. . . . >> ian for launch of the book the agenda a republican supreme court is reshaping america. ian is senior correspondent at box where he focus on the supreme court, the constitution and the decline of liberal

democracy in the united states. he's author of justices, supreme court's history of comforting the comfortable and afflicting the afflicted. and his writings appeared in "new york times" the guardian the nation american prospect and the yale law and policy review. he received his jv from duke university and clark for derrick l. clay of the united states court i appeals for the 6th circuit lived in arlington were virginia. joining ian in conversation is -- arin senior correspondent at new york magazine and coauthor of notorious rbg life and time of ruth bader ginsburg without further adieu join me in welcoming ian to the stage. >> we will have this in one

sec -- hi everyone. thank you so much. hi ian. >> hi erin how's it going? >> going okay. want to get to talk to you usually i have legal conference or waiting in line for a legal speaker. but how wonderful it is that we get to be in conversation about your important and substantive book -- [laughter] and yeah, ian and i are colleagues at box media, so let's get it started. i know i always lernled from everything that i read that you write with -- honestly a ferocious feat. [laughter] i'm going start out by asking a simple question and if anybody who has registered for this event is wongd wondering same thick and how screws are we right now? >> we're pretty --

[bleep] >> with the internet we are. >> considered the f word here. >> let's do it. >> it is bad. and here is what i'm afraid of. so most of, you know, in a democracy sometimes gets elected and you have an election and that's your remedy. and i did not like donald trump but we had another election we have a new guy in. and like now we should be tiebl move in a different direction. and i think one of the things that's so troubling, a troubling judiciary fact that justices retire like, you know, trump served one term he goat three pickings. you know, bush and obama served two terms an they only got two picks each so like -- there's a certain randomness to leak what presidents get picked it means that some presidents get elected and their policies effectively stretch for 40

years. and other presidents get elected and they spend their presidency beating their head against a wall that the court keeps putting in front of them, and so -- you know, i just worried about the fact that we have kind of this fluke president didn't even win the popular vote. you know probably wouldn't have been president if it wasn't for like a bunch of, you know, e-mails and you know james comey -- you know like kind of is accidental president. who was unpopular throughout his entire term. but now his policies are going to shape the judiciary for potential next 40 years, and you know before we get into the specifics, i will say that what makes it especially troubling is that many of those policies are themselves anti-democrat you know i spent a lot of time in the book talking about how the supreme court is with the voting rights act, about how they are shifting power around within our government and ways that benefit

the republican party. so you know, justice gorsuch and kavanaugh pushes a doctrine that shift the power to set election policy within a state from democratic governors and states like wisconsin and michigan. and towards jerry republican legislatures there are a bunch of powers that like the environmental protection agency is historically had. the department of health and human services has historically had. the ability to control admission by power plant. the ability to say that insurance companies have to cover both control or cancer screenings or pediatric care. and those are typically been the purview of the executive branch. and the supreme court, you know, get into more detail about this in a bit is shifting that power to the judiciary. which is the one unelected branch so i worry about is not

just to have this continuation of bad policies moving forward. but the bad policies are themselves destructive to democracy and will make it very, very difficult for, you know, for the voters to change course. >> right something that i think is really important that you make very clear in the book is that -- those that they're going use to undermine a democracy process are relatively obscure or like they are not ones that are going grab the headlines. which i think is a challenge so those of us who write for a brown republic about how to make this apparent without sort of every day running around like chick witness their heads cut off or getting bogged down in weeds kind of finding appropriate balance of how serious this is -- without making people shut down. so -- but i want to go back to something that you said. because you said he was an accidental president, and perhaps it was a fluke of the three states.

