 Greetings from the National Archives flagship building in Washington, D.C., which sits on the ancestral lands of the Nacoges tank peoples. I'm David Ferriero, Archivist of the United States, and it's my pleasure to welcome you to today's forum examining the authority of the Supreme Court, the perils of politics and the question of reform. All federal employees, including my colleagues here at the National Archives and Records Administration, take an oath to not only faithfully discharge the duties of the office on which they are about to enter, but to support and defend the Constitution of the United States against all enemies, foreign and domestic. I took this oath in January 2010 when I became Archivist of the United States. I was honored to have it administered by Justice Stephen Breyer. In his remarks, he described my new position as, I can't think of a really nobler responsibility. The National Archives has the noble duty of protecting and preserving the U.S. Constitution and then displaying it year-round with the Declaration of Independence and the Bill of Rights in the rotunda of the National Archives building in Washington, D.C., for our fellow citizens in all the world to see. There is only one institution that is charged with interpreting the Constitution, the Supreme Court of the United States, and our guest this evening, Justice Stephen Breyer, has spent 27 years doing just that. Stephen Breyer was born in San Francisco and is a graduate of Stanford and Oxford Universities in Harvard Law School. He taught for many years as a professor at Harvard Law School and at the Kennedy School of Government. He's also worked as a Supreme Court law clerk for Justice Arthur Goldberg, a Justice Department lawyer in the Antitrust Division, an assistant Watergate special prosecutor, and Chief Counsel of the Senate Judiciary Committee working closely with Senator Edward M. Kennedy. In 1980, he was appointed to the United States Court of Appeals for the First Circuit by President Carter, becoming Chief Judge in 1990. In 1994, he was appointed as Supreme Court Justice by President Clinton. He's written numerous books, including Making Our Democracy Work and The Authority of the Court and the Paral of Politics, which was recently published in his Our Focus this evening. Moderating tonight's conversation is Tom Putnam, the director of the Concord Museum. It's a pleasure to welcome him back to the National Archives, where he served as director of the John F. Kennedy Presidential Library and as the acting director of the Office of Presidential Libraries. He's a good friend and we're pleased that he has spearheaded this partnership with the National Archives, the Kennedy Library, the Boston Globe, and mass humanities. The conversation with Justice Breyer was prerecorded a few days ago, and it will be followed this evening by a live panel discussion featuring Kimberly Atkins Store, senior opinion writer and columnist for the Boston Globe, and the former Supreme Court reporter for Massachusetts Lawyers Weekly. The Honorable Nancy Gertner, former United States District Court judge, who currently teaches at Harvard Law School and is a member of the Presidential Commission on the U.S. Supreme Court. Jamal Green, the Dwight Professor of Law at Columbia Law School, who testified before the Presidential Commission, and Dalia Litwick, senior editor for Slate, where she covers the Supreme Court in his host of the legal podcast, Amicus. To set the stage for our conversation, let me quote from the introduction of Justice Breyer's new book, The Authority of the Court and the Paral of Politics. The Constitution creates a representative federal democracy with a separation of governmental powers, both horizontal, legislative, executive, and judicial, and vertical, state and federal. Equality of individuals before the law, protection of fundamental rights, and a guarantee of the rule of law. The Constitutional Framers had every right to admire their document. But as Alexander Hamilton points out in Federalist Paper 78, one branch of government must have authority to assure that the other branches act within the limits set by the Constitution. Otherwise, the document will have little effect. The Framers might as well have hung it on the walls of a museum. Hence, Hamilton concludes the judicial branch in the Supreme Court in particular, who are unlikely to become too powerful for they lack the power of the purse and of the sword should have the last word. I thank you all for joining us for this virtual forum as we examine the crucial third branch of our national government that has the last word and lift the curtain on the proceedings of the Supreme Court. We will do so by hearing directly from one of the members and then in responses to his remarks seek reactions from four trusted and learned colleagues. Let me conclude by expressing my personal appreciation to Justice Breyer for taking the time to write this new book, which I found informative and thoroughly engaging, and to share its lessons with us this evening. Justice Breyer, thank you so much for taking the time to speak with me today. I know that civic education is very important to you, which is why you participate in events like this one to help educate the public about the Supreme Court and demystify internal workings. The Concord Museum is pleased to partner with the National Archives and Records Administration and the John F. Kennedy Presidential Library Museum to provide this platform, which will reach a national audience to discuss your new book, The Authority of the Court and the Parallel Politics. I enjoyed reading it. I learned so much from it and recommend it to all who are watching. The last time we worked together was actually at the Kennedy Library. I was director at the time and you were coming to pay your last respect to Senator Kennedy, whose body lay and repose in the library's main hall. You mentioned your experience working with Senator Kennedy in the book, and I thought we might begin there with a lesson that you learned from him. Yes, I thought it was terrific. I loved working there. I worked there twice the last time. Just before I was appointed to the First Circuit, 1979-80. I tell my local folks that, and I tell them the things that are always useful, particularly now where there's so much disagreement, is what he would tell us is when you're trying to achieve something and not everybody agrees and you may have pretty strong disagreements, listen to what the other person says. Now, the more they talk, the more likely it is that pretty soon they'll say something you agree with. And when you find that there is an area you agree, you say, well, let's work with that. And then you try to turn that into something. Now, he'd much rather have something that he agreed with that was only 30 percent than to have 100 percent of nothing. In other words, rather than being a hero to your normal supporters and achieve nothing because you're so perfect, it's much better to get 30 percent of something. And he'd also say, don't worry about credit. Credit is a weapon. If you succeed in achieving something that is helpful, there'll be plenty of credit to go around. And if you don't, who wants the credit? And how many times, many, I would see him or he'd be working with the Republicans or members of his own party. He disagreed with them and they get somewhere. And then when there was a news conference and news people were there, he shoved the other person out in front, you know, are so helpful here. Helpful. And don't worry about credit yourself. You sure other people get it and that will be just fine. And I say those kinds of things are useful. Whatever job you're in, whatever, wherever you are, listening to achieve something, the enemy, the best is the enemy of the good always. Perhaps you can share with our audience the story with which you opened the book about a conversation you had with the Chief Justice of the Supreme Court of Ghana. Well, that that I use very much in this book, in news often, because she came to Washington and she is trying to she was trying to improve that court and to make sure that Ghana had a greater protection of civil liberties, democracy. Question she asked me was, why do people do what you say? That's a good question. I mean, for only nine judges. You could be nine thousand judges. There's still a lot more people. Why do they do it? And there I had to say, I it's a question of custom. It's a question of habit. It's built very, very slowly over time. It's a it's a habit of following what courts say. Sometimes even when you think they're very wrong and I have sometimes I thought my court's very wrong. You just getting the habit of even if you don't like it and you think it's harmful, even so. The rule of law means you follow it. And I gave some examples, which I've given in the book. Right. You write about the risk of the Supreme Court losing its trust for the American people who may no longer see the court as being impartial and thereby eroding the court's sense of legitimacy with the public. And really, one of the main points you make is that Supreme Court justices are not and should not be seen as a university politician. Explain to us what you mean by that. Well, what I wanted to say is very often, I mean, the political groups will want to get this person appointed or that person appointed. But that isn't because they think that person, if they're intelligent about it, is going to then act like a politician. I mean, when you're in the congressional staff and the Senate staff, you see what politics is. Are you popular? Is it a Democrat or Republican or will it be popular at the polls and so forth? But that isn't what goes on in the court. I mean, what if they if they think that a person who has a certain kind of philosophical view through his prudential view, does this person think that text is more likely to prove