On April 19, Michael Waldman, president of the Brennan Center for Justice, participated in a discussion in Rapaporte Treasure Hall with Brandeis students, faculty, and the larger Waltham community about the growing need for judicial reform to check the power of the courts. In addition to being president of the Brennan Center, Waldman also served as speechwriter to Bill Clinton for four State of the Union and two inaugural addresses. He talked about his upcoming book, “The Supermajority: How the Supreme Court Divided America,” which analyzes how the conservative supermajority on the Supreme Court has the potential to undo decades of laws and redirect the future of American democracy. 

Since 2005, Waldman has led the Brennan Center, a nonpartisan law and policy institute affiliated with the New York University School of Law, as they investigate what improvements are necessary and feasible for America’s current systems of democracy and justice. One demand for judicial reform favored by many Democrats and progressives is increasing the number of justices on the Supreme Court, or “court-packing.” Waldman is against this proposal because it would be “massively unpopular” and “risks undermining the legitimacy of the Court” since court-packing could cause a retaliatory spiral and restrict pushes for change in the courts. However, during the Q&A, he said he is in favor of lower court expansion, not only because Congress could accomplish it by simply passing a law, but also because it would enable the inclusion of more people of color and women on the bench. 

Currently, the Brennan Center is researching and advocating two major reforms: an ethics code and term limits. The Supreme Court is the only federal or state court in the United States with no binding ethics code. On April 11, the Brennan Center published an analysis and opinion written by Waldman explaining why justices cannot police themselves. “There is a reason why nobody should be the judge in their own case,” Waldman said during the discussion, citing recent examples of abuses of power by Justice Clarence Thomas. While lower courts enforce recusals, which is when a judge is disqualified from a case due to a conflict of interest or lack of impartiality, no such standard is upheld at the Supreme Court, explained Waldman. 

For instance, last year, Justice Thomas heard a case before the Supreme Court involving the January 6th Committee. In an 8-1 majority vote, Thomas was the only justice who ruled against accessing presidential documents from January 6. Waldman explained that Thomas dissented because those records included texts from his wife, Virginia Thomas, to the White House Chief of Staff urging on the insurrection. Both Thomas and his wife have been aligned with supporting QAnon conspiracy theories. 

While Democrats in the Senate are holding hearings about implementing an ethics code in the Supreme Court, Waldman explained he was “not holding his breath” about the outcome due to Justice Thomas’s extensive connections. On April 6, ProPublica revealed that Justice Thomas accepted luxury trips from Harlan Crow, a billionaire Republican donor, for over 20 years. Crow sent Thomas and his wife on luxury vacations, expensive flights around the world, free resort trips, and more. The article includes a picture of the two men smoking cigars at a resort with Leonard Leo, the president of The Federalist Society, the organization that provided the names of conservative judges to President Donald Trump to nominate to the Supreme Court. According to Waldman, their network is part of an extreme legal faction that “never existed before in U.S. history.” 

Although the immediate implementation of an ethics code may not be likely, there is strong bipartisan national consensus for an 18-year term limit for Supreme Court justices, with each president allowed two appointments per presidential term. “Nobody should have that much public power for too long,” Waldman said. He recognized George Washington as the one who originally encouraged that philosophy back when he committed to only serving two presidential terms.  

Waldman explained why these reforms are especially important in light of three major Supreme Court cases from June 2022, which he analyzes extensively in his upcoming book. “There were three cases in three days, which crammed decades of social justice in those three days,” he said. The cases he refers to are Dobbs v. Jackson Women’s Health Organization, New York State Rifle & Pistol Association, Inc. v. Bruen, and West Virginia v. EPA

Most well-known is Dobbs v. Jackson, which overruled both Roe v. Wade and Planned Parenthood v. Casey, thus granting individual states the power to regulate any aspect of abortion not protected by federal law. Waldman explained how the Dobbs decision is largely due to the trend towards originalism amongst Supreme Court justices. Originalists believe that the definition of the Constitution is fixed and must be interpreted based on what the Founding Fathers intended. What this looks like in practice, Waldman said, is that “the moral views of property-owning white men in the 1700’s should govern us now.” 

For example, Matthew Hale, the former lord chief justice of England and Wales who sentenced women to death for witchcraft, is cited six times in the Dobbs case as the authority for how the United States should regulate abortion. According to The New York Times, Hale’s decisions became part of the British common law and, by extension, the common law of the United States, India, and other British colonies. 

Originalism also played a role in the Bruen case, which Waldman described as “by far the most radical Second Amendment case.” Prior to District of Columbia v. Heller, the Supreme Court believed that the Second Amendment protected the right to a militia. However, in the Heller case, the Court reinterpreted the amendment to mean an individual right to gun ownership and enabled thousands of gun laws to be struck down around the country, Waldman said. Based on the precedent established by the aforementioned Heller case, the Court ruled in the Bruen case that the ability to carry a pistol in public is a constitutional right.

The last case that Waldman analyzed in his book is West Virginia v. EPA, which curbs the power of regulatory agencies to address climate change. Unlike Dobbs and Bruen, this case did not use originalism, but rather textualism to interpret the Constitution based on the literal meaning of the words instead of what the writers intended the words to mean. The Supreme Court ruled that agencies cannot take action unless Congress specifically instructs them, said Waldman. As a result, judges can now decide what regulations to enforce based on what they like and don’t like, especially in lower courts. 

Waldman explained that theories such as originalism and textualism are not suitable bases for Supreme Court decisions because the country and people’s needs are constantly evolving, especially due to social media and digital innovation. 

“It’s okay to have a Constitution that evolves with the country,” he said. “It turns out that there is a cycle of overreach by the Supreme Court and backlash. When the Supreme Court is partisan or extreme or unduly activist, the public responds.” This response, he explained, is what will eventually lead to a reevaluation of the political system and judicial reform.