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Preroll: PolicyCast explores research-based policy solutions to the tough problems we’re facing in our society and our world. This podcast is a production of the Kennedy School of Government at Harvard University.

Intro (Maya Sen): I’m not going to give up on Congress just yet. I think it has to be part of the equation for this to work. And I do think that gives members of the public some agency. Right now, we’re a couple months in and we’re seeing some of the first kind of public backlash against some of these executive orders, and one thing that’s been very interesting for me to see is that a lot of the pushback has been on people’s congressional representatives saying, don’t give away your power. He’s taking on too much power. We voted for you. I think it’s really great to see, because people want Congress to be a vocal participant in our framework of constitutional governance. We can agree or disagree about foreign aid. Some people might think it’s too much. Some people might think it’s too little. That’s fine. But it appears that collectively there’s an agreement that those decisions should be made by Congress and not by the executive branch unilaterally. And so I’ve been heartened to see that. And it doubles back onto the courts as well, like I said, this is kind of a tripod, right? And if one leg of the tripod is not there, the whole thing is going to topple over. But having Congress be an active participant emboldens the courts, right? And this goes back to the story of Nixon versus United States. What made the courts powerful is the fact that Congress had the court’s back, and so I think we would be better served if Congress could play that kind of role again.

Intro (Ralph Ranalli): If our current political moment in the United States isn’t a constitutional crisis, it might be hard to argue what one actually is. President Donald Trump is openly defying judicial orders on deportations, withholding congressionally appropriated funds for federal programs, and other actions. Meanwhile, surrogates like Vice President J.D. Vance and billionaire Elon Musk have stated in social media posts that Trump is simply not bound by judicial decisions and can do pretty much whatever he pleases. With a compliant Republican Congress seemingly unwilling to check Trump’s power, many people in America and beyond are now looking to the federal courts to ride to the rescue. But my guest today, political scientist and Harvard Kennedy School Professor Maya Sen, who studies the federal judiciary, says the cavalry probably isn’t coming over that hill. With legislative branch of government sitting on the sidelines and no credible threat of impeachment, the judiciary is no match for the executive in terms of speed and political muscle and was never intended to be. And even if it had been, structural issues with the way decisions are made and how judges are chosen and serve give Trump and GOP conservatives the advantage. So what can be done to restore both the separation of powers and the balance of power in the U.S. government? Maya Sen joins me during this pivotal, unprecedented moment in American history to talk it through.

Ralph Ranalli: Maya, welcome to PolicyCast.  

Maya Sen: Thank you for having me, I’m excited to be here.  

Ralph Ranalli: Yeah, I’m excited you’re here. So the situation we’re in at this moment—it’s early March 2025, and we have a president who is issuing a tsunami of executive orders. Many of them, critics say, exceed his constitutional authority, like freezing foreign aid funds that have already been appropriated by Congress. Then we have a compliant Republican Congress that doesn’t seem inclined to stand in his way. And we have a Democratic minority that’s basically powerless to do anything. So a lot of people who would like to see Trump’s power checked are looking to the third branch, the judiciary. And as of this week, more than 40 court rulings have temporarily paused or blocked executive orders from Trump. But you say that you expect the courts will be of limited help in navigating what you call a “complicated new political landscape.” Can you just start us out by explaining that a little bit?  

Maya Sen: Sure. There’s a lot to unpack there, but something you said I think really stands out, which is that we’ve never seen anything like this before, so the past six weeks—it’s been about six weeks now—and the past six weeks have been unlike anything we’ve ever seen before in terms of a flurry of activity that’s designed to really dismantle federal government in a way that we’ve never seen before. And so it’s just kind of important to do a gut check and realize the nature of the situation and also—when we’re thinking about how the courts are going to play a role here—that the courts have never been asked to do something on this scale, to handle this many kinds of potentially unlawful executive orders, to enter into a complicated political dynamic where there is an unelected individual. I’m talking about Elon Musk driving a lot of these policy changes under the auspices of the White House, but not quite. And so there’s a constitutional gray area there.  

And something you’ve said is incredibly important. I think we’re going to come back to it again and again in the course of this conversation is—Congress is just totally absent. And so we have an executive that’s unleashing a number of orders, aided by the world’s richest man. And on top of that, we have a Congress that really hasn’t exercised much of any oversight. And so it’s a really unusual situation for the courts to be in, and we’re asking a lot of them to exercise oversight over this.

I think, in terms of where the courts stand, I think they’re sort of a couple of different issues that people need to be aware of. So, you mentioned that there have been about 40 court rulings, and a lot of them have put temporary restraining orders on some of these executive orders. Some of them have put holds. Some of them have not. But I think one important thing is that it appears that the courts are moving quite fast. But the truth is that courts actually move pretty slowly as an institution.  

Ralph Ranalli: Right.  

