Professor Samuel Moyn is the Henry R. Luce Professor of Jurisprudence at Yale Law School, U.S. and a Professor of History at Yale University, U.S. He has done extensive work on constitutional law, legal philosophy, and human rights law, and has been one of the leading voices calling for progressive constitutional reforms in the United States. More recently, he has taken up the cause of reforming the Supreme Court of the United States (‘SCOTUS’), and has advocated extensively for a fundamental reconceptualization of the role constitutional courts play in liberal democracies. In this interview, Shreyas Sinha (Editor, Law School Policy Review & Kautilya Society) sat down with Professor Moyn to discuss his case for reforming SCOTUS, the role of the judiciary vis-à-vis the legislature and the executive in modern constitutional democracies, and, ultimately, the case for constraining judicial review.
(The full discussion is available as a video on YouTube at this link. The following is an edited transcript of the discussion.)
Shreyas: Right, before we get started, I will do a brief introduction for the people who will be watching and reading this. Professor Samuel Moyn is the Henry R. Luce Professor of Jurisprudence at Yale Law School in the U.S. He has done ground-breaking work on human rights and has now taken up the admirable cause of progressive constitutional reforms in the U.S. Professor Moyn, it’s really great to have you with us!
Now, I will not beat about the bush and get straight to the point. In a fascinating article that you wrote for Dissent magazine, you made the argument that the general fear of majoritarian tyranny in the absence of a constitutional court with the power of judicial review was unjustified. I think that’s a great point for us to start on. What’s your rationale behind that argument? We, in liberal democracies, have this notion that we need a constitutional court to protect our rights from the tyranny of the majority of the day and that the legislature cannot be counted on to protect individual rights. So, what’s your rationale behind saying, “No, that’s not the right approach.”?
Professor Moyn: So, I’ll begin with a kind of empirical or factual claim which is that, so far, majorities have never exerted much power in history. From the beginning, in principle and in practice, it’s really minorities that have ruled. If there’s been tyranny, it’s been the tyranny of one or few. So, before we place constraints on majority-rule, I think, we should first have it. To the best of my knowledge, really nowhere in the world has majority-rule ever been established in fact, and if that’s the case then, we can’t really assess reasonably what the risks that it poses are, including to minorities. You know, I fear that most of the dominant arguments about the purposes of constitutionalism, which have come to concern protection of minorities against majorities, are really the arguments of those who resisted the coming of democracy in the first place, who said that democracy would be little different from mob-rule. Now, that was, of course, Plato’s argument at the beginning of philosophy and it had great currency when the franchise was expanded in the North Atlantic and Latin America in the late-19th and early-20th centuries. Now, if we look, we do find some instances where minorities are oppressed. It’s an open question if we haven’t yet enfranchised all minorities or given them a place in national politics because of majoritarianism or some other minority.
As I have said, historically, we have had lots of experience with minority-rule, including once democracy came, through various devices. In my country, which I focus on in the article you mentioned, our Constitution was really set up on the basis of popular self-government but channelled power away from the people in a series of ways, especially from majorities. The Supreme Court is one way in which this occurs. I don’t contend, in the end, that majority tyranny can’t be a risk. I acknowledge that in certain places and times, it’s been incurred. The question, then, is how to counteract that risk? What is the relation of that risk to the minority tyranny that I have been stressing upon? I guess, looking out at the world, I don’t see a strong basis for judicial empowerment in particular. Even acknowledging that we need some remedy for minority protection, the onus is – it seems to me – on those who defend transfer of lots of power to judiciaries so as to protect minorities because that’s where the argument has to rest. It’s there, on that narrow argument, that I don’t see a strong case and I see many reasons to worry that transfer of power to judiciaries will actually abet historic minority-rule, rather than check majorities in light of this genuine risk of majority tyranny.