the key to the correct legal answer or purposes? Why did the person write this? Why did the legislature write this? And there are a lot of variations and complexities, but usually the disagreement reflects those differences of jurisprudence, those differences of of how you should approach legal problems. And though those are in much more legally related matters than politically related matters, they'll often be surprised the political people who got so and so appointed will discover that no, they're not, they're following a philosophy and it works out the other way. I mean, stick with this point for a bit. I'm going to just quote back to you a part of the book. So you recognize the confirmation process is by its nature political. And you write as you just said, political groups may favor particular appointments, but once appointed, a judge naturally decides the case in a way that he or she believes the law demands, it's a judge's sworn duty to be impartial and all of us take that oath seriously. But then you say, if I catch myself headed towards deciding a case on the basis of some general ideological commitment, I know I've gone down the wrong path and I correct course. My colleagues think the same way. All studiously try to avoid deciding a case on the basis of ideology rather than law. You're right. Yeah, go ahead. I mean, ideally are you an Adam Smith pre-enterpriser or are you a Maoist troublemaker or something? That level is not the right, isn't the key to what people do. I mean, it's more likely to be how the constitution and the text of statutes don't often explain themselves. What is the content of the freedom of speech? Sure, that isn't so difficult in sort of heartland cases, but if the case is so obvious, why is it in this course? We're only going to hear cases where the lower courts have come to different conclusions on the same question, federal law. So it's usually more towards the border and this doesn't explain itself what the freedom of speech or liberty in the 14th Amendment. The person's background is the fact that I went to low high school, grew up in San Francisco and lived the life I've led, just as you have, lived the life that you have led at a certain time. You begin to have thoughts about very general perhaps. What's the country like? What is this document, the constitution? What's it really about? What are the things that hold us together? 331 million people. Only 1 million lawyers, 330 million are not lawyers. That comes as a surprise. And so over long, long periods of time, despite many mistakes by this court too, people have come around to following its decisions. That has helped them follow a rule of law. It's part of a rule of law. And a rule of law means sometimes you accept decisions you don't like. After all, I see that every day. I see people of every race, every religion, every point of view. My mother used to say that. So there's no point of view so crazy there isn't somebody in this country who holds it. I mean, that's right. And she used to say they all live in Los Angeles. That's because we're from San Francisco. But nonetheless, we are a very diverse country. And this is one of the things that rule of law that holds this very diverse group of people together. So I told my friend from Ghana, the people you have to convince about a rule of law. They're not the lawyers. They already are convinced. They're not the judges. They're the 95%, 99% of the people who live in villages and have been towns, who are not lawyers, who are not judges. And they have to understand the importance, even if they can't explain it, of a rule of law, which means they will follow the law, the decisions, the judicial decisions too, even though they might disagree and they might be wrong. I mean, maybe they're right and the judges are wrong. I mean, it's five to four, somebody's wrong. And that's not an easy task. It requires a lot of education and good schools and civics courses. You talk again, you share the concern that there's some growing mistrust of all government institutions in the court, one of them. And there are others who are even more concerned, feel the system is somehow broken, but you argue strenuously again, taking steps to reform the way the court operates. Let me just quote from you. You write structural change represents the temptation better resisted. For if the public comes to see judges as merely politicians in robe, it's confidence in the courts and in the rule of law can only decline. That's a short-term victory in the great zero-sum game that our politics has become. Could bring about great structural damage, not only to our essential constitutional institutions, but also to our system of government. So explain to us your hesitation for- I don't know what I was thinking there. I mean, if party A says we're gonna expand the court and have five more members of our party, I guess party B could do the same thing. And then before you know it, you're gonna have people who are generally recognized as just appointed because they're allied with one party and the other, and they will carry out what their political mission is. Well, about 150 years ago or so or more, this court decided that Northern Georgia belonged to the Cherokee Indians. Well, it did. I mean, we've made a treaty with the Cherokees and Northern Georgia belonged to them and gold was discovered. The Georgians wanted the land because they wanted the gold. So the Cherokees brought a case, this court said, of course it belongs to the Cherokees. Andrew Jackson was then president supposedly said, well, John Marshall, the Chief Justice made his decision. Now let him enforce it. Then troops to Georgia, but not to help the Indians. Rather to evict them as he did. They marched along the trail of tears to Oklahoma where their descendants live in this to this day. Now, compare that to a very tough matter for the court and for everybody else, ending legal segregation in the South. Oh, that was 1954, Brown versus Board. I usually point out that the students, you know what happened the next year? They say, what? I say, nothing. No, we were after. And finally, a judge in Little Rock said, let those nine black children with Little Rock Nine into that white school. And they did. No, they didn't. President Eisenhower sent 1,000 power troopers from Fort Bragg on using the first airport. And the children might in the school for a while, but the power troopers couldn't stay there forever. And the governor closed the school. And this court said, you can't do that. You've got to let these kids into the school, but there were only nine people, as I said. And then I tell the Chief Justice of Ghana, which I did, that they just couldn't keep that school closed. Why not? Because by that time, the rest of the country had awakened. And it was Martin Luther King and the bus boycott and the freedom riders. And throughout the country, people realized the unfairness of segregation. They began to do something about it. Really took quite a few years. And I say, if these ordinary people, I mean people who weren't lawyers, weren't judges, had not awakened to the need to follow that rule of law. I mean, goodness knows what would have happened. It would have been bad. So it takes time. And over a long period of time, people in this country have learned the importance of a rule of law which sometimes is just bad. I don't like it. They don't like it. But if you don't follow it, you won't have one. I found a building on that point part of the history that I didn't know about, kind of a relationship between Board Brown versus Board of Education and Loving the Virginia case. Let me just read again from your book. You're right. Judges should not and virtually never do pay a particular attention to public opinion. They must decide cases on legal ground, not on what basis of what is popular. But then you explain that it took the court 13 years after Brown to set aside laws forbidding interracial marriages, which is the Loving versus Virginia case. Can you share the backstory with us and the lessons that you glean from what you're doing? But what I said was that when I say it's not really a political institution, nothing works perfectly. If you expect refaction from this court, you're in for a big disappointment. And there is no institution. That's why trust is sometimes trust in an institution despite. And that's why I say I can't say the court's never political, not never, but minimize that. But still with Loving, the reason I told that is they were trying to have Brown versus Board and end to legal segregation. And they were getting no help from Congress or very little and not much help for anybody else. And so under the rule of Brown, I think the sagination law would have been pretty clearly. Can't marry a person in a different race. That would have been pretty clearly unconstitutional. But Frankfurter said, don't decide that now. Said that in the conference. He said, why? Because he was afraid. They were afraid the South would just never follow Brown. It was their worst fear. They had to get over that. And eventually, slowly, with the help of millions of other people, gradually, gradually, we began to dismantle legal segregation. And then they could dismantle the anti-miscegenation laws, too. I'm going to go back to this question of reform. And I promise you I'm not going to ask you any questions about the decision you're weighing in terms of when to retire as you've stated eloquently on multiple occasions there are a number of factors involved in your decision. But I did want to ask more generally just about the notion of having term limits or age limits for justices in the future. But I've said you could. I mean, it was long. I mean, I'd say the main, there are a number of practical problems. I mean, they had this commission right. There are a number of practical problems with it. But if you could have, you don't want a short