91ֱ��

Carmen Twillie Ambar: I am Carmen Twillie Ambar, president of 91ֱ��. Welcome to Running to the Noise, where I speak with all sorts of folks who are tackling our toughest problems and working to spark positive change around the world. Because here at 91ֱ��, we don’t shy away from the challenging situations that threaten to divide us. We run towards them.

Andrea Simakis: Hi everyone. I’m Andrea Simakis, director of Media Relations at 91ֱ��, and executive producer of Running to the Noise. In this episode, our host, President Carmen Twillie Ambar, talks with Benjamin Wittes, 91ֱ�� alumnus, editor-in-chief of Lawfare, and Senior Fellow in Governance Studies at the Brookings Institution.

It’s a fascinating, timely conversation, so rich in fact, that we split it into two parts. You’ll hear part one today and part two in early December. Be sure to follow Running to the Noise wherever you listen so you don’t miss an episode. All right, let’s get to it. Here’s part one of President Ambar with Ben Wittes on Running to the Noise.

Carmen: In this episode, we’re looking beyond the headlines and deep into the institutions that anchor American democracy. The Supreme Court, the Justice Department, and the rule of law itself are being tested as never before, from sweeping decisions that expand presidential power to partisan attacks that threaten the independence of our courts and prosecutors.

To help us understand how we got here and what’s at stake, I’m joined by Benjamin Wittes, 91ֱ�� class of 1991. Ben is a senior fellow in governance studies at the Brookings Institution and the co-founder and editor-in-chief of Lawfare, a publication and podcast devoted to clear-eyed, nonpartisan analysis of some of the thorniest legal and policy questions facing this country.

Together, we talk about the Supreme Court’s recent rulings, the Justice Department’s shifting norms, and the growing struggle to preserve the public’s faith in the American justice system and what it might take to keep it from slipping away. Ben Wittes, welcome to Running to the Noise. We are so excited to have you here.

Ben Wittes: Pleasure to be here.

Carmen: Thanks for having me. I’m hoping that you can make me feel better about the world, but you’ve assured me that maybe that’s not going to be what happens here.

Ben: I suspect people do not want to talk to me these days because of the rays of sunshine emanating from my face.

Carmen: Well, at a minimum, maybe we can illuminate what’s happening even if we don’t feel better about it. But before we get into the Justice Department, the Supreme Court where you spend your time and focus, I thought it might help the audience to get a little bit of history. You’re an English major here at 91ֱ��, and somehow in a wonderful way, you’ve become one of the court watchers that I pay attention to and that lots of people pay attention to. And I’m wondering if maybe you can give the audience a sense of that arc—like how you got to this moment as you leave 91ֱ��, this eager English major I’m sure, but into this space that we now know you for. It’s an interesting journey.

Ben: And I left 91ֱ�� in the winter of 1990 knowing nothing about what I wanted to do, except that I wanted to write. And I thought that that meant that I wanted to write fiction. And I spent much of the next couple years trying to write fiction, and I found that I was just terrible at it. Because it turns out that writing fiction does not actually involve just the skills of writing, which I knew I was very good at. It involves skills like imagination and being able to make up stories and being able to get inside imaginary people’s heads. And you don’t know how uncreative you are until you try something like that and realize that I have actually no narrative imagination at all.

And you know, it was kind of a painful process. I’m joking about it now, but it was tough. I’m not used to being bad at things, and just spending a couple of years realizing, oh—this isn’t working, and the reason it’s not working is that I’m not good at it.

Carmen: Wow. What a great lesson for our students about how you pivot. Yes—how you pivot when it’s not quite working.

Ben: All of the technical skills are there. And so then I started freelance journalism. Everybody wanted to publish me. The thing that was missing was that I couldn’t make up stories. And if I just didn’t bother to try, and I talked to real people, and I went into document records rooms—this was before the internet. And so if you wanted government documents, you would go into the Federal Election Commission and go through their public records room.

Carmen: Wow. So a couple of things come to mind when we are talking about this. And you remember this, Eric—we never referred to judges as Trump appointees or Obama appoin—
 down to the Federal Records Commission and go and look at the archives. Right?

Ben: Yeah. And I found that I had this skill that I could walk into a public records room and walk out with a story. And then all these skills that I was trying to apply to something that I wasn’t good at, I was trying to apply to something that I was very good at, which was telling stories that were actually true.

