bite blake bailey's philip roth purred and wrapping up our look at some of the best-selling books according to the harvard bookstore is university of virginia professor lauded without use of subtraction to solve many of our personal and societal problems. some of these authors have appeared on book tv and you can watch them on booktv.org. [inaudible] the agenda republican supreme court is shapingng america. senior correspondent where he focuses on the supreme court, the constitution and the decline of liberal democracy in the united states. he is the author of injustices the supreme court's history of comforting the comfortable and afflicting the afflicted. his writings have appeared in "new york times", nation

american prospects and gain a lot in policy review. he received from duke university and clerked for judge eric of the united states court of appeals for the sixth circuit. he lived in arlington, virginia. joining ian in conversation isor arend carbone preaches a senior correspondent and co-author of notorious rpg the life and times of ruth bader ginsburg. and so without further due please join men in welcoming ian millhiser to the stage. beckley will have ian millhiser in just a second period select cayenne. >> high iran has a going customer expect it's going okay. it's a treatment to get to talklk to.

usually it's waiting in line for a legal speaker. how wonderful it is we get to be in conversation about your important and book. and yes, en and i are colleagues. soer let's get us started. i learned from everything. [laughter] i'm going to start off by asking you a very simple question. i think anyone who is registered for this event is avoiding the same thing. i'm going to assume we have a set values here as well. how screwed are we right now? [laughter] >> we are on the internet. [inaudible] we can say the f word here. >> yes let's do it. >> it's bad. and here is what i am afraid of.

in a democracy someone get selected you don't like. you have an election and that is your remedy. unlike i did not much like donald trump. but we had another election, we have a new guy in. and by now we should be able to move in a different direction. i think one of things that so troubling about having such a powerfulci judiciary, and the fact that justices retire like trump served one term he got three pics. bush and obama server two terms theywo only got two pics each. there's a certain randomness to what presidents get picked. it means that some presidents get elected and their policies effectively stretch for 40 years. other presidentss get elected they spend their presidency meeting their head against the wall the court keeps putting in front of them. and so, i just worried about

this president did not in when the popular vote.un probably would not of been president but it wasn't like a bunch of e-mails and that james comey speech, kindest accidental president. it was unpopular throughout his term pre-now is policies are going to shape the judiciary for potentially the next 40 years. before we get into specifics, i will say what makes it especially troubling is that so many of these policies themselves are antidemocratic. i spent a lot of time of the book talk about the supreme court is dispelling the voting rights act.ti how they are shifting power around within our government in ways that benefit the republican party. : : : hin 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 >> ian: the supreme court is shifting that power to the judiciary. which is the one unelected branch. what i worry about is not just that we are going to have this continuation of bad policies moving forward, but the bad policies are going to self-destruct up to democracy and make it very very difficult for the voters to change

course. >> irin: something i think is really important you make very clear in the book is that those levers they will use to undermine the democratic process are relatively are can. they are not the ones that are going to grab the headlines. which i think is a challenge for those of us who for broader public about how to make the stakes of this apparent without everybody running around like chickens with their head cut off or getting bogged down in the weeds, finding an appropriate balance, how serious this is without making people shut down. but i want to go back to something you said, you said he was an accidental president. perhaps was a fluke but what was not accidental as the broader conservative strategy around the courts. i wonder before we get into what's going to happen now if you could just historically ground it a little bit in terms of why was it that when this

horror show of a person was elected that the republican ã was so ready to mobilize and take advantage of that moment. >> ian: a few thoughts there. first of all, we are coming out of utterly lost decade for congress. from 2011 when the republican house came in and took away obama's ability to legislate until 2020 when the pandemic really forced, congress couldn't do nothing. we didn't have tany major legislation passed the supreme court did a ton of stuff i can read some of that off in a bit. but the legislative branch kind of just seized to be, seized to function for this lost decade. part of the reason why that happened is because i think the publicans realized they don't need congress.

