ten support the legality of abortion. if you look at the people who like who are out there where the republican party is ran on a complete and total ban on abortion, it is not. 9% of the country. that's it. in no state of the country we have we have data from 50 states. there is not a single state in the country with more than 14 one 4% support, a complete and total ban on abortion. so it's not just women actually, he's like hang out in left field, even republicans, even among white evangelicals, you don't get more than a little more than a third are supporting a complete and total ban. so even in his own even mike johnson or, the supreme court in alabama, even in those states, they're way, way out of line with the mainstream opinion, even in those even in those states, even among republicans. so thank you. yeah. these are three terrific books

if you've read them. you know what i'm talking about. if you haven't read them, i hope you and i know they hope you will. i'm going to ask authors to inscribe my copies of the book and can do the same thing at. the u of a bookstore tent on the mall right after this. thank you very much for coming in my book. i like when i'm on panels with welcome, everybody, to the panel on democratic norms under pressure. my name is judy brown and. i'm a retired professor of constitutional law. so you can imagine. delighted i was when i was asked to moderate this panel. we, of course, are all increasingly concerned about the threats to our democratic system of government. we are beginning to realize that the underlying consensus and

values we have taken granted for so long are withering, withering away, and that the more union is surrendering to darker impulses. both of our panelists have how and why this is happening. each of them has done this through a different lens. steven levitsky through history. stephen vladeck through the supreme court and the judicial process. both of them warn us of the consequences of continuing to ignore what is going on. make no mistake. these books are chilling. they reveal the structural weaknesses of our institution, the dangerous behavior of some of our leaders, and bemoan the loss of common values. i want to start by introducing each panel list in a little detail and then each of them how they came to write the books. we are discussing today.

then i have questions for them provoked by my reading their wonderful books, and i hope to leave enough time for some from you. so let's begin introductions first. steven levitsky, a professor of government at harvard. he is the coauthor of a book i am sure many of you have read how democracies die, which won numerous prizes. an that book for us to confront the issues we wrestle with on this panel and suggested a framework to go about answering how we fix it. in his newest book, the tyranny of the, he analyzes the authoritarian backlash against the american experiment in multiracial democracy. stephen vladeck is a professor, the university of texas law school, where he specializes in constitutional law. but since i read his blog, i am happy to tell you that has just

accepted an appointment at georgetown law school. there's is no hint of. linda greenhouse my all time supreme court commentator said of his book, the docket. it is essential reading for anyone who wants to understand how today's supreme court really works. his analysis regularly appears in the new york times and cnn. and as i said, he has a terrific blog to which i subscribe. now, the same question to of you why did you write your book? what motivated you to do that at this particular? what do you want to accomplish? you did that. steve, we go first to steve's. this is going to be a little confusing. uh, well, it's great to be here. it was really nice to flee the weather. boston the march weather in boston. come here. so thanks for having me. wrote how democracies die six

years ago as a in an effort to warn americans about of what could happen most of us alive who grew up in the united states had never confronted a serious crisis of democracy. but in my day job i studied latin america. my coauthor daniel studies interwar europe. and so we had a study for much of our professional lives democratic crises in democratic breakdowns. and we wrote how democracy die? primarily to the process of how a democracy gets into trouble in an effort to warn of what could come here and after we published the book, we got questions from journalists at talks like this over and again, which is, well, what the hell do we do? what do we do? and we didn't have an answer to that question in the first book. and i'm sure we had the answer to question the second book, but the second book was an effort, first of all, to dig more deeply

into how we got into this mess, how the us got into this crisis. and secondly, to think seriously about how to get out. and so the book is proposes a set of reforms to to to shore up and improve american democracy. so it's an effort to to find path out of this crisis. stephen vladeck i agree with you that partizan factions on the supreme court have succeeded, overturning years of precedent, also called settled law, whatever that means. can you give some examples of that? and can you contrast the willingness, some justices, to do that despite their pious pronouncements during their confirmation that they respect precedent more than anything in the world? i was hoping i'd have at least 10 minutes before i had to defend the current supreme court. don't have to defend them. but so sure. i mean, let sort of join steve

in saying how much a treat it is to be here as my first time to the tucson festival books and hopefully not my last, although well, that's up to my agent. so i want to answer your question questions about what is your first question, which is i so i wrote book a wonky about the supreme court really because my goal was to change how of us talk about the supreme court at least largely by filling what we and i don't just mean law professors and lawyers but everyone knows about the court how it came to be so powerful, why the current justices behavior is so radically different from of their predecessors. what we really ought to be talking about when we talk about the court and you know, to make long story short, i actually don't think that the real story is overruling precedent or or shifts in substantive, with which many of us, myself included might disagree. to me, real story is about

accountability and just how unaccountable current court is and thinks it to be. and it was really unfortunate in that respect that my book came out last may because in july justice alito gave me the epigraph. so in our interview with the wall street journal, justice alito said this may be a controversial, but i'm willing to say it always a good start. he says no provision in. the constitution gives congress the power to regulate the supreme court period. the period is what makes it art so, you know, the com law professor me and i suspect in judy might point justice alito to article section two, which gives congress the power to, quote, make regulations, unquote, the supreme court's appellate jurisdiction. i might also point out that justice holds a seat in congress created in 1837. i don't. he thinks he is unconstitutional. but the point is not that he's wrong. the point is that this is what's

