3.0 Law and Courts

Prof Greer explains the role of the Supreme Court and US judges in policymaking. What are the implications of recent judicial decisions for health?

• Find work from the HMP Governance Lab at www.hmpgovernancelab.org and on Twitter @HMPgovlab
• Music: 'Blippy Trance' by Kevin MacLeod

Transcript

Scott Greer: 0:10

Welcome to the HMP Governance Lab Podcast. I'm Professor Scott Greer. And I'm here to talk about the courts in American politics. Now, I'll start with a couple of key takeaways. And then I'll talk my way through the basics of how the courts operate. A little bit of a historical story about how we came to have the understanding of the courts in American politics and life that we have today. And the monumental changes that have taken place, essentially, since the Trump presidency in the role and politics of the Supreme Court in American politics and public life. Now, the key takeaways that I really would like you to take away is that, first of all, everything is political. And that includes the law. A Supreme Court has a lot of decisions that are quite boringly technical to most of us, but they're contests of political interests, between varying parties. And if you're not interested, it's because you don't share the interests of those parties. Because everything is political, and in particular, big hard questions like abortion and racism and free expression are political. That means that the courts are political when they're treated politically as such. Now they're political in a number of ways. They're political in the ideological sense, we're comfortable speaking about judicial conservatives and judicial liberals. Their political also in the partisan sense that increasingly knowing who appointed a judge is going to give you a fairly clear sense of where that Judge stands on the key issues of the day. One of the many ways in which Donald Trump was an innovator in American politics was his explicit declaration during the 26th campaign, that he was not going to nominate any judges who were not in his terms, pro life. Previously, there had been a whole lot of somewhat disingenuous hemming and hawing among presidents about what kinds of Judge they said they didn't want to have a litmus test. Trump gave his voters what we all knew both parties have, which is an effective litmus test on the federal judiciary. There's lots of mechanisms that make sure there's a litmus test he was just honest about it. So in other words, the courts are political, their place in American politics is politically determined. Their decisions about the law are political. And they're understood as such by political players. The best simple way to think about the United States Federal Supreme Court is as an unelected legislature, which is substantially filled out for life terms by a process of chance when people die, and retirement when people strategically choose to retire and who's capable of filling their seats when they do. Well, moving on to the basics. The key concept that distinguishes the American judicial system in politics is that of judicial review, the idea that the courts can review and possibly overturn or stay just about any decision made by a branch of government, they can stay in executive action on the grounds that the executive is outstripping the authorizing statute. They can step status and overturn a statute on the grounds that to the statute itself and is in violation of the Constitution. Because the courts have given themselves the power and it is widely accepted in American life that they have this power, judiciary, judicially review almost everything. They are extremely powerful. This power applies to the federal court system, it also applies to State Supreme Courts. Now, how are they organized? First, we'll start with the federal government, which is Article Three of the Constitution, which doesn't specify a lot about the courts. But it does say that federal judges have life terms. Otherwise, the structures are set out in legislation. And there's a three tier structure of federal courts, the beginning, you have district courts, which are actually trial courts, they're ones that ascertain facts. So if you get arrested on a federal charge, it's going to be a federal district judge who is going to hear your case. Then you have circuit courts, which are one of the two tiers of appellate court appellate meaning they hear appeals. So the circuit courts are the ones that are numbered. So for example, the Fifth Circuit is a very conservative circuit based in New Orleans that has made the running with a lot of very important decisions. And they hear appeals they don't refined facts. You can't argue that the district court made the wrong decision simply because it misunderstood you. You have to argue that there was a point of law, the district court messed up and that's the basis in which you appeal to appellate court. Then there's the Supreme Court, which is the next appellate court, and it's the most important one in the country, and it's generally taken as deciding what law is. The Supreme Court controls its docket. So it gets to decide which of the 1000s of cases that are appealed to It actually hears and the Supreme Court has been hearing steadily fewer cases over a number of years. We're not totally sure what the impact of that