Majority tyranny may be something that we have to live with the risk of because the alternatives are worse. It may be something where we can find devices, including the limitation of judicial power that we create in the name of minorities. I think we are just at the beginning of a discussion of how to do that and I reject the naïve framing that the tyranny of the majority is the main problem and that judges are an ideal solution to that problem.
Shreyas: Fair point, sir. In your article in Dissent, and in one that you wrote for The New Republic about SCOTUS reform, you seemed to suggest that legislatures could be a good way of expanding and protecting individual rights. Could you elaborate on that reasoning? Why legislatures, which are popularly elected and are intrinsically given to the sways of the masses?
Professor Moyn: Of course. So, I think we need to begin with a kind of theoretical perspective and a factual perspective. In theory, we shouldn’t begin by assuming that rights are principally there for the sake of minorities; it’s actually the reverse. Historically, given minority-rule, it’s actually majorities that need rights to protect them from government when it’s controlled by the one or the few. And, in fact, that’s how rights emerged. When there were kings, rights were claimed as limitations on royal authority, and actually by aristocrats. So, the funny thing is that rights protection really emerged not because of majority tyranny, but because of royal tyranny and in the interests of a minority, namely aristocrats. Now, the truth is that all of the people at that time were oppressed and the ones who could legitimately claim rights were, of course, the majority that had no political power. Then, there were political revolutions and, as part of those political revolutions, their whole purpose was the claim that the people deserve rights. Of course, they claimed those rights sometimes violently. So, I guess, the real question is: did something change at some point such that the majority gets its rights and the new problem that arises is the need to guard against the deprivation of rights of minorities? I’m not sure.
Let’s think about the history of my country and then we can talk about other countries. In my country, most rights have been provided by the Legislature. So, I don’t refer just to the first ten amendments to our Constitution (‘the Bill of Rights’), which – like all other amendments – were proposed and enacted by Congress, and ratified by the Legislatures of the States. I don’t just refer to the amendments after our Civil War, the most important amendments, i.e., the ‘Reconstruction amendments’, which were – once again – proposed and enacted by Congress. I refer to statutory rights as well. For example, various civil rights acts, the Voting Rights Act, and, more recently, the Americans with Disabilities Act, which grants rights to disabled people; rights which they enjoy thanks to Congress, not to any kind of judicial decision. Consider rights for the elderly, like the abolition of mandatory retirement. Again, not a constitutional right, but a statutory right. Consider healthcare, which the Indian judiciary famously reads into the Constitution of India, since it’s a directive principle, via the ‘right to life’. Our judiciary never does that even though our country is founded on the right to life, liberty, and the pursuit of happiness. Instead, the modicum of a right to health that we have comes through a statute, one that – just today – barely survived invalidation by our Supreme Court a third time. So, from where I’m sitting, it strongly looks like the rights of our citizens are provided by and to themselves, both for the majority and the minority.
Now, it’s true to say that for a brief period, the U.S. Supreme Court attacked Jim Crow. But it had actually buttressed Jim Crow in the late-19th century. In decisions like Brown v. Board of Education, SCOTUS was undoing the damage it had wrought in the late-19th century, in decisions like Plessy v. Ferguson. More generally, the restoration or intensification of Black subordination after the Civil War proceeded through judicial invalidation of civil rights acts, most famously in a set of cases called the ‘Civil Rights Cases’ in 1883. So, this is another story where, with respect to racial subordination, you have a Congress passing a rights statute, under the colour of a rights amendment, that it also initiated and enacted, and the Supreme Court gutting it. So, there’s just a lot of evidence that we should rethink and assume that the best source of rights – rights that are durable and entrenched – is legislation. Now, that’s not to say there’s never a role for courts. But, if it’s true that the power to ‘find rights’ can be used in lots of different directions, not just by legislatures but also by judiciaries, then we have to ask: what do judiciaries actually do? In my country, the evidence seems to support the idea that they protect the rights of the wrong minorities, i.e., the powerful and wealthy, and not the downtrodden and the oppressed.