Maya Sen: They tend to be very deliberative in nature. They pause to consider both sides. They’ll frequently ask lawyers representing both sides to stop and brief something if they have a question about it. Things will bounce back and forth between different tiers of the judiciary, so sometimes they’ll go up to the Supreme Court kind of more quickly and then get set back down. And it can take months for an issue to be resolved by the courts, finally. And so some of the initial rulings that we’ve seen, some of the 40 that you’ve mentioned, have actually been fairly preliminary in terms of where we’re at with these legal proceedings. It’s going to take anywhere from a couple of months to maybe even a couple of years for all of these cases to wind their way through the courts. And as you know, the political cycles move much faster than that. So the courts could take years to handle this. But Trump is moving at the speed of light in comparison.  

Ralph Ranalli: Right. And political cycles may not even be the best comparison. Trump and Musk seem to have brought over an ethos from the entrepreneurial world, which often goes by the name “move fast and break things.” I used to work at the Harvard Innovation Labs across the river on the Harvard Business School campus, so I know it’s a saying that means you should prioritize innovation and discovery and research, and not be afraid of disrupting the status quo. But I never heard it used where the connotation was making an end run the Constitution.  

Maya Sen: Yeah. Yeah.  

Ralph Ranalli: So, do you think that there’s a strategy behind their moving fast and breaking things, knowing that it’s a vulnerability of the courts?  

Maya Sen: I think, yes and no. I think I’m not an expert in kind of the Silicon Valley mindset. But it seems that something that’s really important to this idea of disruption is to move really fast and kind of unsettle things, right? That’s how you disrupt something. But I also think—this is like my own personal hunch—I think Donald Trump is actually pretty experienced with the legal system. Not just in terms of his criminal entanglements, but as a real estate mogul in New York City, I think he used the court system offensively and defensively. He knows how to work the system. He knows that courts take a really long time. I think this is what you’re what you’re getting at. He knows that while the courts are mucking about with the legal process, that he can swoop in and do things that he wants.

And I think one thing he does very effectively, and it’s really interesting to watch him operate, is he can really influence public opinion on a lot of these things, right? So the example that I always go back to on this is USAID, so this is the Agency for International Development. That was a target for the Trump administration on day one or two of Trump being in office. And the courts are just now, hearing the cases about it. But by this point, six weeks later, the agency has sort of been effectively dismantled. People who are working overseas have been called back. A lot of the partnerships that were on the ground overseas have been dissolved. People who were involved with trials, medical trials that USAID was sponsoring have been put on hold. And so that can happen very quickly, and the courts are still hearing case, still hearing arguments about it. And that kind of shows how the court’s slowness really doesn’t work to its advantage and works in Musk and Trump’s advantage, I think, very strongly.

Ralph Ranalli: So another problem with the courts is where their authority comes from. We had Larry Lessig from the law school on here a couple of episodes ago and he recounted this funny story about U.S. versus Nixon, which was another case about presidential power, and how Chief Justice Berger was being interviewed and the interviewer said: “So what would you have done if Nixon had just said no to your order?” And without missing a beat, Berger said, “I would have gathered up the Supreme Court Police and we would have walked down north Pennsylvania Avenue and gone to the White House and told them to obey the law.” And of course he was being facetious, there is no Supreme Court Police, but the point was that it’s basically a game of chicken, where the only thing that the courts have to rely on is basically the social and political approbation that comes from breaking constitutions norms. Should this basically be the honor system? Does it work differently in courts in other countries, where you don’t have to rely on the goodwill of the president to obey a court order?

Maya Sen: So I think the question is a little different than the one that you asked. I think that Nixon case is so important for understanding what’s happening today, and I want to talk about it for a second because I think it’s a really good example to try to figure out what’s going to happen.  

Ralph Ranalli: Yeah, please do.

Maya Sen: So just to recap what happened there, is that Nixon had been secretly recording people in the Oval Office, and on some of those tapes it was believed there was evidence regarding the Watergate cover up. And so criminal prosecutors wanted to get their hands on those tapes, right? So the case goes up to the Supreme Court. Nixon doesn’t want to turn over the tapes. And the Supreme Court says, well, in the course of a criminal investigation, the presidential privilege over documents does not extend to those documents because this is a criminal investigation. You must turn over those documents.  

But what is going on politically is very important to understanding the incentives that everyone had in that case. So at that point in his presidency, Nixon’s popularity was down to the 20s, right? I think it was something like 24 percent approval rating, which is abysmal in terms of the modern presidency. So his public approval had tanked. And then on top of that the support of Republicans in Congress had also evaporated. So he had just no support in Congress. And it was very clear to him and to the Supreme Court, and that’s the important part, that he would be impeached. So if he didn’t listen to the Supreme Court Congress was going to impeach him and remove him from office, and so everyone knew that. And that really effectively painted him into a corner. He could either comply and resign gracefully—or have his career come to an end more gracefully—or he could defy the court and then be impeached in a very humiliating sequence of events by Congress.  