but what was not accidental is the sort of broader conservative strategy around the court so i wonder before we get into what's going to happen now if you can just historically ground it a little bit, in terms of why was it that when this -- horror show of a person it was elected that the republican legal movement was so ready to mobilize to take advantage of that moment? >> got you. so few thought there is. first of all -- we're coming out of now really a kind of a lost decade for congress. you know, i'm from 20 from i guess 2011 when the republican house came in and took away obama ability to legislate until 2020 when the pandemic really forced the congress couldn't do nothing in the face of that. we just didn't have any major legislation passed instead of the tax bill. you know, and the supreme court did a ton of stuff like read that off in a bit. but we had like --

the legislative branch kind of just to be like ceased it to function for this lost decade. part of the reason why that happened is because i think that republicans realized they didn't -- they don't need congress. you know, they realized that they could implement most of what they want to accomplish through the judiciary provided that they control enough seats. and so mitch mcconnell didn't pass much legislation while donald trump was president. but he didn't need to he just kept confirming judges. [laughter] not only did rekeep confirming judges, butting so trump as i said has three feats on the supreme court obama only got two even though president for twice as long. there are now more -- >> three in those terms. >> right. i'm getting to that part. there are more trump judges kurnghtsly sitting on u.s. court of appeals than there are obama judges i believe there are 53 trump judges sitting on u.s.

court of appeals one step down from the supreme court. and there's i think only 50 or 51 obama judges reason for that is what you said. for the last two years of obama's presidency, mitch mcconnell basically shut down judicial confirmation actually there was -- there were two circuit judges that got through but that's, i mean, bush got ten or 11 through in the last -- in the last two years as president, and then, of course, there was merritt garland so had an inside impact on the court part it have was that mitch mcconnell was waiting for this moment but a huge part of it was that -- trump effectively filled all he should have gotten in a four-year term plus all of the seats that balm should have gotten to fill in the last two years. and so instead of a two term president with two terms worth of influence on judiciary and one term president who had half as much influence on the

judiciary. you wound up having two president who is had effectively six years worth of impact on the judiciary. and again the reason why they did this was because they understood how powerful the courts are. they understand that if you control who is the right to vote, or if you control jerry then it doesn't matter who wins election they understood that if you control who is the power to regulate -- then even when there's, you know, a president of a certain -- you know that you don't like in part follow not going to matteru understood you have a chapter about religion and how like -- the court keeps on carving out this is something that you and i have covered for god a decade now. >> it is like a ground log day cases. >> and they keep getting worse. but -- like -- there's this idea you know like -- basically what a lot of religious conservatives are asking for is that they want to

have immunity from the wall if they october strongly enough to a lull they don't want to have to follow it. i don't get to do that you don't get to do that but if you control court then you can have that. >> so i want to stop you there because i think you know you do explain this in the book in a way that is so satisfying and concise but here's what i say if i don't know the answer. wait a minute, i thought liberals with the judicial exodus who were the ones who were policy making through the courts such as gay marriage and abortion right which is, you know, supposedly judicial fiat created new rights they have run successfully for so long on a notion that it is liberals who are thwarting democratic will and so -- i'm wondering you know, this is again huge air quotes on video so i'll do air quotes is it both sides hypocrisy that after the war on court and enjoying the

court creating policy making, now all of a sudden looking for judicial humility and conversely are republicans and hypocrisy with a moment they have gotten into power in the judicial branch and maybe you know, sometimes getting the presidency but not consistently sometimes getting congress not consistently. but now all of a sudden they're fans of policy making through the courts. how do you reconcile what could be perceived by other frankly as hypocrisy? dges yeah. so i mean it is true jack has a good paper on this. it is true that like -- political movement it is that control the judiciary tend to be more keen on judicial power, and political that do not control judiciary tend to be really keen on judicial restraighten i don't think i do need to explain why that might be the case but you know, that said, so let me just give you walk you through a quick 100 year history was

supreme court. so -- hundreds -- for this -- hundred years ago we were relived in the lockner era after lockner view new york and supreme court often for completely made up reasons -- struck down labor legislation they actually struck down a child law saying it is unconstitutional to ban child labor. they struck down law limiting number of hour it is that workers could work. struck down minimum wage laws, you know, just -- you know, this supreme court basically set itself up as -- you know sort of the national sensor, you know the people who have the power to veto any law they did it like -- and given the pleks of who was on the court they didn't like a lot of lay of the law so they struck it all down. and this came into a head during roosevelt year when they start striking down a lot of new deal policy. you know, some unplausible ground some on extraordinarily