they realized that they could implement most of what they want to accomplish through the judiciary provided they control enough ããmitch mcconnell didn't pass much legislation when donald trump was present but he didn't need to. not only did he keep confirming judges but ããtrump has three seats on the supreme court, obama only got two even though he was president for twice as long. >> irin: 㦠>> ian: there are more trump judges currently sitting on the u.s. court of appeals than there are obama judges. i believe there are 53 trump judges currently sitting on the u.s. court of appeals, one step down from the supreme court. rthere's only 50 or 51 obama judges. in the region is that for for the last two years of obama's presidency mitch mcconnell

basically shut down judicial confirmation. there actually were two circuit judges that got there but bush got 10 or 11 through in his last two years as president. then of course there was mary garland. the reason why trump headsets and outsized impact, mitch mcconnell was waiting for this moment but a huge part of it was that trump effectively filled all the seats he should've gotten legitimately in a four-year term plus all the sick that obama should have gotten in the bill in the last two years. instead of having a two term president who had two erterms worth of influence and a one term president who had half as much influence on the judiciary. you wound up having two presidents who effectively six eryears of impact on the judiciary. the reason why they did this is because they understood how powerful the courts are. they understand that if you control who has the right to vote you control gerrymandering

then it doesn't really matter who wins the election they understand if you control who has the power to regulate even when there is a president that you don't like in power, it's not going to matter. i have a whole chapter in here about religion and how the court keeps on carving out, this is something we have covered for a decade now. >> irin: it's like a groundhog day. >> ian: and they keep getting worse. basically what a lot of religious conservatives are asking for is that they want to have broad immunity from the law. if they have direct strongly enough to allow they don't have to follow it. i don't get to do that, you don't get to do that but if you control the courts then you can have that. >> irin: i think you do explain

this in the book in a way that i think is so satisfying and concise. here's what i say to you as if i don't know the answer, wait a minute, i thought liberals were the judicial activists who were the ones policymaking to the court such as gay marriage and abortion rights, which supposedly judicial fiat created these new rights. good republicans have run successfully for some long on the notion that at the liberals boarding the democratic will so i'm w,wondering ããthis is huge air quotes, is it both sides hypocrisy that after the warren court and berger court enjoying the courts creating policymaking both are now looking for r judicial humility. and armor republicans engaged in hypocrisy where they have gotten into power in the

judicial branch and maybe sometimes getting the presidency but not consistently. sometimes getting congress but not consistently. now all the sudden they are fans of policymaking to the courts. how do you reconcile what could be perceived by either side of hypocrisy. >> jack falcon has good paper on this. it is true that political movements that control the xpjudiciary tend to be more kee on judicial power and political movements that do not control the judiciary can be really keen on judicial restraint. i don't think i need to texplai why that might be the case. that said, let me just give you walk you through a quick 100 year history of the supreme court. hundred years ago we had something called the lochner error the supreme court often had made up reason struck down

a lot of progress labor legislation, they struck down the federal child labor law saying it's unconstitutional for congress to ban child labor. they struck down a lot of laws limiting the number of hours that workers could work. struck down minimum wage laws. the supreme court basically set itself up the national sensors. the people who had the power to veto any law they didn't like and given the politics of who was on the court they didn't like a lot of labor laws so they struck it all down. this came in to a head during the roosevelt years when i started striking down a lot of new deal policy. some on plausible grounds, some on extraordinary experience grounds. roosevelt really could have taken this two ways. if you go back and look at what liberal thinkers were saying in the 1930s, there were people

who were saying the court should be in the business of protecting union and courts make up doctrines to protect unions in the same way that the conservative justices have been making up doctrines to protect management. there were people who were saying the court should become an arm of the new deal and implement roosevelt and policies on their own. i think to his credit roosevelt said, no, i was elected i have a mandate and this should be a democracy. i want the courts to back off. that was mostly what he wanted is that he got it he got the courts to tback off. they didn't back off completely. the most important decision of the 21st ããof the 20th century even more significant than brown was a case called caroling ãwhat caroline craddock said in almost all

cases we want democracy to set the role. in almost all cases court should defer to the arlegislatu and awareness to see the executive. there are some executive, exceptions. one is when there is explicit constitutional right. the first amendment is there you can ignore free speech right. the second is what they refer to laws that infringe on the right to discrete and insular minorities. so if there is a minority group that isn't usjust a memory grou in the set but it is small in numbers but in the sense that it is systematically excluded from political powers in the way that african-americans were, the jim crow south. then the courts have a duty to step in. the third prong is if the legislature starts messing with the democratic process itself, under this gerrymandering should be struck down. if democrats get into power and pass a law saying that you can't vote unless ããwhat is

the piece of pop culture that democrats ããunless you can recite the lyrics to the lil nas x song. the disenfranchise republicans. that should be struck down. for the most part we just want democracy to be the rule. >> irin: we want democracy to be the role unless it is tyrannical against the press minority, such as women seeking abortions, or people seeking to marry someone of the same sex. >> ian: right. that's the question. there are indeed marginal cases in the supreme court. actually don't think marriage equality is a particularly marginal case. i think in the rhyme ridge of the law sexual orientation is what should be classified as what's called the quads ice suspect class which means that