And so I think that the real question in all of this is Congress, right? Congress has to be in the background standing up for constitutional norms. And in terms of a conflict with the Supreme Court, Congress needs to be there to actually threaten the President with impeachment if the President doesn’t comply. And that’s what the Nixon case, I think, really teaches us. And I think the problem with the current situation is that Trump isn’t, he’s not nearly as unpopular as Nixon was, let’s be honest. He’s kind of rocking a 48% approval rating. I think it just tipped into majority disapproval. But he’s not unpopular in the way that Nixon was. But he has a really strong support in Congress. His party controls both chambers. And so far, they are bending the knee to the Trump administration, both in terms of supporting him politically, but also in terms of supporting his policies. We’re not seeing a ton of objection to what Trump is doing from Congress.  

Ralph Ranalli: Yeah, over the years, he has made the Republican Party into his party into his image, and he’s weeded out or sidelined the non-Trump Republicans.  

Maya Sen: I mean, even if there are never-Trumpers in the party, you wouldn’t know it at this point. And I think it really matters for everyone knowing that the possibility of him being impeached and removed is essentially close to zero. And so if you’re the Supreme Court and you’re Trump, you know this. You know that there’s no real accountability for defying the court because Congress won’t be there to actually provide that kind of accountability. And so I think that that puts Trump’s—I guess I should say Elon Musk’s and J. D. Vance’s threats of defying the Supreme Court, I think, into kind of sharp relief. Because it’s true that Trump could defy the court, he would come away from that very politically wounded, but he would not be impeached, right? And so it will be interesting to see what happens, but I think that’s really different from previous conflicts between the Supreme Court and the President. We’ve never seen such an acquiescent Congress before, I think.  

Ralph Ranalli: Right. Just, so just going back to the tail end of my question was, are there other court systems where you’re not relying just on impeachment? Because if impeachment goes away, then, then there’s nothing.  

Maya Sen: We’d have to look at other presidential systems, and I think they have some of the similar problems that our presidential system does. The way that you resolve this problem in a parliamentary democracy is you call for another election, right? And you go through the electoral process there, and we don’t have that. No matter what Trump does with regards to the court, unless he resigns, which I don’t think he’s going to, we’re...  

Ralph Ranalli: We’re stuck with him.  

Maya Sen: We’re stuck with him for the next three years. And unless there’s a massive sea change in the 2026 midterms. Congress is not going to impeach him. That is the difference between now and 20, 25 years ago.  

Ralph Ranalli: It was interesting because you mentioned J. D. Vance and, and Elon Musk and they’re basically threatening to not obey the court’s orders. J. D. Vance even quoted Andrew Jackson from Worcester versus Georgia, where Jackson ignored the Supreme Court’s ruling on that the Cherokee people being entitled to their land. And that led to the forced relocation of the Cherokee nation to Oklahoma and the Trail of Tears and the deaths of thousands of people. And they’ve also talked about impeaching judges…  

Maya Sen: That’s right. Yeah.  

Ralph Ranalli: …who issue rulings that they don’t agree with. Would it in some sense be better, given the current situation, if they were forced to do that? If they actually were forced to go those to those lengths, because then you have a crisis of such proportions that perhaps there would be some call for a larger systemic change.

Maya Sen: It’s a really good question. So I actually looked at some of the data on this and I will say that what I found is somewhat reassuring on this question. So I’ll give you some basic statistics on this. I want to say it was the Washington Post. Maybe it was YouGov, but someone did a poll recently on whether the president should comply with a Supreme Court ruling, sort of the president should, right? And something like 83% of people agreed that the president should absolutely conform and comply with the Supreme Court ruling and some people might say: “Oh my gosh, 17% of people don’t think that.” But in the study of public opinion, which is something that I engage with, 83% is really high. That’s about as high of a public consensus, as strong of a public consensus, as you usually get in these sorts of surveys. And one thing that was kind of interesting about that is that it was super majorities of both Democrats and Republicans. So this is something on which—this idea that the president should comply with the Supreme Court ruling—is something on which Democrats and Republicans both agree that the president should do.

And that kind of creates an expectation of how you think Trump should interact with the courts, right? There’s this strong expectation going into this round of litigation that the president should, despite what Musk and Vance are saying, that the president should actually conform to a Supreme Court ruling. And so that means, I think if you’re thinking about the situation politically, from a political standpoint, not a legal one, but that means that if the president were to defy the Supreme Court, I think you would expect that he would pay a really high political price for it. I think that it would be maybe, for some people, not all of his supporters, it would be a crossing the Rubicon kind of moment, like you’ve gone too far at this point.  

Now I will say, I think before I sort of make a prediction along those lines, no one I think in modern politics has been as effective as Donald Trump is at moving the Overton window. He moves the Overton window all the time and across a bunch of different kind of bananas issues.  