All of a sudden, people started publishing me. A few years after I graduated from 91ֱ��, I went to work for a small newspaper called Legal Times, which was a trade paper in Washington that covered law and lobbying and, yes, sort of the influence industry. I was there for three and a half years and fell in love with doing journalism and the law, and ended up writing the legal affairs editorials for the Washington Post.

So that’s my—

Carmen: Fantastic.

Ben: That’s my sort of—

Carmen: Origin story. I think it’s fascinating for people to know that you don’t have a law degree. I think it’s really interesting—this pivot into a space that some people might have thought, well, law school is the natural thing to do. Right?

Ben: You know, I might have gone to law school if I had ever affirmatively made a decision—“Wow, I want to be a legal journalist.” Then I might have said, well, I should probably know something about the law, and the way you do that is go to law school. But there was never a point in my life when that happened. There was just a drift of subject matter. I was doing journalism. I kind of fell in love with writing about the law, and then there was this added refinement. I started writing about the national security corners of the law.

And this was significantly before 9/11. By the time 9/11 came around and I was working at the Post, there were very few journalists around who knew the justice system who also had spent time in the national security communities. And so there was this yawning vacuum for people who were serious about law and serious about the intelligence community and how to think about problems like detention of large numbers of people you might be picking up in Afghanistan. What about drone strikes? It was an area where there was a lot of churn in the law, a lot of churn in the community, and you know—there weren’t that many people who knew their way around the Foreign Intelligence Surveillance Act.

Carmen: I’m wondering now, in retrospect, do you think that you are better served by not having a law degree? In the way you approach your work? Is it better served by not having that grounding—or maybe that albatross? I don’t know which way to describe it.

Ben: So I’m going to give you a completely honest answer, which is that there are people who do what I do who have law degrees. There are people who do what I do who don’t have law degrees. I think at the point at which you’ve been doing it for 20 or 30 years, your educational background is not the most important thing. The most important thing, in my experience, is related to that English major. Do you know how to read a poem? Do you know how to do a deep read of something? Do you come out of one of those traditions that actually takes a text and mines it for meaning?

And that can be the sort of Jesuitical canon law debates. People who grow up in Orthodox Jewish environments are really, really good at this often. And people who are English majors—there’s something not very different about the problem of reading a sonnet and the problem of reading a statute.

Carmen: Oh my gosh. Okay. So you’re making the liberal arts college president die with joy here. I get it on purpose—but it happens to be true. I love it because we talk a lot here at 91ֱ�� about the ability to analyze complexity. How do you take complex things and break them down in their component parts and come out with new and enhanced thinking? This ability to think in complex ways, to have cultural competencies—all these things that we talk about in the liberal arts you have demonstrated in your career. And we count it as one of our great successes when we see people like you who have whatever the background is here at 91ֱ�� doing these things that wouldn’t have been natural ideas at the beginning, but here you are: the person that I certainly look to when I want to know what’s happening in the Justice Department or at the Supreme Court. That is really a success story in so many ways.

Ben: Not to throw back the compliment in the face of the liberal arts college president, but people often look at my career and they say, “I don’t understand the continuity. You never went to law school. You don’t have a graduate degree at all. You majored in English literature and Japanese history.” I actually think there’s a lot of continuity. I studied things that involved learning things deeply and learning how to deal with texts. And what I do for a living is I deal with texts. I deal with complex texts feeding other texts—briefs that feed opinions, opinions that feed each other, and the interaction of those texts with real-world events.

And those real-world events can be the Meiji Restoration in 19th-century Japan, or they can be what’s happening right now. But I feel like the classroom and reading preparation that I got for the work that I do at 91ֱ��—I’m not going to say I had it all planned out and I knew what I was training for, but boy, was it good training for what I do.

Carmen: We love it. That’s so fantastic. Well, let’s get into the Supreme Court a little bit and then we’ll see if we can tackle the Justice Department. One of the first things I want to maybe try to understand about this season that we’re in with this Supreme Court is: What are you paying attention to? And not just the particular case that we all have questions about, but maybe you can give us kind of a 30,000-foot view of—when you look at that institution—what are the two or three things that you’re paying attention to, to help you understand how we should think about this Roberts era, for lack of a better term?