in the zeitgeist, the sense that the court is supposed be unaccountable and that unaccountable liberty is part of judicial independence. and i wrote the book really because it's not just that that's wrong. it's that that's recent. and it's recent in ways that i think only come into full view if we talk about the historical evolution of the court, not through major decisions, the ones all know about, but actually through little ones through the day to work of the court, through how the court for 100 and 2030 years had no over its docket. and today has almost control over its docket. so, you know, i think there's tendency on the part of many of us to judge the court by looking at its cover and cover are the big splashy decisions, whether it's from abortion or affirmative action or ballot. that would never happen. right. and and i the real way to

understand the court both to understand how we got here and to understand further to steve's how we get out of it is actually to look at the court much more holistically as an institution in conversation. the other branches of government. one in which judicial independence is not antithetical to judicial accountability, but rather depends upon it. and telling that story is a big part of what motivated me to write the book in ways that would actually be accessible to folks who have not suffered through law, but maybe especially to those of you who have let me stay with you for a minute makes a powerful argument that one of the scariest changes he warns about the unwillingness or the inability of the loser of a dispute to accept defeat. january six is probably one of the preeminent example of that. do you see that same phenomenon happening on the court? can it?

i'm so troubled. the angry tone of some of the recent opinions, which is new, scary. yeah. i mean, i think it's really important in this respect to keep in mind, i mean, the court is a very not in its right. it's really not monolith even though it may feel like it sometimes. and so as much as i sort of rely upon justice alito for material, it's really the sort of the middle of the court, and i use that term only and not politically. but, you know, the really moves today as chief roberts and justice kavanaugh and justice barrett want it to move in every, you know closely divided issue in a lot of what happens the scenes. it's really they are the movers and i'll say that like i think one of the reasons why i'm i sound positive is because i'm a mets fan and it's march. but but another reason is because i actually think that if you look not at what justice

alito is saying but what the is doing there is at least sign that the justices matter actually are responding at least to some respect to public pressure and pushback. the code conduct that the supreme court last november on one, you know, to call it a half measure is to gravely insult half. but the fact the court felt compelled to do anything is pretty remarkable. if you look at the history of the and its attitude toward else. i we went in seven months from the first propublica of stories about justice thomas to the supreme court saying maybe it's a good idea if we have some rules, even if the rules aren't very good. and i take as a sign, you know, my book talks about some other examples of signs where when the conversation is not about ideology and when the conversations not about partizan politics, when the content not about, you know, constitutional

methodology, it's when it's about institutional erosion. there's been some signs of traction in those criticisms in efforts to reform little things and big things. and what that says to me is that maybe to a greater than we see in the democratically elected branches, you know, the justices matter actually are persuadable at, least when we're trying to persuade them on institutional and not ideological grounds. let's come back to your point about the lack of peaceful transitions these days. what do you think is triggered that? is it just reluctance to relinquish power or is it something more inherent in our institutional structure that has allowed this to happen? i don't. there are a number of problems that are institutional. i don't think that's the cause of of the unwillingness to lose. just to reiterate, this is the cardinal rule of democracy

accepting results of elections, win or lose is a cardinal rule of democracy. if one major party in a party system cannot accept defeat democracy can't be sustained. so this is a major, major development. part of this is driven by trump himself. i trump is is an an unusual figure in the sense that he's never accepted defeat in anything in his life and he's treated this that his whole life claiming that his defeats were results of some sort of rigging so that there was this is partly personal schtick but the republican party has been radicalized. we argue this in the book. the republican party has been radicalizing for a generation and radical parties, parties that come to their rivals as not just some buddy. they disagree with somebody.

they may, but somebody who poses an existential threat. when you begin to see the side as an existential threat, you come under pressure to use any means necessary to stop them. and there were some signs that that the republican party was moving in this direction even before trump and the the vast bulk of the republican has been all too willing to evolve, just trump and the party fully committed to democratic of the game. he wouldn't have gotten nearly we wouldn't have gotten to january 6th. the a never trump conservative organization called the republican accountability project looked the public statements of all. i think was 261 sitting republican of congress in 2020. house and senate and evaluated their statements regarding the election. did they accept publicly accept the results of the election or not? they found that 86% of

republican house and senate members raised questions about the legitimacy of the election. so less than 20% did the right thing and accept the public accept the results of the election. so this is although i think it was accelerated by trump, it was it's clearly a problem that runs much deeper than trump. the entire republican party after 2020 has been willing to play fast and loose with democratic rules of the game. i really loved your point that the framers were not intellectual giants. the forethought and wisdom to craft a universal and timeless system of government somehow became the constitution. but i wonder and you also point out that they were a group of politicians who engineered a series of political to resolve specific issues such as slavery and.