is. So you have a three tiered structure federal trial courts initially hearing cases, for example, people saying that they believe that the new Mississippi statute is unconstitutional. The circuit courts then decide if the district court was correct in an appeals process. And if there's still competition and goes up to the Supreme Court, Supreme Court is made up of nine people like everything else, this is set in statute, Congress can in theory, change it. So people talk about court expansion or court packing, it's perfectly possible to do that. Now, the federal court system has a lot of really high profile constitutional cases, it's sort of a lot of the history of the politics of an issue like abortion or racial desegregation is wound up in the behavior of the federal courts, but don't sleep on state courts, as in a lot of things the states have become more and more important in American life, in recent decades, moving to the center of a lot of our national political debates, and state courts are absolutely a case of that. Now, states do most of the criminal justice and civil justice that you see, so your average person who is caught on a drug or traffic violation is handled by the state courts, a lot of things that appear to be local, are actually local courts of the state of wherever you are. So Washington County does not have an independent judicial system. Michigan has a judicial system, which includes judges and courts in Washtenaw County. In other words, the state's do most of the practical law. And there are 50, big and fleshed out judicial and civil and criminal justice systems. Furthermore, states have their own constitutions, and they have their own constitutional law, which is interpreted by their own Supreme Courts. Now, how these courts are selected varies widely, there's a lot of, let's say, creativity, shown by the states in how they choose their Supreme Court judges, and what kinds of oversight they're subjected to. But the key thing is that the judges are frequently much more connected to the political process much more likely to be term limited than you see at the federal level. So for example, in Michigan, the judges on the state Supreme Court go up for election and re election, they're on fairly long terms, they rotate, so you can't vote out the entire Supreme Court in one election. And in order to preserve a mirage of judicial impartiality, the parties can nominate judges, so judges clearly have Team Red and Team blue jerseys on, but that's not printed on the ballot. So when you go into vote, all you see are the names of these people. And you have to, I guess hope that you know, or the candidates certainly hope that you know, the partisan affiliation of the judges in question, because unlike essentially every other job, University of Michigan region, Governor, you're not told the party even though the parties clearly endorse and work with judicial candidates. So at the moment, Michigan has a political court with party affiliations, except that's deliberately obscured from voters in a way that drives down participation in the election of the Michigan Supreme Court. Now, what this means is that you've had a number of stitch in time saves nine events in which the political coloration of a state Supreme Court has essentially decided that state's politics. So for example, Michigan has had for a couple of years now a Democratic majority on the state Supreme Court, which has done a lot to change the direction of judicial conservatism. That is, for example, still continuing in Wisconsin, which has been left by the state Supreme Court with effectively a system run by a Republican legislature a rewriting of the state constitution, to disempower the governor. Now, what are your takeaways? First of all, courts are political, because the questions that are most important that they decide are political, and even the unimportant questions are typically political to the people who matter to them. It's about a conflict of interests. So while they're bound, and they're legitimated by understanding the law, they also can frequently make the law and they also can do it and explicitly do it with policy goals in mind. Do not let anybody tell you that the Supreme Court calls balls and strikes like an umpire because unlike an umpire the Supreme Court is capable of deciding the rules of the game and who wins. Secondly, a vast amount of the actual justice that you see is in state and local courts, and you want to pay a lot of attention to them despite the allure and the national focus of the constitutional debate at the federal level. And don't put them on a pedestal is my third point. They're political actors. They're really no more interesting than legislators. Their senior judges are no more interesting or thoughtful by and large than your average senator. The difference is that your senators do not have a surrounding apparat Have law schools and legal commentary to justify and give credence to their decisions. If the senator says something, people are more or less expected in large numbers to say that's a stupid thing to say, whereas if the Supreme Court says it traditionally, it's been law invalidated as such. So, next part, the story, the story of American legislation, and the court system is really important and interesting, because the courts