Jamie Raskin Explains What America Could Do to Fix the Supreme Court

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As the Supreme Court cloaked itself in the reputational disaster of yet another personal scandal and the close of the term offered an array of perilous new developments in all sorts of corners of the law, Rep. Jamie Raskin joined Dahlia Lithwick for a special live taping of Amicus. They talked about Supreme Court capture, judicial ethics reform, warped originalism, and the ways in which democracy itself can repair the damage wreaked by a conservative supermajority that believes itself to be above the law. Congressman Jamie Raskin represents Maryland’s 8th Congressional District. He’s the ranking member of the House Oversight Committee and a veteran constitutional law professor. This conversation has been edited and condensed for clarity.

Dahlia Lithwick: What do you tell people who feel that the strictures and the protections of the legal system have gone from holding Donald Trump accountable to keeping him off the hook? Can the law keep up with the speeding forces of, as you said, nihilism, illiberalism, and authoritarianism, or is law lacing up its sneakers while those forces lap us again and again?

Jamie Raskin: I was shocked at what they did in Anderson v. Trump. The plain language of Section 3 of the 14th Amendment says that anyone who has sworn an oath to support the Constitution of the United States who violates that oath by engaging in insurrection or rebellion shall never be allowed to hold federal or state office. Again, it’s in the plain language, and that’s textualism, right?

You know, there’s a difference between textualism and originalism. Textualism says we can figure it out from the language itself, but if you have to take an extra step and go to an originalist analysis, you will find that Thaddeus Stevens and the radical Republicans who brought Section 3 of the 14th Amendment came in with a far broader proposal over on the House side. What they said was, Anybody who’s engaged in insurrection or rebellion shall never be allowed to vote again. Not just former elected officials. It got over to the Senate, and they said, Whoa, that goes really far. You’re talking about disenfranchising millions of people for life. For participating in the Confederate insurrection or another future rebellion, we want to zero in on the most culpable class of offenders. So what’s the bull’s-eye? People who’ve sworn an oath to uphold and defend the Constitution, who violate that oath by engaging in insurrection and rebellion, and even those people will not be disenfranchised. You still have the essential attribute of citizenship, which is the right to vote. You can just never hold office again.

And that’s what the Colorado Supreme Court found after five days of fact finding. And the justices, because they thought it would be too controversial, just threw their hands up and said, Oh, no, the states can’t do that. Congress has gotta do it. Oh, and by the way, it’s not a political question. It’s not really up to Congress. Send it back to us to make sure that, you know, we run it through the straitjacket of our Federalist Society analysis. And then you turn on the TV and you get all these conservative pundits saying, “Well, why should he be the only person in America who can’t run for president?”

Really? Raise your hand if you can’t run because you’re not 35 years old. How about anybody born in another country who’s a U.S. citizen now? You can’t run for office either. How about you’ve already done two terms in office, like President Obama? You can’t run. There’s more than 100 million people who can’t run for president in the United States. And if you think about all of those categories of disqualification for serving as president, the one that is most morally, legally, and politically defensible is you’ve chosen to set yourself at war against the Constitution itself. There’s, like, five or six people in that category. So, call me the 14th Amendment originalist because that’s what I am.

I guess the way that I explain it to people is: Fall out of love with the Supreme Court quickly. Because if you look at American history, for the vast majority of our history, the Supreme Court has been a profoundly conservative and reactionary institution all the way from the founding to the Civil War. It was not until the 1950s, until the Warren court, where we got decisions like Brown v. Board and Gideon v. Wainwright, and then, eventually, Roe v. Wade. There was about a two-decade period that created the halo around the Supreme Court, and then it immediately went away again with the Burger court and the Rehnquist court and the Roberts court. So the Supreme Court is not gonna save us, my friends. We’re gonna have to do that.