term because you don't want the judge here thinking about what his next job is going to be. It's something to do on this job. And so if there were a long term, I don't think there'd be a tremendous objection, but there are some objections to it. There may be some difficulty getting that done, too. Right. Good thing I found interesting and it relates to your interesting history with President Jackson ignoring the court and President Eisenhower backing it. The Supreme Court's power to act as a check on the rest of government. You say that that power to check has grown over time and that that power rests on the public's acceptance of the court's authority. But the interesting thing is the court also, it really does rely on the executive branch, as you say. It doesn't have an army to enforce its decision. So it's in this interesting role of serving as a check on the president's power. But on the other hand, depending on the president to respect and enforce its decision. Talk about that precarious balance. Yeah, I think that the political branches of government and people often don't understand that. But my experience of working for Senator Kennedy and others and me just showed that that the political branches do, in fact, reflect what the public wants. And so with the president and the court, the fact that the president will go along with decisions he doesn't like from the court, that reflects a public that respects a rule of law. And with that not said, you might not see it. I mean, when we had a case Bush versus Gore, which you're sure you were aware of, I just sent it in that case. I thought it was very wrong. But I heard Harry Reid, who is the Democratic, head of the Democratic senators at that time, say the most remarkable thing about the case is almost never remarked. Despite the fact that it's very important, might have affected a lot of people in ways they didn't like and they didn't like it. And it was wrong in my opinion, okay? So, but nonetheless, he said they followed it. And there weren't riots in the street. And there weren't paving stones thrown and guns fired and so forth. And so that was a pretty good thing. And I'd just say that I would tell that story to some students at Stanford or other students. And I say, I know about 20% of you at least are thinking too bad, there weren't a few riots. Now I said, but before you reach that conclusion, just turn on your television or any screen you use and look and see what happens in countries who decide their major controversies that way. And you might decide that deciding them under a rule of law in courts is perhaps a little better, even though far from perfect. Good evening and thank you for joining us for this evening's event. I'm Tom Putnam, the director of the Concord Museum, this institution along with our other co-sponsors the National Archives, the Kennedy Library, Mass Humanities and Boston Globe are all committed to advancing civic education for we understand that our democracy is founded on an educated citizenry. That mission will animate our conversation this evening as we engage in what is essentially a national civics lesson about the role and the authority of the Supreme Court and the current debate as to whether it should be reformed. I'm coming to you from Concord, Massachusetts. The site as I'm sure you all know of one of the very first battles that sparked the American Revolution and home of the noted transcendentalists and reformers like Ralph Waldo Emerson, Henry David Thoreau and Louisa May Elcott and frequent visitors in the pre-Civil War period including Frederick Douglass, Margaret Fuller and John Brown. We hope the history we chronicle here informs contemporary debate about how we as a nation learn from our past to build a more perfect union in the present and future. I wanna thank our four panelists for joining us this evening, previously introduced by the Archbishop of the United States. Unfortunately, we had a small glitch with the final moments of my conversation with Justice Breyer, which is why it ended more abruptly than I wished. But I want you to know when we taped the segment I did properly thank him for taking time from his schedule to speak with me about his new book again, which I heartily recommend to all of you who are watching this evening. So I thought we would begin with a quick round Robin who allow each of our panelists to give a very brief initial reaction to what we've just heard from Justice Breyer and his general notion that any efforts to reform the court would do more harm than good. I should note, since he provided a strong case to not tamper with the court, which I should note is also the position of a number of the individuals on the presidential commission. Our panelists will explore different ways that reform might be undertaken and is noted as the opening of our programming. Their views do not represent those of our sponsoring organizations that are offered in the spirit of the proceedings of the recent commission, which one of our panelists tonight has described as quote a model for how people with deeply diverging perspectives can listen to one another respectfully and revise their views through genuine dialogue. So let's begin alphabetically. Kim, why don't you start us off? Thank you so much, Tom. Yeah, I will keep it brief. I do think the justice makes a good case, a lot of solid points in that non reformist point of view. And I think if it were 20 years ago, I probably would agree with him, but I think the change that we have seen and the politicization of the court, which is to me as a journalist having covered the federal government for quite some time has been the most stable, the most steady part of that institution and seeing its foundations begin to rock as well. It's really hard to see why just looking at common sense supported other options to try to make the court better isn't a good idea. I mean, it's interesting. We've all followed and listened to Justice Breyer for quite some time. So we've all heard him talk about the Bush v. Gore decision as he did tonight and how that showed evidence that even in a bitter divide, even in something as contentious as a presidential campaign where both sides were really just the chasm between the sides were very big. Once the Supreme Court made a decision, then people accepted it. I'm not sure that holds true. I think the events of January 6th and other things really makes me question whether you really have to look to another country where political decisions are solved outside of the ballot box. I fear that we are moving closer if we haven't already arrived at a place where that danger exists right here in the United States and we do need stability. We do need trust in the court. And if that can come with reforms, I'm all for it. Judge Gartner. It's wonderful to be here. During the pandemic, frankly, I like to say it's wonderful to be anywhere. But the premise of Justice Breyer's remarks is that if you reform the court, you set off a series of consequences that will then undermine it. The question I think that Kimberly was raising and that I raise in my work on the commission was I think we're already there. The court has effectively undermined itself. The politics has already undermined the court. And the question then is what to do about it. The notion that court expansion proposals are packing the court is what some on the other side say, but there's certainly an interesting question about whether the court has already been packed, whether the combination of McConnell's failure to allow Justice Garland even a hearing because it was an election year followed by allowing Justice Barrett, a confirmation process, literally was at eight days before the election began and some people were already voting has so undermined the institution that reform is really important. And then I've been grappling with what some people before this presidential commission said was the sort of break the glass moment. Is this the break the glass moment when a combination of two factors is really telling and one factor is one party's efforts to restrict the vote, restrict minority voting, not, you know, gerrymandered districts to a fairly well, whether one party is trying to entrench itself in power and whether the Supreme Court has enabled that by essentially a hands-off approach to those kinds of efforts. The implication of that is whereas the Supreme Court might naturally change over the years as elections change if elections are stalled because of these efforts, Supreme Court is not gonna change in our lifetime. They will not be the usual, you know, back and forth ebb and flow of opinions on the court rather this very conservative minority or the conservative majority rather will be entrenched. And I think the final point is that to not act in my view undermines the legitimacy of the court to not act when the public understands the politicization of the process when the public has listened to recent conversations, recent oral arguments rather about abortion and comments which I never thought I would have heard are being made to not act is to legitimize a system which is crumbling. And so for those three reasons I think there has to be change. And Professor Green. Thank you, Tom. I'm going to basically agree with both Kimberly and Nancy that some changes at the court make a lot of sense. And indeed I think would enhance the legitimacy of the court. I think for slightly different reasons from Nancy's reasons. You know, I think it's important to disentangle two different questions. One is, is the court politicized and should we be worried about that? And a second question of are there good reasons to think that this institution is one that is in need of various reforms? And I think those are just separate questions. The question of whether the court is politicized of course the court is politicized. The court is politicized though not because