people who are gay, people who are trans, people who are bisexual have so historically been subject to the kind of discrimination where they are minority and minority status. >> irin: that's right. so i hear you saying it's not actually hypocrisy on sour ã which i like, but at least reconcilable. what happened on the conservative side with respect to the courts? is it purely political? something i think you do really well in the book is that you lay out how all the conservatives on the court are not ideologically homogenous. each one has different approaches. i think it is something that broad stroke liberal commentary on the court tends to apply which helped us understand some of the surprising outcomes that all the conservatives are different. could you combine your answers to say how did we get to this point where the conservative on the court really want to undermine the democratic process and do they want to do

it in different ways or do some of them want to do it more than others? >> ian: let me talk oiabout the point you made about how they are ideologically homogenous. that actually is really important when you think habou if you only have five justices that means you have to get all five to get the outcome you want so roberts goes in an unexpected direction and we get to keep tobamacare. i don't know if this is actually the case anymore because justice barrett hasn't been there long enough for me to have a sense of where she stands on criminal justice. before justice ginsburg died i think the supreme court we had before justice ginsburg was that further to the left on criminal justice than any court we've had the previous 20 or 30 years. it wasn't because it was a liberal court, it was because you had 40 liberals, roberts fourth amendment issues, especially when technology was involved, he was really sketched out by what cops could

do to spy on you through your cell phone and stuff like that. he went with the liberals on those issues. kavanaugh is surprisingly wprogressive views on race and criminal justice. he wrote his log review notes on racial jury discrimination so on racial questions you get liberals press kavanaugh. gorsuch has because when you only have five vote if anyone of them has unusual view on one issue then that matters. i think there's a real generation divide with the conservatives in. i talked about this caroling craddock's framework, this wasn't just the way that liberals thought, this is the way that every theorist liberal thinker thought until fairly

recently. if you go back and read what nixon had to say about the role of the judiciary. read what ragan had to say. they were calling for judicial n restraint, nixon was mad about judges who wanted to impose their values on judges that will protect people who were criminal defendants but one of the courts to less. even george west bush one of the courts to do less. 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 a democracy. they won by strong margins nixon at least the second time around. they felt comfortable that their political movement could win in the democratic process. why would you have this other branch of government interfering with them? i think a big reason why you

see republicans trend toward judicial power is democrats have won seven of the last eight presidential elections if you look at the popular vote. the only reason they are able to confirm judges at all is because the senate now ãã there would have been unbroken democratic control of the senate, stretching back to the mid-90s. so when you are less confident about your ability to win, that the people are behind you, you start to look for other ways to get your way. then there is one other thing that's in play here, which is that the courts have been getting more and more conservative for basically our entire lifetimes. ever since nixon was elected with the possible exception of justice ginsburg i think everything the person who's been nominated to the court during that period ããwith

ginsburg and maybe sutter mayor every person who's been ããgo replacing thurgood marshall with clarence thomas or ruth bader ginsburg with amy coney barrett. >> irin: maybe it depends on if their entire career or recent career. i'm gonna leave that point hithere i don't want get derailed. some of those justices have moved to the left later in their lives. >> ian: supposedly. i get all my point is if you're an 80-year-old conservative lawyer you still remember the day when roe v wade was handed down and it hurt and made you feel the pain of what the f judiciary does and really doesn't t like. i think it's a healthy fear of judicial power. roberts is i think one

remaining register people who still think that way, not because he is 80 years old, he's 60 something but because he sort of credit at the knee of the people who are the big deal lawyers and the rugged administration and inco handed to him with certain values of judicial restraint stuck on the other end of the extreme if you are neil gorsuch, neil gorsuch has never been bad because ãã because he thought that the courts did too much. neil gorsuch entire life has only been modern with the possible exception of the marriage equality system but i think i don't think neil gorsuch is personally anti-gay, he wrote the ããevery time in his life he's been mad at the courts it's because he wanted them to do more. why didn't you strike down obamacare. >> irin: he wanted them to strike the regulations. >> ian: right. if you are a young

