Continues. Host welcome back, my guest is brian fallon, the cofounder and outgoing executive director of demand justice, talking about Supreme Court reform. Welcome to the program. Guest thanks for having me back. Host yes i should say welcome back but before we get to our topic in my wanted to get your reaction to the third indictment of former President Trump. Guest i think the special prosecutor thats been handling this case, jack smith, former head of the Public Integrity section at the Public Integrity section at the Justice Department is very well respected, nonpartisan prosecutor and i think he has done a very methodical job here. The case is pretty watertight. I think this country will get a little bit of an education into our legal system here through the course of this case. I know some people will try to argue that the president will emerge from this indictment politically stronger somehow and that this whole rally will mobilize his supporters but this is now the third indictment. He will be hamstrung significantly just from a political standpoint. A lot of fundraising resources are being diverted to his legal fees and he personally will have to be devoting time to planning for trial so he will have to go through that and it will take time away from the campaign trail. He will be a less strong candidate because the fact that these cases are all playing out. Regardless of what happens in the court of law, as a candidate, he will be weakened by these indictments. Host if you would like to call in and ask questions and share your thoughts, you could do so on airlines by party affiliation. Republicans, 202 7488001, democrats 202 7488000, independent, 202 7488002. Youre wrapping up your tenure as founding executive director of demand justice, remind us of what that organization is about. Guest demand justice was started in 2018 by myself and my friend and colleague chris kane who had worked as a Deputy White House counsel during president obamas term in Office Working on judicial nominations. We start the group with the mission of trying to galvanize the public against the capture of our federal courts by a rightwing element that was very much out of step with the country. Now we are seeing the sort of results of that capture as the cords play out in the last couple of terms where the decisions of the Supreme Court have happen. We have been trying to mount a campaign to push back on the nominees that President Trump was putting forward during his time in office and trying to galvanize support among the public and try to counterbalance the takeover the hard right successfully achieved at the Supreme Court level. Our funding is primarily from two sources. We have a lot of institutional donors and Foundation Type donors that believe in our mission. Also, we have over half a million supporters online that contribute to us on an average of 20 per contribution. We have a mix of small the small dollar donations and levels of support from Foundation Type donors. Host i want to show a New York Times article from the launching of demand justice back from 2018 in the headlines this the idea back then that republicans were about judicial reform, is that still true today five years later . Guest the pendulum has started to swing back. The project that was carried out in terms of capturing the court has many objections. The effort to fight back and try to undo that damage is not going to happen overnight either. We are five years into this project now but we have made a good amount of gains in the last five years. We started in the aftermath of what happened with Merrick Garland. Mitch mcconnell blocked president obama from filling that seat but more distressing was even his Mitch Mcconnell was doing that, the public didnt seem that upset about it. It was not a big issue in the 2016 election. Even though the fate of the Supreme Court, whether it would be controlled by a majority of liberal or conservative justices, literally would be decided by that election. There was some attention during the president ial debate step but not much. When neil gorsuch was confirmed in 2017, that happened with a whimper and there wasnt much of a fight by the democrats against that nomination in 2017. From that, our group was started with the goal of trying to galvanize the public to care a little bit more. Five years later, i would like to take credit for it but its really external events that have happened over the last five years. You had the kavanaugh conversation, Ruth Bader Ginsburgs untimely passing followed by Amy Coney Barretts confirmation, highly charged confirmation battle that focus the public attention on this issue. In the ensuing years, you had rulings like the overturning of roe v. Wade that have really thrown the public for a loop, people who took that for granted that was 50 years old. We were trying to tell people that was on the line and a lot of people didnt believe it until it actually happened. I think you are now seeing that the issues have never been more salient especially among democratic voters. They tell us in polls more than Republican Voters that this is a voting issue for them in a complete flip from 2016. You also see it in the form of the low Approval Rating the court has. They have an historically low Approval Rating and this creates the Supreme Court as a highly charged political issue. More than its ever been host i want to talk about the election and the impact the Supreme Court decisions can have on the election. Break that down a little more for us as far as where you think that will go, especially with the Dobbs Decision. Will it impact Younger