people are suggesting reforms. The court is politicized because the court is a political institution. It decides political questions. It decides them, I think along with Justice Breyer I think it decides those questions in a somewhat different way than politicians decide those questions. But they are political questions. And to view them as not political is I think misleading. The separate question of is this institution in need of reform? I think there are lots of good reasons to think the court needs reforms of all sorts. Some of those may be related to partisan concerns, although I don't think those are, I'm not personally in favor of partisan expansion of the court, but I do think that there are lots of ways that one could change the court and make it a better institution and not just a better institution but one that is more legitimate in the eyes of the public by changing a number of features of what we've come to think of the court today. I think part of the problem in fact is that we tend to resist reforms because we don't necessarily tell ourselves that this is a political institution. And so it should be structured in a way that makes it actually a more productive contributor to our political discourse. So I hope we'll get into some of those things but I think those are, it's just a completely separate questions whether we should reform the court and whether it's political in some way or other. Thank you. Diane McFlick. Well, first off, thank you and thanks to all the sponsoring entities. And this is a really amazing panel. It's an honor to be here. It will surprise nobody ever to hear that I largely agree with virtually everything that has been said with maybe a slightly different valence. I listened to Justice Breyer and Kim is right. If you cover the court, you've heard sort of iterations of this for a long time. He's, you know, this is his second major, major book exploring this. It really is existential for him. And I hear what he is saying and I would go so far as to say any judge who doesn't feel the way Justice Breyer feels is actually disserving the courts. It's essentially important for him to articulate the vision that he lays forth. And so I'm incredibly sympathetic to what he is striving to say and do. But I think I wanna parse two things. One is the end game for Justice Breyer and his comments in his book is the appearance of legitimacy of the court. That it's incredibly important that the public esteem the court as legitimate. And I just wanna start by saying that's entirely different from actual legitimacy. And I think Judge Gertner made that point that if the end game is that no matter what the court does, the public believes that it is an oracular, perfect apolitical court, that's a really chilling end game that can't be what we're striving for here. What we're striving for is a court that both has public legitimacy and also that is legitimate. And I think again, just in the spirit of what Jamal is trying to do, I think unbraiding those questions and saying for me the end game, it's not enough that the public believes in the court. So I think that's one thing and it does go to Judge Gertner's point which is once the court is not behaving legitimately the suggestion that trying to fix that delegitimizes the court, I think sets you up for an inability to get to sort of my end game which is actual legitimacy. And then the other thing, and I think this is important because I think when Justice Breyer talks, he starts with the Trail of Tears and Brown and Loving and gets to, as Kim said, gets to Bush v. Gore, but I think there's a sense in which the court which started with like four cents in the legitimacy bank now has banked millions of dollars and that's a good thing, right? That's the answer to the question, why do we do this? We do this because we wanted the public to get to the point that there was a lot of money in the legitimacy bank. But again, I ask, even if you believe that sweep of history that we've gone from, let Chief Justice Marshall enforce it to this moment when the public exceeds to the courts demands with neither person nor sword, what are we banking it for? And what is that multimillion dollar savings of legitimacy going to? Because I think that too isn't an end in itself. Great. So before we talk about individual proposals, first, I did actually print out the report and made the whole thing. And I watched the number, you can go online. I happen to do it on C-STAN, I'm sure there's probably other ways to do it. And you can watch a number of the sessions or you can watch all of them. And I thought, Professor Green, I know you've teach some of this, but maybe just give us a brief history. Have there been commissions like this in the past? And maybe just a brief history of why this commission was formed before we talk about the proposal that it looked at. Sure, I can say a little bit about that. There have been commissions on the courts before. There have been commissions to think about the courts docket differently in the past. A commission with the sweep of this commission, which is, there are people calling for reform, tell us about the reforms you're calling for. I'm not aware of any prior commission quite like that or quite with that sweep. I think the initial impetus behind the commission is fairly clear. It has something a lot to do with what Dahlia and Nancy have been talking about in terms of the partisan direction of Supreme Court appointments in recent years. There's certainly a perception that at least two and maybe all three of the Trump appointees were appointed under various degrees of illegitimacy. If you look at the court in general, it's had a Republican tilt for a very, very long time. There hasn't been a Democratic majority on the court since 1969. There hasn't been a Democratic Chief Justice since 1953. 15 of the last 19 justices were appointed by Republican presidents, even though Democrats have had the presidency for 16 of the last 28 years and have won the popular vote in seven of the last eight presidential elections. So the country is sort of going in one direction and the court in another and that has led people to think this is the break glass moment. I think more generally, and so that's the basic history. More generally, there's a sense that the court has been caught up in, and this sort of maybe points in a slightly different direction, has been caught up in the broader partisanship and polarization that has gripped the country. The justice who I clerked for, Justice Stevens, he was appointed in 1975 and he was confirmed 17 days after his nomination. And he was the first justice appointed after Roe versus Wade was decided and was asked no questions at all about it. So that sort of viewed as a kind of the Halcyon days of old that I think some people would like to return to, but I think consistent with Kimberly and Nancy and Dolly, I don't think there's any going back to that era for no reason, for many reasons, but one being that the court is an extraordinarily important and powerful institution and it makes sense for us to think very carefully about things like confirmations and things like court power. So that's the nutshell of why we're here and I'll guess I'll stop there. The other thing I'll mention, you didn't use the word bipartisan, so we should note that it really was a bipartisan panel and really have thoughtful advocates on both sides. And again, partly because Justice Breyer was advocating the status quo, here we're really talking about the other side, those of you who are in favor of reform. Let me... Can I just add one short thing though to that and all that history is absolutely correct. The seriousness and hard work of the commissioners was amazing and it is an outlier in Washington right now, but also the impetus of this was a presidential election in which Democrats after Republicans had really prioritized the US Supreme Court, saw what was happening and was consistently demanding of then candidate Joe Biden what he would do to say, does he support hacking the court? Does he support other reforms? And he was loath to make a decision and so his campaign promise was to say, I would get together smart people to make recommendations to me and that is what this was born out of too. So there was the change in the court, but there was also the very real, very urgent politics behind the creation of this commission. Just, I mean, it's following up with Time's point, but it is true that there were a wide range of views on the commission, which was part of the reason why the ultimate document was not charged with coming up with a recommendation. That was clearly not, that was not true, but also that wasn't even, it wasn't possible given the diversity of views on it. So, I mean, it felt very much like for me, better to have this conversation in a commission like environment than to try to have it through Twitter or God knows on the floor of Congress or through dueling up its. So this was the way to have this very complicated conversation. So let me quote from the executive summary on this question of packing or expanding and there's different ways of doing it, but we're gonna begin with the notion of packing them. Again, these are the words from the commission report itself. So first, the commission concludes that Congress has brought authority to modify the court's side. It then goes on to describe arguments made in the public debate both for and against court expansion. Quote, supporters contend that court expansion is necessary to address serious violations of norm, governing the confirmation process and troubling developments in the Supreme Court's jurisprudence that they see as undermining the democratic system. Opponents contend that expanding or quote unquote, packing the court would significantly diminish its independence and legitimacy and establish a dangerous precedent that could be used by any