Will a More Powerful Supreme Court Help or Hurt America?

Narration: President Donald Trump will likely nominate a third Supreme Court justice. How will Democrats react to the total loss of liberal dominance on the Supreme Court?

Thomas Reston: I think that it behooves the liberals and the Democrats to renew their ties to the American people.

Narration: The nation is deeply divided. How did the man whose case set the precedent for Second Amendment rights face school shooting victims’ families?

Dick Heller: I’d won this case and a couple of years later you have the Sandy Hook massacre. And I had to go have a talk with the man in the mirror and say was this your fault?

Narration: For most of American history the Supreme Court was an afterthought. How did the Supreme Court become supreme and come to dominate the American political system?

Ilya Shapiro: And the problem is over the decades, power in Washington, federal power, has grown. And that’s why the importance of the Supreme Court has grown.

Simone Gao: Welcome to “Zooming In,” I am Simone Gao. In this edition we look at the Supreme Court. All Americans are affected by decisions made by the Supreme Court. Since the end of World War II, these rulings have changed how state legislatures draw congressional districts, stripped legal protections from unborn children, and stopped school children from praying before classes begin. The Founding Fathers created each of the three branches of the federal government in the first three articles of the Constitution. Because the legislative branch was created in Article One, legal scholars agree that Congress is to have primacy in the government. Article Two is the executive branch, and Article Three is the judicial branch, which includes the Supreme Court. In this edition of “Zooming In,” we examine how this third branch of government became so powerful and what it means to national politics when a liberal Court transitions into a conservative Court. We go behind-the-scenes with participants who share their experiences in Supreme Court cases.

Narration: The Second Amendment states that Congress shall not infringe on the right to keep and bear arms. But for Dick Heller and millions of Americans who wanted to own a gun, it was a different story.

Mr. Heller was a special police officer guarding the Supreme Court back in the ‘90s. Every day at the end of his shift, he would turn in his pistol at the armory and ride his bike home through increasingly dangerous neighborhoods—unarmed.

Dick Heller: It did not go unnoticed by the justices that one of the people guarding them with a government-issued firearm was the litigant. And when I thought about it, a light bulb came on one day. And it occurred to me they give me a gun, but I can’t have a gun. I can protect them, but I cannot protect myself.

Narration: Heller applied for a one-year license for a handgun he wished to keep at home, but his application was denied. He then sued the District of Columbia for violating the Second Amendment. During the next 20 years, he took his case all the way up to the Supreme Court. On December 26, 2008, the Supreme Court ruled in favor of Heller’s right to bear arms. On June 26 that year, Justice Antonin Scalia delivered the opinion for the 5-4 majority.

Justice Scalia: Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Simone Gao: A large portion of the American public had waited decades for this moment. Heller told me his most memorable moment before the high court hearing.

Dick Heller: The story that I really like to tell is “the people” story because the night before the hearing, it was very cold in March, and I went to the local—I only lived a block away, so I pulled up on my bicycle and said, “Hey, y’all, what’s happening here? Why is everybody sleeping on the sidewalk?” An aw-shucks kind of thing. And nobody knew. Nobody recognized me. And it was cold, so I talked to a lot of people, and there was over 50 people sleeping on the sidewalk, so I said, “It’s getting cold, the sun’s going down.” I went to the drug store and bought two big 200-piece cough drop bags. So I had 400 cough drops. And then I went back and started at the head of the line, the sun had gone down by now, and gave everybody a handful of cough drops. And I said, “Here, you’re going to need these.” And everybody was saying, man, that dude’s nice. Who was that? You know, nobody. So the next morning I’m in a coat and tie, and I go down the line and shake everybody’s hands, and they suddenly recognize me. Oh, no. Oh, no, you didn’t. Oh, yes, I did. And they got a kick out of that because I was out there meeting the people because we were kind of all going in together to hear this case. I was just a normal people.

Simone Gao: Right. They’re not allowed in the Supreme Court, right? They’re outside waiting?

Dick Heller: They had to wait outside because so many people wanted to get in that they were sleeping on the sidewalk to be the first to enter the Court. The Court takes about 125, I think.

Simone Gao: How many of them were there?

Dick Heller: Hundreds. And they were swapping them in after the courtroom packed, then they would swap standing-room only 20 at a time for about 10 minutes.

Narration: A year after he won his case, Dick Heller realized he had started a tidal wave.