Voters or the womens vote . Guest we certainly saw in the 2022 midterms, evidence that the backlash to the Dobbs Decision helped soften the losses the democrats were otherwise in store for in the 2022 midterms. Historically, the democrats take a drubbing in the midterm elections when that partys president is in power. Democrats held the senate and their losses in the house were fairly minimized to the point where democrats have a legitimate chance to take back the house in the 2024 election. A lot of the polling shows the reason that democrats are able to keep their losses in 2022 to a minimum was because, especially suburban voters, women voters were externally upset about the Dobbs Decision and completely taken aback they actually follow through and overturned roe. I think that dynamic will persist into 2024. This is an issue that is creating a political wing that at joe bidens back. President biden is reluctant to engage in this conversation. He has stopped short of directly criticizing the court. A lot of democrats on capitol hill have started directing criticism at the Supreme Court. Joe biden has sort of stood back from directly engaging that conversation but that dynamic is certainly there. His team is certainly aware of it and i think they know it will only benefit him this backlash to the Supreme Court. This court is seen as an arm of the republican party, the maga republican wing that joe biden is running against in 2024. Host here is the front page of demand justice. Org. How are you really going to do that especially if joe biden has said he is not interested in doing that . Guest this is a generational struggle we are in. The republicans werent able to win over and capture control of the Supreme Court in a matter of months or a couple of years. They did it over the course of many decades. They had the Federalist Society to help them carry out that result and the pendulum starting to swing back but its only just starting. This will really be a generational, years long struggle we are in. They have a 63 super majority on the Supreme Court. Some people think democrats can just sit back passively and hope that retirements or illtimed illnesses occur in the democrats may organically regain a majority on the Supreme Court. Realistically, we will have to go out and convince the country about structural ones of the court. There has been Academic Studies like a harvard researcher that said in less than legislative was sutured results, legislature is needed. Other than that, the Supreme Court will remain in power until 2065 which is a sobering thought. A lot of us are trying to help cultivate a conversation about Structural Reforms that can rebalance the center than that to include ideas like term limits, adding seats but this will not happen this congress when you have a republicancontrolled house. But we are making a lot of Great Strides to build support for these ideas, not just at a Grassroots Level with voters, but the judiciary act which is a proposal that would add seats to the Supreme Court. Host you mentioned the Federalist Society. We will start taking calls shortly but one more question the federal society and there is also the Judicial Crisis Network. What kind of impact of these groups have . Guest they have been highly successful. Host in doing what . Guest in mobilizing Republican Voters to care about the court as an issue and vote according to the Supreme Court as an issue and insist on their candidate speaking to the issue where to the point where donald trump literally released a list of names and 2016 about people he promised to look at in tombs in terms of who he would nominate. They succeeded in getting super donors on the republican side to give money to this project. Leonard leo, the head of the federal society, the former head, has been particular successful at getting large megadonors on the republican side to give huge eight figure gifts to the Federalist Society and affiliated groups to help fund this effort. One structural advantage they have is resources. They are giving their flows into groups like the Judicial Crisis Network and its like 71 as opposed to groups like mine on the other side. Theyve been externally successful and if anything, when we go to capitol hill and meet with democratic lawmakers, or point to them as we need to get into the game and compete with the groups doing so well on the republican side and galvanizing support for this issue. Host lets take a look at a gallup poll that asked the question about the Supreme Court job approval by party. Republicans have a 62 approval rate for the Supreme Court, independents are at 41 and democrats are only 17 . You said before that approval of the Supreme Court is at historic lows. What needs to happen to turn that around . Guest thats a relatively recent phenomenon. When we started pulling democrats in 2018 when we started, democrats approved of the job the Supreme Court was doing because democrats had sort of a view of the Supreme Court that was somewhat rosy based on civics lessons we learned in history from brett brown versus board of education and there have been recent rules like the decision to uphold the Affordable Care act on the decision to recognize samesex marriage that caused progressive to think that by and large the Supreme Court was doing an ok job. The events of the last five years with the confirmation battles and things like the dobbs one have caused democrats and independents, they are underwater with those two key groups. Its not surprising that two thirds of republicans are supporting it because they are getting what they voted for in terms of