A crowd bundled in sweaters and scarves against the changing Chicago wind gathered at the Museum of Contemporary Art last Thursday to hear a conversation on the Supreme Court held during Chicago Ideas Week, an annual festival that brings together diverse thinkers to promote sharing of ideas.
No doubt spurred on by the recent contentious confirmation hearings of now Supreme Court justice Brett Kavanaugh, attendees packed the 296-seat Edlis Neeson Theater to near capacity. Onstage were former Obama White House counsel Kate Shaw; Neal Katyal, a Georgetown University professor who has argued cases before the Supreme Court; and Geoffrey Stone, law professor and provost of the University of Chicago. Moderated by U.S. district court judge Manish Shah, the conversation took a broad look at the functions of an effective Supreme Court.
“The single most important responsibility of the Supreme Court is to protect the minority,” said Stone. Minority in this case isn’t used as a demographic qualifier but as a way to describe public opinion. Stone and the rest of the panel cited Roe v. Wade or Brown v. Board of Education as examples of the way in which the court can go against public opinion. Even if a majority of Americans fall on one side of an issue, it is the court’s responsibility to look at constitutional clauses “and act potentially anti-majoritarially” in their decisions, as Shaw put it.
Regrettably, “Americans may have a different view of the Supreme Court” after watching the Kavanaugh-Ford saga unfold over the last few weeks, Katyal said. The partisanship on display did very little to find truth for the American public, and Stone said he fears we now have Supreme Court justices who will vote “along the lines of the party that appointed them,” diminishing the court’s credibility.
Discussion then addressed potential changes to the Supreme Court to help fight the suspicion of partisanship in an era when the court is more politicized than ever before. Neal and Stone agreed on term limits of 18 years for justices because term limits “would be partisan neutral.” Both recognized the wisdom that comes with life tenure, the current practice for justices, but said that it can lead to some presidents getting to appoint more justices than others. For example, Jimmy Carter didn’t get to nominate a single justice, while President Nixon was able to appoint four.
But even term limits wouldn’t solve what seems to be one of the court’s most difficult tasks: making itself more accessible to the public. “It’s your court, you should be able to see it,” Katyal said, noting how few people know what goes on inside the Supreme Court. Although the court is supposed to settle law, Shaw said “deciding cases and reaching out to the public shouldn’t be mutually exclusive.” A more transparent Supreme Court might be better able to fend off claims of partisanship when a deeply polarizing case comes its way.
With fears that Justice Kavanaugh’s confirmation signaled the death knell for Roe v. Wade, that case may be on the horizon. It will be up to the court to assure the American public that it’s still an independent branch and not an extension of the executive. Lifting the veil on its decision-making processes may quell some of those doubts because, to many, the Supreme Court remains a mystery.