Dick Heller: And it was Second Amendment Foundation, Alan Gottlieb, I think, made the statement. It should’ve been him. He said since Dick Heller case was heard and decided, he said there have been over 75 additional gun cases one year later that have hit the courts challenging the local restrictions. I’m sitting on the front row, and my mouth falls open because it was just—all I knew was me and my little bubble, right, in a case here and a case there and then 75. And then a couple of years later, it was announced that there were over 300. I’m going, to myself, “Oh my gosh, we have started a tidal wave.” So what you can see is the power of the Supreme Court to properly interpret the Constitution has created significant challenges to the number of circuit courts and cities and states that just absolutely detest our Constitution and the Second Amendment most of all. So that’s the power they have because we live by laws.

Narration: Four years later, Heller got hit by another story. On December 14, 2012, in Newtown, Connecticut, 20-year-old Adam Lanza fatally shot 20 children between six and seven years old, as well as six adult staff members. Before driving to the school, he shot and killed his mother at their Newtown home. As first responders arrived at the school, Lanza committed suicide by shooting himself in the head.

Dick Heller: Don’t get me crying now. This really touches my heart. But in the case of Sandy Hook, I mean, I’d won this case and a couple of years later you have the Sandy Hook massacre. And I had to go have a talk with the man in the mirror and say was this your fault? And I finally figured out, no, it wasn’t my fault. What we did, and the Scalia decision, was give everyone the option to protect themselves. And the parents and the school board in Sandy Hook had no reason to believe that they would ever need security or armed people on their elementary school campus. So they made a financial decision by making no decision, not knowing about it. Had they ever thought through the previous school shootings, they might have said, gee, maybe we ought to protect our school. And after the Heller decision, they had the right, the specific enumerated, articulated right to do that. And they chose not to. So safety is a choice.

Simone Gao: After the school shooting, many victims’ family members supported tighter gun control restrictions over Second Amendment rights. They saw it as a solution to prevent this tragedy from happening again. What would you say to them?

Dick Heller: Interesting in that President Obama said when they bring a knife, we bring a gun. Well, when someone brings a gun and you are in high school and you have a knife or a baseball bat or nothing, you have a right to be stupid. Sandy Hook, San Bernardino, the Parkland high school, and the Orlando nightclub shootings, in all those cases, they were, of course, all gun-free zones. And why would a criminal, a killer, want to have a bad day at the office and face gunfire? So they’re going to pick gun-free zones. The Orlando nightclub case, if there was anyone that was concealed carry, they were outside in the parking lot because they were not allowed inside under Florida law because you cannot conceal carry in Florida in an alcohol-serving establishment. So wherever—if you look at the FBI statistics, they have a table in their crime statistics annually called Table 8, and what you can do is you can see, as gun ownership goes up, crime goes down on a macro level, a national level, or a municipality county-city level, that’s just the dynamics of humans.

Simone Gao: Are you against background checks?

Dick Heller: All it does is slow people down and puts a burden on the law-abiding citizens. We submit to background checks because we’re law-abiding. What criminal wants a background check? They don’t go into the gun store to buy a gun. Do they have guns? Yes. Where do they come from? My, my. All over the place. So a background check just doesn’t do much. All it does is slows people down a little bit. Now, what you really should have is, when they go for the background check in the gun store and they fail, then a net should drop down and hold them until the police come. Now that’s a pretty good system maybe.

Simone Gao: As a police officer, do you think the general public’s owning guns makes your job easier or harder or perhaps more dangerous?

Dick Heller: A well-armed citizenry is a very polite and safe society because no one knows who’s armed if somebody gets out of line.

Narration: Coming up: Has the Supreme Court grown beyond what the framers had intended?

Narration: The federal government is often described as a complex system of checks and balances among three co-equal branches of government. Another way to look at it is to see the federal government as four deliberative bodies stacked on a pyramid. At the bottom is the House of Representatives. It is the most powerful with 435 members. It is the most diffuse body, but its power is that in matter of impeachment, war, taxes and spending, the House has the initiative.

The second body is the Senate with 100 members. Its sole power is the ability to say no to bills and motions passed by the House and to approve presidential appointments and treaties.

There is no fixed number of justices, but by tradition there have been nine justices on the Court. The framers gave the Court no initiative authority. It can only act if someone petitions it to act. However, the Court has the power to say no to any action taken by the president, the Congress, and the states.