conservative, neil gorsuch is in his 50s but i will call him tiyoung by this metrics. your whole life you could say do more courts because you've never been disappointed with the courts if that something ã ãyou didn't live through roe v wade.you didn't live through those kinds of decisions. i think there is this generational divide where now ã ãit's only going to get worse because now there is no one better republic and president could nominate who has a healthy fear of judicial power because everyone in society now is young enough to be a judicial nominee grew up in an age when they wanted the courts to do more and want them to do it now. >> irin: i also think after amy coney barrett if you have summary with a relatively thin resume with an open ideological warrior, if that person can get confirmed without anybody worrying, even without the context of justice ginsburg staff, yes they lost the presidency but they have no unabashedly pro-life, somebody who has a paper trail to an extent we would not have seen in a time when they were trying

to keep up the pretense. you have the legacy of the trumpet era as they stop pretending they were interested in judicial humility. i don't want to lose sight of the major argument of the book. i think we could talk about the broader context for 's forever. even with the relative heterogeneity with these justices at the diagram you identify of what you believe we will all agree on. at least five need to agree on it and there are six of them. is a very good chance under the major areas you laid out we are going to see we are going to

see sweeping change, can you take us through what we will expect to see now that the conservative speaker dreams have come true. >> ian: in the book i talk about four issues. voting rights, the administrative state, which sounds really arcadian and boring, but it is super important. questions like whether or not we can have environmental regulation in this country. spent a whole chapter on an issue called forced arbitration. which is basically a doctor 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 email saying from here on out if you ever want to sue me you are not allowed to sue me in a real ng

court. you're not allowed to bring a class-action lawsuit, you have to go to a private arbitration system which is much more likely to rule in favor of corporate parties and real i courts and awards you less money. if you don't agree to give up all these rights and go to the private arbitration system you are fired. >> a common fear is the abuse and sexual harassment, racial idiscrimination, sexual harassment. >> ian: it's also a very secretive process. if there is someone sexually harassed 12 people in an office, it's going to come out if there are real lawsuits because those are public and eventually someone is going to file a lawsuit their lawyer is going to start doing research

and realize holy crap this guy has already been sued twice. arbitration is secret so often these things but rather doing a deep dive in arbitration, i want to start with a deep dive yson what's happening in the bi of rights. >> very relevant to this week. if you don't have the right to vote you don't have anything. first of all i want to say if you're talking about wanting rights you have to talk about ã ãdemocrats in any given election will win between 80% and 90% blackwater so tween 60 and 70% of latina voters. biden got between 80 and 90% of black voters and between 60% and 70% of latino voters. what that means if you are a

georgia state lawmaker you want to make sure democrats don't you can use race as a proxy to identify who the democrats are if you closed out all the precincts in a black neighborhood or if you eliminate early voting on sundays because african american churches uttend to get out the book drives on sunday, race still matters. even if it is even if you no longer receive the same ideological commitment to white supremacy you saw on the jim crow era. >> irin: what is that x at least not explicitly. >> ian: race is still very often used as a proxy to identify this is where the democrats live. disenfranchised people in the neighborhood i know republicans will win the election.

>> the only thing i would push back a kind of felt this way about the book it's not incidental. it's not just that they are trying to find democrats they also don't want black people to have political power. it's not like i'm going to pretend come they are racist in doing this. it's not like a coincidence. i guess what i would say to that is like i really think you need to get into the question of motivation here. like whether they are doing it ããi suspect there is a combination, i suspect some members of the georgia legislature are still ideologically committed to what the premises as a rule and some of them are just like they told me this is how we make sure republicans stay in charge. i don't think you can get into motivation because the facts are that brace is being used as a proxy to identify who to disenfranchise. then starting with that the safeguard we have against race discrimination voting voting rights act, it basically does

three things the first is preclearance. if you live in a state or local or area with a history of racial voters, nation your local or state government would have to preclear is the term any new voting law with the officials in washington dc and they would just look at it and make sure it is in racist mixture isn't going to discriminate on the basis of race and if it doesn't on the lock in going to affect. the second promise called the intense test. the intent tester says that if a law is passed with the intent of discriminating on the basis of race and election that should be struck down. the third requirement is called the results test and the results test is super comp located. if there's any lawyers in the audience who ever had to apply the ginkgo standard, my condolences. it's an excessively complex area of the law. the bottom line is that certain