Now, I want to acknowledge that that’s not the case in all countries. However, even in other countries, I believe it’s fair to say that the evidence suggests that the best rights regimes are those in which the people have been convinced, on a majority basis, to provide rights to both majorities and minorities. So, political attempts to provide rights are unfailingly superior— not to mention, more durable—than other kinds.
Shreyas: I’ll agree with you on that. Legislatures are much better at entrenching liberal rights than courts. Even in India, our courts are famous for their ‘activism’; they read new rights into existing rights. But, it’s not until when the Legislature actually gets behind that issue that those rights concretise from high, mighty words on a piece of paper to actual reality on the ground. I think in the late 1990s, we had a really famous case on sexual harassment rights; should women have the right to sexual harassment remedy? The Supreme Court wrote a really eloquent judgement in affirmative and they incorporated some foreign jurisdictions’ principles into our rights jurisprudence. However, it wasn’t until Parliament passed the Prevention of Sexual Harassment Act that we actually got a concrete system to go by.
But, a counter-argument a lot of legal scholars make is that judicial activism – the judiciary reading rights into existing jurisprudence – initiates a dialogical process with the legislature and intimates the legislature to look into enacting a statute for a particular reason. So, how do you respond to that argument? Should we have judicial activism because it initiates that conversation that we ought to be having in the political branches about enacting new rights or protections or resolving a specific problem? Or, should we depend solely on the legislature to initiate that conversation within itself and then come to a solution?
Professor Moyn: So, it’s a wonderful question and, of course, you’re right. I think I would warn against the assumption that the power to initiate a conversation leads regularly to the conversation happening. It has sometimes happened and other times not. With respect to the rights that I have liked to study, i.e., rights bearing on distribution, you are completely right in your earlier statement that it’s really when the legislature, with its budgetary resources, gets behind rights that the rights become real. For that, and other reasons, the South African jurisprudence shows that there can be many conversations initiated where the legislature fails to join in, and the history of its social rights jurisprudence and the legislative response is, I think, really good evidence to that effect. In many comparative constitutional law circles, cases like Government of the Republic of South Africa v. Grootboom (which was on housing rights) have been celebrated without effective study of what the Legislature did next.
Now, in theory, I see no reason not to imagine forms of advisory jurisdiction, which seems like a credible theory of institutional design, where it’s useful to have outsiders with some standing, other than just the political constituents of legislators, say that the legislature should consider various constitutional norms and individual rights, and that some laws passed may violate those norms and rights. But then, it’s up to the legislature. That wouldn’t do worse than what we have now because it still invites a conversation that may or may not happen. My central worry about more empowerment of judiciaries other than just this advisory jurisdiction, which seems like a valuable thing in that it allows some judges to be able to call for a conversation regardless of whether it happens or not, is that the more power we give judges to constrain the legislature or to force a conversation, the more power we have to give them across the board. It’s very hard to give judiciaries some kind of power to censor and invalidate laws, for example, without witnessing the abuse of that power. That’s even true in the domain of rights protection. So, in my country, we think of the right to free speech as very basic and something that the First Amendment protects, and along the way, we have given our Supreme Court a lot of power to invalidate laws (to protect this right). But then, it turns out, the right to free speech is interpreted in ways that equates it to the rights of mega-corporations. So, even a seemingly inarguable amount of power, given to judiciaries to defend rights, does not save us from their abuse of such power. It’s extremely hard then, once that power has been given, to take it away.
We are having a whole national conversation in this country about Supreme Court reform, which won’t happen, because it’s just very hard to claw back power given to minorities. And, again, that is the central concern. I think we should centre constitutional theory much more on that problem, i.e., how do we empower majorities to engage in self-governance, which, in most (if not all) places, has never happened?
