Episode Transcript
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Speaker 1 (00:11):
Welcome to Restoring
Justice, a special series from
Conversations with GreatThinkers.
I'm Jim Lanchi, and today wepresent a special extended
episode that combines twoclosely related themes from our
series the growingpoliticization of the federal
judiciary and the decline ofpublic trust in its legitimacy.
(00:35):
In recent years, the Americanpeople have witnessed what can
only be described as a tectonicshift in how judges are
appointed and how courts areused or weaponized, and how the
legitimacy of our entirejudicial system is called into
question.
From Senate standoffs tostrategic retirements, from
(00:59):
emergency rulings to shadowdockets, the judiciary is
increasingly entangled in thepolitical power games of our era
.
In today's episode, beyond theBench, politicization, public
Perception and the Crisis ofJudicial Trust, we'll explore
how we got there, why it mattersand what can be done to restore
(01:23):
confidence in what was onceconsidered to be our most
trusted branch of government.
Let's begin with a headlinethat captured national attention
.
With a headline that capturednational attention Senate
(01:48):
Majority Leader Chuck Schumer's2023 declaration that the
Democrats would seek to reshapethe judiciary by confirming
progressive judges to counteractwhat he called the MAGA imprint
of the Trump years.
It wasn't the first timepartisan motives shaped judicial
appointments, but rarely havethey been stated so openly.
The federal judiciary isdesigned to be independent and
(02:12):
impartial, yet over the last twodecades, we've seen both
parties treat judicialnominations and appointments as
zero-sum battles.
Consider the blockade of MayorGarland's nomination in 2016,.
And then consider the rapidconfirmation of Amy Coney
Barrett just weeks before the2020 election.
(02:33):
These actions weren't aboutqualifications.
They were about power.
Judges are no longer simplyreferees.
They are perceived as players,as ideological warriors in robes
in.
(03:07):
The Supreme Court has droppedto its lowest level in over 50
years, with fewer than 40% ofAmericans say that they have a
great deal or even a fair amountof confidence in the court.
Even more troubling, americansincreasingly view the court as a
partisan body.
In the words of retired JusticeStephen Breyer, if the public
sees judges as politicians inrobes, its confidence in the
(03:31):
rule of law will be seriouslyeroded.
Let's take a closer look at howthis politicization plays out
in practice.
Consider the 2017 travel bancase.
(03:51):
Lower federal courts across thecountry blocked the Trump
administration's executiveorders.
Critics celebrated the judiciaryas a firewall against executive
overreach.
As a firewall against executiveoverreach.
Supporters, however, cried foul, accusing Obama judges of
(04:11):
weaponizing the bench toundermine an elected president's
authority.
Now fast forward to 2023rulings on student loan
forgiveness, where conservativejustices struck down President
Biden's forgiveness program,citing statutory overreach.
Supporters saw a reaffirmationof the separation of powers,
(04:33):
while detractors saw judicialactivism that prioritized
ideology over fairness.
When courts alternate betweenblocking and advancing
presidential agendas based noton law but on ideology, public
cynicism grows.
It's no surprise that termslike judge-shopping or
(04:58):
shadow-docket or partisaninjunctions have entered the
mainstream lexicon.
It raises a very vital questionAre we electing presidents to
govern or are we electingpresidents to appoint judges who
will govern in their stead?
Trust is the currency ofjudicial legitimacy.
(05:23):
When the public no longerbelieves that courts are
interpreting the law onlyenforcing partisan ideology, our
entire system is at risk.
A 2024 Gallup poll found thatonly 38% of Americans trust the
Supreme Court a great deal, andthat's down, as I've said before
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, almost 62% from just a decadeago.
Why does this matter?
Because courts don't commandarmies or control budgets.
Their only power is persuasiveauthority, a power rooted in the
belief that rulings are fair,principled and grounded in law.
Consider Brown v Board ofEducation, a landmark Supreme
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Court case in 1954.
That ruling succeeded becauseAmericans believed in the moral
and constitutional authority ofthe court.
Could a similarlytransformative ruling succeed
today with the same level ofrespect.