the creation of national markets. you think that mythologizing former the framers. the framers the framers that would help. yeah. as you did and as i tried to do when i taught. but i taught a lot this a long time ago. people looked very askance when i said things like that. do you think that dematha plagiarizing the framers have contributed to this has contributed to to this unwise willingness to go along with the cardinal rules of democracy that you're talking about. in other words if were not gods. no i think personally that we that we need to further d mythologize framers. the framers as should be clear, were very talented politicians were very talented statesmen. they drew up an extraordinary document that has been the foundation of of a great deal of success in the united states. so the framers. no, we're slouches, but they

were they were not designing a blueprint for ideal republic. they were trying to hold together 13 colonies in a context, a violence of potential external aggression and of great division that the articles are initial. the articles of confederation had failed. there was great fear of armed rebellion and maybe civil war. and the primary goal of these guys was to create some sort of system that would hold the 13 colonies together, the 13 states together, and and they did what politicians do when they're seeking to forge unity. they. they compromised. and they arrived at many and third best solutions. they were also designing the first the first modern republic in the world. and so they were also improvising a fair amount. they had no idea there had never been an elected president before. they had no idea how to elect a

president. and the first two ideas that were that were put forth. first, madison's virginia plan, which would have elected the president from similar to european parliamentary systems today was shut down direct election of the president which madison was also fairly sympathetic to was shot down. and the electoral college, far from being some far sighted design, was a last ditch compromise effort to that was the only thing that to get a majority of delegates agree upon. so we again we the the compromise behind constitution was was this was serious. these were not these were smart, well-run, fed, thoughtful leaders, but they were striking a compromise that put a set of, in some cases, very flawed institutions. george washington a letter to his nephew just months after the philadelphia convention

describing the new constitution as a flawed document, as an imperfect document, that it would take future generations to improve upon and have americans have, for most us history, improved upon our democracy. we spent most of our history doing the work of making political system more democrat. it's really only in our lifetimes. it's only in the last 50 years that we've stopped doing that work, that we stopped as a society, thinking seriously about to make our system more democratic. so it's and part of that, to get back to your question, part of the reason why we our generations no longer think seriously about reforming our constitution is we, as we think of this document, as somehow something that belongs under glass that cannot be touched. and that was created by by these far sighted statements, statesmen who can't be questioned. i think we need to question

them. so stephen vladeck following up on that, does that lead to the willingness of the supreme court to intervene and contrary actual political topics, which we legislatures were supposed to do or i mean, i think the short answer is yes, that was true before 50 years ago, when know when we when the people largely got out of the business of doing that work. i mean, you know, one of the things that really us apart from other constitutional democracies is that we have a combination of, a very, very powerful supreme court and a very, very onerous amendment process. those two things together are actually quite rare. there are plenty of countries that have one, but not both. and what that means is that puts enormous pressure on the supreme court to basically be the constitution or amanda's that, you know, at various points american history. i suspect most of us have. fine with that. maybe we disagree about which points, but that at least there

were some moments in american history where the supreme court being aggressive in how was changing our understanding the constitution was probably a move we agreed with. what separates current moment from the past is not that the current is likewise quite willing to revisit change to upend settled understandings. that's happened before. what's different is that when it happened. before it happened in the context of a court that was looking over its shoulder, a court that was actually in any way beholden to the political branches, a court that was worried about for fdr as court packing plan in 1937. or, you know, when justice fortas resigned in 1969, the specter of congress actually pursuing impeachment proceedings against multiple justices. congress used to control the courts budget much more aggressively. it does today. congress used to actually where the court sat. and when it sat. i mean, there are all these ways

in which the court even in prior moments where it was being constitutional, be quite active, was doing under a general umbrella of inter branch responsibility. and i think that's part of why it worked. even if we might have disagreed with the court in the short term, what's different about this moment is this court just doesn't have a shadow. ironically, even the title of the book right but that the that this court is not afraid of its shadow that this court is you know, i mean, believe it or not, decided fewer cases than at any point since the civil war. that's probably a surprising to that. to you guys, given how often court's in the news, is it the civil war in arizona? in texas, sometimes we call it war of northern aggression, but. right, but the court's actually doing less, believe it or not, in the aggregate. right. the court is actually taking different kinds of cases. remember, before since 1988, the court has stopped taking entire categories of disputes we used to want to do the court has

stopped asking congress for things. i mean, this is a really vignette, but i think it's quite illustrative. chief justice warren burger in the mid seventies started this tradition where every year the chief justice would give a year end report. if you guys know your warren burger, you shouldn't be surprised that he wanted his own state of the union. but right the upside was here was the chief, the top of the federal judiciary, the head of the supreme court every year, inviting congress to, on matters of interest, relevance to the judiciary at large and the supreme court in particular. and that every year through the eighties, even through the nineties, under chief justice rehnquist and it continues for four years under john roberts and in thousand and nine, roberts stops he stops asking congress for anything because if you ask congress for stuff you, convey the message that actually congress give and congress can take away. and so to me, again, like the notion that the supreme court has the power of judicial review is not new. the notion that the court might abuse that power in ways that