laws that have a impact on voters of color will disenfranchise more black voters are more latino voters are more nonwhite voters than they disenfranchise white voters will be struck down. so what happened to the voting rights act? in shelby county in 2013 the supreme court basically got rid of preclearance. later struck down preclearance altogether but there's of the formula used to determine who is subject to preclearance no longer exists. >> irin: i feel like i need to jump in and say that was in super important opinions that led justice ginsburg ãã specifically for her observation to get rid of preclearance throwing away your umbrella and a rainstorm because you are not getting wet. >> ian: i will note that the shelby county thing was written by chief justice robert who is now the most moderate member of the republican ermajority on th supreme court. we now have five ejustices who are further to the right then

the guy who's got rid of preclearance. the second was the intent task. in a case called abbott b perez the supreme court ããthat it's almost impossible to win the intent test. the burden of proof on claim is trying to prove intentional race discrimination after abbott is so high it's almost insurmountable unless you can show that the lawmakers burned a cross or they were voting on the bill. it's very very hard to clear that bar. then there's a third case that was actually argued at the beginning of this month called burner which which attacks the results. roberts is the most moderate number of the courts six justice republican majority fought tooth and nail to try to kill the results test, to his credit was ronald reagan signed a bill that wrote the results test. >> irin: i just want to bullet

point that this is what is left of the teeth of the voting rights act. after the majority of the supreme court has a decision for the voting rights act now we have section 2 hanging by a thread. i don't know if they've been doing this ããcase may be a few cuts at the time. you don't have preclearance and don't have the intent test and don't have the results test that you don't have a voting rights act. you don't have safeguards against racist voting laws and you are not just gonna see what we are seeing now in georgia you're going to see that on steroids. you are going to see ããyou are already seeing examples of if you are white and you are in a white suburb in atlanta you walk in 15 minutes later you're out if you are black and you live 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.is i discuss other things ãã there's this thing called the independent state legislature doctrine it remains to be seen how strong they will make it but in its strongest form it would strip governors of their ability to veto election laws and would strip state supreme court of their ããstate judiciaries in their entirety of their power to strike down state election laws or enforce state constitutional provisions protecting the right to vote. you have states like wisconsin and michigan and pennsylvania where the legislature is so thoroughly gerrymandered that you can't elect democratic legislature.

now the governor can't veto the bill that draws the congressional lines. so you are going to have congressional lines drawn that it makes it almost impossible for democrats to win the u.s. house. i could keep going here. the picture that i painted in the book and i don't think it's an accurate is that the court is chipping away at our voting rights. i will make one other point, they are chipping away just enough because if you've heard everything i've said and you weren't scared by it the thing i would say to frighten you is that the democratic majority of the house was hanging by a thread right now. there something like 45,000 voters in georgia and wisconsin and arizona had voted differently ã¦

>> or if one of these senators in a purple state dies and we won't be able to confirm any judges. there are all kinds of ways this is hanging on by a thread. i think with the supreme court is doing as calamitous and could lead to massive shifts in who is able to win our election. i could be wrong about that even if i'm wrong it doesn't have to be a massive shift. if the supreme court had succeeded in disenfranchising even a tiny fraction of voters in the supreme 㦠>> irin: i think you are making the argument that the death of a thousand cuts is also designed to be subtle. i don't want to get into too

much because i'm looking at the questions and they are really spectacular and i want to get into them. you wrote about the abortion case that was taken up. he lays out the way in which the court can undermine abortion is to do so in the most technical and boring way possible such that, what action and what levers do we have? we have public pressure, political pressure and so on but if people don't know what's happening if that much easier to mute and he kind of reaction or public mobilization. this is a question i was going to ask but benedict has asked nm wonderful way. i'm going to take this question. how effective or impactful have the nominations made over the next two years? at reversing the damage. more broadly what can be done

to reverse the scenario you sketched out here? >> ian: it matters a lot who b then gets to replace. if justice thomas decides to go pursue his dreams on broadway tomorrow, that would be really significant if biden got to replace thomas. if justice goleta was lost at sea, that's really significant. what is more likely he gets to replace justice breyer, we get probably a younger version of justice breyer but 㦠>> irin: what about the lower courts? >> ian: on the lower courts, that's a really good question. part of what scares me about the lower courts is that you've got a lot of dthese trump appointed district judges who are functioning like a think tank for terrible ideas they are feeding up to the supreme court. i will give you an example. the constitution a provision

said congress can regulate congress among several states in the way the supreme court has interpreted that they said commerce normally that means economic relation. when congress regulates the economy, generally those laws will be upheld. for non-economic regulations if congress is violating something other than the economy then those laws are more likely to be struck down. there was a federal eviction moratorium in place and there's a number of plausible legal ãã there's a trump judge in texas, the attack he made he said that evicting someone from a home that they pay money in order to rent is not economic activity. tynoneconomic to evict someone from the home they are paying thousands of dollars a year to live in. therefore congress couldn't create pass a law that allowed