Ralph Ranalli: So explain for our listeners who don’t know what the Overton window is.  

Maya Sen: Yeah.  

Ralph Ranalli: What is the Overton window?  

Maya Sen: So the Overton window is the area of acceptable public discourse, right? So we have a sense of things that are within this parameter of acceptable public discourse and some things that are just like too extreme and too bananas to be taken seriously. So if you shift the Overton window, you’re making things that were previously very extreme or crazy, more palatable, more mainstream. I think a great example of this is Greenland. I can’t believe I’m saying that. But Trump has been talking about annexing Greenland for a couple of years now. And he mentioned it a couple of times in his first presidency. And now he’s talking about it a lot and that has gone from something that was a total fringe, bananas-sounding issue to something about which mainstream journalists are reporting. And people are taking it seriously now and people in Greenland are being asked about it and Denmark is fully aware of the situation and they’re taking diplomatic steps. And so now Trump has moved the Overton window such that talking about annexing Greenland is a valid sort of policy proposal.

And there are a number of other instances where he has been able to move the Overton window on issues that were I think previously very fringe. And so something like defying the Supreme Court, I would say currently there’s a really strong public consensus around it. Like I said, 83-85% of people agree, which is really high. But Trump is so good at breaking public consensus that it’s possible that he could try to break public consensus on that. And so he might, through his social media accounts, his persona, his media personality, it’s possible that we might end up in a situation where many of his supporters might support him if he defies the court. And so never rule that out with Trump. He’s so effective a communicator.  

Ralph Ranalli: He gets a lot of help with the Overton window, I think. We’ve talked about this Congress and how compliant it is. And he also has the right-wing media echo chamber, which steps in to normalize whatever he’s decided to do. And then I think an increasing number of critics view legacy media as often playing a similar role in terms of amplifying and normalizing what Trump does. And so the media as an independent arbiter of where the Overton window should be has gone by the boards in our current situation too.    

Since we’re talking about the Supreme Court, I wanted to turn to the court itself for a minute. I was reading an essay by Professor Nicholas Bowie from Harvard Law School, and he said the options available to federal courts are too limited, too weak—which we’ve talked about—and actually dangerous for us to rely on. And I think what he was talking about when he referring to dangerousness was that Trump-friendly courts can actually make things worse by ratifying executive branch law breaking. If the Supreme Court can make things worse—because of course, there is a six to three conservative majority on the court—is there a strategic response to that?  

Maya Sen: I think that’s really hard at this moment. And the reason why I think it’s really hard to strategize or position these issues to try to benefit from a pretty conservative leaning court—I think the real problem that I keep going back to again and again and again—I think it’s because Congress just isn’t there. So we have three branches of government, the executive, the legislative, and the judiciary. If the legislative branch has checked itself out entirely, which is what it’s done currently, that only leaves the executive and the judiciary, right? As of this moment, with Congress just not exercising oversight, that leaves only the courts. So, I completely understand Professor Bowie’s position, actually. I’ve written a little bit about this myself and I actually sort of agree. But I’m not sure we have many other options at this point.  

I think one useful thing to keep in mind, and for someone who believes in constitutional governance and separation of powers, it’s not particularly heartening, but here goes. So the courts, I think, lean very strongly to the right. Generally, the Supreme Court is, as we all know at this point, it’s six Republican appointees, three Democratic ones. That makes it lean pretty, pretty far to the right, as far as the modern-day Supreme Court goes. But some of the things that Trump is trying to do are actually pretty extreme even for the current conservative justices.

Ralph Ranalli: Even for the court that issued the ruling in Trump v. United States, where he has immunity from criminal prosecution for acts conducted under his core constitutional authority and presumptive immunity for official acts? There’s stuff beyond that?

Maya Sen: There’s stuff beyond that. And I think maybe like a good example on this is birthright citizenship. So, Trump has issued an executive order that commands federal agencies to only recognize citizenship for those babies who are born of parents who are permanent residents or U. S. citizens, right? So, it excludes babies who are born to people here who are undocumented and also people who are here on temporary visas, right? And that is a huge departure from the way that birthright citizenship is understood in the United States, the wording of the 14th Amendment, actually, there’s some scholarly debate around this, I don’t want to put too much weight on it because it really is like the entirety of the legal academy versus two or three professors. So it’s not super evenly balanced. The vast majority of legal academics firmly believe that birthright citizenship actually is contained in the 14th amendment. So there’s not really much of a debate.

So something like that I think is a good example of this. So almost certainly it’s going to go up to the Supreme court, right? This issue of can the government deny citizenship to babies who are born of immigrants who are here either illegally or who are here on a temporary basis. And something like that, I think, is so far out of the mainstream. It’s so past the Overton window, the Overton window hasn’t shifted quite so far, that I think it’s going to be pretty unpalatable to some of the more quote unquote, moderate conservatives. And so I think that’s who we’re talking about here. That’s who’s going to be pivotal in these cases. It’s going to be John Roberts, Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch. That’s really who we’re talking about here. two of those four agree that that’s just going too far, then that will be struck down.