rulings like the dobbs ruling. Democrats and independents being against the court in such large numbers is not a viable situation longterm for the Supreme Court. Host lets go to calls in our first one is james and mount airy, north carolina, democrat. Caller brian, who used to work for Chuck Schumer, right . Guest i did. Caller i can tell you the biggest problem we have right now in the u. S. Senate is Chuck Schumer and the senate democrats. A perfect example of it is Amy Coney Barrett. She got put on the court at the very end of trump presidency. She could have been blocked. At any point during the confirmation any democrat could have come to that floor and said mr. President , reserving the right to object and they didnt. Chuck schumer made a joke of it. I dont know if you saw that. People behind the scenes, the big money behind the scenes were telling him block her. Use the right to object. He came to the floor and made a mockery of that. He said people are telling me to use the right to object so i will with a big smile on his face. And he said something about asking permission for the following committees to me today. Procedural type things. Then he goes, mr. President , i object. He was objecting to his own request. Guest host host lets get a response. Lets get a response. Guest makes a point about democrats not using every tool at their disposal in 2020. We were centrally involved in trying to organize the opposition to Amy Coney Barrett. We had a lot of meetings with Chuck Schumer and democrats urging him to use the objection and we urge that they boycott the hearings. At the end of the day, i had to say that while there was some guidance from us that we were giving, maneuverings they could undertake to slow things down, the ability to out to outraged up the nomination is not something they democrats have in their power. I wish that was the case but if they had the power to do that, we would have been harping on them to do it. They had the ability to slow things down at best so its frustrating and expense as that was, i think Chuck Schumer was doing as much as he possibly could in that moment. Host david is a republican in woodbridge, virginia, hi, david. Caller good morning and thanks for taking my call. For me, there is a lot to unpack here. I dont understand the big push back that organizations like the gentleman works for has against judges and people who want to follow the constitution. Whether they are conservative, liberal, follow the, follow the constitution and the law of the land. Democrats seem to want to hang their hat on that topic no matter what time of year. I would rather have an even ginsburg was not in favor of this becoming a law. I would rather have the states have the Supreme Court and give it back to the states which is what they did to you can have local jurisdictions and legislatures make your role and you can vote accordingly. Your thoughts on that . Guest for years, folks that worked at the Federalist Society and conservative judicial nominees, for confirmation hearings would sort of say their theory was the one true way and they were not taking an ideological approach, that they were interpreting the constitution very strictly according to the text of the document and that all these complaints about the rulings being issued i republican appointed judges was really just sour grapes of a question that had been settled earlier by the Founding Fathers in the way they wrote the constitution. There have been decision after decision in the last few years that have you lied that narrative and exposed the socalled originalist approach that republican appointed justices like to take and mostly bunk. Take a look at the gun issue. You have the heller decision a little over a decade ago written by Antonin Scalia a, a great conservative lion, adored previously by Federalist Society types. He said there is a fundamental right to bear arms in this country but in that same opinion, he said there was room for reasonable regulation on that right. In the interest of Public Safety and in recent years, the justices from the far right that are still on the court said no, this is basically an unfettered right and there is not room for any of those reasonable restrictions. They continue to move the goalpost closer and closer and ideological vision they have. It is sort of exposed that this is the one true way its grounded in a textural list interpretation of the constitution. Host eric, independent in cedartown, georgia, good morning. Caller i would like to make a comment. The court makes no difference whatever laws the democrats passed in the house and the senate and the president. The Supreme Court can overturn it. You are actually taking black people getting their rights taken away with other groups of people getting the rates expanded. No matter what the democrats say , unless they add members to the Supreme Court, minority rule will continue in the United States. Instead of you saying whatever you want, the right wing extremists are implementing minority rule in the United States just like what israel is doing. We are sitting back and listening to it and taking it. Joe biden and the democrats, Chuck Schumer and all of them, they are maintaining White Privilege in the United States. This is exactly what is doing so a lot of democrats have done this because of their kids and grandkids in their lives just like affirmative action. You took rights from black people in the United States. Its generation after generation. Dred scott is a change you want to talk about. Its still in effect. In my right that the Supreme Court can overturn any rights that