serious ground. and really could have taken this two ways. i mean, like if you go back and you look at what liberal thinkers were saying in the 1930s. you know, there were people who were saying like -- the court should be in the business of protecting unions. and like court should make up doctrines to protect unions in the same way that these conservative justice have to make up doctrines to protect management. you know there were people who were saying that courts should become an arm of the new deal and implement roosevelt policies on their own. and roosevelt you know and i think to his credit -- said no, like -- i was elected. i have a mandate and like we have democracy, so i want the courts to back off. and that was mostly what he wanted from his job so that he got it. he got the courts to back all. they didn't back off completely. so one of the --

i mean i think actually the most important decision of the 21st of the 20th century even more significant than now was a case called products -- and caroline product said in almost new cases knew what democracy is for rule. so almost all cases should defer to legislature and were necessary to executives. but there are some exceptions. you know, one is when there's an explicit constitutional right so first amendment is really there. you can't ignore free speech right. the second is what they referred to as laws on right to discreet understand lair minorities so like if there's a minority group that isn't just you know a minority group in the sense that it is small in numbers but in the sense that it is systemically excluded from political power in the way that say african-americans were in the jim crow south then the courts have a duty to step in. and then the third prong is --

if the -- if the legislature starts messing with the include process itself -- so like under this jerry issue should be struck down. you know if courts, you know, if democrats get into power, and they pass a law saying you can't vote unless you, you know, i don't know what -- what the piece of pop culture that in thes you democrats unles you can recite lyrics to the latest little song something that -- ended disenfranchise. so that should be struck down. but for the most part we just want democracy to be the rule. >> we want democracy to be the rule unless it is -- again the press minority such as women seeking abortion or other women seeking abortion, or people seeking to marry someone of the same sex. >> right so that's the question. is like -- there are indeed marginal kaitions in this framework i don't think that marriage equality is a particularly marginal case. i think that in the language of

the law, sexual orientation is what is a suspect of class people who are gay, people who are transbi and subject to discrimination where they are minority. >> what you laid out correct. so -- i hear you saying that it is not actually hypocrisy on our side which i like, of course. i mean, but at least it is reconcilable so what happened on the conservative side with respect to the courts is it truly political? and something that ting that you do really well in the -- in the book is that you lace out how all of the conservatives on the court are not ideal logically each one of them has different approaches i think it has something that's broad and commentary on the court tengdz to apply which help us understand some of the surprising outcomes, you know of

the conservatives are different but i wonder could you combine answers to say like okay so -- how do we get to points on conservatives on court want to undermine democratic process and do it in different ways or some of them do it more than others? >> yeah so first off let me just like talk about what the point about you made how they are ideological homogenous that is important if you only have five justices, that means you have to get all five to get the outcome that you want. and so like roberts goes on -- you know, goes in unexpected direction we get to see obamacare. or like, you know, i don't know if this is actually the case anymore. because it justice barrett hasn't been there long enough to have a sense of where she stands on criminal justice. but before justice ginsburg died, i think the supreme court we had before justice ginsburg's death was further to left on criminal justice than any court we've had for the previous 20 or

30 years. and reason for that wasn't because it was a liberal court. because you have four liberals, and roberts on fourth amendment issues especially when if technology was involved, it was just really sketched out by what cops do to spy on through your cell phone stuff like. so kind of devote with liberals on those issues. >> it is more surprisingly progressive views on race and criminal justice, he wrote his law review note on jury on racial jury discrimination so racial questions you get liberals plus kavanaugh. gorsuch is kind of views on like jury trials and like right six amendment issues and so like -- you know, because qhs you volcano five votes if any one of them has an unusual view on one issue you can sometimes seal them off that matters. now, that said i think there's a