are deeply unpopular is not new. what is missing today are the bricks that actually used to keep the court not completely in line with public, but at least loosely in line with public opinion. and i think that's the real problem, that if we just look at the decisions the courts handed down, we tend to miss. i just want to add an anecdote of my own that supports what you said when chief justice warren got the court together to decide brown versus the board, he said no dissents and it has fit on one newspaper page. none of this flipping to section b column four. i want everyone be able to read it and understand it. same point as early as four. well, and i mean fast forward 1974 in the watergate tapes case, you know, the court rules eight nothing against president nixon in an opinion that is signed by his handpicked chief justice to succeed warren

burger. in an opinion that any lawyer would tell you would you get a mediocre grade at best on a law school exam. it's not a very good opinion but cared because the court had spoken with one voice and it had spoken in a way that was profoundly political but, not partizan. contrast that with what the court did last monday right where, you know the headline might have been that the court was unanimous that president trump has to be on the ballot. but actually there's a pretty sharp division among the justices on ideological lines about how far that decision ought to go. like, you know, a court that was worried about the sort of political accountability and, not just the high politics in an abstract sense, i think would be much more inclined to try to speak with one voice than what we saw last week. mm hmm. let's stick with you for a minute. i know your book called the shadow docket. i always thought invented the term, but you told me you had not. justice alito basically accused me of weaponizing the term. that's true.

do can you talk about the ways that the court uses the shadow docket and some other arcane procedures to the public's perception of their institutional integrity just what everyone wants? at 430 on a saturday afternoon, talk about procedure. so so the shadow docket is a term that was coined by actually a conservative chicago law professor named will bode, and it was coined just to be this shorthand meant to capture all of the orders, the court hands down, other than the 60 or so long of, you know, written and lengthy opinions that we get each may and june and big high profile cases. many of those orders are anodyne, but they're often actually quite signifier again, even if there's no opinion. right, even from the rational. i mean, look at how much the timing of president trump's immunity appeal has been in news. right. that's all these procedural orders, procedural orders in the last couple of years have

allowed texas's six week abortion ban to go into effect have allowed alabama and louisiana to use congressional in the 2022 midterms that were in violation of the voting rights act. have a whole bunch of state and federal covid mitigation policies and on and on and on. in january of this year, there was a really big five four order in which the majority allowed the biden administration to razor wire that texas had placed along the us-mexico border. if you go and look for that order first, good luck. but second, assuming you find what you will find is that there is zero explanation. there's no majority opinion. there's no rationale. even the dissenters didn't write a word. why is that a problem? well, within a couple of days everyone was misunderstanding what the supreme had done. folks on the left were clamoring that governor abbott was the supreme court by to put razor wire along the border.

he wasn't. folks on the right were urging to defy the supreme court. he couldn't write. and this just it's a good example how as the supreme court has used these orders to do more and more significant stuff to issue rulings that have statewide or nationwide impacts, which it didn't used to. we're seeing the court exercising more power in the literal and proverbial shadow. hence the term right. but also in ways that actually make the court less accountable. because historically, i mean, we think about like, why do we follow the supreme court, right? what makes the supreme court supreme? it's the constitution. that's just a piece of paper, right? it's not the supreme court itself does not make itself supreme. that's reductive. right. what makes the supreme court supreme is that the political branches fund it and enforce its decisions. the supreme court did not desegregate central high school in rock. the army did right in enforcing

brown. and so part of the problem is that the court has relied upon this. the notion is our job as the court is to persuade you, not necessarily that we're right, but that we're principled. right. and you don't have to agree with our principles. you just have to agree that they are principles. justice barrett really captured the sentiment in a speech in 2022. she says hey, listen, there's going to be some controversial coming down the pike. don't read the media accounts that call us hacks. she says read the opinion. well, two days later, there was a major in a clean water act case in which hers was the decisive vote and there was no opinion to read. right. and so, you know, part of what the part of the uses the sort of the increasing reliance upon these unsigned, unexplained orders really as a foil for this broader and as an illustration of this broader disease, where a court that does not think it has to explain itself, can actually act in ways that really further erode public confidence even we

like the bottom lines, right? even if as in the razor wire case, we think the court actually is getting to the bottom line right. and this is really, i think, one of the most important points about at least, i think all my work on the supreme court is it's not about whether we agree or disagree with the results. right how the supreme court does its job is actually a critical part of why led it and, how that has sort of eroded and shifted and changed in ways that have not very visible to the public is, i think, a really big part of how we got to where we are today. this being let's pick on justice alito day. justice alito's response to all of this has always you're bunch of sore losers. you just like the result. and as steve explaining is really much than that. i want to talk to you some more or go ahead 30, 30 more seconds. i think it's worth stressing like, yes, i am often sort of dismissed as being a progressive

who's just crying in my spilled progressive milk. i don't know what progressive milk looks like, but that free. oatmilk. so there are two quick response. the first is this is not just progressives. i mean one of the most vocal critics inside court of a lot of the court's procedural machinations in the last two years has been chief justice john roberts. right. roberts has actually joined the three democratic appointees in a surprising of these procedural disputes, where he might be sympathetic on the merits to what the other justices are doing. he's not sympathetic to what they're doing procedurally. the alabama redistricting case is a good example of that. but more fundamentally, again, i mean, it just reinforces the whole point when folks like me get criticized because of our politics, it really drives home why it's so important to talk about the court as an institution and to talk about the court context in which we're not focusing on the outcomes. we're focusing on the court's behavior even when the outcomes