the democrats pass in the congress if they have the house, the senate . They will not change the filibuster. Am i correct or not . Host we will get an answer. Guest i agree with the caller. This really feels dish fuels the passion but the caller talks about the Current PowerSupreme Court wields which amounts to minority rule in this country. That is a point that i very much agree with. People might ask, how to we get to this point where the Supreme Court can issue a decision that is so wildly out of step with Public Opinion like the Dobbs Decision which upwards of 70 of the public disagrees with that decision. There is a reason we got there, its not a coincidence. We have a process that is sort of entrenching minority rule. If you think at least four of the justices were selected by president that didnt win the popular vote because of the vote we have with the Electoral College and our way of electing a president and then they put forward these nominees that get confirmed by a republican majority in the senate that represent the election cycle, because of the way we structure the senate, giving two senators to every state regards the population, by some estimates, you can have 51 republican senators represent as little as 40 or 35 of the population. You have president s that are not winning popular vote, getting into office in appointed people confirmed by Senate Majorities that represent less than half of the country. Then they get to serve for life and issue decisions that overturn laws that are passed by the popularly elected congress, overturning rules and regulations issued by the popularly elected president and his executive branch and thats how you end up with a system of an unelected body that will so much power and do so in a way thats wildly out of step with Public Opinion. We support a big set of holistic changes and we like to reform the Electoral College, the filibuster to bring the decisionmaking structure and our Democratic Society back in line with where the majority opinion is. Host let me ask you about Supreme Court ethics. This is an article in politico from yesterday. Before you answer that coming here is a tweet what are your thoughts on that tweet and also the Supreme Court ethics . Guest the summer is traditionally a time where the justices get to let their hair down a little bit and they are in recess so they are not hearing cases over the summer and they do a lot of appearances. This has now become an annual ritual they sort of trade barbs. The justices have a debate indirectly by dueling appearances they have over the summer. Justice kagan was at an appearance this past week was asked about a recent interview that her colleague sam alito gave to the wall street journal where he sort of weighed in on this debate thats been happening in congress about whether to impose a code of ethics on the Supreme Court. Sam alitos position was that congress does not have any power to regulate the Supreme Court in that way. Kagan was going on the record somewhat remarkable that sam alito gave the interview to the wall street journal and somewhat remarkable that elena kagan has decided to respond to him. She basically said thats not true. There is all kinds of evidence to the contrary and all kinds of rules the Supreme Court has to abide by that are the product of laws passed by congress down to the fact that their session begins in the first monday in october, that derives from a statute passed by congress, the size of the work has been changed by Congress Many times in the nations history. The interview that sam alito gave at the wall street journal, the individual that conducted the interview and publish the piece was actually a lawyer and was arguing a court at the Supreme Court next year so there are propriety questions about sam alito giving an interview to somebody who will appear before the in a case next term. The fact that sam alito gave the interview and what he said makes the case for a need for an ethics law to be passed by congress. Elena kagan somewhat agrees with the comments she made in her interview this week. Host lets go to cleveland, ohio, democrat. Go ahead. Caller thank you for taking my call. I am actually a member of the Student Organization that discusses a lot of issues relating to the Supreme Court ethics and judicial reform in the country. One topic that we often discuss is as people have discussed already, the number of justices on the court has changed historically depending on political needs of the politics of this country. When people today talk about packing the court or getting the court to expand its reach to make it more representative, there is often pushback against that. There is a clear precedent for it and i wanted to know your thoughts on that. Guest the caller is right. Maybe some folks dont know that when joe biden came into the office in the aftermath of the Amy Coney Barrett nomination, he said he would stand up a president ial commission to look at Supreme Court reform ideas. That commission did not come to a consensus around any one particular idea. They were not really empowered to make formal recommendations either. One of the ideas they did look at was expanding the court size. While they did not endorse any one proposal, they clearly came to the conclusion that it would be on sound constitutional footing for congress to undertake such a measure. It has happened multiple times in the nations history. While there is some debate about ideas like term limits and whether that could be done, statutorily through an act of congress, there is no dispute among scholars that congress would have the ability