#22 Prof. Timothy Johnson

Guest: Professor of Political Science and Law at the University of Minnesota with expertise in the U.S. Supreme Court. 

Transcript

Intro

SPEAKER_00 0:00

This is episode 22 of Youthful Perspectives. I'm your host, Mason Bierbaum. My guest today is Professor Timothy Johnson, a Supreme Court scholar at the University of Minnesota. Professor Johnson has been lecturing students on the Supreme Court for over 30 years while simultaneously publishing a variety of academic work analyzing the functions of the highest court in the land. Our conversation covers Supreme Court history, judicial philosophies, and insightful anecdotes through Johnson's expertise. I hope you enjoy learning about the least known branch of government. And with that, here is Professor Timothy Johnson. I

U.S. Supreme Court's role

SPEAKER_00 0:35

think a good place to start when it comes to talking about the Supreme Court is maybe just talking about what the role what role the Supreme Court is supposed to play in an American democracy.

SPEAKER_01 0:44

Yeah, I think that's a really good question. It's the question that so many people don't fully know an answer to because the court is the most opaque of our branches of government. Um, in relation to the legislative branch, which is meant to pass laws and the executive branch, which is meant to enforce laws, the court's role in our democracy is to interpret the law. What laws are constitutional, what laws violate the constitution, um, and then how how much a law might violate the constitution, and should that law be fully stricken, or can are parts of it salvageable? But the bottom line is determine what is legal and what is not legal, or as I said a minute ago, constitutional or unconstitutional.

SPEAKER_00 1:27

And that's kind of always been the case since its founding back in 1900s.

SPEAKER_01 1:31

Yeah, that was the idea, right? Not just the idea here in the United States, but the the reason that the judiciary in general and the Supreme Court specifically weren't laid out so well in the Constitution, right? It's the smallest of the three articles that lay out the three branches of government, is because a lot of the founders were lawyers. Um, and they thought that our legal system would be very similar to the system in the UK specifically, a general common law uh type of judicial system. Uh, and so that was always the idea. Even in England and other common law systems, the judiciary is there to say what the law is.

Common law and civil law

SPEAKER_00 2:09

And I think it'd be important to dive into what a common law system of like a judicial branch is compared to a civil law system. Could you describe what a common law system is, how it differs from civil law?

SPEAKER_01 2:21

Sure. So let me actually begin with the latter, and that is civil law. And and the the key example of that would be France. Um and that is in a civil law system, um, almost everything is written down. That is written in stone. And so if you would go look at the French civil code, I mean it is hundreds of thousands, if not larger than that, pages. Um, because the idea in a civil law system is you don't want to leave anything up for interpretation. You want to make sure that everybody is treated the exact same way, and so you put everything down as the adage goes in stone. A common law system says, okay, we can understand that there are some things that should be written in stone, but we also know that sometimes things change in the world. Sometimes constitutions might change, sometimes laws might need to change. Um, and we also know that people change. And so in a common law system, we don't want to be as rigid as the civil law system. We still want to treat people the same. So if a decision is made in 1785 about how someone is treated in a lawsuit, we want to make sure that in 1855 that the people are treated the exact same way. Now, you know, if money is changing hands in a lawsuit, monetary amounts might have changed in those hundred years. But in terms of making sure that people are um given their given justice, given the value for property that might have been damaged or taken or whatever it might be, that it is treated the same. And so in a common law system, the courts have a lot more power and there's a lot more interpretation that goes on. As I said, not everything is strictly written down. Now, the issue with the United States is we've really become a combination. The Supreme Court still tells us what the law is and fewer, fewer cases now, right? They decided somewhere around 60 cases this term, whereas in the 50s and 60s and 70s, and even prior to that, they were deciding 150, 200 cases, maybe even more than that. So, common law-wise, our courts and our highest court in the land are interpreting what the law is and what is constitutional and what is not. But we also have a civil code in the United States, right? You can go look at the US code, you can just Google US code, or you can look at the Minnesota Code. So we really have a hybrid here, but in the end, it's up to the courts to determine what the civil law says if there's a dispute over it, and who would win a lawsuit in a civil action, and who would win, who would be uh considered the winner in a criminal case if it is someone who's been um criminally held accountable by the police um in a state or by the federal government. So it's not the easiest distinction, but the way to think about it is in a civil system, things are much more rigid and things can be much more fluid in a common law system.

SPEAKER_00 5:17

Absolutely. And that's gonna come into uh importance. We'll return back to that when we talk about other cases. Uh moving on, I think another

Federal district and appellate courts

SPEAKER_00 5:24

important aspect to talk about what the U.S. judicial system is the difference between uh federal district courts and the appellate courts. Could you talk a little bit more about what those are and what role they play?