are ones we like. so talk a lot about authority, originalism, succeeding when mainstream politicians tolerate it and you make the same point. why do you think those politicians have failed? treat the extremists as pariahs? why are they all afraid of trump? why are they all afraid of whatever they're afraid of? for a bunch of reasons. very, very important point. a no individual can kill a democracy on their own, whether they are or elected leaders, demagogues it. they always require accomplices. accomplices that come from the mainstream political. and so any time a democracy breaks down, you find a slew of mainstay politicians, politicians that look like regular, regular politicians talk and dress like regular politicians, but who contribute in a subtle and really important way to democracy demise.

these are what the great spanish political scientist, once semi loyal democrat ites. and why do they do it? they do it out of primarily out of political expediency. this is sort of the banality of of authoritarianism, semi loyal democrats. and i'm talking about d not largely democrats are they're not they're not they're not trying to kill democracy. donald may try to kill democracy. those who help him do it, those who enable him to succeed will be doing it because they want to be speaker of the house or they want to regain a majority in the senate or they want to fend off a primary challenge. they just want to get ahead in politics. they're doing what politicians are are supposed to do and they just don't see the moment. there's there's one caveat that, though i've been talking to increasingly to conservative

politics, many of whom were recently retired, got out of politics. there's another thing driving their behavior is not just trying to win a primary. it's not just trying to avoid being of shouted down by by tucker carlson or or sean hannity, increasingly republican politicians are doing what they're doing out of fear. out of fear of violence. if you go and read the recent biography of mitt romney, if you talk to liz cheney, if you talk to a number of recently republicans, they will tell you that their colleagues voted on important matters, including the conviction of donald trump in the senate. they voted the they voted because they feared what would happen to their what might happen to their families or to them if they voted against trump. the role of threats of violent threats of violent death threats in shape. the decision of our politicians

is is frightening and dramatically increasing. so in large part political experience. but increasingly, as we grow more polarized as our politics becomes takes on a a an increasingly violent tone. our politicians are acting as much out of fear as they are out of out of expediency. stephen vladeck talks about the supreme court's waning attention to the loss of institutional integrity. do you think congress thinks about that at all? about own integrity as an institution. no. these are individual congresspeople and institutional. it's a personal. yeah. and the there are obvious exceptions to the we have a very, very diverse congress and a number of of experienced, very noble men and women in the congress. but most contemporary

politicians thinking about their own careers, their own reelection. and unfortunately, you know there was a time when when most of us were younger, when what it took to get elected, to get reelected, you know, might be a little bit of demagoguery, might a little bit of of of showmanship. but it didn't involve violence. it didn't have all threats against your didn't involve denying the results of elections. it didn't evolve in a behavior. but increasingly what politicians are calculating is that authoritarian behaviors, good politics, or at least authoritarian language is is good politics. and so, no, these guys, they're individually not thinking about the institution to thinking about their own careers. same question to both of you, how much is all of this a reaction to our attempts to integrate more people, women, people of color, lgbt people into the american polity? does that have anything to do with the phenomenon that you're

describing. both of you say, i don't care who goes first. i think there's a lot to that. there are many causes of the crisis of american politics in american democracy, in tyranny of the minority, argue that the fundamental challenge, the fundamental problem, a transition that this that our country been making now over 50 years which is on precedent in the world. we are the first democrat society in the history of the world in which dominant ethnic group loses its majority in dominant status or is in the process of losing its and dominant status. it's not only to do with race and ethnicity, hierarchies, racial hierarchies, sexual hierarchies, gender hierarchies, a whole slew social hierarchies that were intact for two centuries in this country are are assaulted right before our eyes and quickly.

i personally think that's a good thing. but many, many americans many of whom vote maga feel like these changes are posing existential threat, losing one's dominant status is a big deal. many trump voters, not all of them. many trump voters feel like the country that they grew up in is being taken away from them. and that generates a that's not just disagreeing with health care policy. that's not just disagreeing with the war in ukraine. that's that's a that's a perception existential threat. and that is many republican voters feeling your country, the country you grew up in is being taken away from you, radicalize you. there's poll done sponsored by the american enterprise institute. i think it was about years ago that found. that 56% of republicans agreed with the statement that the american way of life is disappearing so fast that we may

have to use force to. stop it. that's a reaction. that's a radicalization, the face of a perceived existential threat. and again, there are lots of causes about what's going on. it's not just the this country's transition to multiracial democracy, but the the really important. ultimately, i think, successful transition to multiracial democracy, i think is fundamentally at root with what's going on. it's not it's not often that democracies that are this old and this rich get into this kind of trouble. no democracy over the age of 50 has ever died, ever. no country with a per capita gdp. more than $70,000 has ever broken down. ours is four times that. this is a really, really unusual situation that we're in today. we're in totally new terrain and. again, my my view our view in the book is that it's this transition in which a previously