Ben: Let’s talk about themes instead of cases. Because once you start talking about cases, you dive down rabbit holes. So one major theme—and all of these themes clearly exist, the question is: Where is the rheostat from zero (it’s not a factor at all) to ten (it’s dominating everything)? One is the conservative / non-conservative divide on the court.

So you have six justices on that court who are appointed by conservative presidents. They have very different visions of what it means to be a conservative judge. Amy Coney Barrett is not Chief Justice John Roberts. John Roberts is not Brett Kavanaugh. Brett Kavanaugh is not Clarence Thomas. They’re different minds, but they do have this idea in common that we call conservative—being a conservative jurist.

This is why we have a 6–3 majority split on the court. And it is a dominant theme. But there’s a sub-question—or really many sub-questions—which is the second theme: To what extent does conservatism, in that sense of the word, equate with support for or backing of the authority of the Trump administration to do the things that it’s doing?

And that question is much more complicated than the conservative/liberal divide. The “How do you translate conservatism into interactions with the administration?” is an even more complicated question. In all of these people’s lives, we have a lot of years of service and writing to situate against the first question. And we have nine months of interactions to think about that second question.

Carmen: Yeah.

Ben: They clearly have very different instincts about that.

Carmen: That is so helpful because some of the audience knows I’m a lawyer by training. That second sub-question has been the confounding space because we have some history of understanding your first part of the question, which is conservatism and a kind of ideological perspective, how it interacts around these issues before the Supreme Court. We have some time with that—we kind of understand how that might play out.

The second part of this question—how that plays out in connection with this administration’s vision for the world—is so helpful. And also your illumination of these different types of conservatives that sit there and their view of it, which is why it feels, I think to most of us, like a lack of stability. Where are they going with this?

Ben: In a normal Supreme Court term, you put a case in front of me and say, “How’s this one going to go?” I’m not going to get it right 100% of the time, and I’m certainly not going to get the vote breakdown right. But you know, if you say, “Okay, how’s Justice Alito going to look at this case?” I’m going to be able to give you a reasonable range of possibility that the answer is in.

And right now, we’re dealing with a much greater range of uncertainty because you’re dealing with people—and this is my third big theme—whose conservatism was not forged by this set of issues. And they are operating under enormous time stress. These are extremely high-stakes cases that carry immense consequences right now.

If you let the lower court ruling stand, this federal agency is going to be dismantled in 48 hours. If you don’t let the lower court opinion stand, so-and-so is going to be deported in an hour and a half. These are really high-stakes questions for people’s lives, their jobs, their liberty. You have very limited time in which to do it.

By the way, the Supreme Court is the most luxurious institution in this regard. The ones who really have it rough are the district judges. But it is stressful, and they’re under a microscope, and they clearly have very different instincts about how to handle emergency docket matters.

Carmen: Yes.

Ben: One really important theme here is: Is there a difference between the way they handle stuff when it comes up in the emergency docket and the way they handle that same issue when it comes back two years later as a merits matter? Is it possible—I’m hinting here that I think it is—that they are going to be much more deferential to the administration on the emergency docket? They’re going to allow a lot of things that maybe they’re not going to allow a year and a half from now when the full merits are briefed.

If you think about those three themes, they give you a set of color filters through which to look at the big questions the Supreme Court is tackling.

Carmen: That is so helpful. I guess I want to stay on these emergency orders. Some people have viewed it as a “shadow docket” approach, because that has been an area where I think lots of people have felt there has been—as you described it—such deference to this administration. Layered on top of that is a sense that this administration is willing to go quickly to the outcome they want to achieve. Their lack of willingness to constrain the administration might mean that the decision doesn’t matter two years from now.

Ben: Exactly. The benefit of the way the Supreme Court is operating—what Chief Justice Roberts would say if he were here—is: We can’t be the micromanagers of real-time presidential action. That’s not what the judiciary is for. So things have to go according to the regular order, and that means on emergency stuff, we have to be more deferential to the president. Eventually they’re going to have to defend the legality of what they did, and then we take a much closer look.

So conceptually, there’s a lot of value to that point of view.

Carmen: Stepping outside of the issue of the moment, you go: Well, that’s not totally unreasonable, that perspective.

Ben: But then there is this other problem. This is not a plausible way to handle people who’ve driven up cranes with wrecking balls to multiple buildings at a time. And you find out two years from now that actually all those wrecking balls were illegal—but the buildings are still destroyed.

