 Yeah, history is here to help here on Think Take. I'm Jay Fidel. It's the noon hour. And Peter Hoffenberg, professor of history at UH, joins me. And we are here to talk about the future of the Supreme Court. What is the future of the Supreme Court? Because if you connect the dots lately, it's a toxic broth that is killing our society. And it has only the most dire expectations going forward. It's not just the reversal of Roe v. Wade. It's case after case after case of effectively destroying our rights. This is very hard to take. And I guess we have to look at what is happening on the Supreme Court, how we can judge it, measure it, and develop expectations for the future with the help of history. Although I have to say, Peter, I that this is all a kind of a surprise to most of us. Maybe we weren't watching carefully enough, but now we're stuck with the Supreme Court that is really, really bad, really awful, and really out of step with the country and with the ideals of the country. And I honestly don't know that history can help. Well, should I say goodbye then, or tell me to stay? I'll stay. All right. I mean, as we know, history to help with the question mark. So let me quickly respond, and then we'll continue. One is, I think, for people looking at the history of the Supreme Court, and particularly the way that certain parts of the Republican Party and the Federal Society have approached the Supreme Court, this is no surprise. So if we want to look at history, and I know you don't want me to say history repeats itself, it doesn't, but it is still helpful. There are a couple of historical points I think we need to consider. LBJ appointed courtists to the Supreme Court. Nixon essentially blocked that. Republicans blocked it. Berger went to the court. And really ever since then, we have been on a path to this point of view. So I would say since 68, we have been on a path. Secondly, you're absolutely right that this is a crisis of what some scholars, I think, recently call legitimacy. Do people think under the rule of law that the Supreme Court is playing by the rules of the rule of law? After all, the Constitution only has one provision. It establishes a Supreme Court. It doesn't tell us how many. It doesn't tell us term limits. It doesn't suggest age limits, none of that. And it began very small. And then apropos of your point, I think that most colonists have pointed to one example of court packing in response to the Supreme Court being out of political and social step. But that court packing was actually the second. The reason we have the number of justices we have now is because of the crisis over impeaching President Johnson at the end of the Civil War. So in a way, you're absolutely right. This is new in its depths, perhaps, but there are precedents to think about. So in other words, certain times when people gave a lot of thought to the composition of the court, because what the court seemed to be doing was not just out of step politically. I think you're absolutely right. We're not just talking about partisan politics. We're talking about social views, like an overwhelming number of Americans who have a particular view saying that there should be an opportunity for abortion, even if there are limits. Overwhelming number of Americans who want gun control. The final point I'll make before you ask me anymore is that in a way, what the court has done is return us to the Articles of Confederation. It's returned us to a weak federal government, except for what it wants to do, such as getting inside a woman's body and returned as much as possible to the states. And everybody who took AP or non-AP US history remembers that the Articles of Confederation is essentially exactly that. Various states with a small limited federal government. And I think as a historian, I think that's part of what we're battling here. What are national interests and what are state interests? Okay, I will shut up. I hope that helps a little bit. Now we can rock and roll. Now we can rock and roll. Now we can rock and roll. Well, you know, from a kind of limited view of things, you know, sort of a now view of things with what the younger generations might be thinking here, is that the court is wrecking the country socially, arguably economically and politically. And the court is taking the Constitution as we have known it apart. The court is denying us the Constitution. It's extraordinary that the Supreme Court, which is a creature of the Constitution, is taking the Constitution apart. But let me go to a larger question. I mean, they're out of step. They're out of step with most people in the country. And the flaws in the electoral college rules, the flaws in the two senators per state rules are coming to the fore now. And the flaws in the filibuster, which is a creature of the Senate, coming to the fore. And so we have to think what FDR thought back in the 30s about reorganizing the court. He was not successful, at least not at first, in getting his program through by packing the court. But we are in a place now where we, I mean, arguably we must save ourselves. And so Biden's commission was a kind of nothing burger. And there is really nothing that he has said that gives you any encouragement that he will, in fact, fix this in the court. But I think it