Legal scholars like RichardFallon have warned that
(06:32):
perceived judicial illegitimacyweakens not only the court but
the rule of law itself, becausewhen judges are seen as
politicians, because when judgesare seen as politicians,
rulings are obeyed not out ofrespect but out of fear or worse
(06:53):
, they're ignored altogether.
So what can we do about this?
Well, let's look at someproposed reforms, each of which
deserves serious consideration.
The first is term limits forSupreme Court justices.
(07:14):
This is a popular proposal thatwould institute 18-year
staggered terms, ensuring thateach president gets two
nominations per term.
This would reduce the incentiveto appoint young justices for
maximum political gain.
A second proposal involvesstronger ethics rules.
(07:38):
Recent headlines have revealedethical lapses by justices who
failed to disclose luxury trips,real estate deals and political
donations.
Requiring justices to follow aclear, enforceable code of
conduct like all other federaljudges would be a powerful step.
(08:01):
Next, look at transparentjudicial review processes.
That is, proposals to televiseoral arguments and publish all
rulings in a timely fashion, andto limit the use of unsigned
shadow docket rulings would makethe judiciary far more
transparent and less prone tobackroom influence.
(08:22):
And lastly, let's think aboutrebalancing the courts.
Some have suggested thatexpanding the number of lower
federal judges to alleviate caseoverloads and reduce the
opportunity for politicalmanipulation could work to the
benefit of the judicial system.
Others call for jurisdictionstripping, meaning limiting what
(08:47):
kinds of cases courts can hear,but such proposals walk a
tightrope between accountabilityand constitutional crisis.
Ultimately, no single reformwill solve the problems that the
judiciary is involved in at thepresent time.
What's required is a broadercultural shift, a renewal of
(09:12):
civic responsibility and respectfor the judicial process, based
on well-considered reform.
Let's look at a simple examplethat's been a flashpoint in the
(09:33):
judicial executive tensions oflate.
Let's examine the developmentthat most epitomizes the themes
that we've explored in thispodcast today, and that's the
recent contempt ruling by USDistrict Judge James Boasberg
against the Trump administration.
On January 16, 2025, judgeBoasberg found probable cause to
(09:59):
hold the administration incriminal contempt for violating
his order to halt deportationflights to El Salvador.
The administration's defensehinges on the argument that the
deportation flights had alreadydeparted US airspace when the
judge's order was issued,rendering the order inapplicable
(10:20):
.
Critics of the administrationargue that this incident
reflects a broader pattern ofexecutive overreach and
disregard for judicial authority.
Supporters of theadministration contend that the
judiciary is overstepping itsbounds, interfering with
executive branch prerogatives inmatters of national security
(10:42):
and immigration.
Whichever way you view it, thisincident underscores the
delicate balance between thebranches of government and the
importance of maintainingrespect for judicial authority
to uphold the rule of law.
Always remember that theConstitution diffuses power to
better secure liberty.
(11:04):
So if this is the case, wheredo we draw the line?
Well, that's the question nowfacing Judge Boasberg as well as
the nation.
If a court order to haltdeportation flights is ignored
and the judiciary is powerlessto enforce it, does that make
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the President untouchable inmatters of enforcement, or does
it confirm the fears of thosewho say the courts are reaching
too far into executiveprerogatives?
The tension between Marbury vMadison, that seminal case where
the judiciary claimed the soleauthority to interpret the
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Constitution and article 2,isn't new, but it does feel
newly urgent.
Let me leave you with thisjustice.
Felix Frankfurter once wrotethe court's authority, possessed
of neither the purse nor thesword, ultimately rests on
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sustained public confidence inits moral sanction.
That confidence is fraying, butit's not gone.
Restoring trust in thejudiciary doesn't require
perfect judges, but it doesrequire principled judges.
It doesn't demand agreement onevery ruling, but it does demand
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belief that the process is fair, independent and guided by law
rather than politics.
As we continue this series,we'll explore deeper reforms,
historical analogs and boldideas for ensuring that our
courts remain what they weremeant to be, and that is the
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last line of defense for theliberty of our nation and the
rule of law.
I'm Jim Lanshey, and this hasbeen Restoring Justice.
For more episodes and resources, visit wwwgreat-thinkerscom or
(13:17):
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