I think that’s what’s going to happen with a lot of, for example, the federal agency cases, where they just fired a huge number of people, by the way. And I think it was frankly and flamboyantly illegal. And what the Supreme Court has said is: We’re not saying that it was legal, but you can’t litigate it together as a prospective group. You can’t dismantle USAID. You can’t just dismantle this agency. You have to litigate these as independent employment actions against a bunch of people that you fired.

Eventually, all those people are going to win—but they still don’t have jobs. What they’re going to get is compensation.

Carmen: That’s right. And the irreparable harm to institutions that we don’t know whether we can rebuild effectively and recapture whatever we think was important about USAID, the Department of Education—name it.

Ben: That doesn’t figure in the irreparable harm analysis. The irreparable harm analysis focuses on the harm to the individual. By the way, it’s not irreparable because you can pay them. It’s a very unfortunate way to look at the thing because it allows you to miss the forest for the trees. Each tree is reparable, but the forest is not.

And by the way, this same dynamic plays out across a lot of different case areas.

Carmen: Absolutely. Now that you have honed me in on how I might be thinking about this—I walk through the Voting Rights Act decision coming up, the immunity decision that I pained about, all of these things. You go: Okay, I get where they’re coming from, and yet I wonder whether we’ll have our country at the end of it all.

Ben: Right. And this is where I really fault particularly the Chief and Justice Kavanaugh, and yes, Amy Coney Barrett—who are the three who I think have shown the most interest in the substantive arguments of the plaintiffs. But they seem very complacent about allowing the default rule to be: Alright, this may take two years, but we’re not going to stop the administration from doing its thing during that time. We’ll figure out, in the due course of time, whether it was legal or not.

I worry very much about the damage done in the interim while that default rule plays out. A huge amount of it plays out in the immigration context. If we find out that a lot of these actions are illegal—a lot of people have been deported in that time. And they’ve been locked up even if they haven’t been deported.

My biggest complaint about the Supreme Court right now is not actually the substance of what it’s ruled. It’s that it seems to feel no urgency about doing it quickly and creating default standards that kind of freeze things in place, while sort of allowing the administration to—I mean, they just literally bulldozed the East Wing of the White House. So using bulldozer metaphors feels appropriate to a Washingtonian.

Carmen: That’s right. But it feels like in the same way that other institutions haven’t been able to shift their ability to respond to an aggressive administration moving with purpose and speed—that maybe the Supreme Court is also in that same space. It hasn’t figured out its ability to respond to this type of administration’s approach. Losing the forest for the trees.

And look, some of that is—

Ben: They don’t want to. And this is where the division among the conservative judges really matters. Some of them are actively sympathetic to what the administration is doing.

Carmen: They’re happy about it—just like “this feels right.”

Ben: I’m thinking here particularly of Justices Alito and Thomas. They actively like it. Some of them are deeply uncomfortable about certain aspects but feel very inhibited about responding to it. And then some of them—I think the executive branch can, as Hamilton said, act with secrecy and dispatch and a lot of unity and purpose. And the judiciary can’t. There’s a mismatch in capabilities that I think has caught them pretty flat-footed.

Carmen: I feel like I am understanding this more. I don’t feel better necessarily—I did warn you about that—but I understand it.

I guess one more comment about Justice Roberts, because I think people in this audience will have varying different political perspectives. I have always respected Justice Roberts, although I don’t think we’re politically aligned, because I remember watching his confirmation hearing very closely. He has established, I think, that he’s an institutionalist—that he values the Supreme Court. I think he does care about its reputation and people’s view of it as maybe becoming partisan and not viewed as an objective arbiter of the law.

I’m wondering whether you feel like he is going to have the ability to right this ship—whether his primary view about the institutional nature of the Supreme Court, does he have the wherewithal to pull us back from the brink? Or is he squarely in the space you’ve described, which is: He’s so concerned about the tree that he’s just not going to be willing to think about the forest.

Ben: Chief Justice Roberts is somebody that I’ve known for 20 plus years now. I’m fond of him personally. And I have a lot of respect for him, and I would never have described myself until the last sort of two years as a particular critic of his. I don’t have a deep discomfort with a lot of things that a lot of people find uncomfortable about Roberts.