SPEAKER_01 5:34

Absolutely. So when the Constitution was written in Article III laid out um the judicial system, it actually only said there needed to be one court. And and the assumption then was that would be the U.S. Supreme Court. So quite quickly, and literally with the first law passed by Congress was the Judiciary Act of 1789, and that created the the district and the circuit courts. Now, in order to tell the difference of uh between those courts in 2026, it's important to say what the difference was then. Um, and in the Judiciary Act of 1789, both of those courts were trial courts. So district courts were one judge, they would decide, and and I say to my students, I generally don't define these things, minor cases, right? Think misdemeanors in 2026. The circuit courts would have three judges on them, two circuit court judges and one U.S. Supreme Court justice would come to the circuit. They would hear the major cases, right? Think felony cases all the way up to something like felony murder. That started not working. And so by the late 1800s and 1891 specifically, the circuit courts turned into the first level appellate courts. And that's the system we have today. Bottom line is this U.S. district courts are trial courts. If you're going to enter the U.S. court system in a civil way or in a criminal way, hopefully none of us ever do in a criminal way, you're going to enter it in the trial court. So district court's just another way for saying federal trial court. The circuit courts are now known as the circuit courts of appeal. We have 13 named circuits as well as some other circuits that that deal with specific territories or or specific issues. They are staffed by somewhere between nine and 27 judges. California, I think, is at 27 now because it's such a big state, or the Ninth Circuit, and because it has California, it has so many judges. They will hear an initial appeal from the federal trial courts. And so if you don't like that you lost, right? You lost a lawsuit or you were found guilty of committing a crime, you can appeal to the circuit court. Under the Constitution and U.S. law, you do have the right to one appeal on demand. What that means is the circuit court, if you appeal, have to hear your case. Now they might not give it full dress treatment. They might not take briefs, they might not hear oral argument. In legal jargon, they might just decide it with summary judgment, where they just read what the case is about, they talk about it, they take a vote, and they decide. Or they could give it the full dress treatment. They can't do every case because everyone has the right to appeal. There's somewhere above 50,000 cases that go up to the circuit courts in any given year. So that's the difference. District courts are trial courts, circuit courts of appeals are the first time you would appeal a case, an appellate court, if you will. If you don't like the decision there, you could then appeal to the U.S. Supreme Court. And I know we'll talk more about that later.

SPEAKER_00 8:31

Absolutely. Yeah, I think it's good to just give that overview for people that I mean, obviously the Supreme Court or the judicial branch is the third branch of governments, but probably gets the least amount of attention. So I think it's good to do that. But

John Marshall

SPEAKER_00 8:43

one area of interest for me when it comes to judicial history for the United States is um Marbury versus Madison. And I remember when I had your class, we spent a, I think, a full day, if not a full week, talking about that case. Um but before we do that, could you talk about who was John Marshall and why is he considered such an influential figure in U.S. judicial history?

SPEAKER_01 9:05

Yeah, I mean, it's a great question. John Marshall was the fourth Chief Justice of the United States. I think a lot of people think he was the first Chief Justice of the United States. That honor goes to John Jay, um who decided he didn't want to continue with that position. Um there were two other chiefs in the middle of Jay and Marshall, but they didn't last very long because neither of them wanted the position either. And John Marshall actually took the position relatively reluctantly when he was appointed uh by John Adams. Um, but he's considered the most powerful of the chief justices we have ever had. And that is because not only did he run the court or rule the court with an iron fist, if you will, it was sort of his way or the highway in um sort of 21st century language, but he is the one who wrote the opinion um in Marbury versus Madison that sets out this concept of judicial review. And but for that concept of judicial review, the Supreme Court and the federal judiciary uh more generally wouldn't have the power that it does today. And so that's why Marshall is such an important figure in American history. Um he was also um uh a big player um in the Federalists uh in the Federalist Party. And in fact, by the time he he leaves the U.S. Supreme Court in 1835, he's the last Federalist um in the federal government. He outlived every other Federalist who was either in Congress or who had been a president or who was a judge, uh a justice on the U.S. Supreme Court.

SPEAKER_00 10:36

Was he the longest serving Chief Justice?

SPEAKER_01 10:38

He was the longest serving Chief Justice, so 1800 until 1835, 35 years uh sitting on the bench. He he will probably um be overtaken and has been overtaken by other justices, um, including justice, current justice Clarence Thomas, uh, who had promised that he would sit on the court for 40 years when he was confirmed in in uh 1991. And he has suggested he will stay on the court uh at least until uh 2031, and that would give him the 40 years. But yes, the longest serving chief justice in the court's history, John Marshall. For sure.

SPEAKER_00 11:12

Yeah,

Marbury v. Madison

SPEAKER_00 11:13

and you talked about Marbury versus Madison. Could you uh explain a little deeper on what that whole case was about and then maybe unpack what judicial review is, how it came about in that case?