real generational divide within conservatism so like i talked about this product framework and this was not just the way that liberals fought this was really the way that every furious legal thinker thought until recently, i mean, like if you go back and you read what nixon had to say. about the role of the judiciary you read what reagan had to say they rarely against judicial activism they were calling for judicial restraighten and nixon was mad that -- you know, judges who want to impose their values on asking that judges that will like protect people who are criminal defendants. but like nixon wanted court to do less. reagan wanted court to doless even george w. bush wanted court to do less. and i think the thing that nixon and reagan in particular had in common with roosevelt is that they were confident about their willing ability to win in a democracy like they -- they won by strong margins of at

least, you know, nixon and second time around like, you know, they felt comfortable that like their political movement could win in the democratic process. so why would you have this other branch of government interfering request them? i think that a big reason yo you have seen reasons trend towards judicial power is look, democrats have won seven of the last eight -- presidential elections. just look at the popular vote. the only reason they're able to confirm judges at all is because of senate mall portionment there would been unbroken democratic control of the senate i think stretching back to mid-90s. and so -- when you're more confident about your ability to win, you know, you know that the people are behind you -- you start to look for other ways it to get your way. and then there's one other thing that's into play here which is

that the courts have been getting more and more conservative for basically our entire lifetime. you know ever since nixon was elected with the possible exception of justice ginsburg i think every single person who has been nominated to the court during that period and you know, with exception of ginsburg and soto mayor to the right than fern they replace and point have been much further to the right think of replacing marshall or ruth with amy coney barrett. >> kagan -- depends on if their recent career but i don't to get derailed. everything is -- justice system move to the left later in their lives supposedly if you ask conservatives. >> supposedly but i guess my point is like -- if you were 80-year-old conservative lawyer you still remember the day when roe v. wade was handed down and it hurt

and made you feel pain of what the judiciary does and that really doesn't like and that gets you kind of a heat fear of judicial power. roberts is i think the one remaining bridge to people who still think that way not because he's 80 years old he, you know, is 60 something but because he's at the knee of the people who were the big deal lawyers in the reagan administration, and they sort of with certain values of judicial restraighten. on the other end of the extreme if you're neil gorsuch neil gorsuch has never been mad because the courts -- because he thought that the courts did too much. no gorsuch entire life has only been mad with the possible extension of the marriage equality decision but like -- i don't think neil gorsuch is personally antigay he wrote -- so like -- neil gorsuch every time in his life that he's been mad at court is because he wanted them to do more. why didn't you strike down obamacare? >> he wanted to strike down on

regulation. >> yeah. and so if you're a young conservative -- and you know, gorsuch is not but i'll call him young by this metric. your whole life you can say do more courts because like you've never been disappointed when courts have done sthang you didn't like you didn't live through roe v. wade and times of decisions. so i think there's this generational divide where now and, i mean, it is only going to get worse. because now there's no one that a republican president could nominate who has a healthy fear of judicial power because everyone in the federal society now who is young enough to be a judicial amount grew up in an age when they wanted courts to do more and they wanted them to do it now. >> that i think that after amy coney barrett if you have someone with a relatively open resumé with a warrior if that person can get confirmed without anybody worrying, even without the context of ginsburg death i

think that there's still, you know, yes they lost the pht city but they have now a -- i think lindsey graham used word pro-life they have somebody who has a paper trail to an extent that we would not have seen in a time trying to kipe that pretense and you have trump saying list of justices that roe v. wade legacy of the trump era where they stop they were pretending in judicial humility i'm sorry -- but i don't to lose sight of the major argument of the book because if we talk about broadser context forever and i want to remind everybody listening to ask a question request this thing that is on my monitor right under me iemg going to ask your question to ian, in about 15 minutes. so please get them in there. so even with the justices, there's kind of what you

identify of what you believe they all agree on and at least five of them agree on it and there's six of them so there's a very good chance that under the major areas that you laid out were going to see sweeping change can you just takes there what we could expect to see now that the conservative speaker dreams have come through and they have a court. >> so i talk in the book i talk about issues -- voting rights, the administrative state which sounds really arcane and boring but it is superimportant like questions like whether or not we can have environmental regulation in this country. i will come back to this if. region and broader questions of whether religious conservative should have the law and i spend a whole chapter on an issue called forced arbitration which is basically doctrine created by the supreme court which says