eviction moratorium to exist because evictions are not economical. >> irin: i want to get you backe to what is possible to accomplish and i'm going to ask a follow-up question getting a lot of books right now from julie now that we are scared about this, what we do to solve this problem? expand the court 's one suggestion she has, what can biden do and what can those turning on tonight do besides tear our hair out? >> ian: let me get the taste for ããthe case for optimism, at least the next two years is very little to do with the courts. part of the reason why democrats are in a hole right now is because they have a very ineluctably inefficient coalition. like white people in rural michigan just had more power in our system then a latino voter in la.

because of the electoral college, the senate, and so on and so forth. when you look at the polls, economic policy is about 70/30 split, we are really a centerleft country on economic policy. 70% of the country prefers what democrats want to do. on cultural issues, bicultural issues i don't mean like necessarily abortion, although abortion is part of that. but questions about like do i like what's on my tv. do i like that there are people in the streets that are saying mean things about cops when i like cops? stuff like that. there we really are split 50-50 and republicans might even have a slight advantage. if elections are fought on economic grounds, left parties will tend to quit. if they are fought on cultural

grounds with marble tossup. let me be clear about what i'm not arguing i'm not arguing that we throw the cultural politics under the bus and give republicans what they want, that's a terrible idea. what i am arguing is that the more that voters realize they have something to gain from the economic policies the democrats are pushing the more likely they will vote for democrats, even if they don't like the cultural politics of the democratic party. passing a nearly $2 trillion demo spell that's gonna help a lot of people and a lot of people that voted for donald trump is a really great way to get people to realize they should vote democrat. >> irin: you are saying perhaps democrats could be more politically popular so that 45,000 vote here and there through voter suppression won't be as big of an impact? >> exactly. biden has arearranged the coalition and he shouldn't do this by throwing anyone of the

bus but he is pushing policy now that help the overwhelming majority of the country. if those coalitions get rearranged. i think expanding the court is warranted, given what happened with merrick garland and amy coney barrett. but democrats don't have the .vote for it. i don't see them letting it happen. >> irin: it died with the senate elections. >> ian: if biden is able to rearrange the coalitions to such a degree that democrats keep the house and gain seats in the senate maybe there's 52 or 53 democratic senators into the three years then you can talk about things like court expansion. >> we have a question from michael which has two votes and i'm going to frame this as where they are the votes would you support michael suggests term limits on justices or

lower court judges the feasible pathway to doing it without constitutional amendment is there a feasible means to get a constitutional amendment if the current politics were not in it and we had the reality you just laid out what kinds of structural reforms including term limits would you support? >> i don't think that the constitution would allow you to impose term limits on a fitting judge. a constitutional amendment says a judge ceshall hold his office for a life, the office that neil gorsuch has is that he gets to be an associate justice for the rest of his life. >> i do think you could impose term limits on new justices. judges are moved around in the court system over time like when i clicked on the u.s. court of appeals we would

frequently have judges sit by designation from other courts. sometimes occasionally had a retired justice come and sit on the court of appeals by designation. for a new judge you could change the nature of the office. you can say the office that you're getting is that you get 18 years you will sit on the panel that is the supreme court and then you will get the rest of your career where you will do something else. you could do that prospectively. i don't think that solves the t problem we have right now. the other thing that worries me about term limits is that, i sort of alluded to this earlier, i think republicans republican judges are becoming more and more radical with each passing year.

i think the term limits do you really want to replace someone like john roberts with someone like brett obkavanaugh? i don't think that improves things. >> irin: or amy coney barrett, i think kavanaugh looks like a little roberts many. >> ian: i don't think the term limits they might solve the problem of judges ããi don't think they saw the problem we were discussing which is an ideologically extreme court. >> irin: what you think does? >> ian: the nuclear weapon you can drop is ããthe constitution says there's a supreme court, it doesn't say how many justices shall sit on the supreme court. congress could pass a law tomorrow if it had the vote saying there is now going to be 15 seats. and six vacancies.