dominant ethnic group is losing its majority status. is that that that is driving this. so so i don't think it's quite as causal in the context of the supreme court mean first the supreme court evolved much slower and sort of moves and mean that's part of why the seven months for ethics was was shocking. i think you know it's really to try to figure out when things turn with the court. i think that's really the confluence of two largely unrelated developments which is a general disengaged by congress in the historical role it had played vis a vis the court which predates the more recent polarization of congress. i mean, which really starts, gosh, the 1940s and fifties, and that that sort of builds, builds and builds and builds so that by the 1980s, when the court goes to congress and says, hey, congress, take away all the remain in, you know, handcuffs on our jurisdiction, conflict sure. what else can we give you? and that's you know, that's before think the current generation.

and then you have really fluky historical moments that provide for radical transitions in the center of gravity on. the court. i mean, you know, if justice marshall had not retired when he did he died a month into bill clinton's presidency. right. a world in he replaced by bill clinton as opposed george h.w. bush is a world in which you know, i mean, he was replaced by clarence thomas. imagine a clinton appointee. hard to imagine a clinton appointee would look, you know, quite as conservative as clarence thomas. that's i mean, i do think it's worth stressing that if we're going to talk about the sort of the move toward building a multiracial democracy, we talk about the supreme court's role in dismantling. and you know what, to me as chief justice roberts, least offensive single decision on the court, shelby county versus holder, where you know, in 2013, the court takes a massive bite out of the voting rights act in ways that have been just so

visibly effective and horrifyingly effective in reallocating political power in states with historical patterns of discrimination on the basis of race and voting. a world again, a world in which the court actually thought congress would be responsive. a world in which the court thought that a week after that decision, congress would introduce a new coverage formula, which the court almost expressly invited it to do. i don't think the court even does hint. i don't think that's the decision if the court actually has any to believe congress is going to overrule it, it issue that ruling in the first place. and so across a whole range of conduct, a court that's not remotely afraid of its own shadow combined with the fluky of who replaces. right. samuel alito. right. was george w bush's third choice to replace justice on the

supreme court. right. the fluke innis of justice scalia died in february of 2016, as opposed to february 2015. the fluke innis of ginsburg dying in september 2020 as opposed to january 22. i mean. right. it's these two things together where in a system with a court that's looking over its shoulder, even if you the same radical, polarized in appointments, you probably don't get the same behavior from the court. right. and that's how those things fit together, in my view. mm hmm. i was struck, though, in reading shelby county by chief justice, kind of. well, we don't need the voting rights anymore. there's no more discrimination in voting in this country. that's not what expect supreme court justices to say. i mean, we all learned in fourth grade civics, congress makes law. so, i mean i mean, my my i am i am i am sort of agnostic about the justice bader ginsburg hagiography. but. her single favorite, her single best of opinion is that's like saying you don't need an

umbrella anymore because you're not getting wet and you know, i live in texas. you know, many most of you live in arizona. i mean, you know. yeah, there's no discrimination in law at all. none, period it's all good. and we've solved it. and democracy chief justice roberts, quote from an arizona public finance of election case. democracy does not depend a level playing field. so, you know again, i mean, i think it's worth but but i mean, this is this is why i think it's so helpful to talk about the court holistically. i mean, right. the the lawyers can break individual opinions and why they or are not so convince them but a world in which the court is actually about congress is world in which it's going to have a much harder time dismantling statutory regimes congress has created. and that's true not just in the election and voting rights base. that's true in the environmental law space. it's true in the dare i say, loan financing case.

i mean, it's there are any number of respects in which the less that congress and i don't mean this in a particular just the the more quiescent congress period, the more court will and necessarily is free to be, more adventurous and maybe some those adventures are to our liking and maybe of them are not. but that adventurousness in general is a problem. and that's really the bottom line, chris, is something voting rights. this is the this is an area where the congress, we shouldn't even be having this debate. and it's a it's an important area where the united states is an extraordinary democratic laggard. we were one of the few democracies, earth, that does not have a constitutional right to vote we don't have a constitutional to vote. and we are one of the few democracies on earth certainly few established democracies on where the government doesn't make it easy for one to vote. in most democracy, every other democracy i've ever encountered in western in latin america, in

a democracy the government knows people supposed to vote, people are supposed to vote. and so governments make easy for people to vote in much of latin american parts of europe. it is it's considered a civic duty and it is mandatory that everybody to vote in most other democracies. you automatically registered to vote when you turn 18. in virtually every other democracy on earth. voting is a holiday or. a sunday. it is only the united states, only the states among the world's established. where from very beginning of our history, governments for a variety of reasons, but awful very often for reasons of racial discrimination, worked to make it difficult for people to vote in a democracy that should be unthinkable. i have one more question. i have one more question for the