that when you do business with someone, and often when you are employed by someone, your boss can at any moment send you an e-mail saying from here on out, if you ever want to sue me, you're not allowed to sue me in a real court. you're not allowed to bring a class action lawsuit so if you have a common claim with your colleagues you're not allowed to join together. you have to go to private arbitration system which tends -- which is more likely to rule in parties and awards you less money if you do win, and if you don't agree to give up all of these rights go into this private arbitration system you're fired. >> right. that's what the courts -- >> common way and fear in which a sexual harassment for example. >> exactly. or sexual harassment. yep so -- also a secretive process so you know, if you have -- you know, if you stickers someone who is sexually harassed 12 people in an office, you

know, it's gong to come out if there are real lawsuits because those are public. as eventually someone's going to file a lawsuit and lawyer will start to do research and realize like holy crap he's been sued twice you know it is going to come out arbitration is secret so often these things don't come out for that reason. but like rather than doing a deep dive on arbitration like i want to start with the deep dive on what's happening in voting rights. >> relevant to this week. always. >> yes, and like this is because to you don't have right to vote you don't have anything single most important issue so first of all i want to say -- that if you're talking about voting rights, you have to talk about race. and the reason for that is -- democrats and any given election will win between 80 and 90% of black voters. so win between 60 and 70% of latino voters trump performed

better amongst black and brown voters and 2020 than he did in 2016. but still like biden got between 80 and 90% of black voters and he got between 60 and 70% of latino voters and what that means is if you are say, a georgia state lawmaker, and you want to make sure that democrats don't vote, you can use race as a proxy to identify who the democrats are. so you know, if you closed out precincts in a black neighborhood, or if you eliminate early voting on sundays because african-american churches tend to do get out is the vote drives on sundays. you know who you're disenfranchising and so -- you know, race still matters. i mean even if it is no longer, you know, even if you no longer see ideological commitment to qhiet supremacy that you saw on the jim crow era, and -- >> at least explicitly.

race is still big. it is still often used as a proxy to identify like this is where the democrats if live. so if i disenfranchise people in this neighborhood i know republicans will win this election. >> the only thing i would push back and i felt this way about book too it is not distinctal right it is not that they're trying to find democrats but they don't want black people to have political power. it is not like -- i'm going pretend -- they are racist in doing this. right? it is not like a coincidence. >> i guess whaled say to that is like -- i don't think you need to get into question of voting here. ...

>> and then starting with that the safeguard we have is the voting rights act basically does three things the first is preclearance if you live in an area where there is the history of discrimination you would have to pre- clear with the officials of washington dc they would make sure it doesn't discriminate on the basis of the law. the second prong is the intent test if the law is passed with the intent of discriminating basis on race of election then

it should be stricken. the results test is super complicated if there's any lawyers in the audience my condolences. it is excessively complex area of the law. but the bottom line is certain laws have a disparate impact of voters of color would disenfranchise more black or hispanic voters than white voters would be struck down. so in shelby county in 2013 the supreme court basically got rid of preclearance. they didn't shoot it down altogether but the formula to determine who was subject to that no longer exist. >> i feel like have to jump in that is the opinion that justice ginsburg to get rid of

preclearance was throwing away your umbrella in the rainstorm because you are not getting what she earned notorious rvg. >> chief justice roberts is now the most moderate member of the republican majority on the supreme court. there are five justices further to the right and the guy that got rid of preclearance the second was the intent the supreme court basically had such a high presumption that it's almost impossible but the burden of proof on plaintiffs trying to improve intentional is so high it's almost insurmountable. unless you can show they burned a cross or something. it is just very very hard to clear the bar. the third case that was argued the beginning of this month