SPEAKER_01 11:23

Sure. So Marbury versus Madison comes about um as there's a fight between the Federalist Party and the Anti-Federalist Party, and John Adams, who won the election of 1796, um, is the last Federalist president we have. Um and as he stands for re-election in 1800 against Thomas Jefferson, it's clear that Adams can't win. And of course he doesn't win. At the time, under the Constitution, um elections were still the first Tuesday after the first Monday in November. But instead of the inauguration day being on January 20th, they were the first week in March. And so you had a lame duck president for close to five months. And you could get a lot done in those five months, especially if you had a f friendly Congress. And Adams did, because the Federalists controlled both houses of Congress as well. And one of the things that Adams came up with was knowing that the Federalists had not only lost the White House, but had lost both houses of Congress, let's get a law passed to increase the number of judgeships in district courts, in circuit courts, and then a whole bunch of justices of the peace, basically sort of more administrative judges, if you will. And Willie Marbury was one of these guys. Well, the problem who was going to get uh one of these lower-level judgeships, and it turns out that as you're leaving office, you're not always very efficient. And a whole number of these nominations were not signed by the president until quite literally the last night he was in the White House. And then his Secretary of State, who it turns out that the time was John Marshall. John Marshall was really probably breaking the separation of powers because he still held on to being Secretary of State while he was Chief Justice of the United States. So he's really in ensconced in two branches of government. It was on him to turn over those nominations to make sure that they were delivered in due course. They were left accidentally. And when Jefferson comes in with his new Secretary of State, James Madison, they find them and they say, Well, because they haven't been delivered, these are not legitimate nominations, even though the Senate had confirmed them, and we will not turn them over. And Willie Marberry wanted this judgeship. He was a banker, which means he had a pretty decent life, but he knew that getting a judgeship is a stepping stone, even though it was a pretty low judgeship, and so he sued. And Thomas Jefferson, who was the first states writer to hold office in the or to hold the presidency, was a pretty sworn enemy of John Marshall and vice versa. So Marshall's this strong federalist, Jefferson's a strong anti-federalist or states writer. This case gets to the Supreme Court, and there's all sorts of shenanigans, if it may be the best way to put it. Mm-hmm to try to stop it from hearing the case. The court finally comes back into session, it takes the case. Jefferson, and this is a long story short, Jefferson threatens to impeach not only Marshall, but other Federalist justices who are sitting on the bench if they decide against him. So Marbury comes, he asks for his judgeship. That's what the appeal is to the U.S. Supreme Court. And Marshall's very clever. He's a very savvy politician. The way I usually describe him is similar to uh former president Bill Clinton. A very savvy politician who everybody liked and always lit up a room, and everyone wanted to talk to him and gladhand him and shake his hand and get five minutes with him. Marshall was savvy enough that when he wrote the opinion in that case, he decided in favor of Thomas Jefferson. That would stop all impeachments and all other threats. But then you turn the page after he rules against Marbury and in favor of James Madison, who is Thomas Jefferson's Secretary of State. And he says, fine, we'll rule in favor of Madison. But from here on out, the U.S. Supreme Court gets to decide what is law. And that's judicial review. The direct quote, now I don't make my students memorize many things. I'd like it if they memorize this. It is emphatically the province of the judicial department to say what the law is. That's judicial review. Some would say that Marshall just made it up. Others would say, no, we always knew that courts had the power of judicial review. The Virginia Supreme Court, the most powerful of the state Supreme Courts in the first 13 states, had the power of judicial review. The High Court in England, where we got our common law system from, had the power of judicial review. And Marshall's just laying it out. Well, whether you believe that he made it up or whether it actually existed and he was just putting it on the U.S. Supreme Court, that's what gave the court its power. And it wasn't until that time in 1803, and then in the years following and the decades following that the court finally became more and more powerful. But for Marshall declaring that power and saving himself and others from impeachment or at least impeachment trials from the Jefferson administration, the court would not have the power that it did then or that it does today.

SPEAKER_00 16:47

Yeah, I just I just love hearing that story retold again. I just find that aspect of U.S. history to be a clear example of like political genius right there. To rule in favor of the executive branch, but in the same time looking in the long view of things and realizing that you just created probably the most powerful aspect of the Supreme Court in your decision right there. Very savvy move on John Marshall's part of it.

SPEAKER_01 17:11

I think that's absolutely right. Um couldn't have done it any better than that because what could Jefferson do? He couldn't scream and holler about the opinion because he had won. And you don't, right? So think about um the World Cup championship yesterday, right? Spain isn't gonna scream and holler about some fouls that happened in the first half when they're holding the trophy. Right. All they're gonna do is celebrate that they won had just won the World Cup. And then the same would go for the battle between Marshall and Jefferson in that case. One other point is um on that issue is that um it's not altogether unclear, or it's not altogether clear that that Jefferson was necessarily opposed to judicial review. There's maybe some writings that suggest he was okay with it. Um and so he just sort of let it ride, if you will. Um, and that then led to the court having more and more power.

SPEAKER_00 18:03

And you also said that John Marshall was serving as Secretary of State and the Chief Justice, too. So that'd be for modern context, Marco Rubio being Secretary of State and the Chief Justice, Sir John Roberts being the Secretary of State, which is definitely a little controversial.

SPEAKER_01 18:18

You cannot serve in two branches of government at the same time. You literally can't. So let's put it in different contexts. In a context that you and I would know, maybe you know, some of your listeners wouldn't know as well. But let's think about the Minnesota gubernatorial race. Now it's not a separation of powers issue, but Senator Amy Klobuchar is running for governor. She doesn't have to give up her seat in the U.S. Senate to run for governor. But the second, if she wins the election in November, she will have to resign. She can't, I she she could, but it would be highly controversial. She could stay all the way up until she takes the oath of office. That's not what happens in the United States today. You can't serve in two capacities. Um, but I think you put it right. I mean, if your example doesn't drive the point home to your listeners between Rubio, uh Secretary of State Rubio and Chief Justice Roberts doing both positions, then nothing would. And I think people would be really, really unhappy. Because think about it. Secretary of State Rubio makes a decision, a Secretary of State, and then goes and hears a lawsuit about that case in the U.S. Supreme Court. Who's he gonna vote for? Of course he's gonna vote in favor of the executive branch and in favor of um the the um the the the administration, if you will. So yeah, the people would not put up with it today, but they certainly did then. It wasn't for a long term, it was only several months, but it certainly makes that whole story even more controversial.

SPEAKER_00 19:52

Absolutely. I mean, one of the greatest stories in U.S. Supreme Court history, I

Legal precedent

SPEAKER_00 19:56

would argue. And then also at a judicial review, there's this idea in the common law system of uh legal precedents. Could you explain how that applies to the the Supreme Court and just the U.S. judicial system? Sure.

