The Washington PostDemocracy Dies in Darkness

Current Supreme Court is damaging to the country, law scholar warns

Laurence Tribe is a Harvard Law School professor emeritus and has argued dozens of cases before the U.S. Supreme Court. (Rick Friedman)

Constitutional law scholar Laurence Tribe, 80, is a professor emeritus at Harvard University, where he has taught since 1968, counting among his former students Barack Obama, Elena Kagan, John Roberts, Merrick Garland, Jamie Raskin, Adam Schiff and Ted Cruz. Tribe has argued dozens of cases before the U.S. Supreme Court and served on President Biden’s bipartisan Presidential Commission on the Supreme Court of the United States.

Do you consider the Supreme Court to be in crisis now?

Yes. I have no doubt that the court is at a point that is far more dangerous and damaging to the country than at any other point, probably, since Dred Scott. And, in a way, because we even find Justice [Clarence] Thomas going back and citing Dred Scott favorably in his opinion on firearms, the court is dragging the country back into a terrible, terrible time. So I think that it’s never been in greater danger or more dangerous.

How did we get to that point?

Well, I think a combination of a long game on the part of the far right — ever since 1980, they’ve been very concerned with building toward the kind of court that Robert Bork really would have represented — along with lots of lucky breaks. When, for example, Thurgood Marshall left a little earlier than he might have, Clarence Thomas gets that seat. At the other end, when Ruth Ginsburg stays longer, perhaps, than she should have, Amy Coney Barrett gets that seat. When there is an opportunity to put Merrick Garland on the court on [Antonin] Scalia’s death, they sort of played a hard game, and we end up with [Neil] Gorsuch.

And when you look back, the consequence of Clarence Thomas is Bush v. Gore. And the consequence of Bush v. Gore is the appointment, by George W. Bush, of [John] Roberts and [Samuel] Alito. So that led to a court in which there are now five members who clearly have an agenda and whose agenda is very prominent and activist. And when they’ve got the votes, they don’t even care if they have the reasoning.

You testified against [failed 1987 conservative Supreme Court nominee] Robert Bork a long time ago and alluded to the kind of vision that he would have brought had he been on the Supreme Court. Where do you see the justices now on that spectrum — do you consider them to be similar to Bork?

I think there are five Robert Borks on the court right now.

Do you really?

And they are, in fact, probably to his right — that is, Robert Bork at least seemed to believe in preserving those aspects of free speech that conduced to meaningful democratic self-governance. That is, I didn’t see in Robert Bork the disregard for democracy, writ large, that I see in the current Supreme Court majority led by Clarence Thomas. And it is now surely more the Thomas court than it is the Roberts court.

Bork and the current justices, I think, were pretty much in the same place with respect to privacy. They all thought that Griswold v. Connecticut was wrong. And I think Thomas is much more candid than Alito in saying that he would certainly get rid of the right as a people to decide to use birth control, to use contraceptives, to have sex for purposes other than procreation. I think that it’s clear that they are going in that direction.

Take a case like Loving v. Virginia, which should matter to Clarence Thomas, given that he is himself, obviously, in an interracial marriage. There’s no basis for it in the Bork universe because, in the Bork universe, the original meaning of the Constitution is to be derived by what it looked like in 1868 or so. Racial intermarriage was unthinkable at that time. And neither the due process nor the equal protection bases of Loving or of Obergefell [v. Hodges] fit into the universe that Robert Bork envisioned.

What happened to Robert Bork is that he was more candid than people like Barrett,[Brett] Kavanaugh and Gorsuch and Alito and Thomas about their views. Remember when Thomas testified, he said he hadn’t even discussed Roe v. Wade. He barely knew the name of the case. And that, when he was a justice, he would basically be like a runner who would be stripped down bare and would start afresh and have no preconceptions and no agendas. What utter BS. I mean, I don’t expect anyone to come to a court with a blank slate — an empty mind, an empty heart. People bring experiences and ideas. But at least something of an open mind. These people don’t appear to have an open mind. It’s clear, on the things that are agenda items for them, they know exactly where they’re going to come out. And although they don’t literally lie under oath when being asked by Susan Collins, “Do you think this is precedent?” “Oh, yes. Oh, yes, it’s precedent,” they certainly were misleading. So it does feel like Robert Bork redux. It feels like “Back to the Future.” Except it’s back to a terrible past.