have been traditionally very, very important in all aspects of American public administration of life. Up to the 1960s, the law was a kind of glue. The whole American political system, in many ways was held together by lawyers, and not just any old lawyers, very homogeneous bunch of essentially white Anglo Saxon Protestant lawyers all the way up through the 1960s. So women, black people, Catholics, people of Polish, or Irish descent largely frozen out. This meant that the political and judicial elite of the country had sort of a much higher level of basic understanding of each other than you might otherwise anticipate. This broke up in the 1960s in a very dramatic way, even if the demographics of the legal profession took far longer to start to shift. You saw a shift away from the courts being an essentially small c conservative glue for the country to being recognized as one more very intense and autonomous political arena. That was how it came to be, for example, that under the Warren Court, one of the rare Supreme Courts of the liberal majority in American history, you saw decisions like Brown versus Board of Education desegregating the schools, which nobody took as a decision that was outside politics, or 1973. Roe versus Wade, which recognized abortion, and in many ways, was the progression of a whole line of jurisprudence that the court had been developing for about 15 years surrounding the right to privacy. Starting with the decision Griswold versus Connecticut, which was what said, there's a right for married couples to use contraception in their homes against law from 1879 in Connecticut. After the 1960s, something very interesting happened. Liberals and Conservatives agreed that the Supreme Court and the federal judicial system had become much more hospitable to liberals and their views. Liberals became increasingly entrenched in law schools where to this day, you see a very significant liberal but a liberal preponderance among the students and among the faculty. And a lot of that liberalism was, in a sense, what you would expect, which was it was very social liberalism, it was not so much focused on for example, union rights as it was on for example, privacy rights. Conservatives recognize this big business recognized it people who were interested in opposing racial desegregation or abortion rights recognized it. And they began to try and come up with some sort of a counter offensive to the rights focused liberalism that they saw as permeating the judicial system to the detriment of their interests and goals. They came up with a number of schemes. One of them was law and economics whose influence you see, for example, in antitrust law, and antitrust law right now, one of the key areas where its power and potential change is being tested, is in health care provider mergers, so pay attention. Lon economics is essentially the idea that the method that courts should apply should be drawn from economics, not economics, necessarily in the sense of clever, inferential empirical strategies, but economics in the sense of a great deal of faith in markets, a focus on and goals of focus on choosing the most efficient, underline the word efficient way to achieve something. So it's no surprise that, for example, one of the Paragons of the law and economics Movement said that adoption should be run through a price mechanism. So you pay to adopt children. And he made arguments for that. That was Richard Posner, the most cited legal academic in history. In other words, line economics was a very it turned out business friendly way to, for example, argue that there shouldn't be a right to clean water. But that clean water involves trade offs, and we should decide what price certain people should be made to pay for having access to clean water. And except possibly that some people aren't going to get clean water because the price is going to be too high. And then that there's a whole set of allocation or decisions about who should pay for that clean water. You can imagine, of course, how this could very easily be hijacked into concluding, for example, that environmental racism is just fine because the people who have to pay for it are ones who are politically powerful. Another stance is originalism. Now originalism is the thesis that you should read the Constitution as the founders would have intended it. It's difficult to present originalism fairly because it's so transparently political. First of all, it encodes the belief that the things that In the heads of the founders who, for example, did not conceive of political parties should be used to drive politics in 2022. It implicitly says that amendments should be viewed in the time of that they were passed. So for example, the dobs decision that put an end to Roe versus Wade in the United States pretty explicitly says that the Reconstruction amendments which substantially reshaped the American state after the Civil War, don't include any rights such as a right to abortion that were unknown or unattractive to the people who pass to that it's explicit in the Alito controlling decision of the Supreme Court in Dobbs, that you should go with the original attempt, as the Court understands it of the mid 1860s. There's two problems here, first of all, is the normative one, that it's not clear why you should