future political force as a means of pressuring or intimidating the court. And in the end, as Nancy just indicated, the commission takes no position on the validity or strength of these claims. So Nancy, why don't you start? I think you're gonna advocate for expanding those. Right, it really was a process for me. I felt deeply the kinds of concerns that Justice Breyer talked about, which is you'll sort of start off an arms race about court size. We want two, they'll want three. By the time the end of the century, the next century rolled around, we'd have a court of 95 people. And I understood that and I understood that the challenges, the extent to which it is saying such a move would imply that the court is flawed, that there are serious problems with the court. So I began this exercise believing that we would try to get term limits, which by the way, every other Supreme Court in the world has. We are the only ones with this regime, but it was clear that that is a constitutional amendment. It was clear that that's the kind of change that I wouldn't likely see in my lifetime. Ultimately, court expansion, however, does not require constitutional amendment. We are the smallest court in the world. We have nine other courts have 12, 11, 13. We are one of the smallest courts in the world. And the issue of size was entirely available to be addressed by Congress. And while the expansion of the court doesn't precisely map on my concerns about the court, there's no question about it, and the concerns about a court that has really gone off the rails with respect to a whole. When Justice Bork or not Justice Bork, when Bork was nominated many years ago, the concern was that he was out of the mainstream. In my view, this is a court that is dramatically out of the mainstream, dramatically out of the mainstream, not just because of the Republican appointees, but more because of the things that they have been doing. So the notion of expanding the court to address the illegitimacy of the two and possibly three recent nominees, the notion of expanding the court to have at least the possibility, maybe not the actuality, but the possibility of different views rather than effectively six of the same, maybe five of the same, the expanding the court to allow that possibility seemed to me the one thing that could be done immediately, and that the risks of doing that, which are clear, no question about it, are outweighed by the advantages of shaking up the court, and that the risks of doing nothing are far greater than any of that. I hate to put it this way, but I felt a lot of times during the discussion that the worst thing of all is for a court to be like a kabuki ritual. Say the right things, there's a flag behind you, it looks you're all wearing robes, but in fact, the reality was something different. So I moved from thinking about term limits to court expansion and very, very strongly by the end of my service on the commission. I can already tell we're gonna run out of time, so rather than having people respond to that, Professor Green, you have a different, and we've done a time for you to give all of the details, but a different way of thinking about expanding the court. Maybe you could just summarize that, that's not seen as court hacking, but a different way to expand the court. Sure, and I gave some testimony to the commission, and my main objective was to try to think of court reforms that one could support, regardless of whether one was satisfied with the partisan composition of the court, because I do think there are lots of things that one could do that are not, that anyone should take seriously. One of them is the size of the court, right? So if you take sort of take away, step back from President Biden getting two more appointees or four more appointees or what have you, the fact that we have nine justices, you take a bunch of features together, so nine justices, life tenure, they choose their own docket, they choose who replaces them, at least ideologically, in a country of 330 million, and they decide these really, really important questions for the rest of us. That's a very anti-democratic way of deciding things, and you might say, well, of course, the court is supposed to be counter-majoritarian to some degree, but to this degree, I think is quite pathological and not consistent with what other countries do, right? So no country that's even remotely within orders of magnitude, the size of the United States has only nine justices on their high court. Every country in the world, I think Iceland is actually the one other exception, has term limits or age limit on their justices. So just, if you look around the world to other democracies, other constitutional democracies, the court should be probably about twice its size. It should probably sit in panels and not in bank. It should certainly have term limits, right? So my proposal, which one shouldn't focus on the particular details of that, but my proposal was to sort of put those together and figure out ways of, I think, by statute, but there's will become some contestation around that, being able to expand the court and also impose term limits effectively by cycling judges off the Supreme Court and onto other federal courts, which would retain their life tenure without them necessarily taking on the duties of here in Supreme Court cases. Great. I'm hoping to find a little bit of disagreement amongst you and Kim, I think before we came on to you, the depth of the year not in favor, at least right now, of what court packing as we think about it. Yeah, no, I agree with some of what Jamal said and not all of it. So I do think that last point is an important one. And I think that gets to the constitutional question that Nancy raised, as to whether you can impose a term limit constitutionally if you create a system for the Supreme Court that's very similar to that you have on the lower federal courts where justices reach a senior status and they would leave the court, but they would still be able to sit on other appellate courts if they so choose, much in the way that Justice Souter does at the first circuit that could solve that constitutional issue. I'm not a constitutional scholar, so I'm not sure, but that's what I have been told. And I think that that is a very good solution, particularly for justices who are reluctant to retire because they enjoy the job where they think that there's more to do or it's very hard to walk away from that place in American governmental power. That's all those things are totally understandable. But I still am worried about what happens with expansion of the court. I think it would be difficult to do, to not have, I want to believe Nancy's contention that the benefits outweigh the costs, but I'm not sure about that. And I think so much of the benefit can come out of term limits in so many ways that that seems like perhaps the incremental change that not only can get bipartisan support, not only can get the support of the American people, but that can take the politics out of the process by ensuring that every presidential administration will have the opportunity to name a couple of justices to the court. I'm also really wary of the idea of a panel system at the highest court. I don't think that the highest court determining the fundamental rights of individuals, particularly civil rights, should be up to the role of a dice as to what panel you get. I do think that the on bonk system is important there and that way you can have a consistent record of all of the justices that they would have to, that they could be held accountable for. So I'm a little concerned about that. So the board of the Boston Globe has repeatedly called for term limits of about 18 years. It's one of the proposals and that that could really be beneficial. It wouldn't be immediate. It wouldn't work as quickly as Nancy's proposal, but over time it would gain the legitimacy. I think it would make more American see the court as more legitimate. I know none of these answers are easy, but I am still more concerned about the negative fallout and the potential that the court will become more politicized and not less with its expansion. What are the chances of a constitutional amendment allowing term limits? See, I'm not sure that it requires one though, Nancy. I mean, are we certain, especially if it's not fully limiting it and just saying, creating that sort of senior status for it? I acknowledge that that's a big question, but I'm not sure that a constitutional amendment would be required. Do we know that for sure? We don't know anything for sure, but the overwhelming view was that anything that mucked around with the length of service on the Supreme Court would require, because the length of service on the Supreme Court talks about life tenure. And so if you shuttle them off to another court, you're arguably undermining the life tenure provision. And if you need a constitutional amendment to do it, then the constitutional amendment would be, I mean, I don't think that'll happen in our lifetime. And I'll just, sorry. Well, I wanna let Dalia just comment on court packing expansion. Dalia, where do you come down on that? Two things, I'm really mindful of Jamal's framing in his very first answer, where he said we have to really disaggregate the sort of immediate conversation about what's wrong with this court from the structural conversation. And I think one of the things that I really notice in Nancy's framing of the question, which is correct, is I'm mindful of that, is that the Roman God Janus that's like facing forward and backward at the same time. And I think there's something really interesting when you read the part of the report that sort of talks about how we got here. There's this really fascinating, and then they did this and then they did this and arguably this happened and this happened. It's all sort of re-litigating. Do we start at