Shreyas: Right, that’s again a brilliant point. One thing that I wanted to ask you about the rationale for Supreme Court reform and why we should resist the judicialization of politics is whether you think this argument applies to a relatively young democracy like India, or maybe some other young democracy in Africa, which doesn’t yet have that concrete political culture within the citizenry, where citizens take rights seriously, and where you have various factional groups engaged in a sometimes not-so-admirable contest for power? Do you think in those situations, considering that each country is different, we would want a powerful judiciary to, essentially, protect the people from themselves?
Professor Moyn: No. So, I begin as a citizen of a country that has a very old constitution with the acknowledgement that the Indian one is still pretty old by historical standards, and as my colleague, Rohit De, has shown in his recent book ‘A People’s Constitution’, ordinary Indians have engaged, from the first day, in struggles over constitutional meaning. We wouldn’t want to accept a kind of, let’s call it, ‘colonialist imagination’ where certain kinds of people aren’t up to the challenge of self-rule, which was always the argument for empire, even amongst progressives like John Stuart Mill. Conversely, it doesn’t seem as if Americans are guaranteed to govern themselves and keep democracy. First of all, they have never had it given their historic subordination of African-Americans and others. Second, we have seen, in the last few years, that they are more likely to throw it away than many other peoples. So, I think we should avoid the notion of maturity, not because democracy is easy to keep, but because no one may know how to keep it forever. And the angling for power that you talk about is inevitable in all places, at all times. I think we have to acknowledge that we have that risk of constitutional failure everywhere. Now, is there an argument that citizens have to be acculturated into working within a constitutional regime rather than moving quickly to scuttle it? Again, anywhere in the world, I think so but I don’t believe that judicial empowerment is a credible device of this education. Instead, it’s really a matter of political culture. So, I don’t think treating mob-rule as something that judges, in particular, are necessary to counteract is a good way of providing enlightenment to the masses. We just actually have to engage in cultural and political education to have the kind of politics we want.
Shreyas: That’s quite right, Professor Moyn. Even in India, there have been instances where really respectable legal commentators have indulged in this argument that apparently the people aren’t ready for full democracy. I think you know this: in India, we have something called the ‘unconstitutional constitutional amendment’ doctrine, where a group of judges can determine whether a constitutional amendment is constitutional or not. It has been used, in the past, to invalidate constitutional amendments that have been passed unanimously by both Houses of Parliament and ratified by the States. It’s a problem that needs to be addressed at some point of time.
Professor Moyn: I agree with you. I just want to say that it’s not that I think democracy can’t fail, but that our solution to the problem or our way of counteracting the risk needs to be assessed for its own defects. And most of these solutions, like judicial empowerment, are really about incurring another risk, which is elite rule. And, you know, Plato had an argument for elite rule and the ‘rule of the wise’. But we are supposed to be democrats so I don’t think we can revert to that old view which prevailed for so long, i.e., we should just give power to our betters.
Shreyas: Absolutely right, sir. Moving on, I came across this post written by the Institute for Justice, a libertarian legal advocacy group, in response to your article in Dissent magazine. They made two primary counter-arguments. They said that claims of judicial overreach in the U.S. system are exaggerated by both the Left and the Right because they did some empirical research and they found that SCOTUS, in the time since it was set up, has invalidated less than 1% of all legislation enacted by Congress. They also made the larger argument that if you have a written constitution with separation of powers, you are going to end up with one branch which has to determine what that constitution means and hold the other two branches to it. So, what I want to ask you here is: is judicial review inevitable in a written constitutional system? If we have a written constitution and we entrust the power to interpret it to one branch, are we going to end up with some form of judicial review which checks the other branches?