privilege what people thought in the 1860s and 1870s, as a guide for policy in the 2020s. And the second is the empirical one, that there's really no basis on which to say that you can ever divine the original intent, go back to the kind of founding problem of the Constitution, which is that they didn't anticipate or want political parties. And then most of the people who signed the Constitution went and founded political parties. So it was the intent of the founders, that there be political parties, you have to ask the founders in when they signed the Constitution versus in 1801, when they were having an absolute bloodbath of a political contest. Now, those are ideological responses law and economics and originalism and they're both very powerful although originalism increasingly shows the extent to which is essentially just a conservative project. Now, the Federal society is a very, very effective mechanism to turn all these ideological ideas which would remain entrenched in law journals into some actual effective political action. The Federalist Society comes off as sort of a debating society and lots and lots of people have participated in high quality well catered Federalist Society events. It also effectively constitutes the farm team, for conservative in particular federal judicial promotions. When Donald Trump made his breakthrough and was honest about judicial appointments at the federal level, one of the things he said is he had a list of judges from the Federalist Society whom he would approve. Now remember what I said about how law schools are disproportionately liberal and elite law students are disproportionately liberal. And that matters because of the ridiculous dominance of Harvard and Yale, in the Federal Judicial hierarchy. What you see when you actually study judicial careers, is that conservatism doesn't predict career success until you get to very high levels of politics. So when you get into things like federal appellate judges, having been a conservative, very, very much helps you so you see affirmative action from conservatives coming from the political system as a quite explicit counterweight to the perceived liberal dominance of elite law overall, this is the political structure of the conservative counter offensive against the liberal courts that we're changing America in the 1950s. In the 1960s. It took a while to gel, but it worked extremely well and gave us the Trump court. So what this sums up to is that you had an explosion in law in the 1960s, when a number of things such as a liberal Supreme Court, and changes in broader American society, such as the admission of women, for example, which is a thing a number of Supreme Court judges actually sitting on the court today opposed at their universities. And in response to this liberal power, an explicit well organized multi decade well funded, conservative set of responses, which included an effort to introduce economic reasoning in order to prevent essentially rights based regulatory policies getting out of control, and also originalism, which combines the empirical proposition that you can figure out what the Founders intended with a normative proposition that the guiding principle of racial politics or sexual politics in the 2020s ought to be the intention of people when they passed an amendment to the Constitution in the late 18th century or the mid 19th century or whatever. Now, all of this is made possible by the fact that Republican voters fundamentally have cared about the courts. We have had decades and decades of public opinion, asking voters what matters to them, inferring in political science research, what voters care about, and we found that Republican voters really cared about the courts and in particular, conservative white evangelical voters really cared about the courts. Democrats, not so much. There are a number of reasons for this, but Democrats routinely would say that their favorite branch of the federal government was the court and give much higher scores for popularity and credibility and respect to conservative judges such as Chief Chief Justice Roberts, then to many Democratic politicians. A lot of this has to do with the fact that the Republicans are generally more coherent and ideological party and the Democrats are much more a coalition of people seeking individual policies. Now here next part we come up to today because what I just described a successful conservative counter offensive against an entrenched kind of law school liberalism, which was working increasingly well and fueled by the organizational mechanisms of the Federalist Society and the deep interest of the Republican electorate as well as politicians and conservative judges. That brings us up to the Trump courts. story begins in 2016. When Antonin Scalia, one of the courts notable conservatives and a really excellent writer died. Typically, the President would nominate his replacement Barack Obama. Barack Obama nominated Merrick Garland, who later become Joe became Joe Biden's Attorney General garden's nomination was held up. The Senate simply refused under a Republican Leader Mitch McConnell simply refused to entertain it with the argument that you shouldn't appoint a judge too close to the election because something something the real reason was that McConnell figured that