which attacks the results test. roberts is most moderate member of the court. fighting tooth and nail to kill the results test. ronald reagan signed the bill. >> and i want to bullet point what is left of the teeth of the voting rights act. after the majority of the supreme court guts the voting rights act now section two is hanging by a thread. >> right. i don't know they will do in this case may be a few at a time. but the supreme court will get rid of the results test if you have intent or preclearance or results, then you don't have a voting rights act you have safeguards against racist voting laws. not just what we see now in georgia so you are already

seeing examples if you are white in a white suburban atlanta you want to go vote 15 minutes later you're out if you are black in the heart of atlanta you wait six hours. we could see that in every state if you don't have a voting rights act. i discussed other things the independent state legislature doctrine remains to be seen how strong they will make it been the strongest form governors cannot veto election law and strip state supreme court really the judiciary's of their power to strike down state election laws or enforce the constitutional provisions protecting the right to vote so in these gerrymandered legislatures.

>> also the referenda they went independent commissions. >> that would be struck down. so i can michigan and pennsylvania where the legislature is so thoroughly gerrymandered you can't elect democratic legislature. now the governor cannot veto the bill that draws the congressional lines. you have congressional lines drawn it's almost impossible for democrats to win the u.s. house. i could see going here. that the picture i paint in the book is that the court is chipping away at our voting rights and chipping away just enough because if you've heard everything i said and you are not scared by it, then what i

would say to fight in you is the democratic dirty in the house is hanging by a thread with a 50/50 senate there are 45000 voters in georgia wisconsin and arizona voting differently they just haven't shown up in 2020. donald trump would still be president right now. >> or if one of these senators in a purple state dies. >> there all kinds of ways it's hanging on a thread. i think what the supreme court is doing is calamitous leading to a massive shift and who can win elections. but i could be wrong. even if i'm wrong it doesn't have to be a massive shift if the supreme court succeeded to disenfranchise a tiny fraction of voters in three states

donald trump would be in the white house right now. >> you're also making the argument specifically in the book a death of a thousand cuts is designed to be subtle. and i want to get into it too much looking at the questions they are spectacular but you wrote about the abortion case that was taken out. i don't want you to answer this but read that piece where the court can undermine abortion under the most technical and boring way possible such that we still have public pressure political pressure but if people don't know what is happening and set much easier to mute mobilization. this is a question i was going

to ask how affected or impactful are the nominations over the next two years? and then reversing the damage of the trump years? so what can be done? >> it matters a lot who biden gets to replace. if justice thomas decides to go pursue dreams on broadway tomorrow that would be significant if biden could replace thomas. if justice thomas are - - if justice alito was lost at sea most likely to be justice breyer may be a younger version of justice breyer. >> what about the lower courts quick.

>> that's a really good question. part of what scares me about the lower courts a lot of these district judges functioning like a think tank for a terrible lady that - - ideas feeding up to the supreme court. constitution has a provision that congress can regulate commerce among several states. the supreme court interpreted that only economic regulation. in congress regulates the economy, generally the laws will be upheld. for nine economic regulation other than the economy then they are more likely to be struck down. there was a federal eviction moratorium in place but a trump judge in texas and he said if evicting someone from

a home that they pay money in order to rent is not economic activity to evict someone from the home that they pay thousands of dollars a year to live in and congress could pass a law to allow the eviction moratorium to exist because evictions are not economical. >> so then you worry about that bubbling up to the supreme court so let's get back to what is possible to accomplish in the follow-up question so now that we are scared about this what do we do to solve the problem? expand the court? but then what can biden do for those tuning in tonight do besides tear our hair out extra the case for optimism for the next two years has very little to do with the

courts. part of the reason why democrats are in a hole right now because there's a very inefficient coalition white people in rural michigan have more power in the system then our latino voter in l.a. because of the electoral college so on and so forth. when you look at the polls on economic policy it is a 70 / 30 east but we are centerleft on economic policy 70 percent of the country prefers democrats. on cultural issues, i don't mean necessarily abortion but that is part of it but questions about do i like what is on my tv? twilight people in the street