Professor Moyn: Okay, so, there’s an empirical and a philosophical point. On the empirical point, I would never deny that the invalidation of legislation hasn’t been routine; it’s been very rare in the scheme of things. But, when it happens, it’s grievous and it’s happened frequently and enough to be a great concern. I mean, it happened in the 19th century in ways that supported the slave order. After the Civil War, SCOTUS gutted Reconstruction and the attempt to provide equality to Blacks. It supported the interests of the wealthy and power in the so-called “Lochner era”. In some of the most offensive decisions, it overturned Franklin Roosevelt’s early attempts to face the Great Depression and enact the New Deal. In our time, invalidation of legislation has been on the rise and, I think, been very damaging. So, what we are talking about are the big laws that are supposed to make major changes and that the Court censors or invalidates. That happens often enough to be a cause for concern. I’m not arguing for eliminating the Supreme Court since we need statutory interpretation, and we need cases and controversies resolved.
The main question is your second one. As a philosophical matter, who should have the last word on the meaning of the Constitution? Should judges, in being assigned that last word, be empowered to be so aggressive as in the cases I mentioned? I don’t see why. I mean I understand that in a system with a written constitution, there is the need to have a discourse about whether we are being true to it, how we are transforming it, and so forth. It doesn’t at all follow that the judiciary gets the final or ultimate word. We have discussed the possibility of an advisory form of jurisdiction where judiciaries can be invited by litigants to note that there may be tensions between laws and constitutional values, but the ultimate decision about what the constitution means should devolve on the people as a whole and their legislative representatives. So, we could imagine some other system where no single actor has the last word. However, it’s very hard to figure out the design principles for such a system. In the American system, all I have argued is for transferring some power to the Legislature while leaving the Supreme Court with the last word in some instances, e.g., when all the Justices are unanimous. But one could imagine the position that the Supreme Court should have no power and just advisory jurisdiction, and that wouldn’t mean we are not living under a constitution, but that the Legislature and the people electing it are ultimately responsible for its enforcement and its very meaning. I’ll just say that, in conclusion to this answer, for most of modern history, progressives looked to the British model, not because they favoured an unwritten as opposed to a written constitution, but because they believed that the Parliament, especially once democratised, should have the authority – through statute – to determine the evolving meaning of the Constitution. The American situation, with judicial empowerment, was regarded as an anomaly and indeed reactionary. For good by reactionaries, but for ill by progressives. And, if you take the Founders of India, they were people who looked to a parliamentary model even when they decided to write down a very long Constitution. The judicialization of Indian constitutional politics is much later.
My basic view is that the default used to be that the legislature was the exclusive constitutional actor, until we decided to Americanise and believe that we should give more power to jurists in general, and Justices in particular, to have the last word. And, I think we have paid a price for that.
Shreyas: Right, Professor Moyn. That’s a really great point; I full-heartedly agree. Even in India, we have had some sorts of a judicial power grab since the 1980s with judges including various facets of the Constitution or various laws into the ‘basic structure’ doctrine and holding with themselves the power to define what ‘basic structure’ means. Nevertheless, picking on your point about the legislature and giving power of interpreting the constitution to the people themselves, most legislatures in the Anglosphere and countries which follow the British parliamentary system are elected on the first-past-the-post voting system. In effect, we sometimes, probably more often than not, end up in a situation where 40% of the country votes for a particular party and that party forms a really powerful government with a healthy majority. So, then, we are still faced with the same problem where it’s not actually the true democratic majority making decisions, instead it’s a large minority. How do you resolve that difficulty vis-à-vis judicial review?
Professor Moyn: I think it’s a fair question and I wish I had a better answer. It seems to me that there is no correct answer beyond controversy about how to organise democratic representation. So, we can always claim both that we need to experiment more and that the way we have done so is not adequately representing the people or a majority of them. I think that the model you have cited is minoritarian, not majoritarian, unless there’s a requirement of a coalition to amass a majority of the seats in Parliament, which is a requirement in many parliamentary regimes. Even in the situation you described, it requires a new and separate argument that empowerment of the judiciaries is a way to counteract the power of the ruling minority. But that doesn’t follow automatically; it has to be argued. I think the track record is not encouraging. So, I think we should focus on the debate on what experiments in representation we would like to attempt and demand, rather than accepting minority-rule, even when it’s a plurality, and then counteracting its defects through empowering some other actors, who inevitably come with their own class and other privilege and perspective, which is particular and can’t be assumed to be reflective of universal norms or popular will.