there might be a Republican victory in the 2016 presidential election and he wanted to give this case C to a Republican. Then Justice Anthony Kennedy strategically retired as a Republican while there was a Republican president, and he was replaced by a Republican. And then finally, Ruth Bader Ginsburg died, at which point it became clear that judicial priorities of the liberals were pretty much doomed. Although I was one of the many people saying in 2016, that this was the end of Roe versus Wade, it just takes a while to come. After Ruth Bader Ginsburg died, they immediately rushed through me Coney Barrett, conservative law professor from Notre Dame a month before the election, while people were actually voting don't bother with the hypocrisy that Mitch McConnell showed because he got what he wanted. And he won. What he won was a six, three courts, six, three conservative dump majority on the Supreme Court. Now, especially as we approach the end of the first term, or only term of the Joe Biden presidency is much more even at the lower court level. Biden, unlike his predecessor, predecessor, Obama, on the Democratic side has been very, very interested in getting judges confirmed. So at the lower levels, the district and the circuit levels, you see a much more even partisan balance, but at the top, you have a six three Supreme Court. The implication of a six three Supreme Court is that you can have a conservative judge on any given issue, be a bit of a squish and not quite agree with his or her colleagues, and still have a five four conservative decision. You see this over and over again. In Dobbs, for example, the Chief Justice ended up on his own writing an opinion, arguing that they shouldn't be so radical as to say, as the majority did that Roe versus Wade had been wrongly decided. And instead, they should do what he had been advocating in a variety of areas, which is a much more gradualist approach of permitting, and lessly more difficult restrictions on abortion providers. Well, fine in a five four court, that would matter. It was his vote, for example, that saved the Affordable Care Act in NFIB versus Sebelius. But even if he defected, there's still a five vote majority to overturn Roe versus Wade. And that is exactly what happened in the dobs decision. So for the foreseeable future, given the ideological steadiness observed over decades by the Federalist Society, because this matters too much to leave it to amateurs, the relative youth and health of the judges and the likelihood of Republican presidents in the future, you can expect a pretty consistent conservative majority barring some sort of a change in the basic composition, meaning, for example, the size of the Supreme Court, you can't put life limits on without amending the Constitution. But there's a lot that potentially could happen. And I'll come back to that. In the meantime, what are the constraints that the Supreme Court majority faces because on the face of it, they look pretty good. They're there for life. They're not really accountable to anybody, and they finally have an ideological chance to repair the damage Alito makes it very clear in the Dobbs decision, that decades of liberalism and conservative weakness have allowed to happen to American society. Well, the first constraint is simply legitimacy. And this has been the point that Chief Justice Roberts likes to make, which is that the court in Hamilton's words is the one of the weakest branches because it has to rely on decisions being brought to it and then it has no independent enforcement power of its own, and it can't claim to represent the people. So Roberts is constantly saying that the court should get away with as much as it can, and it's preferred ideological direction. He doesn't describe it that way. Without getting any kind of a public blowback in public opinion or in legislative activity or in opposition to the courts. And this is an argument that courts do seem to take Seriously that plummeting legitimacy for the courts they do regard as a problem is the popularity of the court actually a significant constraint? Well, in a sense, so long as you have a Senate, that is a very, very difficult place to make liberal legislation, and a Democratic Party that tends to focus on concrete policies like say, Medicaid, instead of procedural change, like, say, changing the size of the Supreme Court, it's not really clear that the Supreme Court has got all that much to worry about. And this is an argument that conservatives in the majority on the Supreme Court have been known to make, which is that the axis of the Senate and a conservative Supreme Court is actually while it might not give conservatives everything that they want, that might be a very solid base on which to govern the United States for most of the foreseeable future. Now, what does this mean? A number of things. First of all, it means the public health powers are likely to be limited and looked upon with disfavor by the conservative Supreme Court, even if you might find a more mixed bag at the state. And the lower federal court levels. It means something very important, which is that there's an increasing General Hostility to regulation. And this is what people are talking about when they talk about things like Chevron deference and the non delegation doctrine, namely