The last couple of years, he has really disserved his legacy, starting with the 14th Amendment disqualification opinions, continuing through the immunity opinion, which I found shocking. I—oh gosh—

Carmen: We absolutely have to talk about that, because I found that one shocking too. That was one that I thought no matter what your political perspectives or ideology, that one I thought was a clear call. They’re just gonna get that right. That is—

Ben: What I thought too. And actually, I believe the first piece written anywhere, published anywhere, with the idea of “what if we took this idea of immunity seriously?”—I believe that article was by me. I did it as kind of a parlor game, like what’s the best argument I could make for immunity? This was before the president’s lawyers had filed the immunity brief at all, but they had said they were going to. I tried to kind of, as a thought experiment, sit down and write: What would they say? Okay, what might it say?

I was in no sense trying to anticipate the direction of the Supreme Court on the matter, and I thought it was just this side of a joke. Just comical. “Let’s do this little satirical—” you know, it wasn’t satirical, it was more like: okay, the president’s lawyer says he’s going to file this brief, let’s try to think it through. But it never dawned on me that there would be six votes on the Supreme Court for it.

And then continuing through the early months of this administration, I have been consistently surprised at how unwilling he has been to throw his body in front of the train, and to posture the Supreme Court in a similar way. And I want to do one very specific example of this that I just find bewildering.

Carmen: Okay?

Ben: So this is in the birthright citizenship case. I don’t know whether there are nine justices or seven who will vote that the administration cannot change the nature of citizenship in the Constitution by executive order, and that if you are, in fact, born in the United States—even of an undocumented immigrant—you are nonetheless a citizen of the United States.

And by the way, just read the 14th Amendment, which says all persons born or naturalized in the United States are citizens of the United States.

Carmen: Talk about plain language, right? I mean, it’s not—

Ben: A subtle issue, right?

Carmen: It’s not subtle at all.

Ben: And so it comes up to the Supreme Court on the emergency docket. They let this executive order go into effect. Now, it still hasn’t gone into effect for other reasons, but they allowed it to go into effect, again without prejudice to the question of how they’re going to rule on the merits of it.

And I have no doubt that when the final opinion comes out, John Roberts will be on the right side of it. But given that—given that he knows how to read the 14th Amendment, he’s not going to write an opinion that says, “When they say persons, they mean persons who are here of parents who were here legally.” He’s not going to say that.

Carmen: Yeah.

Ben: And given that—why would you let something that you know to be unconstitutional, you know that you are going to find that it’s unconstitutional, why would you create a default environment in which that is actually allowed to be effectuated? That’s a particularly dramatic example of it, but I do think he is—I would use the word disappointed. I don’t believe his job is to make me happy, but I’m troubled by a lot of what I’ve seen from the chief, and I am saddened by it.

Carmen: Yeah. I want to just—and maybe you don’t have an answer to this, so I get it, because I’m trying not to have this conversation in a partisan framework, because I think an analysis of the Supreme Court sometimes requires you to step back from political beliefs, those of us who want to believe in the objectivity of the law and this calling balls and strikes fairly.

But you’ve expressed a sort of surprise and concern and maybe disappointment about why he hasn’t chosen in some of these more clear cases. And I think a partisan would say he hasn’t because he has a political ideology that he is interested in, and he’s willing to live with these kind of objectionable outcomes because the vision that this administration is declaring for the country is writ large a vision that he agrees with. And so he’s willing to live with the china shop being broken a little bit, right? He wants this political outcome. Is that too harsh? Without looking into his soul, right? You did not look into his eyes. You had to look into Putin’s eyes—

Ben: And see his heart. I don’t honestly know how to answer that question. I will say I expected him to be more willing to put the institutional prestige of the court on the line on some of these issues than he has been. And by the way, I expected the same of Amy Coney Barrett. And I really expected it of Brett Kavanaugh, with whom I was close friends for a long time. We don’t speak anymore.

This point isn’t limited to the chief by any means. But Justice Kavanaugh—when he was a D.C. Circuit judge—he used to write book reviews for Lawfare. We have been on panels together many times. We were co-speakers at a law review conference once—I mean, this is somebody I really felt like I knew pretty well.

There are several factors with this group of people that are going on. One is a genuine, earnest belief that the court has to defer to executive power on certain matters. One is, I’m sure, a degree of ideological sympathy with some of the premises. One is a sense of being overwhelmed and caught flat-footed and not wanting to make rulings that are going to have broad implications for the way the courts get involved in administrative law issues, in routine matters in the future. And some is just—at the end of the day, there are six and there are three, and we’re on the side of the six. And there’s a team thing going on there. That’s not quite partisanship, but it’s—

Carmen: But that’s painful to hear, Ben. That’s painful to hear.