that say mean things about cops when i like cops? stuff like that. where we really are split 50/50 republicans may have a slight advantage. if elections are fought on economic grounds left parties will tend to wind if it's cultural it is a tossup. to be clear i'm not arguing we throw cultural politics under the bus give republicans what they want. that is a terrible idea. i am arguing the more that voters realize there is something to gain from the economic policies the democrats are pushing the most likely they will vote democrat even if they don't like the cultural politics of the democratic party. passing $2 trillion stimulus bill will help a lot of people who voted for donald trump in

a really great way to get people to vote democrat. >> you say they could be more politically popular so 35000 votes here and there from voter suppression is not as big of an impact. >> biden has to rearrange the coalition he shouldn't do this by throwing anyone under the bus but pushing policies that help the overwhelming majority of the country. those coalitions are rearranged, expanding the court is warranted given what happened with merrick garland and amy coney barrett. i don't see them letting it happen. >> but if biden is able to remain to the coalition to such a degree that they can

gain seats in the senate with 52 or 53 democratic senators, then you can talk about things like court expansion. >> i will frame this if there were the votes would use about support term limits on justices for lower court judges is their pathway to do that without a constitutional amendment or a means to get a constitutional amendment? one way to think about this if the current politics were not and impediment, what type of structural reforms including term limits word you support quick. >> that's an interesting idea i don't think the constitution would allow you to impose term limits absent a amendment on a sitting judge. says a judge shall hold their

office for life. the office that neil gore such had as an associate justice for the rest of his life. i do thank you could put term limits on new justices judges are moved around in the court system all the time i clerked at the us court of appeals we frequently had judges sit by designation from other courts occasionally you have a retire justice by designation so for a new judge you could change the nature of their office and say new justice the office you are getting is 18 years you will sit on the panel of the supreme court than the rest of your career you will do something else. you could do that. i don't think that solves the problem we have. what worries me about term limits come i alluded to this

earlier i think republican judges are becoming more radical with each passing year trumps judges to the right of bush or to the right of reagan and h.w. bush. i don't know what will break the cycle. do you really want to replace someone like john roberts or brett kavanaugh? i don't think that improves things. >> we will see. >> but term limits may solve the problem of judges staying. maybe there is a problem it does solve but not the problem we are discussing which is ideological extremes.

>> the nuclear weapon, the constitution says there is a supreme court it doesn't say how many justices shall sit on the supreme court and now they say it will be 15 and now there are six vacancies. that is something could happen if congress had the vote. the problem with that if you do that i don't thank you just get your jeep dream liberal judiciary then you destroy the credibility of the judiciary. >> so doesn't sound like with any of the options. >> let me get there the reason why i describe court packing as the nuclear option even though the term is overused but the purpose of the nuclear weapon is to never use it the

reason why the united states has a nuclear arsenal it used to be the soviets or whoever else also has nuclear weapons than they know we will send hours their way if they do the purpose is deterrence. if the supreme court believed there was a credible threat of court packing, to some extent that may explain why they have not taken the abortion case yet. maybe they are. >> that explains the last term many surprises not overturning the lgbt case. >> this deterrent effect may actually be happening right now. so that could help. the other thing is there is a study ia discuss from a law professor in california. if you go back to 1975 through

1990 and every two-year congressional term congress would overturn one dozen supreme court decisions and that way change the law of the supreme court and then during that period congress would overturn about two.seven supreme court decisions every two-year congressional term. congress is 80 percent less likely to tell the supreme court you goofed and that fosters a sense of unity. i talk about this forced arbitration but it's entirely statutory at all about the court mangling the interpretation on the federal arbitration act they could amend that tomorrow. >> maybe it is in era of a

more functional congress. >> i have spoken to senators who are starting to think do we need an omnibus bill that overrules all the bad court decisions? especially there was the on the misspell the civil rights act was a lot of supreme court handed down maybe five or six bad civil-rights decisions and they said nope all of those are overruled everything you said you do the opposite. there is the ada amendments act. >> i do that on a statutory mess up not the constitutional interpretation we have one more question but we only have seven minutes. here's the top question right now what does the future of second amendment look like with the court to acknowledge the social fallout.