Bork? Do we start at Garland? Where do we start? And then I think the other version of that is, well, if you do this, we're gonna do that. And then we're gonna do that. And then this is gonna happen. And so there's a strange way in which this entire conversation is both backward facing and forward facing. And the structural thing is the big hole in the middle. And so I really wanna sort of be aware of the ways in which you're sort of talking past each other. The other thing that I just, I feel that I have to say, and I think this goes to Nancy's initial point, and a little bit of Jamal's point about having constructed a juristocracy, right? I mean, Justice Breyer's Federalist 78, this is supposed to be the weakest branch and now it is a branch. And this is, I think Nancy's really essential point that is not just a counter-majoritarian branch. It is entrenching minority rule. It is doing that by deciding gerrymandering cases and vote suppression cases and deciding Bernovich last term. And I think that we have to be thinking not only about the court in isolation as a political entity, but how it's inflicting on democracy itself. And if you agree with Nancy, and on this I do, then I think we have an exigent time problem that is going to really result in two things. In 2022 or 2024, we're gonna have an election that possibly goes to a court. And this goes to Justice Breyer's initial point. We really want a court that the country believes in. It will be a terrible thing if the approval ratings are still in the 30s when the court decides an election. And at the same time, I really think that that means that talking about sitting around for 19 years and amending the constitution and waiting for 18 year term limits to play out feels like it's an incredibly aspirational project. If you believe, as Nancy says, that there is a democracy breaking problem possibly exigent that is happening right now. So that's my kind of very grim spin on how to think about whether we can afford to do years and years of repair. Can I ask a question to the expander proponents then? I mean, I think one of the biggest reasons why the court is so problematic isn't just about its makeup. It's about how it chooses to take up questions, how it decides questions. A big, massive problem was the shadow docket. But just in a couple of decades ago, the court was deciding what 150, 155 cases a term then it went down to about 100 now it's down in the 70s or even 60s a year. It does as much with the cases it decides not to take than the ones that it does. Now you have these rulings without opinions that can have really widespread impact in terms of people's fundamental rights. How much of the reform needs to be in how the court does its job as opposed to who is on the court. I mean, I believe that that is also a major problem that affects our democracy. The report tried to deal with, you know, size of the court, term limits and also issues like transparency, jurisdiction, stripping and the shadow docket and all of that. And the latter clearly can be addressed. Although what was interesting about the report is that, you know, the issue of even doing that would be dislocating the court and implying the criticism of the court. Even doing that could affect legitimacy as in how the public sees people. And that is completely paralyzed. And that is an analysis that is paralyzing but certainly that all could be done. I think about the impact of having, you know, but for a journalist in particular having recording having a streaming of the arguments is extraordinary. And that would make a difference. I think that that's right. And sort of looking at jurisdictional issues also could make a difference. But the question is whether they would make enough of a difference to restore the external legitimacy to use Dalia's point. I mean, I think that that, you know, Dalia I wish I had thought of that when I was on and I was on the commission before the report was close, your point about if there is an election in 2024 that winds up in the courts, who will that, what will that court comprise? And Bush v. Gore was a different time. The, you know, and that if we don't do something soon in my view, that court will may fail in ways that other courts have not in our history. Let me switch. Kim already brought up the question of turn limits and age limits. But it does seem that they're at least in my anecdotal conversations with people of different political stripes that there could be some agreement now that's the whole point that Nancy was making about how you effectuate that change. But Professor Green, I know you have a 16 year term limit others 18, but could you just briefly describe to the audience how term limits might work in the abstract? So there are a few different ways of doing them. The most common proposal is an 18 year term limit where each president would get two appointees on a regular cycle each term. And that relies on there being nine justices, nine justices times two get you to 18 years as the term limits. My own proposal is 16 and 16. So 16 justices in 16 terms where you pick two justices every two years. So there's an interaction between how many people are on the court and exactly what the term limit would be. The way to get there by statute and was rather than constitutional amendment, this rotating system does rely on, to my mind, I think the most persuasive argument in favor of it working is justice suitor and people like justice suitor. Justice suitor is a Supreme Court justice now, constitutionally, he must be a Supreme Court justice because he hears federal cases, but he's not a first circuit judge, right? So therefore he must be a Supreme Court justice constitutionally. And so if he exists as a Supreme Court justice then it's possible to take someone off the court. And no one thinks he could go back onto the court in your cases if he wants to, right? So if he's able to do that just by statute, then it seems to me that there's no constitutional objection to something of this sort. It's clunky, it's not the best way to do it. Obviously a constitutional amendment would be the best way. But if that's impossible, I'm not sure it's impossible, but if that's impossible, then I think there are statutory avenues. It's a sort of a formalism and you sort of respond to it by its own kind of formalism to say, well, we'll just call, we'll just keep calling them Supreme Court justice to change what they do. There are things that Supreme Court justices can do that are not plenary, right? So Supreme Court justices can, you can extend the time for when a petitions do without going to the full court, right? So there are ways of dividing the job that we accept today. And so we could just continue to accept them in a different sort of way. Again, Justice Breyer's book is called The Authority of the Court and the Parallel Politics, and I wanted to focus more on the court, although we ventured into politics some. But Dali, I thought I would just ask you, as Kim mentioned, this was a campaign promise that President Biden made. But what's your sense of what happened next when he, I mean, I know it's somewhat conjectured, but he received this report and what do you think we will see in the future? I mean, I don't get the sense. I mean, I think it was, Nancy made this point initially, the commission made no recommendations. It was not tasked with making recommendations. So this is in some sense, it's just a big, big, big book report on all of the scholarship and sort of laying out the map of the world of court reform. And in that sense, I think it's a very scholarly, useful document, but does it convey the urgency of acting now? I don't think so. If Kim is right, and I think she is, that this was a little bit a way of turning down the temperature on what was becoming a roiling campaign issue when Justice Barrett was seated. It did the job of turning down the temperature. I think the one thing it maybe didn't do, and I guess I would defer to Nancy on this, is I think that there was some hope that it would launch a massive public conversation so that we could really talk about court packing, maybe it's a thing, it's happened before, FDR tried it, what do we think is baked in to the Constitution, what is just popularly accepted and wrong? I'm not sure, in that one sense, I so noted when you said Nancy, this didn't happen on Twitter, thank God, or in op-eds, thank God, but in some sense, it was so rarefied that I'm not sure it launched a massive national public awareness of some sense that something was urgently needed, and I say that only because if that was going to be the lever that would force Biden to do something, it's not clear to me that as a lever, it's going to change much. So if, I guess this is the slightly cynical take, but if the purpose was to sort of kick the can down the road and get a map of the world, it's done both those things. If it was to kind of goose the public debate about court reform, I'm not sure it did that. I have a sort of slightly mischievous question that I wanna ask my colleagues, which is if the intent was to slightly chill the sitting court from acting in really, really big ways, did it do that? Because I did think it was a little bit of a signal to the court to pump the brakes, and I kind of query whether we saw that happen. Well, wait a minute, wait a minute. The report was released 48 hours ago. So I don't know whether there's a public conversation. There are all sorts of people, in fact now writing op-eds, but at least they're like me, but at least they're writing op-eds in the context of an authoritative report. I mean, it's grounded in this report. So I don't know whether it's gonna trigger a national conversation. I think we have to see, but at least it's triggering, the hope would be that it's triggering that conversation with some grounding in context and facts, that's all. Well, and we're trying to