Ralph Ranalli: Right. Justice Barrett has recently drawn the ire of conservatives for some of her recent rulings.  

Maya Sen: That’s right. So it’s up to those four, really, I think, and they’re conservative. I think that’s the thing, they are very conservative individuals. This is the court that produced the Trump vs. United States case, this is the court that reversed Roe vs. Wade, so undoubtedly, it’s a very conservative court. But I just think that some of the stuff that’s happening, in terms of these executive orders, is probably too extreme, even for a conservative leaning Supreme Court.  

I think that’s very much a statement of where the court is currently. I think that’s really important, all of this is subject to change. Because people’s attitudes on this stuff is rapidly shifting. And again, we go back to this Overton window idea and how good Trump is at setting the terms of the debate and how quickly he can shift public opinion in his favor. And the court, you know, is not insensitive to that, that kind of public and political pressure, but it will be, I think, to zoom back out, I think it will be up to those four Republican appointees.  

Ralph Ranalli: So you recently wrote a very interesting paper about the courts themselves and about how there are structural aspects to the courts that make them lean to favor conservatives. And there are a lot of popular explanations of the reason for the conservative majority on the Supreme Court, for example “Oh, it’s about when vacancies have popped up, like the death of Justice Ginsburg,” or it’s about the influence of the Federalist Society in grooming conservative nominees. But your paper said the important issues were structural. Can you talk about those structural aspects of the courts that make them a very friendly place for people who want to push conservative legal theories and move the country and government to the right?  

Maya Sen: Yeah. I think a good way to think about the courts generally—this is not even speaking to who sits on a court or the composition of the Supreme Court or anything like that—but I think very, very generally the courts are really good at striking things down. So if there’s a piece of legislation that they disagree with, that they don’t like, that they believe is unlawful or unconstitutional, striking things down is pretty easy for them, right? It’s a 60-page ruling with different dissents and concurrences, but really it’s like just one ruling and off you go, the thing is struck down.

What they’re really bad at, actually, what courts are really bad at, is creating policy. So they’re good at striking policy down, but they’re actually much less effective at creating policy or building policy—obviously they can’t write legislation—but sort of creating things. They’re much better at destroying things that they are at creating things. And so if you as an elected official or as a policy maker believe that the right path for a country, for our country, is to have more limited government, to have the scope of government reduced, to enable free enterprise and people’s individual choice making, it’s very convenient to have an institution out there that’s very good at striking things down, and preventing government from entering into different spaces. And courts are really well equipped to do that for you. You don’t even have to bear the costs associated with them. You let the courts kind of handle the cost. They’re fundamentally unaccountable because they serve life terms. And so it’s very convenient for you in terms of advancing your causes. And so kind of stepping back—you can see where I’m going with this—if your viewpoint is that limited government is beneficial, which has been the traditional kind of conservative argument in the public sphere, then courts are going to be a very effective tool for you in terms of advancing your policy interests.  

In the current moment, it’s a little bit different because right now we have a conservative administration trying to advance its policies through policy making, right? So what does it mean to strike down something? But you do see how good courts are, or I guess how ineffective they are at rebuilding things. When you see the example of USAID, so I kind of mentioned this at the beginning of our conversation, but USAID has it effectively been dismantled quite a bit. And no matter how hard the courts try, even if they were to agree that trying to dismantle it was unlawful, a court cannot rebuild USAID. The Supreme Court cannot rebuild USAID. It cannot go out into the field and reestablish partnerships with NGOs, it cannot recruit doctors and social workers, it cannot rehire thousands of people that were let go, it cannot recreate the office environment that USAID relied on in terms of executing its mission, it cannot do those things. And so, that is an example of something where, even if liberals or progressives try to use the court offensively to try to counter some of what Trump is doing, or I guess I should say defensively, but it would just be very hard because courts are not really well positioned to recreate something that’s been broken.

Ralph Ranalli: You also said that we have a fairly distinctive process of judicial selection in this country and that is also a structural issue. Can you explain that?  

Maya Sen: Yeah, so the United States is one of the oldest democracies in the world. And at the time of the founding. the idea that the crown, the English crown, could come in and potentially remove judges made the founders very uncomfortable. And so they wanted to create a federal judicial system for the national government that was more robust than that, that was more independent, that had more autonomy from the executive, right? And so they came up with a system of nominating and appointing people to the federal courts by the executive, with the advice and consent of the Senate and that they would serve terms for good behavior. And we understand that to mean that they serve for life terms, right? So judges in the United States who are federal judges serve for life. And that means they can step down when they want or as has happened in the last 20 years, they can effectively just die on the bench, for lack of a better term.  