should be fixed. And we should talk about theoretically how it could be fixed. Brian Schatz in one of his many emails came up with three things. And I will see if I can find them. He said, let's eliminate the filibuster. This is Brian Schatz. Let's eliminate the filibuster and then codify Roe v. Wade. That's not a solution to all the problems that you and I have discussed in the first five minutes of the show about the Supreme Court, but that's his first point. Then he says, let's elect more democratic United States senators, so we can turn the Republican majority in the Supreme Court into a progressive majority. And that's nice, but they're there for life, man. That's not gonna be immediate. And they have done enormous damage even in a few days. So I'm not sure the timeframe works on that one. Then he says, let's help to win the legislatures across the country. Since this is now a question for states to decide, not only Roe v. Wade, abortion, but other things too. We have finding, as you said, just as you said that they are laying it all off like the Articles of Confederation onto the states. And that could be a one-way street. He says, we need to win state houses to make things better for women and voting, I should add. And at least prevents things from getting worse. And there is a very substantial risk that things will get worse. So the question is what do we do? What are the options now in a right-thinking electorate? Okay, so the options, as you know, regardless of what station one listens to or what newspapers, there are probably fewer than 10 significant options. In other words, options that are really worth time and effort. So maybe we can go through at least a few of those rather slowly. The filibuster, as folks know, was originally there to essentially protect the South, to protect segregation. And it had to be practiced physically. So what do we do about the filibuster? I think there's some options out there short of removing the filibuster. I think removing the filibuster is what Europeans would say, the sword will strike twice. I think those who want to remove it should be very careful because it could have effects against their own. So let's talk about reforming the filibuster. And I think there are at least two options out there which really do make plenty of sense. The filibuster is not required for a clearly constitutional issue. Voting rights is a constitutional issue. Reproductive rights are constitutional issues. So one could, the Senate could reform itself. And now that of course would lead to some debate about what is a constitutional issue or not. But this is Secretary of State Hillary Clinton's idea. There's nothing new with me that we keep the filibuster but we reserve it for really nuclear constitutional issues. Secondly, what seems to me- Can I stop there? I wish to remember where you were, but it seems to me that the Supreme Court which is a Maverick court right now could say, wait a minute, as a constitutional issue, we have control of that. You guys cannot amend the Constitution by a vote in Congress. We can interpret the Constitution. And if you don't like our interpretation, then amend it. So I mean, I think, for example, in the hypothetical case of the Congress codifying Roe v. Wade, everybody walks around thinking, oh yeah, yeah, we can get the votes, we can codify Roe v. Wade. I'm not sure the Supreme Court and your friend Clarence Thomas would agree with that. He might say, no, it's up to us, not Congress. Except that all of the recent decisions, so I'm going back two or three weeks because there's even an important one today about the EPA. They all essentially are grounded in the philosophy that the court does not make policy. So- And Roe v. Wade, in the reversal of Roe v. Wade, the court said, ignoring the Ninth Amendment in the unenumerated clause provision, they said, well, it's not in the Constitution, therefore it doesn't exist. And they can keep on saying that. They might be able to keep on saying that. That's possible. But also without legislation, you're not going to get a national policy. Now, what is another perhaps easier issue to think about would be voting rights. And even though this court, and here's where John Roberts is not allowed to hide. John Roberts has made two commitments during his career as a jurist. One is pro-business. Almost all of his decisions are pro-business. And secondly, ever since he worked in the Nixon White House, he's been committed to dissolving the Voting Rights Act. So here's a case where the Senate and House can determine like the John Lewis Voting Rights Act. And pass that and push it, make the court respond. So rather than the court having the initiative, make the court respond. The second point would be, and I don't think this is very profound, and all these people are talking about originalism, go back to the filibuster where the speaker must be there speaking. We've all seen Mr. Smith goes to Washington, all right? You must sit there, or you stand there, actually not even allowed to sit. And let's see how enthusiastic senators who are at hotels, senators pretending to be on the phone and not really on the phone, senators out gaining a campaign funds, let's see how keen they are, right? When they have to actually physically be there. Okay, I see