Shreyas: Coming back to the specific American context now, as you know, President Biden has set up a blue-ribbon commission to report on SCOTUS reforms and a lot of suggestions are floating around in the political sphere. Some argue for expanding the number of judges. But you have taken on a very interesting argument. You have argued for disempowering the Supreme Court, arguing that expanding the number of judges (or, ‘court packing’) will not cut it. What’s your perspective behind that? Why disempower when you can get what you want more easily by adding, say, three or four Justices?
Professor Moyn: Well, first of all, you can’t get what you want because there’s not enough support for expanding the Court even among Democrats. But even if there were, it seems like a short-term solution for two reasons. One is that it makes for more friendly judges in the short-term but doesn’t have any ramifications for what they do in the long-term. I think we should learn from the conservatives, who had a syndrome of their handpicked judges becoming progressives during their time on the bench. Then, there’s the second reason that one expansion of the Court will invite another. And, regardless, none of these expansions, aside from consuming national debate, just as our current appointments process does, would change how much power the Supreme Court can wield in the censorship or invalidation of laws. If we decide that that’s the problem, not the identity or number of judges on the bench, then we have to adopt a set of reforms that actually attacks that problem. It’s not that adding a few Justices now wouldn’t lead to different outcomes; it would. But it would lead to different outcomes because the judges decide to represent the ideologies of those who appointed them in the first place and that is not something we can guarantee. More than that, we shouldn’t want to need to guarantee that. If we have a certain majority and instead of enacting our will through statutes, why use our majority power, which is brief and evanescent, to put our representatives on the bench instead, to rule by proxy? That’s what democracy is for! It’s to have representatives in the legislature rule by proxy. So, why not just do that?
Shreyas: Right, professor. One of the counter-arguments that people who are opposed to disempowering the Supreme Court make is that one of the primary jobs of an independent Judicial branch is to check the Executive branch, to check the President, to make sure that he/she is exercising his/her authority within the ambit of the Constitution. Given how gridlocked Congress can be at times, wouldn’t it be unwise to disempower the Supreme Court when it comes to that specific point of keeping a check on Executive excesses?
Professor Moyn: I don’t believe so. I strongly think that we should have a way of condemning Executives who are operating ultra vires and exceeding the law, not just the Constitution. But Supreme Courts can also be very friendly towards Executives. In my country, essentially, the Executive has been given the power by courts to violate a whole series of laws, notably with respect to initiating war. We have seen other kinds of developments on things like surveillance of domestic and, even worse, foreign populations essentially approved by the Judiciary. So, the idea that judiciaries provide a check on executives, i.e., a serious check, is already open to question. And then we get your comparative point that a gridlocked Congress is unlikely to do better. Well, I don’t know. Under Donald Trump, finally, some people woke up to the way they had been empowering the Executive in recent history and Congress seemed to get very aggressive, and the Supreme Court placed limits on Congress in checking the President as much as it did on the President himself!
Finally, let me make a point that is very important, that comes from my main inspiration as a theorist in these matters, who wrote a century ago, named James Bradley Thayer, who argued that empowering one agent has the potential to stunt the power of another agent. So, he claimed that making the judiciary powerful would lead the legislature to abstain from its responsibilities. I have mainly argued that the judiciary just isn’t very good at checking the executive. You know, the racist travel ban and other examples in our country. To the extent that it is, the comparative question really depends on what the world would be like if the judiciary weren’t empowered in that way. We can hypothesise or at least hope that Congress would have different incentives. Now, let’s say, they can rely on the judiciary to do their job, but if the judiciary weren’t empowered in the way it is, it would be the legislature or nothing.
