John Yoo on Biden's Plans to Reform the Supreme Court

Transcript:

Michael Medved:
And another great day in this greatest nation on God's green earth, where most people would agree that one of the great institutions that has guarded this nation and helped to determine its welfare and progress on a range of issues is the Supreme Court of the United States. For the first time since Franklin Roosevelt attempted a court-packing scheme back in 1937, there is a sitting president of the United States, Joe Biden, who has introduced some fairly radical reforms that he is planning to push in the remainder of his presidency to the Supreme Court as an institution.

Who better to talk to about that than someone who has written the book, literally, on the Supreme Court for his most recent bestseller? He is also a distinguished visiting professor now with the School of Civic Leadership at the University of Texas at Austin and the holder of the Emanuel Heller Chair in Law, Distinguished Professor of Law at the University of California at Berkeley, and a non-resident senior fellow at both the American Enterprise Institute and the Stanford Institution. His book is called The Politically Incorrect Guide to the Supreme Court. It's part of that Politically Incorrect Guide series. John Yoo. Professor Yoo, always a pleasure to welcome you back.

The headline change that President Biden is committed to trying to achieve is term limits for Supreme Court justices. He wants justices limited to, I believe, 15 years on the court and then they would have to be done with their term. Is that right? Is that the idea?

John Yoo:
Yes, sometimes people refer to this as a court-packing plan, but it's actually the court-slimming plan. You might remember back in 1937, FDR tried to add six new justices to the Supreme Court because he disapproved of the court's decisions. He didn't like the fact that the court was blocking parts of the New Deal. Everybody came out against FDR's plan, and ever since then, we've had this understanding that we shouldn't try to tamper with the number of justices because we disagree with the decisions of the court, as that would be a fundamental attack on the independence of the judiciary. Biden's plan, in a way, is to sort of reduce the number of justices on the court. I think his proposal is an 18-year term limit so that each president to be able to appoint two justices, although I don't know how that would work out. The problem is that I think this runs smack into the Constitution and the framers' wishes. The Constitution says that all federal judges have their jobs for life. So, I don't see how Biden can say, which he is saying, that he can just get Congress to pass a simple statute that places a term limit on judges. If he really wants to do this, he has to go and amend the Constitution, which requires two-thirds of the Congress and three-fourths of all the states.

Michael Medved:
This is basically completely unimaginable. A lot of people think regarding the Supreme Court, you're talking about nine positions. But the so-called reform that President Biden is pushing would include all federal judicial appointments, would it not?

John Yoo:
I think that his proposal is limited to the Supreme Court for now. But I agree with you, Michael. What is the logic of limiting it to Supreme Court justices? Why not, as you say, all federal judges? If we're going down this road, why is it 18 years? What if a future president in Congress really doesn't like the Supreme Court and says you go four years or three years? Once you open the door to this, there's all kinds of incentives for politicians to start tampering with the court. I don't think that this has to do with anything fundamentally wrong with our courts or the way they've been working. In fact, when President Biden introduced this plan at the LBJ Library two days ago, he opened up by saying, "I think the court is acting strangely or weird because of the Dobbs decision or because of the gun rights decision." He's just openly saying, "I just want to change the court and the way it works because I don't like the decisions it's reaching."

Michael Medved:
One of the things that is also interesting to me is that for a long time, many conservatives have desired to institute term limits for Congress. There are state legislatures, like California, for instance, where they do have term limits for serving in the state legislature. Why would we think that it was a good idea to limit the terms of judicial appointments but not to limit the terms for members of Congress? I believe that that's also a constitutional problem, isn't it? Because they don't mention term limits in the Constitution where they're defining the role of a member of the House or the Senate.

John Yoo:
That's exactly right. In fact, in 1995, the year I clerked at the Supreme Court for Justice Thomas, we had a case where some states had tried to impose term limits on their members of Congress. The Supreme Court decided, just as you said, Michael, that the Constitution doesn't contain term limits for members of the House or the Senate, so no state can add to the qualifications required for a member for elected office. The Constitution is clear when it wants term limits. It has a two-term limit on the president that was added after FDR's four presidencies. That is pretty clear that you can't impose term limits on federal judges and particularly Supreme Court justices. In fact, there is a better case for imposing them on members of Congress or the Senate than on judges. We want judges to be separated from politics. We want them to be there for a long time to have wisdom and good judgment that they can bear on cases, rather than a system that should apply to members of the House and Senate where we might want more rotation in office.

Michael Medved:
Yes, and not the kind of rotation that Senator Menendez is representing right now. That's a different kind of rotation entirely. You have written, and I've seen several of your statements on this, that this is a political ploy, that there is absolutely no chance that any of these reforms that Joe Biden is talking about are going to come about. That's because at least two of those reforms would require, as you were talking about before, a constitutional amendment. Getting two-thirds of the Senate, two-thirds of the House, and then three-fourths of all the state legislatures. Not going to happen, is it?

John Yoo:
I agree. That's why I think it's political. Although it worries me that this is even a political proposal. It's never really been made since FDR went too far and was widely rejected by the whole country when he tried this in the 1930s.

Michael Medved:
There's a great story about that. Apparently, Roosevelt had a session where he invited some of his opponents into the White House, and he said, "You know, sometimes I'm my own worst enemy." And Senator Kerr from Oklahoma stood up and said, "Not while I'm alive, Mr. President."

John Yoo:
That's a great line. I hadn't heard that story.

