A Measure of Self Restraint. Adam White Talks To Armstrong & Getty

Adam focuses on American constitutionalism, the Supreme Court, the administrative State, and is also Assistant Professor of Law and director of the Sea, Boyd and Gray Center for the Study of the Administrative State at the Antonin Scalia Law School, one of the great law schools in America at George Mason University. Mr White, how are you, sir? I'm good. Thanks. You gotta take some deep breath in that law that long business card, I do it short, I declare Adam the

smartest person on the Supreme Court in America. Well, that's that's what you are, brief and and lovely. So hey, why don't we start with why is interesting and partisanship over the Supreme Court at such a fever pitch these days in a way that it really wasn't in decades past. Well, it's because of what the Court has done in the

decades since then. In Justice Scalia put this really powerfully in one of his descents, in the one of the abortion cases, he said that, you know, to extend just this is are worried that the confirmation process is getting

out of control. Um, they need to take a look at themselves and understand that the bigger of a footprint that the Supreme Court puts on American politics by deciding issues that are better left to the political process, the more that the political process will pull the Court into itself. And that's what we have now, especially when people are are are when people think that that Roe v. Wade might someday be at stake. So did the did the court change, did the public attitudes change? Or did the

Senate change? And that we used to confirm these people ninety eight to nothing to nothing two that sort of thing, and now it's you know, a fight to the death. It's a knife fight. And Alley, I'd say the court changed first, then the people, and then the Senate caught up. I'd say that the Court changed first in expanding all sorts of rights that aren't written in the Constitution, like in Roe v. Wade in other cases, I'd say that the left started to put much more emphasis on the

Court as a politic cal tool. And then we saw, you know, Ted Kennedy others declare war on Robert Bork in seven. That was the real turning point. I think Republicans took a little while to catch up. They never really declared war on set. I mean, they never have declared war on on Ginsberg, Brier, Soda, Mayor, and Kagan the way that Democrats have to bork Thomas Kavanaugh. They even went after David Suitor before they realized he was

going to be a liberal justice. I'd say that. Then finally Republican senators decided we need to take this stuff really, really seriously too well. And I suppose we could mention that the Congress is in the habit of passing grand and glorious legislation that's also very very vague, and then lets the court interpret, you know, their grand, grand and glorious implementation. Yeah, there's no shortage of that too. I spend you know, plenty of time teaching administrative law and

warning about that problem. So yesterday Joe Biden was asked, if he's president, is he in favor of packing the court? He wouldn't answer that question because he said it'd be a distraction. What is packing the court out? What would it look like in you know, what's the likelihood of it? Sure, okay. Packing The court is adding justices. We have nine justices. The court has been that size for about a hundred and fifty years. That's not written in the Constitution. The

Constitution doesn't say anything about it. Originally the court was six members. It's been as large as ten, but since about the Civil War we've been at nine. That could be changed any time by ordinary legislation. Congress could create Supreme Court seats the way that it you know, it could print money. We don't do that for a good reason, because the stability of the court is an important thing.

And once you'd make that move, once a Congress and a fit of partisan peak add seats to the court, we all know what happens the next time the tables are turned to the other side add seats in. Pretty soon we have a court of fifteen seventeen members. It looks less like a court of law and more like

a miniature Senate. We call it court packing because that's what it was called when President Franklin delan Or Roosevelt tried to do it or threatened to do it in the nineteen thirties, and its own fit of peak over the Supreme Court striking down a couple of New Deal statutes. Back then, the the the proposal was so radioactive, uh, that everybody in the political process immediately rose up and said, no, this must not be done. It's been to call the

third rail since then would be an understatement. It's worse than a third rail. And the fact that Democrats about two years ago started talking about it, I think, really showed how far beyond the beyond they've gone. And I think that it would be if they were to push that button, after say, taking over the White House and the Senate, it would utterly destroy the Supreme Court as a credible institution. I think that it needs to be avoided. Yes, I mean, I feel like we do that weird speaking

of rails, were really off the rails at that point. Um, how difficult is it to do? Is it just a majority vote in the House and Senate and the President signs it or what is it? That's it? That's it. The Supreme Court. Congress can just pass a law like

any other loss and just amend the statute. I don't have the statute in front of me that says how many seats the Court as but you just strike out nine and right in and and that's it, and and in fact they don't if they get rid of the filibuster, then it's just a bare majority of the House and the Senate at a moment in time adds seats. Yeah, how concerned are you that we are entering an era where that sort of thing is being um not only contemplated, but done. And to hell with the Union, to hell

with the country. I'm profoundly worried about it. I think that the greatest constitutional crisis of our time is just one of utter, the utter lack of self restraint by our political actors and by so much of the public that really rallies them to go to abusive extent just in support of whatever policy they favor at the moment. I think it's profoundly dangerous. You know. You know what bothers me about it is that Democrats have done a

great job. I think, you know, the media helps that along, but the Democrats done a great job of making it seem like you do this crazy thing, and we're gonna do this crazy thing. Well, the crazy thing the Republicans are talking about doing is one constitutional I mean, it's not out of bounds at all. Yeah, it's it's not all they're trying to do is fill the seat. Now here's here's the butt. Okay, here's the butt. The butt is as much of in favor of the Garland in

action that I was. I was totally on board with them not voting on Garland. I think the way, the extent to which they really emphasized this new rule about not voting on Supreme Court confirmations during an election year, I really wished at the time they hadn't said that.

