” In the winter 2020 edition of National Affairs.

Michael Greve:
Richard, thank you.