Ben: I do think it’s part of the picture. I spent a lot of time not accepting that that was part of what’s going on, but I do think increasingly we live in polarized times and the courts are not immune from that. Some of the circuit courts have shown remarkable immunity. When you read the Fourth Circuit opinions these days, and some of the D.C. Circuit opinions—although the D.C. Circuit has a little bit of this too—you know, it really can be very difficult to tell who’s a conservative judge and who’s a liberal judge.

And at the district court level, it’s been spectacular. But the Supreme Court—there’s—I just think it’s very hard not to look at the court now and see a strong political or ideological effect.

I don’t remem— that’s just not how we talked about judges. Given what you said, the loss in faith in institutions at large, but the Supreme Court in particular—what would you say to the American citizenry about that perspective? You seem to be saying to us that the loss in faith in the Supreme Court is a legitimate feeling, that you are right to feel differently than maybe you felt about the Supreme Court 15 years ago in an objective, nonpartisan analysis of what’s happening.

Ben: I would be lying if I said I had the same confidence in the Supreme Court that I did 15 years ago. And there may be value to that civic lie.

Carmen: Yeah.

Ben: But it’s a lie. At least in my case. When I wrote editorials for the Washington Post, I very frequently—unless there was a reason to include it—would never include the party of the appointing presidents when I was referring to a judge.

When we do on Lawfare now analysis of this stuff, we routinely include that information. And we include it not because we’re cynical about the courts, but because in cases where we all know that there is going to be that 6–3 divide, why would you deprive your reader of that information? Of that understanding?

And at the lower court level, it’s important to me for our readers to know that when we praise an opinion by Judge So-and-So, Judge So-and-So may be a first-term Trump appointee—for example, Judge Immergut in Portland. And I want people to understand that the district bench is really apolitical and is really—

Carmen: Well, you’re right in that case, right? It’s important. It’s—and the opportunity maybe to establish a sense of faith, because you hear this appointment that seems like it should go in this particular political direction and it’s going in opposition to it, and maybe we can—because you’re right, the district courts have held up.

Ben: And it was important in this jurisdiction and in Washington, and this was true of a lot of the January 6th prosecutions. Were you better off in front of Judge Kelly, who was appointed by President Trump, if you were a Proud Boy, than in front of Judge Mehta, who was an Obama appointee? No. And Judge Kelly did a superb job in that case. And by the way, just did a superb job in a more recent immigration case that could have been an awful disaster and wasn’t because of the way he and Judge Sukumaran—who was appointed by Biden—serially handled it.

And in Maryland, if you go across the border, Judge Xinis—when the Fourth Circuit reviewed her rulings, Judge Harvey Wilkinson, who’s one of the lion conservatives of that court and a very celebrated Reagan-era conservative thinker—it mattered that he wrote: “This is a very fine district judge doing her job as she’s supposed to be doing it.” It matters when the courts come together and insist that what separates a good judge from a bad judge is the quality of their work product, not the person who appoints them.

So it matters to me in both directions. I think people should be asking the question: Why are all these things happening on the emergency docket on a 6–3 basis? Is that because the three have Trump derangement syndrome? Is it because the six are too tolerant? Or is it because there’s some genuine philosophical thing that leads to this split that just happens to track with our sense of political ideology?

Carmen: Yeah.

Ben: Well, I’m too old and too grouchy to pretend that there’s no element of politics.

Carmen: I hate to even ask this question, because I would never have asked this question seven or eight years ago, or 10 years ago. But I’m wondering when you hear the kind of political conversations around changing the size of the court, packing the court—that kind of conversation that, as an institutionalist myself, I would have just objected to, like: Why are we even talking about that?

But I’m wondering, given where we are and the Supreme Court’s seemingly inability to respond to the moment in time, what you would say to people who express that as a solution to the moment that we’re in.

Ben: So I have an allergy to it. I do think: Where does it end? And if you have a temporary majority that can expand the court to 11, the other side is going to have a temporary majority that can expand it to 13. And you get into a kind of tit-for-tat war that is very similar in character to what has happened with judicial confirmations.

Carmen: Yes.