At the top of the pyramid is the president, who has both the initiative and the power to say no to Congress through his veto.

This model became broken in the 1950s and 60s as activist judges took it upon themselves to create new laws on their own. This seizure of initiative is the innovation that disrupted the constitutional system created by the framers because there is virtually no check for a power the framers never anticipated.

Simone Gao: Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. I spoke with him about the changing role of the Supreme Court.

Simone Gao: Mr. Shapiro, what was the original purpose of the Supreme Court and has its role today outgrown what the founding fathers intended?

Ilya Shapiro: Well, the Supreme Court or the judiciary in general is supposed to check the other branches. So if Congress passes a law that goes beyond its Constitutional authority, the Supreme Court or lower federal courts are supposed to strike it down. If the president or an executive agency does something that’s beyond their statutory authority, the courts are supposed to step in. And the problem is over the decades, power in Washington, federal power, has grown. And that’s why the importance of the Supreme Court has grown. And so now we’ve sort of gotten used to the idea that every June at the end of term, the Supreme Court rules on three or four or half a dozen of the most important political issues in the country. And you think about it in the last decade, everything from health care, immigration, racial preferences, abortion, political gerrymandering, campaign finance, voting rights, you name it, a big political controversy, the Supreme Court is involved.

And it’s not because the Supreme Court is trying to get involved and trying to earn a higher profile or gain more power. It’s just a function of a system that has concentrated power in Washington. And in a large and diverse country, you’re going to have differences of opinion that ultimately end up resolved by the Supreme Court. I think, ultimately, the way to reduce political polarization, or the tension, the toxicity that we’re living the last decade, is to push power back down to the states and the localities. If the Supreme Court doesn’t have to decide these major issues of federal power or executive authority or what have you, then it won’t be as talked about. I think that would be a good thing. But it’s not just the Supreme Court. It’s also Congress. It’s also executive agencies. As power has centralized in Washington, all of these institutions start playing a larger role.

Simone Gao: You just mentioned that these branches of government shouldn’t have so much power. But how can their powers be cut back?

Ilya Shapiro: Well, just like it’s taken decades to get to where we are, it will take decades to get back. I think the Supreme Court, starting in the ‘30s, started approving uses of federal power that go beyond Constitutional authority without amending the Constitution. And that’s really the genesis of the growth of power here in Washington. But it’s not just that. It’s also Congress abdicating its authority or delegating its power to the executive branch. That way congressmen can say, I voted for this great law and I’ll just have the bureaucrats sort out the details. And if people don’t like the details, they can blame the agency. They shouldn’t blame me, I passed this great law. But it’s the bureaucrats, it’s the civil servants, it’s the agencies that are doing the bad things. And, of course, people can’t lobby the agencies or the bureaucrats.
They can only sue them. And that’s why all of these major disputes over clashes of policy views or values end up in the courts rather than being decided in the halls of Congress. There’s something unusual and unhealthy about protests going on outside the Supreme Court rather than outside of Congress because all of these major clashes of policy positions or values should be decided by our elected representatives, not pushed to the executive agencies and ultimately resolved in court.

Simone Gao: I also asked the Democratic side the same questions. Thomas B. Reston has spent a lifetime in politics, working in eight presidential campaigns at the national level and in countless local and statewide efforts. Reston was a political appointee in the Foreign Service under President Jimmy Carter, serving as Deputy Assistant Secretary of State for Public Affairs. He is a civil rights advocate and author of “Soul of a Democrat.” Here is my discussion with him.

Simone Gao: Do you think the role of the Supreme Court has gone beyond what the framers had intended?

Thomas Reston: No, I don’t think so. In fact, I think, as a practical matter, the role of the Supreme Court is returning more or less to what the framers wanted, or certainly Mr. Chief Justice John Marshall, who was the great conservative who established the principle of judicial review, over the actions of Congress so that the Supreme Court could knock out legislation that had been written and passed by the Congress if the Supreme Court found the legislation to be unconstitutional. So I think really the Supreme Court is returning to its earliest days as this staunch, as the staunch wall against an unbridled Congress. I think that it has always functioned as the great conservative part of the American government. And I think with the new conservative majority on the court, which has now been established, I think the court will return to its essential role.

Simone Gao: We will have more with Thomas Reston in our next segment.

Narration: Coming up, it is possible that president Trump could appoint another justice during his presidency. If that happens, how will Democrats react?

