The Fate of the Supreme Court | Interview with Laurence Tribe

0:00:14.7Why constitutional law?

Karina Macosko: Hi, I am Karina Macosko from Academic Influence, and I’m here with the professor Larry Tribe, who just recently retired from Harvard University.

So we just wanna start out, how did you get into constitutional law, and how did you become a professor at Harvard?

Laurence Tribe: Well, maybe I can start by saying that I don’t really feel retired, I’m busier than ever, I do have emeritus status, which means for all practical purposes it is that I don’t have to prepare any syllabus anymore or do anything like meet particular classes at particular times, but I still have students and research assistants, and I still do everything I did before and more.

So to answer your question of how I became interested in constitutional law, I guess I can’t imagine any other kind of law that I would have been interested in as much, Constitutional Law encompasses all of law, it’s sort of the law about law, it’s a meta law, it sets the framework within which the legal system of the United States operates. So if you’re interested in law at all, and I can tell you about why I’m interested in law, but if you’re interested in law at all, Constitutional Law sort of has it all. It’s got the history, it has moral philosophy, it has intricate intellectual puzzles, and it has massive human consequences.

Consequences for war and peace, consequences for preventing tyranny, and I’m not sure we’ve gotten past that danger yet, consequences for making sure that the rule of law operates, that no one is above the law, consequences for protecting human rights and making sure that the infrastructure of our political and economic systems work, so it’s fascinating and it’s important, and as far as law is concerned, I guess that interests me because it is fascinating and it’s important and it’s the fabric that keeps us from descending into a kind of jungle status in which power determines everything, and so it’s sort of the way of taming power and bringing power under human control.

I used to be interested in mathematics and I still am, but it was not sufficiently human for me, it was a little too abstract. Law has both abstraction and concreteness and I became interested in it really as a kid, although I imagined for a long time that I would become a mathematician instead of a lawyer, and then I took a career turn, ended up going through to the law school and the rest is the 50-year history that I’ve spent teaching law.

0:03:14.3Bork and the future of the Court

Karina: Wow, that’s incredible. And apart from just teaching, you have been very influential within constitutional law, one of that is the Bork case, and this kind of set the precedent for all of the Supreme Court justices who have been nominated after that. So I just wanna ask you…

…what do you think would have been different today had he been nominated?

Laurence: Well, he was nominated, but had he been confirmed.

Karina: Oh, Right.

Laurence: I think we would have been on a very different course, instead of Justice Kennedy, who was on the Court for several decades, we would have had justice Bork who was to the right of Scalia, the right of contraception, the right of sexual privacy. They would have been gone. The abortion decision would surely have been overruled long ago, lots of women would have died trying to induce their own abortions, the whole country would have been, I think, very different. We would have had less protection for free speech outside the limited realm of political speech, we would have had far less protection against racial discrimination and other forms of discrimination, because his theory was that the Civil Rights Act of 1964 was unconstitutional, that Congress didn’t have the power to require non-discrimination by motels and hotels in interstate commerce, he thought that the Supreme Court had made a mistake when it required the integration of the schools of Washington, DC. So basically, where the country now looks like it might be headed, that is backwards, away from reproductive rights, away from equal rights for women, away from the right of privacy, away from voting rights, it would have made that lurch backwards decades earlier.

Now, I’m hoping that we don’t end up in the same place, it really looks like the current Supreme Court is a bunch of Borks and worse, it’s terrible. And I do think that we’re in a very dangerous place, but at least by helping to keep Bork off the court, those of us who pointed out how retrogressive his views were, helped to keep the country on a steadily improving course for the last few decades. It’s not all roses. As I say, I think there are a lot of thorns and we may be going backwards, but we’ve gotten a head start and we will have less to make up, less distance to go as a result of Bork having been kept off the court.

Karina: So what do you see for the future of the Court, as you have said, it’s kind of heading in a more conservative direction, so what do you think we can expect in the future?

Laurence: A conservative, I think is a polite way of saying it, it’s not really conservative, it’s not conserving much of anything except the worst parts of our past, the worst parts of our tradition, the court is reactionary and it is highly activist and it is ignoring its own precedents even those that I think are very well-grounded and very progressive, and what I think we can expect is a rollback of reproductive rights for women, a rollback of rights of sexual equality and sexual privacy, a rollback in equal treatment of various minority groups. A cutback in congress’s affirmative power, to do things like pass the Voting Rights Act, which this court has been busily dismantling and nothing terribly good in the future.

I’m hoping that the court will have less influence and less power going forward because it has gotten itself so out of line with the deepest traditions of the American aspiration, at least, the sort of the American dream, that it will not be as influential as it has once been, there are justices, some of them quite far to the right, like Amy Coney Barrett and Sam Alito and Clarence Thomas , some of them more central and perhaps slightly left-leaning like Stephen Breyer , who’ve gone on the hustings and have said, "trust us, we deserve our authority, don’t threaten to expand our size, don’t do anything to us, we’re just great. We’re not politicians in robes, we’re just philosopher kings doing law."

That’s frankly BS. They’re not simply partisan, they’re not that, they’re trying to be lawyers, but the legal questions with which the Supreme Court grapples, many of them have no mathematically correct answers, there is no way of proving that liberty does or does not include a woman’s right to control her own body, that’s a matter of fundamental axioms, the basic idea of how you approach life and law and the constitution, and justices are selected by a necessarily political process, and they’re selected in large part because of how they approach the law and life, and so for them to pretend that they are simply doing some priestly like legal mumbo jumbo, is not very convincing, and I do think that the future of the court is going to be a future in which fewer people accept the mystique of the court as a kind of grand Wizard of Oz and they will begin more deeply questioning its decisions, and I think that’s good. We do have to have an arbiter of legal disputes, it has to be the case that when people are sort of fighting it out, there has to be an answer that’s accepted as lawful for the time being.

Like in Bush v. Gore, I think in that case where I was representing Al Gore and other people were representing George Bush, I thought the court had made a mistake, but I also wouldn’t have wanted to see the country fall apart over it. I thought it was important that people, at least, respect the court to the point of obeying its actual rulings, but as Abraham Lincoln said long ago, respecting its rulings and accepting them as the ultimate law of the land on basic questions of policy and philosophy are two different things.

When the Supreme Court in 1857, decided the Dred Scott case and said that African-Americans don’t deserve to be citizens of the United States, they don’t deserve to be respected by whites. Lincoln was not proposing defying the particular result of that case with respect to the man named Dred Scott, but he was saying we don’t have to accept that as the ultimate law of the land, in the end, we had to have a bloody civil war over it to result in constitutional amendments, so they got rid of the Dred Scott decision.

I think we’re going to enter a period where the Supreme Court’s resolution of fundamental questions of how we are allowed to lead our lives will not be accepted so readily, when the court decides that a particular clinic can or cannot be shut down. I don’t think people are gonna go to the streets to defy that decision, but they’re not going to easily accept a regime in which, as in The Handmaid’s Tale, women are basically subordinate to men, and we’re going to have a lot of struggle, I think, in the future over the gap between what the court thinks and what the people at large think about their fundamental rights.

0:11:09.6Sign off

Karina: Wow, well, thank you so much for taking the time to talk with me. A lot of the people who watch these interviews are young people like me who kinda have the most stake in where this is going, so I thought you did a great job kind of showing what we can look for in the future and some of the things that we need to address really as a country, so thank you so much.

Laurence: Thank you. My pleasure.