SPEAKER_01 20:08

So precedent is the idea that past cases can, don't have to be, but can, and sometimes people will make an argument, should be controlling for future cases. And that's because we want the law in the United States to be stable, right? So if you take perhaps the most controversial issue in American law and politics, and that is reproductive rights or abortion rights, the court decides Roe versus Wade in 1973 and gives women the right to choose abortion on demand. If the court decides 12 months later to take that right away, and then 24 months later gives that right back, and then three years later takes it away again, and then five years later gives it back, and people get whiplashed trying to determine whether or not women have this particular right to control their own bodies, that's not good for anybody because no one knows which way is up and they don't know what the law actually says. So this idea of setting a precedent and then treating everybody in the same way going into the future is a way to keep the law stable. Now, there's other ways to do it as well, right? And and you you're gonna ask me about some other decision-making criteria. Um, I know at some point, I suspect during this conversation, but but precedent is one way to say we're gonna treat people the same across the board. That doesn't mean, however, the precedent can't change, because sometimes at the US Supreme Court and even in lower courts, but we'll stick to the US Supreme Court for this, the precedent no longer works or is no longer good for the country, or is no longer good for the law. And the most important example of that is the precedent of Plessy versus Ferguson, decided 1896 that said separate but equal anything between the races. We are at that point thinking of African Americans versus white Americans. Anything is okay if you separate the races. So you can separate the neighborhoods they live in, you can separate the drinking fountains they drink out, you can separate the public restrooms they go to and the restaurants they go to. Well, that lasts until 1954, when the court finally says we're at a point where separate but equal doesn't work. You're violating the rights of a whole lot of people because the vast majority, if not 100%, of the evidence suggested that things were separate but almost never equal. And the court decides in Brown versus Board of Education, not only that separate but equal is unconstitutional, but in so doing overturns this almost 50-year-old precedent in Plessy versus Ferguson. Precedent can change. We know Roe versus Wade was overturned in 2022, and that was almost 50 years old as well. It doesn't happen often. The court doesn't like to overturn precedent if it can help it. And I would say that even in the case of Dobbs that overturned Roe versus Wade, the chief justice was vehemently, I think, until the last minute, trying to find a way to uphold the Mississippi law that severely decreased a woman's right to choose without overturning Roe v. Wade. And the reason for that is that most judges and most justices revere precedent as so important because of that first argument I made about the stability of the law. But he couldn't do it because the other five who were in that majority had enough votes, that is, the majority of the court to overturn Roe.

SPEAKER_00 23:29

Yeah. I mean, that's one of the lessons we took away from your classes. The number five is very important when it comes to the Supreme Court.

SPEAKER_01 23:36

The number five is all important. If you can get five votes, as Justice William Brennan said, you can do anything. And that means overturn precedent as well. Mm-hmm. Yeah.

SPEAKER_00 23:45

Another

Textualism, Originalism, and Pragmatism

SPEAKER_00 23:46

important aspect, too, is uh judicial philosophies that exist in the US law or just law in general. Um, some of the three main ones that I come back to is textualism, originalism, and uh pragmatism. Uh, could you just briefly explain these three and which do you see is most commonly used on the Supreme Court today?

SPEAKER_01 24:05

Sure. So textualism means just that. You look at the text either of the Constitution or of a law or statute that the court is asked being asked to interpret. The best example of that is the First Amendment and one clause of the First Amendment: Congress shall pass no law abridging the freedom of speech. And I know I never get the exact word incorrect, but that's pretty close. A textualist would say if you read two words in that sentence, no law, no law means no law. You're only looking at the text. You don't look at any context of it, you don't look at anything else surrounding it. So a justice like former uh Justice Hugo Black, who was an FDR appointee from the late 1930s, he would vote to uphold anything that was written speech or spoken speech. And that could be hate speech, it could be pornography, it could be political speech, it could be music lyrics, it could be whatever you or I could concoct that we would say orally or write down with a pen and paper or maybe type on our computers in 2026. So a textualist just looks at the words, applies the words to um a law that is in controversy and decides based on what the text tells them to do. That's it. An originalist goes a little beyond a textualist and will say, All right, we'll take history into account. Was did no law actually mean no law at the founding? An originalist might say, Well, it really didn't, because we know that most localities and most courts upheld these laws that would say, you can ban profane speech. Now, if profane things in 1789 were different than what we might find profane today, um some would still be the same. But the point of an originalist would be you have to look at the history of how a particular part of the Constitution or how a particular law was interpreted then to understand today. And so let's take the Second Amendment as an example. The current court, the Roberts Court, going all the way back to uh the late aughts into 2010, into the teens, has found that there is an individual right to bear arms in the United States. And their argument there, meaning the majority who have signed on to most of these opinions, will say, as an originalist, some might take a textualist approach, but as an originalist, and many of these opinions are written by Justice Thomas or Justice Alito, um, and they will say historically, the reason we had this Second Amendment was not only to protect from foreign invasion, but to protect your home and your family if someone was going to invade your home. And therefore, an individual needs to have that right. You can't just have that right be put on someone who's in the military who or who is in a militia. Again, the bottom line is for an originalist interpreting the Second Amendment today, like a Justice Thomas, you look at the context. Textualist says no, you just look at the words, and originalist says, Yeah, you can look at the words, but you look at what was happening historically when those words were written. Then you have a pragmatist. And a pragmatist will say, we might look at the text, we might look at the history, but we also need to make sure that we are looking at the law and interpreting the law in the current day within which we live. So a pragmatist would say, okay, might have been fine in 1896 to say separate but equal between the races is a-okay. But by the time we get to 1954, even though we know there's still discrimination long after 1954 and probably still exists in many parts of the United States, even in 2026. But a pragmatist in 1954 would say, times have changed. We cannot allow the federal government or any state government to say that separate but equal is okay. You can look at the words of the 14th Amendment, you can look at the context in which the 14th Amendment was written, but then you also look at the current day and what is happening with the civil rights movement, what is happening with people who are being discriminated against, and we need to get rid of that precedent. So a pragmatist will also look at how laws should apply in the current day. Um, I think the two of the strongest originalists in the history of the U.S. Supreme Court are justices Thomas and Alito. Um, some of the strongest um textualists were Hugo Black, as I already mentioned, and he was a pretty liberal justice, as it is when he was on the court. But then one of the most conservative chiefs we've ever had, uh William Rehnquist, who was chief from 1985 until 2005, uh 1986 till 2005, he was a really ardent textualist as well. Um, so you know, you say we say originalism, we say textualism, we say pragmatism, and we often try to put them with a particular grouping of justices, but they can actually go across a range of ideologies in the court. And I would say that one of the other key originalists on the court today is Justice Katanchi Brown Jackson. I don't think she would describe herself as an originalist. She's also the most liberal justice on the court. But if you read a lot of her opinions, she's using originalist analysis to reach much more liberal outcomes than a Justice Alito or Justice Thomas who are using originalism to get to much more conservative outcomes.