Ben: And that actually has a tendency to polarize things further. So I’m against it. There is a natural solution to this problem, which is the actuarial tables. People don’t live forever. And the right answer to the problem is to win enough elections that you’re not afraid of the next death or retirement on the Supreme Court.

But that said, I’m less hostile—

Carmen: To it than I used to be. I think that that is a statement in and of itself. I would describe myself in the same way—like allergic, like: Look, we’re not gonna consider stuff like that. That’s just not how we’re gonna operate.

But to your point about elections, I think that some people would say, given how they might think about the Voting Rights Act, or this notion of creating a permanent minority ruling party for lack of a better term—that if that’s the way we’re going to do things, how do you find your way out of a Supreme Court that is at best nicely acquiescent or neutral, and a political process that now has become solely focused on polarized partisan politics with no way for compromise, and a ruling minority perspective—some might say—as the one carrying the day. How do you find your way out of that?

Ben: First of all, I think this is an area where politics has to be downstream of culture. And by the way, you’re being too kind to the Supreme Court on the Voting Rights Act. They’re the driver on that issue. That is not a situation where they are merely being too tolerant of the executive branch. That is a set of ideas that comes from the Supreme Court, and that the executive is actually responding to.

At some point, we do get the government that we want. And if the public votes for people who are contemptuous of civic virtue, who promise to politicize the courts, who then work aggressively to do that, and who destroy the institutions of law enforcement that are bulwarks of our civil liberties among other things—there is no reform that can solve that problem. There’s no reform we can institute that will prevent justices from doing X, Y, and Z.

This is something that lives in the heart of the citizenry, or it doesn’t. Let me give you one example of this: Until the Heller case, the right to own a gun was sitting there in the Constitution, if you read it that way—many people do—but there was no Supreme Court opinion that said that means you have an individual right to own a gun. And yet the Second Amendment was one of the most powerful rights in the Constitution all through the 19th and 20th centuries.

People were able to own guns despite the fact that, unlike the First Amendment, which had this huge body of jurisprudence, there was virtually no interpretation of the Second Amendment and nothing that said, “The government may not prevent Benjamin Wittes from having a gun.” Why is that? The answer is because it lived in the heart of an energized political constituency.

This is a deeply ingrained thing, and it was enforced politically. That’s what actually makes constitutional fabric work. And if we don’t believe in civic virtue—if we don’t believe the courts should behave apolitically and we’re going to appoint people who won’t behave that way—there’s no reform process that will substitute for that.

My basic conviction is that it starts at very individual levels—people lying down in front of traffic and in front of trains, metaphorically speaking, in exactly the way that they would expect John Roberts to do. And that’s a one-person-at-a-time, one-act-at-a-time kind of thing. But I don’t know a substitute for it.

Carmen: It reminds me so much of something my dad used to say to me that I always found painful to hear, but once you accept it, it changes the way you think about your role. My dad would always say to me: “You are where you want to be. You are where you want to be.” And I would go: “No, that’s not really true, Dad, I’m this and that—” “No, Carmen. You are where you want to be.”

And what you’re saying to the American citizenry is: You can lament what’s happening in this space in all these ways, but you are where you want to be, because you have chosen to allow this kind of partisan appointment, this political polarization. We are where we want to be. It’s in the heart of the citizenry, what we are experiencing now. That is a tough realization.

Ben: It’s the famous Lockean conception of government by the consent of the governed.

Carmen: Yes.

Ben: And what I would ask is: Do you consent? And if the answer to that is no, what are you doing exactly that reflects your lack of consent? And if the answer to that is: “In my heart I don’t consent, but in my day-to-day life I do consent,” then query whether you’re voting with your feet.

Carmen: Oh my God, I have to say, this conversation has made me both sad and happy at the same time because it’s just truthful. And even though sometimes the truth is hard to hear, it sometimes is comforting that it’s just straightforward.

Thanks for listening to Running to the Noise, a podcast produced by 91ֱ��. Our music is composed by Professor of Jazz Guitar Bobby Ferrazza and performed by the 91ֱ�� Sonny Rollins Jazz Ensemble, a student group created through the support of the legendary jazz musician.

If you enjoyed the show, be sure to hit that subscribe button, leave us a review, and share this episode online so Obies and other folks can find this too. I’m Carmen Twillie Ambar, and I’ll be back soon with more great conversations from thought leaders on and off our campus.