we have a timer, so let me move on to a couple of the other options out there. Okay, so one is the filibuster, which in a way, right, would control legislation and help channel people towards the court. Secondly, and I think this is going to gain some traction. Think about either turn limits or what's going to be more difficult, an age limit. That's going to be different because there are laws, right, which prevents age-required retirements. But I think people are going to get into why you can't be a judge after 70. And so perhaps we need that kind of a reform which says, keep the nine justices. Now, that means the three or four recent appointees who are all younger than you and me are going to be, you know, could potentially be around until the climate has destroyed our entire. But I think that's not an unreasonable idea to say that the founding parents, certainly when they listed the court in only three or four sentences, right? They weren't thinking about 90 year old judges who were judges for 50 years. They didn't think about people not having any kind of limits. So that's a second one, right? So we have the filibuster. We have limits or age. Third option is to expand the number of justices. And again, before folks get worked up about it, again, the constitution says nothing about the number. And historically there have been three increases. So that seems to be something that one could talk about. I'm not sure if that's gonna resolve the issue or not. But certainly the idea that nine clearly within any logical basis should not be making such decisions. And how the difficulty there, of course, right? Is if you expand it, whoever controls the Senate is gonna have even more power, right? They're gonna be able to appoint even more. Those seem to be the half dozen or so or handful that are out there with real discussions. It seems to me, and you're a lawyer and I'm a historian, there are a couple of different points to think about this, right? One is the court itself. Secondly, right, is how people get to the court. And thirdly, how people get to the Senate to determine the court, right? And I think all of those are significant in our discussion, as you say, about the sense of society, dividing society, falling apart. I don't know if that helps or not, but those are sort of the major options, I think that are out there. So right now, by virtue of the filibuster, McConnell has the effective control of the Senate and thus the Congress. And he's exercised that very cleverly over the last few years. And Joe Biden can't get his things through. The courts themselves have virtually hundreds of Trump judges among them now. After four years of appointing judges as fast as you can blink your eye, and McConnell confirming them on a same day basis. Okay, and so the likelihood, I hate to say this, but the likelihood is we will have a conservative Congress, we will have a Republican Congress in November. That's a lot of good. Now, all of the options that are meaningful here to correct this require congressional action. Those guys love the way the court is conservative now, they are not gonna vote for anything that changes it. So, I really, I don't think any of them are likely of success. I think where we are, the issues that are raised by the way the court is conducting itself, the way the Senate and McConnell and the Congress, thus the Congress conducting itself, the damage that has been done to our constitutional government, and is being done in the state legislatures, and will have huge effect in November, really requires a constitutional convention. We are in the throes of the failure of the constitution, and with government officials in power working to overthrow it, look at January 6th, working to overthrow the constitution. What we need, at least theoretically, is a constitutional convention, but you know how hard they are. You know from looking at Hawaii how hard it is to get a constitutional convention going, and once you get it going, who stirs, and what the priorities and procedures are, and whether it can solve the problem. And of course, there's resistance in Hawaii to having it at all, because from a political point of view, you're afraid that you don't want to have it because it might undo your own position of power. But I think we are in a place where the government needs to be reformed in general, and I don't know of a way that we can do that. All right, short of a constitutional convention, which again, probably would be a Pandora's box opening up a lot of things we really don't want in general as a common citizen. Let me take a page from Brian from Senator Schatz's email and play by the rules that the court is playing by, and the Democratic Party turned its attention increasingly to the states, particularly ensuring that voting rights are protected. In many of the crucial states, if it really is one person, one vote, the state houses would not be the way they are. Many of places like Arizona and Wisconsin and Michigan and Pennsylvania and Georgia, all those states which are passing highly restrictive voting rights or restrictions on voting. So I think in that case, if I could take your views, which are bordered on despair, and Brian and Senator Schatz's, which are bordering on campaign funding, and a campaign funding