SPEAKER_00 29:23

Yeah, it's fascinating how that can uh those two truths can coexist at the same time, and how someone's I don't know if they'd call it political ideology, but whatever you want to call it can be reached through a certain mechanism like originalism in that example too.

The Supreme Court's process for hearing cases

SPEAKER_00 29:38

Another interesting part of the uh course I took with you, we read the the book The Brethren by um was it Bob Woodward, I believe. Um and an interesting aspect of that was the process in which uh cases get heard at the Supreme Court. Could you unpack that a little bit once they travel through the lower courts, they arrive at the Supreme Court? How does the Supreme Court decide they want to take a case? Once they do, what's the process that follows after that?

SPEAKER_01 30:05

Sure, great question. So now we're going from you know talking about legal philosophy to really the nuts and bolts of how the Supreme Court works, right? Um, and as you said, and and we talked about before, you you you enter into the US federal legal system as a trial, you lose, you might be so upset that you appeal to the circuit court. One side there loses as well, and that side then can, if they would like, appeal to the U.S. Supreme Court. Today, about 5,000 litigants in a given year will file what is known as a writ of sortiary. Uh, a writ of sortiary is just a fancy Latin phrase for saying, please review the documents. We think the lower court made a mistake, and that's why our client lost. You should take the case, Supreme Court justices, and decide for my client. So the justices will get these 5,000 odd opinions or decisions. And then they will decide beginning around August 1st, August 15th, leading all the way up to that first Monday in October, which is the first day of each of its new terms, they'll start setting cases on its docket. Now, they've already put some cases on it from last term. I think there might be a dozen or so cases. They will decide of those 5,000, which around 1% or just over 1% of the cases they want to hear. Again, this past term it was 58 cases, I think, ultimately, when there were cases consolidated. Once your case has been accepted, your attorney will hear from the clerk of the court, not one of the clerks who works for the justices. The clerk of the U.S. Supreme Court really is the administrator of the court, runs everything. So you'll get, I think today you'll get an email, you'll probably get a phone call as the lawyer, and they'll say, Your case has been accepted. It's been set for oral argument on this date. You have the chance to write a written brief. Your brief will be due on this date. So you'll file a brief, the other side gets to file a brief about two weeks after yours is due. That way they can see the brief that one side has filed already. Once both briefs are filed and accepted by the court, they will hear a one-hour, sometimes a little longer than that, uh, in today's age, uh, oral argument where the justices can ask the attorneys questions. The attorneys can try to persuade the justices. Uh after oral argument, the justices meet once a week. Today it's on Fridays. It used to be twice a week on Wednesdays and Fridays. But today, generally, throughout the term, it's on Fridays in conference. It's one of the most secretive meetings uh in the U.S. federal government. Only the nine can be that in that room. No clerks, no secretaries, no guards, nobody. Just the nine, and they will take, they will discuss each of the cases in which they've heard oral argument that week. They will take preliminary votes. And based on that preliminary vote, somebody in the majority coalition will be assigned to write the majority opinion. And then they all go away. And it might take them a month, which is not usual, somewhere between three and six months to write an opinion. And during that entire opinion writing process, um, they are actually bargaining with one another. So I would write an opinion, I would send a draft out to everyone, and you and the other seven justices who've read it might send me notes back that say, I like this, I'm going to join your opinion. I like this, but I don't like paragraph seven on page three. Could you change it to this wording? And then I have to determine whether or not to make that change. After everybody is satisfied and a majority is clear, whether it's 54637281 or 90, the justices, the process is done and they will announce the opinion in open court. In most cases, the announcement is made very shortly by the majority opinion writer. In highly controversial cases, like some decided at the end of this term, a dissenting judge who was on the wrong side, if you will, or the losing side of a 5-4 decision or 6-3 decision may decide to read a dissent from the bench in open court. And again, that doesn't happen in every case, but it does in some very controversial cases. Think some of the Trump administration cases from this term. Once the court announces that opinion, it becomes law in the exact same way a law is passed by Congress or an executive order assigned by a president. An opinion by the U.S. Supreme Court, once, as I said, it's announced, has the exact same features as a law. It is the law, uh law passed by Congress. It is the law of the land. Period. End of story.

SPEAKER_00 34:47

Yeah, it's fascinating to just watch that process play out. I mean, you saw it happen end of June this past year. I mean, that's usually when the term ends and those and those cases are announced. And uh to see how people I mean, I remember watching CNN when that happened this past June, and they had the interns grabbing the briefs and then running or uh or the decisions of running across the lawn to the anchors to read those decisions out loud. It's kind of it's pretty interesting to see that process play out in real time. And then, like you said, that basically holds the same power like a law passed by Congresswood once that decision is finally reached.

Oral arguments

SPEAKER_00 35:20

And I know you're some among many of the research that you've done, some of it is centered around oral arguments. Uh, do you think oral arguments uh affect how justices vote, or is that merely a performative endeavor, would you say?