Ralph Ranalli: Right.  

Maya Sen: And that is very unusual in a comparative sense. So no country that is a peer democracy has adopted lifetime tenure for federal judges.  

Ralph Ranalli: What do they do in our peer democracies?  

Maya Sen: So most peer democracies have either term limits, where there’s a fixed term, something like 12 or 18 years. They tend to be long so that judges can ride out political cycles. Or in one country, in the UK, they actually have age limits, right? So at some point you get to a certain age and you’re age-limited out. This idea of lifetime tenure is very significant, I think, for the federal courts in the sense that what it does, what it has effectively allowed judges to do is to time their own retirements. And so because judges can time their own retirements, they can decide when to step down, they can choose to do it at the time of their own choosing. And so they can basically…  

Ralph Ranalli: At a politically opportune time...

Maya Sen: Yeah.  

Ralph Ranalli: ...for the political process to come up with a like-minded successor.  

Maya Sen: Exactly, and so you get into the cycle where a Republican, a judge appointed by a Republican will tend to retire when there’s another Republican in the White House. And a judge who’s appointed by a Democrat will tend to retire when there’s a Democratic President, and so on and so on and so on. And that totally breaks any accountability. The judges have.  

Ralph Ranalli: As opposed to an arbitrary date that’s just going to come along and it’s going to come along at a certain point in the political cycle. But there’s no way to job the system so that…

Maya Sen: Exactly.  

Ralph Ranalli: …that date…  

Maya Sen: Exactly.

Ralph Ranalli: …comes at the right time for your particular ideological bent  

Maya Sen: Exactly. We like to think that, well, we have elections in this country—every four years we elect the president, and we elect a new Congress—and we want to think that those choices that we make as voters will have their impact on the people who are nominated onto the nation’s federal courts, but if you have this kind of strategic retirement, it really breaks that connection. And so, instead of the, the president being sensitive to the political mandate or the lack of political mandate, it just means that Anthony Kennedy gets to choose when he retires and he chose to retire sort of with a wink, wink, nudge, nudge. You’re gonna replace me with my former law clerk who thinks kind of like me. And that just entirely leaves voters out of the equation. And so, I think we’ve gotten into this mess, in part because of that, and that’s something that’s very hard to change because it’s in the Constitution.  

Ralph Ranalli: So I want to get to some solutions oriented things…  

Maya Sen: Yeah. This one’s hard.  

Ralph Ranalli: …as much as it’s possible. I’m curious about this question. When you go out and you talk to people, friends, etc., what do you think is the one biggest misconception people have about the federal courts, and the federal court system    

Maya Sen: I do think that there is, I think, two things. One is that people have a sense of what’s right and wrong and what they would do if they were judges, how they would rule on things, what they think about things like presidential powers and abortion and affirmative action, and they frequently assume that the way that they think about things is the way that the courts will handle things. And that’s not entirely true because courts are experts in matters of constitutional governance, but they also have their own preferences and they’re not necessarily reflective of the general population. And so sometimes people are surprised, in an unpleasant direction when courts do something that is surprising.  

Ralph Ranalli: Yeah, you’ve done a lot of work on the polling about how out of step the courts are with public opinion. Can you just summarize a little bit of that? I don’t want to let that go because that’s an important part of your work.  

Maya Sen: No, and we’re still doing it now actually. So for about five or six years, I have a group of collaborators that I’ve been working with and we’ve been asking members of the public about the issues that the court hears every term. And what we ask people is we just present people with a very, very simple explanation of a particular case, and we ask people, well, how would you prefer this to go? Right?  

So let me give you an example of this. In 2023, the court heard a case that concerned the use of affirmative action in colleges and universities in terms of admissions. And so we asked people in our survey, how do you feel about the use of race in university admissions? And we were able to get people’s responses to it, and, as you’d expect, there were partisan divides. Turns out affirmative action is actually pretty unpopular and so people told us, you know, I’d prefer this not to be used, and then what we do is we can compare those answers to how the court actually ends up ruling. So in that particular case, the court very much sided with public opinion, surprisingly I think to people who operate more in kind of liberal circles like the one at Harvard. So that’s an example where the court actually ruled in a direction that was supported by majorities of people.

But sometimes you don’t. You don’t get that. And that’s what creates surprise and backlash. So to give you a couple of examples of kind of that backlash, where people are surprised, I think Dobbs is one.  

Ralph Ranalli: Right.  

Maya Sen: Where there are really, really... Dobbs is the case...  

Ralph Ranalli: Overturning Roe v. Wade.  