Narration: After Neil Gorsuch and Brett Kavanaugh, it is possible for President Donald Trump to nominate a third Supreme Court justice during his presidency.

The 85-year-old Associate Justice Ruth Bader Ginsburg is currently recovering from lung cancer surgery. She was absent from oral argument on January 7th for the first time in her 25-year career on the court. She participated in deciding the two cases being argued by reading legal briefs and transcripts of oral arguments.

Ginsburg is the leader of the court’s liberal faction. She spent a considerable part of her legal career as an advocate for the advancement of gender equality and women’s rights, winning multiple victories arguing before the Supreme Court. She advocated as a volunteer lawyer for the American Civil Liberties Union and was a member of its board of directors and one of its general counsels in the 1970s.

During Barack Obama’s presidency, some progressive lawyers and activists called for Ginsburg to retire so that Obama would be able to appoint a like-minded successor, particularly while the Democratic Party held control of the U.S. Senate. Ginsburg rejected these pleas.

Simone Gao: If President Trump will be able to appoint another conservative Supreme Court justice, how will that affect national politics? Here is the rest of my discussion with Thomas Reston.

Simone Gao: Ever since the 1950s, the Supreme Court has had a liberal majority. Now with the confirmation of Justice Gorsuch and Justice Kavanaugh, that situation is changing. Now with the possible replacement of Justice Ruth Bader Ginsburg, the Democratic Party will lose a reliable left-leaning Supreme Court. How will they react?

Thomas Reston: I don’t regard the Supreme Court now as a left-wing Supreme Court. But I think that you are correct that for a period during the 1950s, 1960s, and 1970s, there was a majority on the Supreme Court which was very sympathetic to the forces of reform in American society and exercised the power of the court in a very robust way to assist the forces of reform in America. And I think that liberals in this country sort of got used to thinking in their own minds that the court was a reliable ally and that sometimes liberals might be able to get—they thought they might be able to get their way even if the people didn’t agree with them or the representatives of the people in Congress didn’t agree with them if they could simply go to the courts and win legal cases in the court which would get them the same result. I think now that the Supreme Court is getting much more conservative, and I think the Supreme Court has been reliably conservative for some time, but now it will become extremely conservative, and there won’t be much ambiguity about who has the power on the court now. I think that it behooves the liberals and the Democrats to renew their ties to the American people and to use the elective power of the people as a way to advance the reform agenda.

Simone Gao: So you think this is actually an opportunity for the Democratic Party to search for its soul, if you will, and be connected with the American people again?

Thomas Reston: I do indeed. I do indeed. It’s not that I am opposed to using the courts for advancing or certainly using the law to help people in this society. I have been the chairman of the board of the Mexican American Legal Defense Fund, MALDEF, a couple of times. And they stand up for the rights of Latinos here in the United States. It’s headquartered in Los Angeles. So I am proud that the work that civil rights lawyers do in our courts. But I do think, as a political matter, the Democratic Party needs—this is an opportunity for the Democratic Party to renew its very close ties deep into the American people. And that is part of what I mean in my book when I’m talking about regaining the soul, as the Democratic Party regaining its own soul.

Simone Gao: Do you think the Democratic establishment will do that?

Thomas Reston: Well, I think they’re going to need to because the numbers don’t add up for the Democrats anymore. The reality is that the country is sort of evenly divided politically. And the last election, while the Democrats registered major gains, it was not the sort of “hand of God” type of election that just swept the conservatives out all across the board. I think the election revealed that the American people are still deeply divided. And what the Democratic Party needs to do, instead of just trying to mobilize more of its current supporters, it needs to look for ways to move beyond its current base and back into the middle and back, in fact, into the Republican—into large groups of the American people who are now voting Republican who at one time were reliable Democratic voters. The white working class in this country, after all, is the heart of Franklin Roosevelt’s New Deal coalition.

Simone Gao: The Supreme Court has outgrown the plan set forth by the Founding Fathers, but like every other institution, it is not the blueprint that does the building; it is the people. The imposing edifice of the Supreme Court is a magnificent reminder of the court’s power, but it is still the people behind the edifice—the justices, the clients, and the attorneys, as well as the American people—who decide the Court’s future. Thank you for joining us for this episode on the Supreme Court. If you liked it, please share. You can also join the conversation on our Facebook page and subscribe to our YouTube channel: “Zooming In with Simone Gao.” Goodbye until next time.