SPEAKER_01 35:33

Yeah, I'm a true believer, if you want to put it that way. I've spent my career studying oral argument. Um, as a social scientist, we have studied systematically um decades and decades worth of data, millions and millions of words exchanged between the justices and the attorneys, and the justices between the justices and their colleagues. And it is clear to me without a doubt, that even though it's a one-hour exchange, again, sometimes a little more in 2026. And even though the justices sometimes read hundreds, if not several thousand pages of legal arguments before they even appear at oral argument to talk to the attorneys, that that exchange can change minds on particular issues and can affect votes from time to time. Um, and so I'll just put it out there. The the work that I've done for 30 years and the work that others have done over the past couple of decades makes it absolutely clear that these proceedings are important for the justices and that their decision-making process would be the worst for getting rid of them. The last time they talked about getting rid of oral arguments was in the Burger Court in the early 1970s. Chief Justice Berger thought it would make the process cleaner and more efficient. And the other eight justices on the court, the associates, um, unanimously went against him and said, we will not vote to get rid of oral argument because we think it is important for how cases are decided. And I couldn't agree more.

SPEAKER_00 36:58

Yeah, it would be interesting to attend one of those because I know the public is allowed to, and I'm assuming you've probably done that absolutely. What's that experience like?

SPEAKER_01 37:06

I will tell you that being in the U.S. Supreme Court, if you are a political and legal junkie and you like following politics as crass as politics have gotten in in the 2020s, the best show in town in Washington, D.C. is a U.S. Supreme Court case. It's very cool to go into the Senate chamber. It's very cool to go into the House chamber. It's very interesting if you can go into the senator or the House office buildings and meet with your representatives or senators as a constituent. But for bang for its buck in terms of pomp and circumstance, even in the most boring tax case, and I've been to some oral argument that have had pretty boring cases, watching the justices come out from behind the velvet curtain when the um when it is called oh yeah, oh yeah, oh yeah, all those who have business before the court draw near, and then uh the marshal finishes that that saying and everyone stands. Um, and then the marshal set uh finishes with God save the United States and bangs her gavel. It is awe-inspiring to know that you can sit there as a citizen of the United States and see the nation's highest court at work. The other interesting part about being at oral argument is you can also get a sense, and and and I hope both in class and I hope here, I can portray that one of my main missions as as a scholar of the Supreme Court is to make it clear that the justices are just normal human beings. We don't ever get to see them. But if you go to oral argument, you're lucky enough. I mean, we can hear them now because they live stream the audio, but if you're lucky enough to be there and you can see them, they're just like you and me, right? So the last oral argument I was at was actually uh December pre-COVID. So, right about three months before COVID hit. Just haven't had an opportunity to get back in the past seven years to DC to see another argument yet. Um, and it was just after, actually it was 2018, because it was just after Justice Kavanaugh was confirmed to the bench. And he sat at that time, they sit in order of seniority, he was sitting next to Justice Kagan. You'd think, well, they'd be our jenemies. I mean, Justice Kagan was an Obama appointee. She's one of the three most liberal justices on the bench. Kavanaugh is the second of the three Trump appointees. He's got to be incredibly conservative. They're probably at loggerheads all the time. And I will tell you, they both asked very interesting questions. And they both also almost seemed to be messing around. They were leaning into each other. It seemed like telling jokes because each of them would sort of chuckle now and again. They both ran out of coffee. So they asked one of the interns who works at the court every year if you're lucky enough to get an internship, good for you, to go get them both more coffee. And the intern comes back and they were both happy as clams because they had gotten hot coffee in their cups. Um, you get to see them engage in these great legal debates, but then also see, you know what, they're just humans. And in all the work that I've done, and this is not meant to denigrate justices or embarrass them in any way, but in the in the archival work we have done and the notes we have looked at, justices think about things other than the case. Sometimes they find themselves falling asleep. For the love of God, they're sometimes in their 70s or 80s. They're just normal human beings who are trying to interpret the law the best way that they can. Um, my recommendation is if you can ever get to oral argument, anybody listening to this should absolutely go.

SPEAKER_00 40:36

Yeah, next time I'm in DC, I would definitely be interested in trying to do that myself.

SPEAKER_01 40:40

So the good thing about it is it's a little bit easier. Now you used to have to stand in line. So for major cases, there were times, and I've been to DC and seen this happen. For instance, when it decided its major campaign finance uh cases in the early teens, people were lining up 36 hours in advance. They would literally camp out on the steps of the Supreme Court to get those coveted tickets. The court no longer, I think for security reasons, wants people camping on its steps and on all the the marble leading up to the great stairs. Um, and so they do it by lottery. And so if you know you're going to be on a particular date, you can go on to the court's website and you can put your name in uh to get your name drawn to get some of those seats. So it's easier for people, still not easy because there's not many public seats, but at least you don't have to sit out in the cold and maybe snow, as I've seen people do, or the driving rain in order to get in.

SPEAKER_00 41:35

Yeah, that shows some some people's dedication trying to be good citizens and observe the judicial

Prof. Johnson's experience meeting justices

SPEAKER_00 41:41

process like that. Now, have you also had the the ability to meet justices in person uh over your career? Uh, what's that experience been like?