panelists before we open this up to the audience for your questions. when i first got this assignment, i thought, well, i'll just up some nice quotes about democracy. i'll do that. and be nice. so then i their books and i said, well, i can't do that. i settled on this quote from joseph goebbels. this was a fan of democracy that he was. yes this will always be one of the best jokes of democracy that it gave its deadly enemies the means by which it was destroyed. so here's my question to both of you. is it that bad? part two of the question is, what are we going to do about it? you all have very clever, creative, interesting solutions. are they pie in the sky or are they real solutions? we want to go first. look, all democracies all the time are vulnerable. it is it is true what gerbil

says that by the very nature of being an open system and allowing truly competitive elections, democracies are vulnerable. democracies are always vulnerable to threats from within. and there are a bunch of not a bunch. there are several different to how to deal with that historic lee the united states approach to the tradition the united states is a is a is a market solution. let let the voters decide. let the market decide. eventually the good will prevail in a in a of free battle of of of ideas. and i think history has shown that that's often insufficient. that's often not enough the germans learned that. and in in germany there developed a very different tradition, which is often called militant defensive democracy, that in which the state, the government is empowered to, investigate and to ban political

forces that are deemed a direct threat to. democracy, you know the the the the 14th amendment, the third or the 14th amendment is sort of our version that but that's never been something that's been taken seriously in the united states. but many democracies in the world that is that is precisely what happened. and in fact, in brazil just a few months ago, jair bolsonaro, brazil's trump, they u.s. media, like to call him the trump the of the tropics who followed very similar path to donald trump, far right candidate got elected governor pretty badly, barely lost reelection, tried to overturn the election. he has been barred politics for eight years that the supreme electoral court barred him for trying to overturn an election. he was barred from all years. so that's that's another that's another path. and that's the path that some people were thinking about going

down with the using the 14th amendment. there's that's unlikely to be what we do in the united states is just quite quite alien to our tradition there's a sort of middle way, which i would call self-policing political elites, political leaders have a really important responsibility in a democracy. political parties have a really important responsibility in our democracy. if the government is not going to ban candidates who are a threat to democracy, if the if the market is not going to sort of magically be exclude candidates who are a threat democracy, it's got to be politic actions themselves. it's got to be political parties themselves that serve as gatekeepers and when we were how democracies die, we placed lot of responsibility in the republican for allowing trump to get through. there were a number things they could have done to to ensure that donald trump was not elected because these guys knew they know that trump is is is a

threat, is a danger. but they not to maybe maybe they could be forgiven in 2016 because a lot of people thought. well, you know don't don't take him don't take him seriously. he may not once he's in the office or go into the office, but no, after 2020, the first sitting president in the history of the republic to refuse to accept the results of an election and try to overturn violently overturn the results of the election. it was it was clear everybody. what a threat. donald posed the decision of the republican party leadership in the u.s. senate mitch mcconnell to not convict in the second impeachment was well ultimately be very very important when we write the history of of of this process and that that was an opportunity a opened clear opportunity for the republican party leadership to self-police to their responsibly use their

leadership to screen somebody who was clearly a threat and we don't have mechanisms to sort of militant democracy to rule out dangerous candidates. our political leaders have assumed the responsibility of filtering out our leaders. and that leaves society itself. that leaves the key actors in the business community, in the religious community, in media, in politics, obviously citizens themselves are going to have to stand up and make it clear that in an undemocratic candidate is not acceptable in this country. so at the risk of mythologizing the founders, you know, one of the reasons why we have an independent judiciary was a deliberate and very sharp break from the british model from which we had departed, was

entirely so that there would be an institute capable of pushing back against tyrannies, the majority, and that there would be some lines that even a democrat like majority could not cross. and there have been in american history where courts have actually played that role quite elegantly and powerfully and meaningfully. i will just say, including the supreme court's very quiet, but very deliberate, sitting on its hands all throughout december and january 2020 and 2021. you know, the court doesn't deserve a participation trophy, but we also ought not to write out of the history books. despite being asked repeatedly to step into the election, the court stayed out there is a bit of a divide among. progressives about what to with the supreme court? i think there are a number of progressives who think that the court has become too powerful and that the way to rein the court in is actually to aggressively limit its powers,

whether by or by a constitutional amendment. i think there are some progressives who would just as well get rid of the supreme court. through legal means and otherwise. and i'm i'm one of those who actually thinks we need a supreme court entirely of the problem that the goebbels quote raises. right. entirely to push back against terrorism. the problem for us is that you to also have blocks and protections against, tyrannies of unelected judges. and, you know, there is a balance to be struck between tyrannies of the majority, tyrannies of unelected judges, and a court that sends justices out into the public say that there's no means by which congress hold it accountable is not striking that balance correctly. and part of that responsibility, agree with steve rests with us the part of that responsibility rests with institutions, the other institutions of government.

part of that responsibility rests with the justices who know ought to have a vested interest in the public credibility of their own. and you, for as much as i teach justice alito, who is also a phillies fan, and therefore deserving of it, you i think it's worth pointing out there have been other moments where the court could said more things. i not expecting the court to disqualify president trump from being on the ballot. i think that decision was eminently predictable for students of the court and its history. but, you know, court could, i think, do quite a lot to lean in to the notion it ought to be more institutionally accountable. and i think very quietly it has some of those things. but the fact that i suspect most of the folks in this room haven't noticed means that they're not getting the benefit of the buck. and so more of that. you know, maybe they just need to read my book. but that would be a good start.