that the current structure of the administrative state going back a very long time. And this is the whole underpinning of things like the American Administrative Procedures Act depends on agencies being authorized by statute to make regulations. So for example, the EPA is authorized to regulate against new chemicals that constitute a problem. And the legislation is explicit that the EPA should have the autonomy to identify new problems. So if a chemical that wasn't a problem decades ago, when they pass the law comes to be seen as a problem, then the EPA should be able to follow the science and the developing state of the environment. Now, this is not a conservative goal, because it empowers agencies to develop new regulations. What you would prefer, as a conservative is something called the non delegation doctrine, which is to say that these agencies are too powerful and that decisions should be made by legislatures because as we all know, American legislatures are both very political and often much more in tune with conservative objectives than an agency being told to follow science on an issue like exposure analysis. So what you're seeing is a very, very strong, very popular with business push, the regulation should become something that has to be mandated by the legislature and is not something that you can delegate to the executive or in particular to agencies. There's a lot on religious freedom. Now, religious freedom and privacy are kind of bound up together here. But religious freedom refers to the extent to which you can say that because you're doing something in accordance with your religion, you are not bound by the civil law that would otherwise affect everybody. And this is, for example, the Hobby Lobby case and a number of associated cases on the Affordable Care Act, where religious freedom has been the basis for court decisions that maintain that even filling out a form saying that you as an employer do not plan to provide health insurance is an imposition on their religious freedom to not provide health insurance. So the ACA contains work arounds to create insurance policies that will cover abortion, but they can't even ask the employer to fill out a form saying that they don't want to cover abortion because religious freedom says they don't have two religious freedom cases are ones that you constantly find, for example, and whether or not you can send public religious freedom arguments are ones that you find in for example, questions about whether you can give public money to religious schools, or whether these kinds of endless cases that you see about whether or not a company, which can decide that it doesn't want to serve customers, for example, the famous Indiana case of whether a baker has to make a cake for anybody who wants to come even if they're personally opposed to gay marriage and don't want to make a cake for two guys wedding. Now, privacy. Next one, this goes back to Griswold versus Connecticut, which was the holding that married couples should have access to contraception. And that was the first case that nominated a right to privacy as part of the constitutional rights, especially the Reconstruction Amendments of the 1860s. Now dabbs in many ways puts that whole privacy law jurisprudence into question because there's a empirical originalist question as to whether they understood privacy in the 80s and 60s and 1870s, which is why dobs is full of historical annexes about state laws. But if we don't have Griswold if we don't have the right to privacy doctrine, holding in the Supreme Court, a whole lot of other things fall, same sex marriage Obergefell is a decision that would fall Loving versus Virginia, which overrode state bans on it. racial marriages would fall, you would find a whole lot of areas of American constitutional jurisprudence where we would dial back to the 1850s. And in terms of the age of some of these statutes, actually the 1870s. So finally, politics, arguably, while John Roberts has been comparatively cautious and institutionalist, on a lot of things, he has been the leader for pretty much his entire career along with Brett Kavanaugh and a number of other senior people on the court of a movement that is skeptical of efforts to increase access to the ballot and specifically of efforts to increase black representation in politics. So we've got a couple of decisions Shelby County versus Virginia ratio versus Common Cause, which have basically opened the way for state legislatures to interfere dramatically with election rules and election results in order to produce their desired outcomes. Now, all of these put together put liberals in a trap, right, because for example, the jobs decision says the state legislature should get to decide abortion rights. But Rocio versus Common Cause, Citizens United essentially make it much harder for citizens in states to actually affect those states politics. So they're suspicious of states becoming more democratic, and in particular, they're suspicious of things to do with changing the balance of racial representation in American politics. So that's what we are, what goes into the future. Remember, I said Democratic voters haven't been that interested in courts and Republican voters have been interested in courts since Dobbs, that appears to have been