Michael Medved:
Apparently, it has the great virtue of being true. There were a lot of people there. In any event, if Franklin Roosevelt, arguably the most successful politician in the entire history of the country, could admit that his court-packing was a mistake, Joe Biden, who has a somewhat less impressive record than President Roosevelt, really has to hang back on this. We will talk about the Supreme Court as an institution, where it's going, ethics questions, and more. Coming up with Professor John Yoo, the author of The Politically Incorrect Guide to the Supreme Court.

(Commercial Break)

Michael Medved:
John Yoo is not only a professor at the University of California at Berkeley Law School, he is also the author of the best-selling book The Politically Incorrect Guide to the Supreme Court, a part of the Politically Incorrect Guide series from Regnery Publishers. Yoo also served as a law clerk for John Roberts and also served as a law clerk when he was an appellate judge for Brett Kavanaugh. Is that right?

John Yoo:
Clarence Thomas.

Michael Medved:
Oh, Clarence Thomas on the Supreme Court, and then Larry Silberman on the DC Circuit, on the lower court. He was there for a long time, was he not?

John Yoo:
Oh yeah, he was there for over 20 years and was, I think, one of the most influential lower court judges.

Michael Medved:
He certainly has that reputation. In terms of right now, Axios is reporting that according to the most recent Gallup poll, only 43% of Americans approve of the way the Supreme Court is functioning, which actually surprised me. I thought it would be lower than that because the President of the United States doesn't hit 43% and Congress certainly doesn't. What's the essence of the problem with the falling approval of the Supreme Court? John Roberts apparently, throughout his tenure, has tried to moderate any appearance of radicalism on the court. Why has it worked out so differently with more and more people, mostly Democrats, who are very frustrated and disillusioned with the court?

John Yoo:
I think that the court has come under this unprecedented and highly coordinated political attack that involves not just attacking the justices for their decisions, which I think is perfectly fair fodder for political discussion, but also attacks on them as individuals, on their finances, their ethics. Remember, we had just two years ago, the leak of a Supreme Court opinion by someone in the court of the forthcoming opinion on abortion, Dobbs, which had never happened before in the history of the court. We had an assassination attempt on Justice Brett Kavanaugh as a result of that. We've had extraordinary political rhetoric being used against the justices. I think that goes beyond just saying I disagree with Dobbs, for example, if someone does or I disagree with the gun rights decision. I think opponents have really ratcheted up attacks on the court as an institution. I've been puzzling about why this is being done by progressives. So I'll say, you know, as a conservative, for example, I have no problem with gay marriage as a matter to vote on at the states. But the Supreme Court issued a decision making gay marriage a national federal right, which a lot of conservatives disagreed with. I didn't see conservatives calling for court packing. I didn't see conservatives using this kind of rhetoric against the court to a point where decisions were being leaked and assassination attempts were being made. I think this is something unique to now, and I think it's something that progressives are really engaged in. And I think it's a serious threat.

You know, Joe Biden and Kamala Harris say they're defending democracy, but at the same time, they're proposing to undermine one of the most important features of our republic, which is an independent judiciary that is there at the bottom to protect our individual rights from the majority.

Michael Medved:
And the way this works on gay marriage—and I think everybody's been surprised by this—since the Obergefell decision, where the justices discovered a right in the Constitution for same-sex marriage, the country was moving in that direction anyway. I mean, is part of the problem here that abortion has been this divisive, divisive issue that has been so fiercely debated for such a long time. It seemed all of a sudden the Supreme Court was taking a side and was not necessarily taking the most popular side.

John Yoo:
Yeah, I think the court was correct that abortion just isn't in the Constitution as a federal right. But to put that to one side, you could read what the court was doing as trying to get out of the politics of abortion, because every time someone wanted to change abortion policy, it would have to go to the Supreme Court, for the last 50 years. And this decision in Dobbs wasn't to say that the Supreme Court was going to create the same rule for the whole country, whether it's going to be pro-life or pro-choice, but to say that each state gets to decide for itself, just like we allow states to make most of the fundamental decisions about life and death, like the death penalty or euthanasia. So I think that the court might have ended up on the unpopular side of abortion, but it wasn't because they were taking a view, it was because they were sending the issue back to the political process and to the states to decide.

Michael Medved:
Do you think that there will be an attempt—if there is passage, which is unlikely right now—of a nationwide abortion ban, say after 20 weeks or 15 weeks, which was actually the issue in Mississippi in the Dobbs case originally, right? It was just a 20-week abortion ban after 20 weeks of gestation. If there is a successful national mandate for abortion or against abortion, would the court wink at that?

John Yoo:
I tell my friends who are in the pro-life movement that if they were to try to get such a statute passed, I would expect this Supreme Court to strike it down, too. Whether it's pro-life or pro-choice, the court thinks it's up to the states to decide these really difficult questions: When does life begin? When does a woman's right to choose become outweighed by the fetus's right to life? I think that conservatives or Republicans who try to use Congress to pass a uniform rule are just making the same constitutional error that they criticize Roe v. Wade for. And I would think this Supreme Court now—maybe they failed. Their hope was they could get out of this game. They don't want to make any of these decisions. They were hoping that the people will take it through the democratic system. And it's funny, they're ironically being attacked for being imperialist. And, you know, Joe Biden and Kamala Harris want to put more democratic controls on the Supreme Court when what they did was take abortion and give it back to democracy.