have that conversation now, so give us credits for, and I'll mention, again, I'm a late person, I don't intend to be a scholar, but I found the sessions that I watched, the history piece, the understanding of, one scholar suggesting that we see FDR's court packing as a big failure, but actually there was some successes because it actually perhaps did as you suggest, help that court to shift to approve some measures of the new deal that might not have occurred. So, and then it's already been mentioned, but some of the comparatives, looking at other countries, other systems, realizing that it's not set in stone that what we've all learned through our own civics classes. I wanna switch in just a moment to questions from the audience, but I thought Nancy, if you don't mind, you were a federal judge. I wanna read a quote, a book from Justice Breyer that I read back to him when I interviewed him, and then if you don't mind, I'll quote your memoir. So- Oh, I love it. Justice Breyer said, if I catch myself headed towards deciding a case on the basis of some general ideological commitment, I know I've gone down the wrong path in my correct course. My colleagues think the same way. All studiously try to avoid deciding a case on the basis of ideology rather than law. And then you write, every person who decides he or she is going to be a judge has to move to neutral. And that move should be no more difficult for a civil rights advocate, make yourself than for a prosecutor or a corporate lawyer. So it's just interesting, interested, tell us about your experience at a federal judge personally, putting yourself in neutral, and your experience of the other federal judges that you worked with some who were appointed by Republicans, some who were appointed. I did feel, in my case, I understood the moment before and the moment afterwards as acutely as anybody. In other words, the moment before when I was a civil rights lawyer and a criminal defense lawyer, and then the moment afterwards when I got on the bench with a robe and the flag behind me, I understood the difference between the two and I felt that difference very, very acutely. But one of the things that has been clear to me, I'm writing now about the experience of judging. A very, very hard book I might add, but I'm writing about it. And one of the things though that is clear is that maybe this is something that Justice Breyer said, constitution and laws rarely enforced themselves. So in every case, there's usually a range of decisions, a range of options. It's very rare that you had a decision that was so absolutely clear. And within that range, what your experience was certainly mattered. It wasn't a one-to-one correlation between who you were before and who afterwards, but the way you may frame it, the way you see it, your experience mattered. I have to admit, and so there are certainly, there are decisions outside that range and then there are decisions within that range which are plausible and colorable and what your experience matters. Just, there's a moment during the Dobs argument, just to raise that, when Justice Barrett said something, which as far as I was concerned, me personally was so outside the range as to be extraordinary. And that was when she said, why can't safe haven laws address the abortion, the motherhood problem? You carry the fetus for nine months, give birth and then deliver it to the fire station or the police station. I mean, as far as I was concerned, that was a comment that was not within this range. That was a comment that was really extraordinary. So yes, everyone has to move to neutral. Everybody has to struggle with the legal frameworks. They do not enforce themselves. And so there's always judgment that goes into that range. And I agree with Justice Breyer that there certainly were moments, particularly on criminal side, when I would have to sentence someone to a term of years which I knew was required by the law with which I have fundamentally disagreed. And I would know that and I would feel it and I would say it. But then there are things that are, as I said, completely outside the range in that discussion, as far as I was concerned, was completely outside the range of reasonable discussion about these issues. Okay, why don't I, we'll just take a couple of questions because it's been a long form. So this one recognized again, I think, we do have a fairly progressive panel here. And so this person asked, first, why does our court need to be expanded just because other countries have larger courts? And then he or she says, the left did not advocate this when they were getting decisions they liked. And anyone want to take a stab at why this change? Yeah. Well, I'll say something about that, which is that the court has not been making decisions I've liked in my lifetime. So that criticism doesn't quite stick for me. I would just take a step back. It's not just that other countries have other arrangements, although that does tell us something about the feasibility of other arrangements. It's just to take a step back and think about who makes decisions and the personalization of the law, which is one of the things I chiefly object to, which is the idea that a single person, Justice Kennedy or Justice O'Connor, not to call them out particularly, but or Justice Powell, you can name sort of the swing justices who sort of get to decide major issues because they are the swing justices for decades at a time. They're not elected. There's because they all sit in, they don't sit in panels. So those people are on every single case. And decide the ideology of their replacement by and large. That's called a monarchy in other settings. And the reference to other countries is just to say, that's not inherent in a judicial system. In fact, it's highly unusual, even in a judicial system, right? So the objection that, oh, well, well, of course they've got to be counter-majoritarian or something, sure, they're not elected in quite the same way as other political actors are, but this both is strange and is unusual in a democratic system, right? So that's the objection. And I think, again, if we take a step back from the politics of it all, and there are ways of expanding the court without knowing who's gonna do the expanding, who the president's gonna be, you can fix that. But just the basic problem of a very small number of people with life tenure, choosing their own cases and then choosing the ideology of their replacement is not something that any democracy should tolerate. Can I just take a stab at the part about what the left is doing and what they don't? So again, this is a bipartisan commission making recommendations in a process that is very unusual in Washington right now. In its fact and history-based and thoughtful deliberation. The reason what got us where we are today is the fact that politically, because the appointment of Supreme Court justice is done through the Senate, it is a political body and so therefore the Supreme Court has always been political. While for a long time, the idea was to the victor goes to spoils. The president wins an election, he gets to pick Supreme Court justices, but over time it is one party, the Republicans, who realized the power of the Supreme Court and prioritized appointing justices who had a more conservative ideology in a way that Democrats for decades did not do. As a reporter, I'm a columnist now, but I worked as a reporter for the majority of my career covering politics and I would ask the parties, when you asked Republicans about the Supreme Court, they talked about it in political tactical terms. When you talk to Democrats about the Supreme Court, they talked about justice and equality and the scales of justice, they framed it and thought about it in an entirely different way. And because of that Republicans, I think Mitch McConnell to the extreme prioritized it and now you have a dramatically, I already had a judiciary that sort of tilted to Republican appointees, now it's dramatically Republican appointed at a time that the ideology is farther apart, including the judicial ideology. And I agree with Nancy that I do believe that most judges take the job believing that their job is to be impartial, but I believe even if you have a conservative judicial ideology, what you see as neutral is different from somebody who has a more liberal judicial ideology. I think there's still differences from where you start. And so that sort of gets to the point as to whether this commission and this report can sort of be a nudge to the Supreme Court saying, hey, cut it out or people might come in and try to change how you do things. I would have bought that argument a couple of years ago when it was a five, four court with Kennedy in the middle and with the Chief Justice John Roberts very interested in protecting the institution of the court. I think now that you have six, three, Roberts no longer sits in that same position and I'm not sure that it will have that impact at all. Let me ask one more question and then give you all a closing comment and then I have a few words to close. So this question says, many of us feel as we who are in the majority are not represented by any institution of the government. The Supreme Court decision upholding extreme political gerrymandering is just an example of how no institution, neither the House, the Senate, the Senate appointed Supreme Court or the president elected by an electoral college, again, over-weighted by minority states. How can any of our institutions survive in minority rule? Take that question on. We could just let it stand as a... Dolly is going to do it. Yes, Your Honor. I mean, I think both Nancy and I have talked a little bit about how there's a difference between a countermajoritarian branch and a branch that is entrenching minority rule and I think that that's what the questioner is asking about. And I think that if you start as the