letter, I think maybe it's time, I mean, the Democrats have usually as a party spent a lot of time thinking about national issues and spending less time organizing globally, less money locally. And perhaps you could argue that the Republican Party or this wing, because there still are traditional Republicans, traditional Republicans who are perhaps more in line with John Roberts, not with the three appointees of Trump, appeal to those folks at a local and state level. I mean, it seems to me that one of the responses to your concerns about society and the constitution falling apart is to think globally but act locally, to strengthen local gun laws, for example, ensure locally there are reproductive rights, local issues. If things gonna get picked back to the states, then take advantage of your position in each state. It's not a long-term solution. Let me, I know that they've said that in a number of opinions, they want to kick things back to the states. But I think the reality is they wanted a certain conservative outcome, wherever the decision is made, wherever the political power is vested, they want an outcome such as Roe v. Wade. And- Oh, absolutely. I mean, they are, there is a deadly convergence during our lifetime of constitutional originalism and make America great again. Well, I'm not sure that they're motivated by the idea, but the ideals that you're talking about, I think they want to follow this conservative views based in large part in religion. It's based in large part on racism. Oh, I'm agreeing with you. That's what I'm saying. I'm saying that the Federal Society constitutional position is consistent with the Trumpist position. That's why it's very scary. The irony is though, that the common Trump supporter is gonna lose with these decisions. The common Trump supporter is gonna lose wages, gonna lose health, gonna lose a clean environment. So I don't really like the phrase culture wars. I think they're really more social wars, but the apparent myths of originalism. No, you're absolutely right. I mean, the originalists have a principle of going back to essentially the vision that Dr. Gene Rosenfeld spoke to us about. It's not even necessarily all Christian. It's a particular view of Christianity. It's certainly male oriented, clearly. It certainly is anti-union. It's fear of foreigners. It's the right to have guns. I mean, it's looking like a civil war or your Revolutionary War reenactment with mega hats on. No, I think that's the deadly convergence of the court, whether or not they are... I'm saying that you cannot really predict that they will follow this notion of transferring the power to the states. They'll do whatever it takes to advance their own... Right, but force it. What I'm saying is so force it. So in other words, the court has claimed that it's not making policy. The court has claimed that the national government, the federal government doesn't have these authorities. The state governments do. So you know what? If you're in a state that has concern for women, that has concern for the environment, then pick up that ball and play that game and force it. Force your state laws to be brought before the Supreme Court. Don't wait, don't be in total despair. For example, the Mississippi Women's Health Service that was part of the DOB case, she's now moving to New Mexico. She's picking up and moving to New Mexico. She's not giving up. She's saying though, the New Mexico is a state environment where I can help women, particularly young women or women with kids already. So part of that may be that as people are talking about, we have essentially secession. I mean, we have a clear group of states with no interest. I mean, this was revealed in Trump's administration, went on one of the talk shows and stayed with me. He said, why should anybody in Arkansas care about what happens in Wisconsin? See, once you reach that point though, right? Then you have no national public interest. Then you're back to Articles of Confederation. And the Constitution had to go so far against the Articles to say, no, a person who is in one state should have rights recognized by another state. And what Mick Mulvaney was saying was, no, if you're in Wisconsin or in Arkansas, why would you care? Which to me- Am I my brother's keeper? Yeah, but then ironically, there's all of this celebration of war, which was supposed to be our national interest, sacrifices during the Civil War in our national interest. So it's really out of both sides of the mouth. And that deeply concerns me as you said at the start about society. I'm more worried about society. Who are you going? When somebody murders somebody over a Manny's order at Subway, which happened two days ago, or the kid who shot his little sister with a gun at home? I mean, really, these are, I mean, you begin to shake your head and this happened before. And clearly we know more about it, but it seems to be a country in which we inhibitions the rules and regulations against us. It's a very interesting video on Facebook the other day of a local cop in Texas trying to convince two guys not to walk around with their guns celebrating the Second Amendment, because no, it's not celebrating their freedom. It's actually a threat. And here are the cops who are very likely to get shot by these guys. More