Maya Sen: Yeah, exactly. So, people don’t know a lot about what the court hears, but if they can name one case, they can name Roe versus Wade. That’s generally what we see in the, in the public opinion data. And Roe tends to attract majority support, but it’s a partisan split. So, Democrats overwhelmingly were supportive of Roe and Republicans were more cool to it. So when the court came in in this case called Dobbs in 2022 and overturned Roe versus Wade, then you saw a pretty significant backlash, but primarily from the left, right? Those were the people who were the most upset about it, the most shocked, the most surprised. If you were on the right, you were probably not as shocked or surprised by it. And in fact, you probably predicted it, and you were probably more supportive of it.  

So, that’s one example. I think another example, maybe a little bit more under the radar, but probably more significant, is the Trump versus United States case. So this is the case concerning the potential criminal prosecution of a former president. So in that case, the court actually said that the president is immune for actions taken in his official capacity. And if that includes criminal activity, then sort of so be it. And that’s a pretty strongly expansive reading of presidential power, and it was very surprising, I think, given precedent on it, the Nixon case that we talked about it in the beginning of our conversation. But also, vast majorities of people thought that the president should be held criminally liable for criminal actions, regardless of whether they’re done in, his quote unquote official capacity. We don’t even know what that means. And so that was actually a very unpopular ruling. And so that is another example where people expected one ruling or wanted one ruling and then the court came in, gave them a totally different ruling, and that created a pretty strong backlash.

And in fact, maybe, a couple months later, Democrats introduced a bill in Congress, the No Kings Act, and Joe Biden actually finally went on the record in a Washington Post opinion piece calling for a constitutional amendment to override Trump versus United States and a series of court reforms. And that was the first time in his entire presidency that he was motivated to actually speak out forcibly against the Supreme Court. So that was really notable, I would say.  

Ralph Ranalli: So in terms of responses to... obviously this is not the situation that a lot of us would like to be in, in terms of where our courts are and their efficacy as a third branch of government and a check on the other two branches. Speaking of those structural changes: What would the ones that would rise to the top for you as being the most effective? Would it be expanding the court a la FDR? Would it be something else? What would be at the top of the list for you in terms of structural court changes to make the courts more effective?

Maya Sen: So I think something that would make the courts less politicized, more independent, probably more effective in a time like this, although we will see, is something like term limits. So I mentioned before that the Constitution has language in Article 3 that says that Federal judges should be appointed for good behavior, so long as they have good behavior, right? And that’s been taken to mean lifetime appointments. But some work I’ve done on term limits suggests that they might actually be really, really good for some of the problems that we’re seeing. And the reason why is because, if you put in a 18- year term limit, so a judge can only serve for 18 years, that’s usually the default in these proposals is 18 years. The reason why is if you have 18-year term limits, that means that any president in a four year term can name two justices. Right. So if each president, each four-year term, they can name two justices, that dramatically reduces the political drama around any one nomination. Everybody knows they’re going to get two nominations. Joe Biden would have gotten two nominations. Trump would have gotten two nominations. Obama would have gotten two nominations and so on per four-year term, right? And it just reduces so much of the politicization around each nomination. It just takes the temperature and just lowers it dramatically.

That’s one thing. But the other thing is that it means that these justices can’t retire when they want. It reduces that what we would call strategic retirement incentive. So they no longer can game the system and you can’t have Democrats retiring only when there’s a Democrat in the White House and Republicans retiring only when there’s a Republican in the White House. And what that does is in the long run, it brings the court more into alignment with where the public is, right? We have a reduced probability that the court swings too far to the left or too far to the right in any given moment. And so I think term limits are actually very good.  

And that’s why other countries have adopted them, in terms of structuring their courts. I think the real challenge, which is maybe the obvious one, is that, well, the language of the Constitution is the language of the Constitution, and it’s very hard to get around that, especially when the people who interpret the Constitution are the justices themselves.

Ralph Ranalli: Exactly.  

Maya Sen: And so they’re not going to want to act in ways that reduce their power. But I do think in terms of concrete policy and reform, term limits are excellent.  

Ralph Ranalli: Did the Democrats... they had a window a few years back to expand the court, which is something that does not require a constitutional amendment.  

Maya Sen: That’s done by statute.  

Ralph Ranalli: That can just be done by statute. Did they miss an opportunity and would expanding the court have any structural benefit or would it just have been a way to change the ideological composition of the court?  

Maya Sen: I think more the latter. And let’s talk about court expansion for a second because it’s really interesting and I, I think it speaks to the differences between Democrats and Republicans. So you’re right that expanding the size of the court is not... the size of the court’s not in the Constitution and so it’s something that Congress could change through statute. But, here’s a big but, everyone has nine justices baked in their minds. I think it’s because we went to school and we learned about the Supreme Court and it sort of drilled into your head that there are nine justices and so it’s very hard for people to conceptualize or think about a court that’s like, has 17 people. It’s just kind of weird to think about and we’re not really educated that way.  