I’m hearing your answer to “Is law adequate to the task of holding Trump accountable?” to be “Well, yeah, if the Supreme Court lets them.” Those of us who looked at Anderson, the Colorado case, and the Trump immunity case, we stroked our chins and said, “There’s gonna be a grand bargain. Trump will lose on immunity and he’ll win in Colorado, but it’s all gonna come out in the wash because the court really cares about protecting democracy.” And the really chilling thing for those of us who told ourselves a story about the court caring about its reputational interests as a serious entity but also caring that there be free and fair elections after 2024 is that this court doesn’t seem to care. And we certainly on this show told people, “We can make the court care. We are gonna just be super angry and we’re gonna demand ethics reform and we’re gonna write angry letters, and at some point they will feel shame.” What I’m asking is, please tell us we are not just beholden to a court that does not seem to care about the future of constitutional democracy.

I never thought I would live to see the day where justices have their own billionaire sugar daddies who give them houses and automobiles and private school tuitions. My friend Dar Williams sings a song where she says: “It’s a long road from law to justice.” I was a law professor for 25 years. People come up to me on the street and they say, “Wait a second—you were a tenured professor of constitutional law, and you went down there to work with Marjorie Taylor Greene and Lauren Boebert?” But I left for a reason. I fell out of love with the idea of trying to make it work. I mean, I think it’s great that people do it. But to my mind, we’ve gotta organize the people in America. That’s where the power comes from. And we will, if and when we win back the House and the Senate and the White House. We will look at the Supreme Court and figure out what can be done about that extremely corrupted and contaminated body.

The Constitution does not fix the numerical composition of the Supreme Court, and it has changed nine or 10 different times over the course of our history. We have 13 federal circuits. We’ve got nine justices. Five of those justices are from New York. We’ve got one for each borough. We have entire federal circuits that don’t have a single justice. How about we start to talk about having 13 justices on the Supreme Court, one from each circuit, 18-year terms—they still get life tenure because they can go and be on the district bench or the circuit bench. Each president gets two appointments to the court. Obviously, the Senate still has to advise and consent, but it will remove some of the toxicity and the poison from the nominations if we know that each president will get two. We can deal with this problem, but the current Supreme Court is just a scandal.

Rep. Raskin, I feel like I have to ask you briefly about Clarence Thomas. Because we have not fully aired the utter weirdness of having such a completely closed system such that nobody who litigates a Jan. 6 case at the Supreme Court can stand at the lectern and say, “Oh, by the way, that guy, he should not be here.” We are in such a strange world in which this is just taken for granted by both the public and the press, and there’s nothing to be done. I guess part of your answer to this is ethics reform, right? What you said before, we can fix these problems, but are we so far through the looking glass that we just accede to this monarchic court that tells us to trust them, because they’re not compromised?

It’s the only federal court in the land that does not have a binding ethics code. And it shows.

If you don’t have an ethics code, you get people flying on junkets with their billionaire buddies all over the world and taking, you know, huge cash payments for a motor coach, a house, private school tuition. Why not? You only make, what? $325,000 a year.

“Pay for your own damn vacation” is what I wanna say. Let’s go back to the beginning. Madison did say that it is a principal element of our jurisprudence that no one should be a judge in his own cause, in his own case, right? And the Supreme Court, they’re all judges in their own case who decide whether there’s a conflict of interest. And not even as to each other, each for him or herself. At the very least, why don’t we create an ethics committee of the chief judges of all the federal appeals courts, and we could apply to them if we think there’s a conflict of interest in the Supreme Court.

But if you also go back to the beginning, the court was not so elevated in people’s esteem. And, I mean, I concede it’s come down a lot because these people have disgraced the institution so much.

We just need a massive democratic renewal in America. We need all these fantastic young people across the country engaged in our politics, getting elected, the state legislatures and the councils, and the school boards, and Congress and the Senate. And we’re gonna get new people going out as judges. And we will have a renewal when we get through this very dark authoritarian period in our life.

All of us are human beings. None of these justices are superhuman, to say the least. But there are political, moral, ethical, and social movements in American history that infuse the law, infuse the legislatures in Congress, infuse the presidency, and infuse the courts, and it’s our job to create the movements that will put the Supreme Court back on the side of freedom and equality and justice in the people.