likely now. Yeah, much more likely. Yeah. So I don't want to go into this, I don't want to go into despair. I have concern, I worry. Well, let's take Brian's third point. Let's all get out there and vote. Yes. Let's vote for candidates who have a moral, ethical, responsible position, a platform and whether it's the old Republican style or the new Democrat style, let's all vote. Let's make the country swell in voting. The problem with that is confidence in the legal right, the used to be legal right of free and fair voting, confidence in the secretaries of state and the voting officials, confidence that they won't be intimidated and that voters will not be intimidated. I mean, our voting system is under tremendous threat this November, tremendous threat, not only in the de facto of it, but in people's perception of it and confidence in it. I'm really worried that the voting system will not reflect the true wish of the electorate. Well, I think some people are going to sit home for the reason you said, as well as the reasons we're discussing today that they think it's broken and cannot be fixed. But those things being said, I think it's still an effort to be made to register an effort to be made to not like in Texas have the same number of mailboxes to vote in Houston as in a rural county. And these are all the manipulations. In Israel, the Supreme Court has two windows by Shagal. One is law and one is justice. And the Supreme Court is hiding under a seeming rule of law and avoiding the matters of public justice. And when you say that there should be one mailbox in Houston and one in rural Texas, they're again, you're hiding under just the letter of the law. But that's what originals and ducks. For example, what is cruel and unusual now? I'm waiting for the Supreme Court to say that what was cruel and unusual in 1789 is now cruel and unusual. I mean, if you really want to push originalism, right? You go back to all of that language and that's scary. That's very frightening to me. The last point I'll make is that Clarence Thomas was fascinating in his listing of cases that privacy does not cover. And it was fascinating that he did not include loving. That was fascinating that he, because essentially under his idea of the constitution, Ginny Thomas and Clarence Thomas should both be in jail for violating the constitution by having an interracial marriage. It's not protected. And the state in which he lives is allowed to arrest him. It's really cherry picking. Let me pick and choose what I like to be covered under privacy and what I don't like to be covered under privacy. Well, that takes me to my last question to you. I mean, Clarence Thomas, he actually votes to protect his wife's politics, her political activities. He actually votes and he doesn't recuse himself and nobody, including Roberts, says anything about it. So that's really a problem. And the average person on the streets is okay. So he's not including loving because he did a misogynist marriage. That's to protect himself. So the thing about the recusal and his voting on cases involving the distribution of materials, right? In which she might be implicated. That's to protect himself. It's so obvious that he's there sitting, voting, taking these actions to protect his own interests. You really get tired of it. Never before have we had a Supreme Court judge that visibly voted to protect his own interests. So what I'm saying is that the public legitimately with good cause and justification has lost or should have already lost any kind of respect for this court. It's the approval rating is down to between 20 and 25. Biden's approval rating is better than the Supreme Court. That should tell you something. I would say in light of Thomas that years ago, Douglas was forced to remove himself from the Sierra Club board because of the possibility of an environmental issue. This raises another possible reform, which is that the Supreme Court is protected from all the other regulations towards all the other federal justices. So federal justices have to report their earnings. Federal justices have to accuse themselves. It may be time or again, the politicians in Congress. And again, there's nothing in the constitution that protects, right? There's nothing constitution that protects the Supreme Court justice from the same rules of other federal justices. And I think we have a real problem just to finish up of Supreme Court justices giving what are essentially policy talks towards ideologically grounded think tanks. Yes, that is happening. And that is happening. That's the whole, and I would include the whole spectrum. So I don't want Sotomayor going to a particular one either, but clearly Alito, Gorsuch, Thomas have been coddled by the federal society. Don't forget Barrett. Yep, they've gone to talks at the federal society. They all have massive book deals. I think it is, and again, not to coin a phrase by any means at all, it is a legitimacy issue towards the public. And even those who like the court, like the court because the court is doing what they want the court to do. So in other words, they like the court because they think of the court as a policy instrument as well. Okay, well, let me go to this though. I mean, there's a lot of lawyers in the country and I think they've been