that is something that could happen if congress had the vote. the problem with that is that if you do that i don't think that you just get your dream liberal judiciary.what happens is that you destroy the credibility of the judiciary. >> irin: it doesn't sound like you're endorsing any of these options. >> ian: let me get there. i think that the reason why describe ããis the nuclear option even though that term is somewhat overused dress-up the crux of a nuclear weapon is that you never use it. the reason why the united states has a nuclear arsenal is so that it used to be the soviets but like whoever else also has a nuclear weapons won't send them at us because they know we will send ours their way if they do. the purpose is to turn it. if the supreme court believe there was a credible threat of court packing and to some

extent i think that might explain why they haven't taken the abortion case yet. maybe they are afraid. >> explains the last term. many of the surprises during medical not overturning the abortion the ulta beauty case to be the census case. >> this determinate effect might actually be happening right now. i think i can help. the other thing i would say, there's a study i discussed in here by rick hassett a law professor out in california. if you go back to 1975 to 1990 and every two year congressional term congress would overturn about a dozen supreme court decisions. they would pass about a dozen laws that in some way change the law as the supreme court data. i think the most recent looks at 2000 2012 and during that period congress would overturn

about 2.7 supreme court decisions. congress is now 80% less likely to tell the supreme court you guys goofed. i think that fosters a sense of haimpunity. i talked about this first arbitration it's entirely statutory, it's all about the courts mangling his interpretation congress can amend the act tomorrow. maybe we are entering an era of more functional congress. >> ian: i've spoken of senators who are starting to think about do we need an omnibus bill that overrules all the bad court decisions from the last 40 years. do we do it ããthere actually

was an omnibus bill there is a civil rights act of 1991 the supreme court handed down five or six bad civil rights decisions i want to make sure to get you one more question we have a lot of really good ones we only have seven minutes. here's the top question was the future of second amendment rulings look like with the court to acknowledge the social fall out with guns in america. sadly perennial welding question. >> the future is so grim. first of all, it's already almost as bad as it could possibly be. the reason why is that in the heller decision, heller has some language that there could

be some regulation on what's being called dangerous and unusual weapons. there could still be background checks, he could still exclude people with felony convictions and certain with mental illnesses. there are some instructions on guns. the one thing that heller says is that handguns are special. you can't ban handguns. 80% of gun murders are committed by handgun. there's a lot of press attention when there is a mass shooting but mass shootings are actually a very tiny portion of the gun deaths in this country. 40% of murders of gun murders in the united states, the motive is in arguments. two guys are in a bar it would've been a fistfight but one of them has handgun. no one knew he had a handgun because ããit would've been a

fistfight becomes a murder. or spouses are arguing. the husband is standing by the dresser where there is a handgun. 40% of gun murders that's what the story is. the second, about 20 to 25% second most common motivation is a drug deal gone bad. so again, a drug deal going on, a concealed weapon 㦠>> i want you to get back to scotus. what will they do on this? >> ian: handgun ban the ban on banning handguns has already happened. si said before that heller sai that dangerous and unusual weapons can still be ban. but kavanaugh written opinion mary, ar 15's are all over the place. there's hundreds of thousands of them in this country, they aren't unusual. i think the supreme court is saying you can't have an assault rifle ban because i think there are five votes that

say assault rifles are everywhere, they are not unusual, therefore people can have them. i think the background checks are probably going to still be allowed and that's good but i don't think it's anywhere near enough because most murders are spontaneous. or they aren't to murders at all. i think more than half of gun deaths are suicides. i think it's good to prevent people who you can identify is likely to commit a crime with a gun. it's good to prevent them from getting guns but that's not the whole e problem. there is an enormous problem you just can't address through what the supreme court is going to allow to still be on the table. >> and under the wire, a question from the great betsy

west. codirector of the rgb documentary. if it were passed, where did therefore people likely be struck down by the scotus? i wanted to get to this question because i want to talk about we been talking a little bit about legislative remedies for the kinds of undermining of democracy judicial lines you been talking about. i believe this is the law also known as hr one. >> i think some parts of hr one would be upheld. the constitution says congress might regulate the times, places, and manners of holding elections. what the supreme court has said is that voter qualifications are not time place or manner. congress cannot tell the state, you have to allow this person to be able to vote to vote. othere's a provision that says

people with felony convictions need to be re-enfranchised. i think that's likely to be struck down because the supreme court says that's not time place or manner. i could see the supreme court saying congress can't ban voter id laws because people decided they shouldn't be allowed to vote. the most important provision of hr one is the anti-gerrymandering provision, the provision requiring independent independent convictions to draw districts. i honestly don't know what's going to happen here. the thing that disturbs me most about the supreme court maybe this is a good place to and. this would have been 12 years ago. i was working as a policy analyst at the center for american progress and a name that you may have heard me say, ããi heard nara was looking

for someone to write a brief in what became the first obamacare case that went up to the supreme court. i just thought it would be a good career opportunity for me. i poked my head in her office. at one point i said to her, this is what became ããbig major attack on obamacare. at one point i said, i'm thrilled to do this, i'm really grateful for the opportunity, do you really think it's necessary? this is a silly legal theory, nobody's gonna take it seriously. i was wrong about that. i didn't think anyone would take hobby lobby seriously for a while because before hobby lobby the controlling case the united states ããwhich said that when a business enters in the commercial sphere it has to follow the same laws as everybody else.