But maybe we should be. Different courts of appeals around the country have different number of judges, so you can get a court that’s quite big, like the Ninth Circuit, which has like 40 or 50 judges, you can get a court that’s smaller, like the First Circuit here in Massachusetts, which I think is like 10 or 11, so different court of appeals have different numbers of judges, and they make it work. They hear cases in panels and groups of three. So, that’s one reason is well, we’re just kind of used to a nine-member court, but it doesn’t have to be that way.  

But I think the real reason that Democrats have not jumped on board the court expansion train is because I think for many older Democrats—and that’s the cohort of Democrats who are currently in power—the Supreme Court as an institution is something that is quite venerated. Many of the Democrats, and I think Joe Biden’s one of them, grew up in the warm glow of the Warren Court era. So the Warren Court is the court in the 1950s, 1960s, that struck down segregated schools, that created the doctrines of one man, one vote and sort of protected voting rights. Subsequently intervened on behalf of criminal defendants and freedom of speech issues, freedom of the press and things like that. And so there’s sort of this, I think, progressive, righteous image of the Supreme Court that really imprinted on an entire generation of Democratic elected officials. I think Joe Biden is one of them. Dianne Feinstein, who was the chair of the Senate Judiciary Committee for a while, I think she also had a very warm, favorable view of the court as an institution and I think the view among a lot of this generation of Democrats has been: Well, this is a temporary blip. The court’s conservative nature at this moment sort of temporary, but the court is an institution is good and righteous and arrives at the right decisions at the right right point in time  

I think a younger generation of Democrats doesn’t really feel that way...  

Ralph Ranalli: Perhaps this historic moment undercuts that as wishful thinking.

Maya Sen: Yeah, although I think that now, given where Democrats are in Congress, and how weak they are electorally, I do think right now for many Democrats, they’re looking to the courts. They’re looking for the courts to be the morally righteous branch of government, and boy, that’s not a great place for Democrats to be, I don’t think.

Ralph Ranalli: Yeah, it’s a tough one.  

Maya Sen: Yeah.  

Ralph Ranalli: So, last question, in terms of things that people who are not happy with the way things are trending can do: If it’s not Congress and it’s not the courts, what’s left?  

Maya Sen: So, I think it has to be Congress. But I have two answers to this. So, I think it’s very hard to make constitutional governance work, if your Article 1 legislative institution has collapsed, the system doesn’t work. The system was made to have three branches of government. It’s like a tripod, right? One of the legs is knocked out. The tripod is not stable any longer. It will topple over.  

Ralph Ranalli: And the assumption is each branch is going to defend its own turf.  

Maya Sen: That’s the assumption that the framers had, right? That, that was the idea is that none of these branches of government would willingly give away their power. And yet we have Congress willingly giving away its power right now. So I think the current situation is very unstable with Congress abdicating its responsibilities. So I will say I’m not going to give up on Congress just yet. I think it has to be part of the equation for this to work. And I do think that gives members of the public some agency. Right now, we’re a couple months in and we’re seeing some of the first kind of public backlash against some of these executive orders, and one thing that’s been very interesting for me to see is that a lot of the pushback has been on people’s congressional representatives saying, don’t give away your power. He’s taking on too much power. We voted for you. You need to exercise power on our behalf as a member of Congress.  

And as someone who studies this, and I’ve, I’ve been thinking a lot about this. I think it’s really great to see, because people want Congress to be a vocal participant in our framework of constitutional governance. We can agree or disagree about foreign aid. Some people might think it’s too much. Some people might think it’s too little. That’s fine. But it appears that collectively there’s an agreement that those decisions should be made by Congress and not by the executive branch unilaterally. And so I’ve been heartened to see that. And I think that is the way to go.  

And it doubles back onto the courts as well, because the courts can’t, like I said, this is kind of a tripod, right? And if one leg of the tripod is not there. The whole thing is going to topple over, but having Congress be an active participant emboldens the courts, right? And this goes back to the story of Nixon versus United States. What made the courts powerful is the fact that Congress had the courts back, and so I think we would be better served if Congress could play that kind of role again. And so having the Congress and congressional representatives say, you know, I agree with President Trump, but one thing I will not agree with is if he defies the Supreme Court.

That would be great. And having people demand that their congressional representatives sort of agree to that kind of basic constitutional commitment, I think would be great. And I think we’re starting to move in that direction, but I do think that those kinds of pressures have to come from members of the public. So I think we want to sort of wake Congress up, get them to do stuff, get them to stop giving away their power. But I think the way to do that, to get to that outcome, is actually through the public.  

Ralph Ranalli: Well, Maya, thank you so much. This is a momentous, historic era that we’re in. And I’m so glad you were here to talk some of it through with me.

Maya Sen: I was very happy to be here. Thank you.  

Outro (Ralph Ranalli): Thanks for listening. And if you liked this episode, please leave us a review on Apple Podcasts or your favorite podcasting app, and while you’re there, hit the subscribe button so you don’t miss any of our important upcoming episodes. So, until next time, remember to speak bravely, and listen generously.