to alter the court size as it has done many times before. Host steve is calling us from highland park, illinois, republican. Caller good morning. I wanted to ask about your Organization Demand justice. Is that organization i am in chicago and im in the suburbs. I am in commercial real estate and ive been all over the city and usually, i see the signs on boarded up buildings that say demand justice in red and green and black colors. Is your organization the ones that put those signs up on the side of a building in bad neighborhoods . Guest i doubt it, no. Demand justice is a pretty common catchphrase in terms of various progressive causes. Its probably Something Else thats not related to our organization. Host carol is in new hampshire, independent. Caller yes, thank you for taking my call. I really appreciate you being on the show. I would gladly contribute to your organization. Demand for justice. The republicans, really are the losers with having such a packed court because they will be losing elections because they are overturning very popular laws. Thats all i want to say. I appreciate you doing this because it just makes me very angry that the courts have been packed the way they have been. Thank you. Host any comment . Guest thank you for the kind comments and i think the Supreme Court will be a political weight around the ankles of republican candidates in 2024. Host clyde in oklahoma, democrat, good morning. Caller this is clyde. Ive got a question on the separation of church and state over this abortion deal. [indiscernible] why are they butting into what the people are doing . Its between a man and a woman and a doctor. Thats called church of thats called separation of church and state so why are they butting in . Thank you. Host do you agree with that . Guest the arguing point on this is regardless there is a heated position on both sides of the abortion question but there is a thing in constitutional law is decisive. Its a principle that tries to give stability to the rulings that come out of the Supreme Court. If all else fails, if something has existed for a long time and the American Society has sort of been built up around previous rulings on the Supreme Court, theyre supposed to be some sort of deference to that. The roe v. Wade ruling was on the books for 50 years and there is no question that American Society had been ordered around the idea that women should have bodily autonomy and abortion should be legally available. Two up and that really violates, if nothing else, the justices are acting in an arbitrary way for that reason. Host we have a question for you on twitter guest at the end of every term, there is a lot of empirical analyses of previous Supreme Court rulings. They here between 6080 cases every year. The twitter question, the premise is correct that a lot of those 60 or 80 or 80 are not the ones you read about in the term. There is a reason that those polarized cases and upping the ones that get released at the end because they are the ones that involve some of the biggest questions that have such farreaching impact over the country. They are the ones that are most bitterly divide the court and they are the ones that do so much writing time where they pen 60 page decisions or dissents. I think there is a lot of focus often about out of the 80 cases this year, 85 of them were decided not along party lines. You can tell yourself a feelgood story about the fact that that means the court is more united than people think but there is a reason why those cases you hear about at the end of the term take so long to decide and capture the publics imagination more than all the other mundane cases that the court hears. Is because these are the Big Questions that people decide elections about and elect their leaders to help decide for them and people are rightly frustrated when an unelected body is deciding questions they think they are voting for. Host lets talk to a republican in tennessee, good morning. Caller good morning. A lot has been made of the fact that Merrick Garland was prevented from being a member of the Supreme Court because of actions of Mitch Mcconnell. Is it not true that the majority on the court would still be held by conservatives 6 at4 even if Merrick Garland came in the Supreme Court . Host you mean 54 . Guest its 63 now. If Merrick Garland was on the bench, it would have swung the balance. Ruth ginsburg passed away in the meantime and other things took place in that if you assume that trump would have won in 20 anyway with Merrick Garland then yes, it would swing back by this point now. Caller thats what i was talking about, the current situation, thank you. Host isaiahs in virginia, independent. Caller good morning. Host go right ahead. Caller my question is a comment its to express to the rest of the cspan audience that i see the root of all of our problems including what would the subject matter today. Its that the country is suffering from minority rule. I say that from the perspective that the popular vote in the last few elections did not support the eventual winner of those elections. Yet, those people that won the elections got them just got to nominate people on the Supreme Court. My solution or an idea to put out there, nine people in my opinion is insufficient to represent 300 million attitudes. I would hope that we can get to a point as a country where each independent state gets to nominate one person from their state to a new Supreme Court consisting of 50 members. Then i think we will get as a result, opinions from the court that represent majority rule with certain protections by the minority. Host