changing. Democrats have very substantially swung over the course of 2022. From believing that the courts were something like the umpires in a ball game to believing that the courts are an instrumental policy focused agency of the Republican Party. The extent to which you have seen a collapse in Democratic support for the Supreme Court has been dramatic, less so among independents. Furthermore, you're seeing a lot of Democratic politicians discovering something that isn't their natural register their natural registers to talk about prescription drug prices, which is to start to say that the courts are getting out of line. Historically, when this happens, the courts tend to sort of rein in a little bit because they realize on some level that their legitimacy is being challenged. If Democrats actually are in control of Congress and the Senate and the White House and want to do something about it, there's tons of things they can do, they can legislate, to say that the courts don't have judicial oversight at this point. They can legislate on the courts themselves, they can expand the Supreme Court and appoint a bunch of new judges, or less radically, they can use proposals like that to pressure the judges into thinking they're politically exposed and might want to get a little bit less extreme and pay more attention to conservative institutionalist. John Robertson, less attention to the firebrand is like Samuel Alito, and Clarence Thomas, who have some very, very conservative views and don't see why a 5463 conservative majority should stop them from pushing it. So that's where we are a somewhat unsettled moment, a very empowered conservative Supreme Court that could very well go all the way back to Griswold we really don't know whether we're going to see them trying to accept cases that would undermine gay marriage or interracial marriage or access to contraception or things to do with transgender care. We really don't know. They're not supportive of efforts to expand access to the ballot and better representation in American politics. They're very supportive of claims the normal American civil law infringes on religious liberty, they have a very strong and coherent worldview, which has been built over decades. Democrats, in many ways didn't pay attention to these issues, and the courts outside very narrow sort of reproductive rights areas, which were just one small segment of the broader Democratic coalition. What we have yet to see and where we have, frankly, remarkably little historical evidence to go on, particularly on the federal level, is what the effect is of Democratic voters coming to identify, in particular the federal judiciary as part of the Republican Party and showing the negative partisanship that by and large, Democrats and Republicans show towards anything dominated by the other political party. The other point is that state courts are becoming increasingly important states are once again moving to the center of our nationalized political stage. So for example, the state of abortion rights in the state of Michigan doesn't just depend on federal legislation and federal courts. It also depends on elections to and decisions by the Michigan Supreme Court. Enforcement then depends on state attorneys general and local prosecutors, which is how you end up with this very strange long interregnum after the Dobbs decision was initially leaked, in which abortion was legal in all sorts of different ways, while simultaneously being visibly under threat and That's how you still saw these long periods of time while court cases and injunctions and State Supreme Court cases interacted with federal and state legislators in order to shape abortion access. So state courts are becoming increasingly important in state constitutional law, state enforcement, meaning things like your county prosecutor are important not just in reproductive rights, but in, for example, anything to do with changes in the structure of policing. The Federal Supreme Court is extremely conservative, and for the first time in essentially recorded history of public opinion, being perceived correctly, might I add, as a partisan instrument by partisans of the opposing party, which could lead to more political pressure on the court now on paper, putting political pressure on the court doesn't matter so long as there's the Senate to protect them. But nonetheless, that's an area to watch the space because we really don't know how much pressure the court with its current occupants is willing to take from politicians. So this is arguably one of the most complex and important areas but it affects every dimension of people's lives. And I think if there's anything to celebrate over the last few years of American judicial politics, it is the extent to which it has stripped away a lot of the old rhetoric about impartiality and the idea that Judiciary's are above politics. They're not they're appointed by politicians to solve political questions served up by politicians, and whatever else you say about them. Democratic judge, liberal judge, conservative judge, Republican judge, they're certainly doing that.

Holly Jarman: 36:43

This has been an HMP Governance Lab podcast. If you're interested in learning more about our research can find us at www dot governance lab.org or follow us on Twitter at HMP. Gov