we have time for one or two questions from the audience. if you have a question, please go up to the microphone so we can all hear you while we wait. let me just say i'm a mets fan and i'm already pessimistic. well, not either, but pessimist, if not fatalistic, that's april. not to be left of this discussion. the boston red cloud get worse and worse year. that's my team. so are the patriots in their days. go ahead. hello. how do both you feel about term limits for supreme court justices? it's been suggested they have a limit of 18 years and every two years adjusted would be stat would be stepping down new point it let me say a word and get another way and let the experts speak on this i'm in favor of it. in the last chapter of tyranny, the minority daniel i lay out 15 proposed constitutional and other institutional reforms that we think would help to make us democracy more democratic.

and one of those is term limits for the supreme court every other established democracy in the world has a retirement age for supreme court or term limits are the only established democracy on earth with truly lifetime tenure on the supreme court. and i think that's that's not the solution, all of our problems. but it will help to deeply size appointments the court and it will bring justices least a bit more in line with public opinion. so i'm in favor of steve. before you answer that question, do agree that term limits would require a constitutional amendment? so, i mean, i was going to do 45 minutes on that, but you could prob ably do it by statute if it applied to future justices. if we wanted to apply to the current justices, i'm not sure you could do it by statute. i'm sort of man on term limits, which is a weird like, you know, non-answer, but just really

quickly why first i'm not as persuaded that would de-politicize the confirmation process or the mitch mcconnell's of the world are going to mitch mcconnell even if they especially if they know that if they just wait two years. right. they get to and a new president. so, you know, i don't think it'll solve that particular problem. but broader point, this is also one of the reasons why i'm against expanding the court. if you believe as i do, that the real problem is a lack of accountability right kicking the justices out faster doesn't really change that because they're still free to do whatever the heck they want during the 18 years they're on the court and. so i'm much more invested. accountability reforms in which, regardless of who justices are and regardless of long they serve, they're actually about the other branches. when they hand down their decisions have a. two part question i've been watching for what it youtube instead of listening to books.

so and one of them was a senator who was made proposition he was arguing that a lot of these really controversial decisions the the justices decided what conclusion they wanted and then they sort of like created the facts with a conclusion rather than letting the evidence, the trial court determine what the conclusion can be because they said, well, it doesn't exist. and they had all this other evidence and it's like they're not paying attention to the normative process of judicial trial and fact finding and and i'm wondering, you're aware of that legislation and what you think about that. and my second question has to do with the that decision. like, what do think the justices are afraid to the decision for the plain text of sort of the section three of the 14th amendment and why did the three liberal justices concur? it just was inexplicable to me. you know, i think the the second

part first. yeah, i think you're in a better position. i am. it there is that there's a i was largely opposed i think that trump deserves to be ruled out the race and i wish we had a mechanism in place to do it. we didn't and we don't we don't it and you know i'm going to get into constitutional law here because i don't anything about constitutional law. it it can't it can't be the case that secretary of state or state level judge decides that that candidate x can't be on the ballot. that's ludicrously that's that's not a serious process we have there should be a mechanism in the united for us to rule out dangerous or criminal candidates but there needs to be a process of a an agreed upon set of rules

and procedures by which candidates are are evaluated not that i agree with the court that that that mechanism that that agreed upon set of rules of procedures doesn't yet exist so i agree with everything, steve, just said. i will just add to me the problem in your question actually, i guess is the problem is not that the court out. i'm not surprised in context in that the court chickened out. the problem is that the court chickened out in a really way. right which is instead of a really short unanimous opinion that would have had no separate right in where the court says exactly. steve just said that just cannot be the case that a you know, that texas secretary of state can keep biden off ballot just because he doesn't, then biden's doing enough to respond to. the immigration crisis at the border. right. which is a not that i mean, trust me, not a crazy hypothetical. right. and so but that opinion is very short.

and it just says that the presidency is unique and that in in the case the presidency and only the presidency right. we don't you know it's up to the federal government will say for another day how but states can't do it and instead because five justices wanted to go further it provoked not just the separate from the three democratic appointees, but also from justice barrett who was like, wait, why are we going further? so, you know, i'm actually writing about this for my newsletter on monday. one first you can check it out, but i think it was a real unforced on the court's part not to not for the result, but for the reasoning. so your first question. listen, i the justices play fast and loose with what lower courts have done. all time. and part of that is a function of their modern docket, where they can pick and choose which cases they hear and which issues they decide within those cases. and if it to them and they're like, oh, but we don't want to decided on this point. one side on this point, there's reason for them to be a little sort of manipulative to get to the issue they want that's power

has given them and you know just to i'm beating a dead horse here but part of why i wrote my book was to help you guys see how congress chose to empower the court to control its docket in ways that, incentivize that kind of behavior and if we really think it's a problem and i think it's a problem, congress can take it back. we have to understand that. we have to talk about in those terms before we get there. we're over and you're glaring. me. thank you guys so much on about books we delve into the latest news about the publishing industry with interesting insider