SPEAKER_01 41:51

It is, you know, yes, I have. I I think I've met uh I think it's four or five. Um it just reiterates again that that these folks are just people. Um one justice was here. Um, I will not say who it was, uh, giving a talk um and giving a major lunch speech, and they um walked off the the the day's where they were gonna give that speech just as everyone was finishing lunch. And and I saw them, and I'm using ungendered language so I don't out any particular justice. I saw them sort of walk behind the curtain. I was like, oh, they must be running to the restroom. No, that justice walked right outside the door in the Humphrey Center, lit up a cigarette, downed that cigarette as quickly as they could, and came back in and gave their speech. Like a normal human might do if you're if you're if you smoke, right? And you're maybe addicted to nicotine. Um, I know another justice um who I spent a little bit more time with, um, ended up at a friend of mine's house. The reason he was at uh this was a he ended up at this person's house is my friend who was a former clerk. Um and I know for a fact that the justice ended up playing guitar hero uh with this friend of mine kids. Um it was awe-inspiring to see Justice Ruth Bader Ginsburg, only because by the time I saw her here at the U, she was already known as the notorious RBG. And so she was so famous, or in some other circles, infamous, that it was like seeing a rock star walk into a room, right? And and I'm a I'm not an autograph hound, but I I think it's really cool to be in the same room as star athletes or star actors or star musicians. Being in the same room as justices is the exact same and gives you the exact same feeling as meeting those folks.

SPEAKER_00 43:43

Yeah, I know when uh Amy Coney Barry came and spoke at the U, I was lucky enough to score a ticket to that. And I think I was nine or eleven rows away from the stage. And the one thing that I was struck by is the amount of security that goes into uh a Supreme. Court justice visiting the university. I mean, when it was at Northrop Auditorium, the whole outside was barricaded. There had been over a hundred police or security guards outside the building. Inside the building, there was dozens on stage. I think there was even like 10 at different entrances and exit points. But then it kind of humanizes them too. Like you said, and like you might be going in, not being a huge fan of Justice Barrett, but you hear her talk about her kids and how she's adopted a bunch of kids over her life, and it kind of humanizes them, like you said. And I remember there were some protesters that spoke up and started screwing kind of yelling at her and watching her reaction during that. It just looked like uh it was all too familiar to her to face this sort of protest, and it's just a look of sadness, too. And you wouldn't get that through listening to oral arguments or just reading a news story about that. To see her respond to that in real time was quite an interesting experience. But to actually meet him personally would be super cool, too.

SPEAKER_01 44:56

Absolutely right. I was at the same talk with Justice Coney Barrett, and here's what I will say fundamentally different from 10, 15, 20, 25 years ago, perhaps the most controversial justice of all time, modern time, was Justice Antonin Scalia. Scalia comes, he had his U.S. Marshals on stage with him, just like Coney Barrett, just like every other justice who have come. There was no other security. People just walked in. Chief Justice Roberts, he was here. People just walked in. Justice Sotomayor, we all just walked in. The court has gotten so controversial, and people were so upset about Justice Coney Barrett's appointment by President Trump to the bench and the way that it went down in 2020 into 2021, that there were death threats, that there were threats of major protest. And so my wife, I've been lucky enough. My wife is not a huge Supreme Court nerd that I like I am, but she loves going to these. So when I get tickets, I we always go together. And we were blown away, like you were, that there were fences around Northrop. No one who had didn't have tickets could walk anywhere near Northrop. I saw more guns that day on police officers and large guns than I've ever seen at almost any place in my life. And I've gone through various international airports in my life where there are generally police officers with very large guns. What happened with the Coney Barrett talk here is indicative of how controversial the court has gotten today. Because again, I'll reiterate whatever it was 15 or 18 years ago when Justice Scalia was here, the only security we saw were the normal US Marshals who will always follow a Supreme Court justice around.

The Supreme Court's approval rating

SPEAKER_00 46:53

And that could be indicative of the political climate at the time. Also, I know the court's approval rating has slowly but steadily decreased uh over time as well. What are some ways you think the court could improve its standing with the public?

SPEAKER_01 47:08

Yeah, I think what the court has done is gotten really out of step with what the public um would like to see and continues to make decisions that are unpopular. And we know that there's two types of ways that people look at the court. One is this idea of what we call diffuse support, that the court is meant to be apolitical, it stays above the political fray, and we will always like the court better. And that is the high public approval ratings the court has always enjoyed. And then there's this other thing that political scientists call specific support. When we get upset about decisions that we don't like, right? There were people who didn't like Brown, there were people who didn't like Roe, there were people who didn't like Dobbs, there were people who didn't like the campaign finance decisions or the decisions for or against the Trump administration these past three or four terms. When a court, and I will say the Roberts Court has done a pretty good job at this, but it's not just the Roberts Court, any other court era, when they continually are making decisions that fly in the face of what the public seems to like and what the public seems to want legally and policy-wise, that's going to significantly decrease the court's or people's public attitudes towards the court. And it's not just that the court overturned abortion, which affected more than 50% of all Americans, because we know that 50 more than 50% of Americans are females today. But if you take it to controversial but less controversial than reproductive rights, campaign finance reform, the vast majority of Americans actually want campaign finance reform. And the court continually, including this past term in June, so just you know, a month, month and a half ago, the court says, no, we're going to protect the right to spend as much money as you want, give as much money as you want, because we view it as free speech. In other words, going back to what we talked about earlier, no law means no law when it comes to Congress passing laws regulating speech. When a court, and again, this court has done it a lot, or any other court era, and the Warren Court, when it decided Brown view the Board of Education, was deciding also other unpopular cases, and in ways that the vast majority of the American public didn't like, you're going to lose legitimacy and you're going to lose public approval. That is continuing to happen again and again today. So, what can the court do? You know, certainly we know that the reason that justices are not elected is we need to keep them above the political fray. But we also know that they read the newspaper, newspapers, they watch the news. I'm sure they read public opinion polls. In fact, I know some of them read public opinion polls. And that shouldn't be decisive on the decisions that they make, but it should at least make them think twice of how are we ever going to get our legitimacy back if we keep slamming what the American public actually wants. And so the way to do that is to maybe backtrack in some cases. I think that that's the reason why the chief in in 2013 voted was the fifth vote to uphold Obamacare or the ACA Act, because he thought that that would buy him some political capital. Um that has not happened as much recently. And part of that is that there is a very strong six-person majority. And it could be the exact opposite. It could be a strong six-person liberal majority. In this case, it's a strong six-person conservative majority that is that doesn't think it needs to think about the effect of its decisions on the American public because it's got votes to do whatever it wants. As you said earlier, the number five means everything. And as I responded, you can do anything with the number five on the U.S. Supreme Court. So the justices, I think, really need to be more cognizant of what the public is thinking about particular issues as they make their decisions. There's not much else they can do because they are wildly unpopular today.