questioner asks with the Malapportion Senate that is not reflective of majority will than an electoral college system that is not reflective of the majority will, it's incredibly dispiriting when a court that is appointed as Jamal led with, largely not by presidents who won majorities and they are actively involved in doing what they can to constrict voting, the answer that, and I think Kim has sort of said this too, that I would have given you seven years ago as you get out and you vote, right? Like, and I think one of the reasons this is a really profoundly worrying moment is that it seems as though, I count four justices now on the court that were willing to do some hinky things even in the 2020 election in terms of how votes were counted. And so I am with the questioner. I think that you can't separate the court as an institution from this sort of massive democracy reform that is urgently needed. I think the answer is, the thing that Stacey Abrams would say, which is you get out and you vote. Just don't think there's a plan B. I think that you work on gerrymandering at the local level and you work on state and local races and you do the things that will help build a more robust system of representative democracy. But that sense that the court is now in this pile of other institutions that are not protecting majorities, I think there's no reason that I can say to you that that's not descriptively correct because I think it is descriptively correct. And I think when Nancy opened with, this is why it feels exigent. I think this is why it feels exigent. So why don't I give you each a minute, just any kind of comment you wanna make about the topic we've been talking about or the process or the importance of democracy and civic education and Professor Green, why don't you launch a closing comment? So I'll just close by, we started with Justice Breyer and I don't wanna forget him. And just this conversation has been pushing back on a lot of things he said, but I wanna emphasize the great respect I have for Justice Breyer. And I wrote a book recently that aligns with a lot of things that Justice Breyer has said in terms of how to decide cases. And I do think that everyone should read his book and come to their own conclusions. What I would say simply is, there's politics and there's politics and it's very important for the court not to be a political institution in a very narrow sense of being a partisan institution or deciding that some of it against matter more than others. That's clearly contrary to the judicial role. But the idea that the court can be a political, an apolitical institution when it's interpreting an abstract, largely vague political constitution is an impossibility. And so I think the response to that has to be how do we structure the institution in ways that prevent it from being an anti-democratic institution, which is different from being counter-majoritary. Judge Gardner, closing comment. I loved Kimberly's comment about the Republicans being tactical in terms of who they put on the court and whom they groomed for the court whereas the Democrats were not. And so now we have people who were, if you read Linda Greenhouse's book on the court who were groomed for this during the Trump campaign. I mean, literally the names Gorsuch, Kavanaugh and Barrett were already tripping off the president, the ex-presidents tongue. That would be fine. There are issues with respect to the anti-democratic nature of that and the distortion of the process that I've talked about. But there's something else operating here. It's not just the distortion of the process and it's not just the voting rights issue, something we haven't talked about. These three judges added to Justice Alito and Justice Thomas do not believe in the same way that Justice Breyer does about precedent. So you have a new court essentially that believes that precedent is fine unless they disagree with it. Precedent is fine unless it doesn't comport with their view of the constitution. So it's not just that the court is gonna shift in the way we've described, it's shifting rapidly with a number of fronts. And that alone should concern the court, the everyone and the legitimacy of the institution on a number of fronts. Thank you in that respond to actually a couple of questions that we had that I wasn't able to get to. Dalia, let's go with you and then we'll end with Kim. I also wanna re-up what Jamal said, which is I think what Justice Breyer lays out is such a profoundly important aspiration. And I think, as I said, I more than anyone need that aspiration to be true in 2022 or 2024 when the court has to decide an election. And so nobody is here, I think, to puncture the vision. I love Kim's like justice and goodness and democracy and stuff because we need that. We need people to think that way about the court and to not think tactically and cynically about the court. But I guess I would just close by saying, I mentioned these polling numbers that are in the 30s and 40s and how catastrophically low they are. But I wanna mention the other polling numbers, the Quinnipiac numbers that came out more recently that suggest that six out of 10 Americans across every political and ideological line thinks the court is more political than judicial. And that's almost more damaging than people who don't have confidence in the court that everybody is convinced that the fix is in. And I think that's the thing that we have to talk about, not the left started it and it was Bork and it was Garland and they just wanna pack the court because they're losing stuff now. But what do you do when everyone is in agreement across the boards that the court is a purely partisan political institution? And I think that's where Justice Breyer starts and that's where I end, which is that's the repair that we have to do because that is gonna be catastrophic if those numbers continue to go up. Tim, the globe is one of our co-sponsors who are following us and we'll give you the final word. Well, thank you for that. And it's really tough to follow all of those comments. I would like to associate myself with the comments of all three of my fellow panelists. And I guess I just wanna continue on Dalia's point about the legitimacy of the court and what the American people think about it. For most of my journalism career, I sort of bristled at the idea of opinion polls being taken about the court because it's like, look, they're not elected officials. They shouldn't bend to the will of the majority of the electorate. That's one reason why I agreed with, for example, Justice O'Connor that no judge is to be elected, right? This should not be a fundamentally political body. But I believe, again, that times have changed. I went to law school. I studied constitutional law or fellow panelists. I'm not an expert on it, but I covered the court for more than a decade and this matters a great deal to me. This matters a great deal to me. Also, as an American for whom I know the constitution has been far from perfect in protecting my rights as a woman, as a person of color and why this court stands in such an important position and I want to see it do justice. I want to see it do well and I want to see it do guard our democracy at a time that our democracy is in peril. So I'm deeply thankful for the work of everyone on the commission, including those here. I really do hope that it's first conversation. I really do hope people pay attention to it. I worry in a Twitter age that a big report that you hold up Tom is not gonna break through in the way that it should. But I really want Americans to get involved in this, to pay attention to this, to be invested in this and to whatever extent this conversation and my contribution to it help that, then I'm very happy with that. And thanks so much for allowing me to talk to these folks who know a whole lot more about this than I do. I want to end on the same note of optimism and quote justice of Ryerson, you couldn't be here with us. But again, the process for me of just engaging with all of you, but also watching the commission in action and reading the report was heartening. And I encourage all of those viewing to again go online and do the same. Professor Green noted his book, how rights went wrong. And there was a quote from it that actually kind of rounds the circle to where Justice Breyer began in his homage to Senator Kennedy. Professor Green writes, courts should be reminding litigants of what they have in common, not encouraging them to view their opponents in the worst conceivable light. Let me close with words from Justice Breyer. They are in fact the closing sentences of his new book. This is Justice Breyer. I am an optimist. The rule of law has weathered many threats but it remains sturdy. I hope and expect that the court will retain its authority and authority that my stories have shown is hard one. But that authority, like the rule of law, depends on trust. The trust that the court is guided by legal principle, not politics. There are no shortcuts to trust. Trust in the court without which our system cannot function requires knowledge and requires understanding. It requires engagement and a word, it requires work. Work on the part of all citizens and we must undertake that work together. I wanna thank our four panelists, Kim, Nancy, Jamal and Dalia for engaging with each other this evening to further our knowledge and understanding of the Supreme Court with the hopes that not only the rule of law but the ideals of a nation which provides liberty and justice for all continues to prosper. And on behalf of all of my colleagues and our co-host this evening, especially the archivist of the United States, David Ferriero, the National Archives, the Kennedy Library, Mass Humanities and the Boston Globe, we thank all of you for taking the time to watch and for undertaking this important work together. Good night. Thank you.