Shreyas: Quite right, professor. Speaking from a comparative constitutional law point of view now, do you see merit in reforming the American constitutional system to reflect somewhat of the Canadian system, where the Canadian Supreme Court does have the power to invalidate legislation but if Canadian Parliament passes it again, it has to go ahead anyway?
Professor Moyn: Yes, I do favour a legislative override and other techniques of that kind. I mean, I haven’t committed to any particular disempowering technique. In the American system, we have had other debates about jurisdiction stripping and supermajority rules, but a legislative override is really a kind of jurisdictional tactic to make the Supreme Court something of an advisory body since the power of the last word would be with Congress to either accept or overturn the judiciary’s findings. I definitely support that. I think we have evidence in Canada and Israel that this power of legislative override is rarely used. And so it suggests that the power to override actually changes the behaviour of the judiciary in the same way that depriving anyone of the last word means that they speak differently.
Shreyas: In his really admirable book ‘The Dignity of Legislation’, Jeremy Waldron took legal academics, in particular, to task for indulging in this judiciary-centric discourse, leaving out the legislature as a respectable source of law and protector of rights. So, I guess my question is: do you agree with that viewpoint? Do you think now it’s time for citizens of constitutional democracies, like the U.S., South Africa, India, etc., to rethink how we imagine constitutional courts in our system? Are we ready for that change? What are your thoughts on that?
Professor Moyn: I think citizens are. The question is whether jurists are. Jeremy, who is one of our greatest scholars, wrote an interesting book review of my own mentor and teacher Roberto Unger’s book which acknowledges that it’s really a defect amongst jurists, who, in a sense, don’t like democracy as much as juristocracy because the latter gives them a more important role, either as jurists or advisors to jurists. So, maybe the trouble is that the legal culture, especially in elite circles, is not very interested in democracy, doesn’t want the legal advisor to be primarily a helper to the citizenry, rather than the higher judiciary. So, my sense is that there’s a latent interest in democratic self-rule and the trouble is much more with our legal culture and the elitism and the elite-rule with which our legal culture, often globally, has been bound up.
Shreyas: There’s still some time remaining, so I will sneak in one last question. Going back to the American context, there are those on the Right who have claimed to be supporters of democracy, who don’t like judicial overreach, judicial activism, etc. Do you think that SCOTUS reform can be one of those really few things that the Left and the Right could work together on to achieve a more meaningful solution to this juristocracy problem that’s plaguing American democracy, and, in some ways, plaguing my own constitutional democracy here in India?
Professor Moyn: I hope so because I think, to be very frank, the conservatives have had the better of the argument when, in certain cases, liberals won and conservatives complained that, not the outcome but the process by which it was reached was not democratic. They may have made that argument on principled grounds or unprincipled ones, because our conservative jurists and judges have never been above undemocratic rule themselves, even more so. But I think we can attempt to hold conservatives to their historic rhetoric as friends of democracy and a judiciary with limited powers. One reason I favour some of the reforms I do is because where court packing appears to conservatives – rightly – to be a naked power grab, in the same way that what Senator Mitch McConnell did in our country was a naked power grab for liberals, some of the other reforms are neutral in means, i.e., they would favour progressives, I believe, but there’s no guarantee because, ultimately, they favour the democratic process. So, I hope it’s possible to build a coalition across partisan lines for some of these reforms, but the truth is now conservatives have such power in the U.S. federal judiciary that they are very unlikely to give it up, even when they have given many principled reasons why they should do so.
Shreyas: Right, Professor Moyn. That’ll be all for us. Thank you so much for sitting down with me! It’s been a really fascinating talk.
To the people who will be reading or watching this later on, there’s a really interesting website called ‘Supreme Court Reform’ that Professor Moyn has set up with students at Yale Law School that you should check out. Some of the reforms proposed there are really ingenious.
Thank you so much for giving us time today, Professor Moyn. We will end on that note. We wish you the very best in all the things that you go on to do ahead.
Professor Moyn: Thanks for having me!