Supreme Court reform

SPEAKER_00 51:05

Do you think there's ways outside of the Supreme Court where they could almost get an act from Congress, whether that's imposing term limits on the court or adding justices to the court? It wasn't always that the Supreme Court was nine justices. It's fluctuated over time. Do you think that could perhaps be a step in the right direction to increase the public support of the Supreme Court?

SPEAKER_01 51:25

Yeah, I think two things. I think getting the court more balanced, and one way to do that would would be perhaps to increase the number of justices, right? And that would obviously not work if you're increasing the number of justices during a Republican administration, because you would just make the conservative majority stronger. It would have to happen during a democratic administration with a democratically controlled Senate so that you could get some more balance. I think the other is, and there's no way around this. I don't think there's a solution, but I think it is the ultimate solution if it could be pulled off. And that is we don't have any moderates on the U.S. Supreme Court anymore. Right? The the most moderate justices are probably, depending on the issue area, the Chief Justice or Justice Kavanaugh and Justice Coney Barrett, and then Justice Kagan on the left side. That's not enough. We need people who are willing, like a Justice uh Sandra Day O'Connor or a Justice Anthony Kennedy, and earlier in his career, Chief Justice Roberts, I'll give him credit for this, earlier in his career, who are willing to listen to both sides and then depending on the facts of the case and the specific issues at hand, side with one side or the other. But because we become such a polarized society, not only as a people, but also at the highest levels of government, Congress and the executive branch, we are not likely to see people who are put on the bench who are willing to listen to both sides of the debate anymore. In order to impress and keep your base, a president needs to put on either the most conservative they can justice they can find or the most liberal justice they can find. And that's it. And so we are getting more and more extremists ideologically in the court. I don't think that, and I mean that in both directions, I don't think that that is good for anybody, and it's certainly not good for the law and pop and policy in the United States.

SPEAKER_00 53:09

I think I'd have to agree with you there. I think that that can be applied to so many different aspects where that pendulum swings from either, you know, pretty far left to pretty far right. If we had some moderates on either side, maybe that pendulum wouldn't swing as much. And perhaps we can get some more level-headed governance coming out of that too.

SPEAKER_01 53:24

And the fact of the matter is, there's just not level-headed governments, uh level-headed governance in Congress. Congress has become impotent. Um, they've they don't pass laws. I think this is the fewest number of laws they've they've passed in in its history this past year. Um that then turns around and gives the court a whole lot of power. And when the court is controlled by one side of the ideological spectrum with no recourse, because you're right, Congress can overturn decisions with which it disagrees, but Congress isn't doing anything. So, you know, it really leaves the the court and then therefore the American people in a pretty tough position when it comes to law and policy.

SPEAKER_00 54:07

Absolutely. I

The future of the Supreme Court

SPEAKER_00 54:08

know we're running up a little short on time here. I just have one final question for you. Uh, would you say you are more optimistic or pessimistic about the future of the Supreme Court, its ability to maintain its institutional power, uh, its prestige uh in the future going forward?

SPEAKER_01 54:23

I am an eternal optimist, and I've spent more than 30 years now um teaching about the U.S. Supreme Court. I taught my first class in spring of 1995, so 31 years. I've always been an optimist. This is the most pessimistic I've always been as an optimist. And the reason for that is that um unless the court changes, unless the court um ends up not being um as powerful as it is and deciding cases in such an ideologically extreme way in just one direction, in the most important cases that affect law and policy in the United States, it's not going to get back the prestige that it once had. And I will tell you this, and and it keeps Chief Justice Roberts up at night, I can guarantee it. The Roberts Court will go down as one of the um most vilified U.S. Supreme Courts in the court's history. And that dates all the way back to the founding. And there have been some amazing courts, there have been some not so good courts. There's been the Tawney Court, which is always considered the worst court um that has ever sat for many different reasons in the in the 1830s, all the way up close to the Civil War. The Roberts Court is gonna rival the Tawney Court in terms of how bad its public opinion is and and how bad its legitimacy is. And for me, that's incredibly sad. And unless things change, the court's not gonna get that legitimacy or prestige back anytime soon.

SPEAKER_00 56:01

Well, more work for us to continue doing than it looks like uh moving forward here at uh Professor Johnson. Thank you for the time. I appreciate it. Hey, thanks for having

Outro

SPEAKER_00 56:09

me. Thank you for listening to Youth Perspectives. Though I appreciated the refresher on Marbury v. Madison, the unpacking of textualism, originalism, and pragmatism, and the personal interactions Professor Johnson has had with some of the justices, I think the biggest takeaway from our conversation is recognizing the unique time we're living in when it comes to the history of the Supreme Court. With a historically low approval rating and a reduction of the court's independence, learning more about the Supreme Court is more important now than it has ever been in my lifetime. I applaud Professor Johnson's ability to clearly explain complex topics into ways ordinary citizens can fully comprehend. It's through that kind of work that can enable the positive change and reform the court needs. Let this be the beginning of our continuous responsibility to learn about this branch of government so we can create a more efficient, reflective, and dynamic Supreme Court. This is Mason Bierbaum, signing off.