>> the future is so grim. first of all it is already almost as bad as it could possibly be in the reason why heller does have some language that could have dangerous and unusual weapons for example as a background check you can exclude people a felony convictions and mental illnesses from getting firearms. but the one thing heller says is handguns are special. you cannot ban a handgun. 80 percent of gun murders are committed by a handgun. there is a lot of press attention with the mass shooting. those are actually a very tiny portion of the gun death in the country.

40 percent of murders are gun murders the motive is an argument. two guys are out of our one is in a fistfight in the other has a handgun. nobody knew he had it. it would have been a fistfight then becomes a murder spouses arguing. the husband and is standing by the dresser with a handgun. 40 percent that's the story. about 25 percent the second most common motivation is a drug deal gone bad. a drug deal going on, a concealed weapon. >> with five minutes left get back to scotus. so the ban on handguns has already happened.

i said before that heller said dangerous and unusual weapons can be band but there is an opinion that written that ar 15's are all over the place there is hundreds of thousands in this country. they are not unusual i think the supreme court will say you cannot have the assault rifle band because assault rifles are everywhere they are not unusual that's why people can have them. i think the background checks will probably still be allowed but i don't think it's anywhere near enough because most murders are spontaneous or they are not murders at all. more than half are suicide.

it is good to prevent people that you could be likely to commit a crime with a gun it's good to prevent them from getting guns, but that's not the whole problem. there is an enormous problem that you just can't address what the supreme court will allow. >> in under the wire if past with the people be struck down by the scotus? i wanted to get to this question because i do want to talk about we've been talking about legislative remedies undermining of democracy and those judicial lines you are talking about i believe this is focusing on hr one. >> i think some parts would be upheld the constitution says congress may regulate the time and place and manners of holding elections.

the supreme court has said voter qualification is not time place or manner congress cannot tell the state you have to allow this person to vote. so it's likely the supreme court would strike the provision of hr one that says people with felony convictions have to be re- enfranchised because they say that's not time or place or manner i could see them saying congress cannot ban voter id laws because the state decided they should not be allowed to vote. the most important provision of hr one is the anti- gerrymandering to require independent commissions to draw districts. honestly i don't know what will happen there.

what disturbs me most about the supreme court this is a good place to end. is that a been 12 years ago i was working as a policy analyst at the center for american progress. nero was looking for someone to write a brief in what became the first obama care case that went up to the supreme court. i thought this would be a good career opportunity so i said i hear you want this brief and i can do it. at one point i said this became the big major attack on obama care and i said i'm grateful for the opportunity i agreed to do this but do you think it is necessary? they won't take it seriously. and i was wrong about that. i didn't think anyone would

take hobby lobby seriously because the controlling case of the united states that when a business enters the commercial spirit has to follow the same laws as everyone else. i was wrong about that. i mention a crazy judge you said evicting someone is not economic activity. i don't want to dwell too much on that but i bring it up because they are coming up with new and increasingly bizarre ways to interpret the law much faster than i can anticipate what new bizarre theories will. so if you asked me to come up with a legal argument for why federally imposed redistricting commissions are unconstitutional after think a long time about that argument

but they don't need an argument they just need the excuse. so they will have an argument someone very easily could say that is good enough for me. i can put that in the opinion. >> you have given us lots of reasons to stay up all night. looking at the comments a lot of people will go straight to the bottle. thank you for the unblinking honesty taking us through this very important issue even if it scares us. >> it's then a lot of fun and wonderful to see you. >> thank you to both of you on behalf of the strand. that was a fascinating sometimes horrifying conversation but thoroughly enjoyable. thank you to our audience for spending your evening with us. if you have yet to purchase a copy of the agenda.

and it will come with a bookplate thank you and have a good night. >> teachers are doing whatever it takes to connect with their students by connecting people with low cost internet. connect to compete program