i mention this crazy judge who said evicting someone is not economic activity. i don't want to dwell too much on that but the reason i bring it up is because these guys are coming up with new and increasingly bizarre ways to interpret the law. much faster than i can anticipate or anyone else can anticipate what new bizarre theory they will come up with. if you asked me to come up with a legal argument argument why federally imposed redistricting commissions are unconstitutional. might have to spend a lot of co time thinking about what that argument is. these guys don't need a good argument they just need an excuse. someone's going to give them an argument they are going to say someone could very easily give an argument saying that's good enough for me. i can put that in opinion.ou>> irin: en, you given us lots of reasons to stay up all night and looking at the comments,

lots of people are going to go straight to the bottle but it's important to tell the truth always. thank you for the unblinking honesty in taking us through this very important issue even if it scares us. >> thinks it's a lot of fun it's wonderful to see your end. >> sabir: my thanks to both of you on behalf of the strand. irin, ian, that was a fascinating sometimes horrifying conversation but thoroughly enjoyable. thank you so much and thank you to our audience for spending your evening with us. if you have yet to purchase a copy of "the agenda" click on the green button center of your screen and it will come with about place. on that note, think everyone and have a good night.

on our author interview program afterwards bill i spoke about the loss of his two brothers during the war in afghanistan. he was joined by co-author tom so leo, here's a portion of the program. >> we met through a pretty unique set of circumstances, i had started about 10 years ago writing a blog in a syndicated column about fallen heroes and veterans and one of the fallen heroes i wrote about was named staff sergeant jesse williams. he was killed in iraq but

beforehand he served his brother ben in iraq on an infantry deployment. i connected with jesse's wife sonia almost a decade earlier and when i did stumble on the wise family story and wanted to know more about it like with sonia who put me in touch with ben's widow tracy i'm so honored to play a small part in helping to tell this story. >> one of my favorite and least favorite things about telling stories is that when you are working with someone who's been through a traumatic experience there's times your heart is breaking to tell the story but at the same time you are wondering if it's helping to tell the story, if you are leading them through some things. so i'm wondering, tom, are

there things that you did intentionally to help guide to go through the trauma of telling the story. >> i have the honor of interviewing more than 100 go serve family members worked on some with books and with veterans as well the most important thing i try to do is go in to each story with no preconceived notions whatsoever. every grieves differently. everybody handles it differently. but with bo when we first met i flew to oklahoma and we sat down and talked and right away i think things clicked. there were times where both said, hey man, this is just too much. i need to step back. the minute he said that i said i got it.

and took over and i was happy to do it. honored to do it. the bravery that bo has shown not only as a marine and goldstar brother but but in being willing to open the wounds and explore and learn more about his brothers and tell the world about them i so much admiration for the courage he is showing. >> and the reverse question is you are working through your brothers deaths in talking with tom were there moments when you didn't want to do this anymore? did it feel like it was cathartic and helpful for you? >> as tom said, that was the moment where it was just absolutely seven stone, i absolutely got the right

co-author. i thought this forward, i'm to keep fighting it. i knew we had to get through this and we had to finish it once and for all. and preserve jeremy ben's legacy. i couldn't do it i needed to grieve to myself just alone or with my wife or whatever. sometimes the information which comes to an abrupt stop sometimes it would just pour out and after a while you feel so tapped emotionally. having someone like tom to work with was a lifesaver even though i didn't like doing that i had to just step away.

>> the watch the rest of this interview visit our website booktv.org, click on the "after words" tab to find this along with previous episodes. >> booktv in prime time starts now, first, history professor mia bay looks at the history of race and of travel in america. ...... what's on his time in congress and served stopped on the future of the republican party. investigative journalist amanda ripley talks about how people can engage in healthy conflict resolution print consult your program guide are visible tb.org for complete schedule information. now here is a look at the history of