I really wish now they hadn't said it, because while they are totally in the right to do what they are doing, there is there is this this this debate surrounding the honesty or dishonesty of Republican senators that I think looks terrible, and I really worry that it's gonna undermine not just their own credibility politicians. They can give

away their credibility whatever they want. I'm really worried that that the stench of that is the stick to the whatever great judge gets nominated, and it will follow them to the court. And I think while politics is brutal and it always has been, I think one of the things we need to keep in mind, is that politics surrounding the Supreme Court needs to have an extra measure of self restraint for the good of the court, because we need it for the good of the rule of law.

Adam White is with the American Enterprise Institute and George Mason University. What do you think of the principle of choosing court new justices according to the dying wishes of the previous justice. Yeah, you know, I'm not going to speak ill of the dead, No, certainly not, but speaking dying wishes as serious, I'll say Justice Ginsburgh from time to time ran into trouble for getting too engaged in

the political process, particularly with respect to President Trump. I really regret that she her her last statement was one calling for a quote new president to name the next Supreme Court justice. I just think that's that's really not a statesman like word message from a Supreme Court justice, and and it's not her call. Right, Let's move on to some of the women being discussed for the opening

um Amy Coney, Barrett obviously Barbara le go On. I don't know to what extent the rumor mill is accurate, but any thoughts on those two women in particular, so I really don't know anything about Barbara logo. She's she's not been sort of on the radar of the areas of law that I tend to focus on. Um Amy Coney.

Barrett obviously was thrust into the spotlight when Diane Feinstein at the last confirmation hearing for when when Barrett was going on the Lower Court, you know, Finstein said that she had too much dogma, that Barrett had too much dogma. Really to call it finley veiled is to give it too much credit. Just a blunt attack on on her,

on Judge Barrett's Catholic faith that was horribly offensive. And I think that the extent to which Judge Barrett really rose above that situation and and and and prevailed is to her great credit. Her scholarship on how to read statutes and how to balance the reading of statutes against the reading of precedents is I think among the most fundamentally important issues of the next twenty five years in

the Supreme Court. And so I think Judge Barrett, for a variety of reasons, is probably the ideal candidate for this moment in time. Some of the names that have floated around Judge Britt Grant of the one of the lower federal courts down in Georgia. I've known her since she was in the Attorney General's office down there. She's a really great lawyer, extremely smart, smart and sharp. I'm glad to see her name on the list as well.

So this is a You'll have to use some judgment on this question, because I I don't know the answer to this. The court with Ruth Bader Ginsburg on it. If you're looking at a football field and the fifty yard line is right in the middle between liberal or conservative, where was the court with her on it? So which how far do the writer left? Oh, that's hard to say. I'm from a Big ten school and we don't do

football anymore. Um. I uh So this this replacing Judge Ginsburg with say Barrett or somebody in a similar vein, is going to move them If we were at the fifty yard line before, we're moving over to about forty five forty yard line in the conservative direction. There's an opportunity to change some precedents that the liberal justices had laid down in earlier years. But also this is really important.

We could avoid some bad precedents that might have been made with just the changing of a couple of seats in a liberal direction, especially in areas of religious liberty, where Justice Ginsberd really was at the forefront of trying to trim back the Religious Freedom Restoration Act and pull back some of the protections that religious believers have in

the face of progressive administrative state regulations. UM. I think that was going to be a crucial area for for Judge Barrett or any other appointee to the Court to really avoid aid a dangerous turn. I know it's not in the Constitution that you need to have sixty votes to become a Supreme Court justice. Did you like it better when the threshold was higher than just a majority

or do you think of majority is fine? I wouldn't say I liked I definitely didn't like it better at the time, UM, because it was blocking some good judges in the George W. Bush administration. It's hard for me to put myself back in that mindset. I think that the voting threshold is really less important than the process in general. I think I think ultimately the Synate is to decide how the Senate does business in terms of

the votes. I think the more of the Senate can do to create a credible process that really does I mean bad pun but does justice to the gravity of this particular issue, the appointment of Spreme Court justices. That's a good things of gang rape and that sort of thing. Well, right, that's the problem is you don't want to belabor the process just for the sake of character assassination. That was disgusting. Uh,

and it's it's something that Republican senators have never never done. Um. But I would say trying to trying to to raise a confirmation through before election day, like you're the Dukes has are trying to to outrun Roscoe Peeke Coltrane, that's just a bad It just doesn't do justice to the gravity situation. I've I mean, I've written on this for the Bulwark and a piece that I know is pretty

out of step with with my conservative friends. I think that they should do justice to the process, even if it means voting after election day, even if President Trump loses. I think that the process, especially for this seat, I think the American people deserve to get to know this nominee the right way and not in a hurried or or or other otherwise problematic way. By the way, your writings on Duke and Duke versus Coltrane. Incredibly insightful. Adam

White with the American Enterprise Institute. Alright, final question, we gotta go there. I guess it's obligatory, um Roe v. Wade. It's just an exhausting discussion. To me, What are the chances a conservative court would actually overturn it in the next in years. It's hard to imagine, I'd say in the next twenty five years. Not hard to imagine. It's a It will take a process of case by case narrowing the precedent and really getting down to the core

abortion right and then making the big decision. But along the way it's going to require a cultural change and cultural outreach. It's the most one of the most important issues of our time. There's a great line from a liberal law professor. The problem with Roe v. Wade, it's not that it's bad constitutional law. It's that it doesn't

even pretend to be constitutional law. It's had the worst gravitational pull on everything around our court in our politics for more than forty years, and I think the moment that it's overturned will be a good moment. Adam White, Residents scholar of the American Enterprise Institute end with the end, and in Scholey Law School at George Mason University, Adam, it is always a pleasure. Thanks a million for the time you too, Well done.