a wall on so many things that Trump has done and caused. But the fact is that they have gone through their law school education, their careers, their arguments in court, always respecting the President of the United States Supreme Court. The justices of the United States Supreme Court walk on water to the lawyers and to many other people in this country. And now for the first time in our lifetimes, Peter, we are faced with a situation where we do not have confidence in them. We do not believe that they're legitimately looking out for the interests of the country. That's awful. It's like the Senate, by the way, not looking out for the interests of the country. How should we see that? And the title of this show is, how has the Supreme Court changed the words to that effect? And my question to you is, how should the average citizen or for that matter lawyer or history professor be looking at Supreme Court now? It's not like what it was. And the view we have of it shouldn't be what it was, but what should it be? Well, it should still be, I think what is in the Constitution, which is that the Supreme Court should be above partisanship. It can't be above politics. It has to be about partisanship. While respecting the rights of minority, the Supreme Court cannot impose the rights of minority upon the majority. And that's really essentially what has been happening, that a minority view is clearly a minority view is given the support of the rule of law. And that is going to, I think we have a, we're gonna have to live with that with this court, but it'll be incumbent upon future senators who review Supreme Court justices to hold them to what they say. I mean, there's an argument that at least three of them lied to Congress as a legitimate argument there, that they purged themselves to Congress. Now, I know that some of the pundits have said, well, they follow the non-bored path because they didn't wanna be borked, but the Senate can ask philosophical questions. The Senate can ask tougher questions. I think the Democrats, and I don't want people to be mistaken of my views, I think the Democrats took the wrong strategy in the sexual assault question about Kavanaugh. I think there were a lot of legal political problems with Kavanaugh. And I wish that they had focused on those. Clarence Thomas published articles supporting natural law. Now, you remember from your probably legal 101 first week, the United States does not abide by natural law. So I think there really, one of the things we have to do is return the hearings and return the reviews to substantive legal issues which do matter. And look, Kavanaugh barely slipped by. It's not as if these are overwhelming. So my concern would be to restore the public's view, the court doing what it is supposed to do. Protect minority rights, don't impose minority rights in the way of overwhelming the majority when questions of privacy are at issue. You haven't mentioned, we haven't mentioned in this program and I wanna take one minute and mention it is that in order to do that, in order to do really a number of the things that Brian Schott suggests and that we have been talking about, you need the press. You need journalists. It's Maria Racer spoke at the East West Center a couple of days ago. And the point about that is that if this is a time in world history where journalists are more important than ever and we in this country, we need the journalists to keep on looking at what this court is doing and commenting and clarifying how right or wrong they are as never before, no opinion should escape the attention of the press and thus the public. And that's why Peter, you and I have to continue having this conversation. It's only beginning for us. All right, thank you very much. I couldn't agree more. What the nature of the press is probably worthy of another discussion but the principle actually I completely agree with particularly for a young woman who might very well go home and be shot. That is bravery, she's brave, right? This is not a CNN journalist living in New York. This is somebody who puts her life on the line. Yes, that's true in the Philippines but you know as time goes by it could also be true in the United States of America. It happened in Annapolis when the newspaper was attacked, right? And absolutely. We probably need to talk about journalism and maybe get Julian back here because I think as we all know part of the difficulty is the consolidation and monopoly of various important venues particularly on the political right, the number of radio stations, the number of small newspapers who have essentially one or two editorial stances. So the playing ground or the battlefield is not particularly. Having said that, you know, a CNN and MSNBC also need to probe and probe in ways that probably are less partisan. I think a lot of folks are turned off in general by cable and cable shows in general, it's being too partisan. Hey, we're gonna cover that. Okay, let's cover it for you. Very good. Chris of Peter Haffenberg, thank you so much. My pleasure. It's been a pleasure here to help. Be well. Aloha, Peter. Aloha, thanks, take care. Thank you so much for watching Think Tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram, Twitter and LinkedIn and donate to us at thinktechhawaii.com. Mahalo.