what you think of that idea . Guest an earlier call or raise the issue of minority rule and we talked about that. I obviously agree with that statement of the problem. I think some people think were just here to complain about the Supreme Court because it happens to be controlled by republican appointed justices now. Regardless of who controls the majority of the court, the reality is the court is too powerful in general. Its deciding to me questions that are not decided by the elected branches of government and there should be agreement on both sides about that idea. Most countries, a lot of other countries, other democracies have Supreme Courts for larger memberships. Nine is actually on the low end in terms of the size of the Supreme Court in comparison to other democracies. There are various proposals to for instance have a rotation of Circuit Court judges to do stints on the Supreme Court to try to make the nine folks that sit on it now less powerful. Right now, those people are completely unaccountable. There is no way to police any infractions they have and they get to decide to many of the questions the body politic is divided on. The idea of introducing more opinions by enlarging the size of the court may be having term limits or frequency of turnover within the court happening more often, i think those who be good, healthy things that would that it would make more likely the Supreme Court being in step with the Public Opinion. Host whether the details on term limits, how long guest guest should the term be . There is a proposal and there is not consensus around anyone proposal. To take one example of the design of how you could do term limits, one of the leading ideas is an 18 year term limits in the argument is that the constitution of United States as judges get to serve for life as long as they have good behavior. The idea would be that you would have justices that would be appointed to 18 year terms and after that, they would continue to hear court cases at the Appellate Court level. They would still have life tenure, not just necessarily be guaranteed the opportunity to rule on aces at the Supreme Court level for life. 18 year term limits would guarantee that every president in a four year window would get 2 pick some thats a problem we are solving. Jimmy carter was a one term president and got zero Supreme Court picks and donald trump was one term president and got three picks in his four years. There is something unfair about that. The idea of introducing some regularity and parity across president so everybody has an equal shot in shaping the courts composition seems fair. The other thing is it would drain some of the drama and the gamesmanship out of the Supreme Court confirmation process. Everybody knew that each president is guaranteed 2 picks in there for your window, there be less of a desire to try to hold up a pick like Merrick Garland in hopes of carrying it over to the next president s term. It might actually drain some of the drama out of these confirmation processes would be a which would be a good and healthy thing. Host one more call from new york city, democrat line. Caller yes, i like to make an apology for anybody that might be offended by something i might say. I am grateful you are having mr. Fallon on. There was an oklahoma caller on the republican line mentioned separation of church and state and thats what i want to talk about. Mr. Fallon and others in the audience, i believe that the Supreme Court has been taken over by a catholic cabal. Alito, i will go down the list, you can comment if you like. Alitos father was a federal judge in southern new jersey against affirmative action. He has made that and has reversed all the laws, the voting rights, abortion rights, gay rights and wedding cakes. These are all religious issues or religiously affected issues and the Supreme Court, all of them, cavanaugh, coney barrett, they are all religious zealots. Guest host we got your point. Your response . Guest im a catholic so i am a practicing catholic. I dont want to be accused of any catholic bias here. The way with that i would where the criticism i dont know if the caller would agree with this characterization but the way i would word the criticism is that the right wing majority thats on the Supreme Court is right now sort of using religion or weaponizing religion and treating it as a pretext to justify things they are trying to do for ideological reasons. For instance, we had a case that was determined this past term that said that a business, if they have a religiously grounded belief that samesex marriage is wrong, that they can deny service to patrons that might come into their store because they disagree with a gay couples ability to get married. In that case, they are using or weaponizing or twisting or contorting the idea of religious liberty as a pretext for justifying certain people to carry out discrimination against people in samesex marriages. We saw a few years ago, a carveout to theaca mandate to provide Reproductive Health benefits to women. The Supreme Court said an employer has a religiousbased belief that they dont want to provide or contribute to Reproductive Health benefits, they should be able to not do so. My argument would be that they are twisting the idea of religious liberty and using it as a legally based argument to justify conservative outcomes they are trying to reach in these cases. Host brian fallon, demand justice cofounder and outgoing executive director there on the web at demandthis is hosted by d space force association. Thank you to all the people joining us online and from across the globe