Do you think justices can be or ever were impartial? Is that an ideal that can be attained?

The court has always been quite political. And throughout much of our history, it’s been quite regressive. It is kind of a myth that the Supreme Court has been, you know, the shining city on the hill. It’s only during the very brief period from 1957 to 1969 or so, during the [Earl] Warren years, that the court really performed the function of ensuring one person, one vote, and moving toward racial and gender equality. That was a limited period. The court, for most of its history, has been very much in the thrall of economically and politically powerful groups. It retarded the progress after the Civil War by invalidating the civil rights acts and its invalidation of parts of the Voting Rights Act was fairly typical.

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So I don’t have any illusion that the court was ever really neutral, nor do I think one can really define a point of neutrality. The idea that judges could be apolitical doesn’t make sense. But they can at least be fair. They can listen. They can give reasons for what they do and not have points of view that are so closed and preset that you might as well have an algorithm as a group of human beings. And what the current court is doing more than any court in our history that I can think of is simply saying, “It’s so because we say it’s so.” And then pull out things that are so transparently not arguments.

For example, when Justice Alito says in the majority opinion in Dobbs: Don’t worry, this will have no implications for contraception; it’s special because it involves potential life. Well, of course, so does contraception involve potential life. And besides, he’s equating a definition with an argument. The underpinnings of his theory are that if you don’t find it written down in the Constitution — or in a history that goes back far enough that he’s citing judges who favored burning women as witches — if you don’t find those roots, it doesn’t exist. Well, if you apply that logic, it wipes out whole swaths of rights. So that’s not what I call a fair argument. That’s simply basically saying, you know, “I’ve got the votes, and so shut up.”

What do you say to somebody who says maybe you’re as partisan as anybody else, that this is your vision, but maybe the will of the people is to have these more conservative judges?

Except we know that that isn’t the will of the people. The overwhelming majority disagree with the court’s restrictions on firearm safety. The overwhelming majority wanted Roe v. Wade, or something like it, to stay in place. It is not the will of the people. And many of these justices were nominated by presidents who lost the popular vote by a very large number, and they are confirmed by senators who collectively represent a distinct minority of the American electorate. So this is neither the will of the people nor the traditional, at least ideal, function of the court as a check of majoritarian tyranny. It’s not checking tyranny. It’s installing the tyranny of the minority.

And it is true that this reflects a point of view, but it’s a point of view I’m ready to defend. I used to be a mathematician, and I’m not suggesting that there’s some kind of Euclidean geometric proof that this is the right way to go. It does reflect a vision, but it’s a vision that I think is sort of built into the better angels of our constitutional nature, and I’m prepared to defend it.

I wanted to ask you about adherence to precedent and the Dobbs v. Jackson Women’s Health Organization decision, where 50 years of precedent was set aside. In this increasingly partisan era, has precedent and adherence to it changed completely?

Yes. I mean, obviously, precedent in the constitutional universe is not sacrosanct. Terrible decisions like Plessy v. Ferguson, I’m glad they were overruled. I’ve never suggested that because something has been once decided it cannot be reconsidered.

But this is the first time in American history when the court has taken an individual right that has been deemed fundamental to the way people lead their lives and then taken it back. Especially after five decades. The entire society has been built — the equality not yet realized of women is predicated on — the idea that women cannot be used as, you know, breeders — forced labor as a form of involuntary servitude. And to suddenly rip that out suggests that if that can be overruled just on the ground that, well, we’ve got the votes now, then anything can be overruled. And, when anything can be overruled, precedent means nothing. And, when precedent means nothing, there is no longer a meaningful difference between the judiciary and the political branches. It’s just who has the votes.

If that’s the case, the independence of the judiciary is an illusion. And when it’s an illusion, we no longer have a third branch that can serve as a guardrail. And when we no longer have that guardrail, we descend to fascism or anarchy. And that is the trajectory that I think we desperately need to avoid.

Confidence in the Supreme Court is at a historic low and you, yourself, have said you no longer have confidence in its legitimacy. What does that mean for its role in society?

It’s very scary. If we get very far down that line, what happens is chaos. I do think it’s vital that we preserve order. The rule of law. That we do have, for the time being, a final answer to certain questions. An answer that doesn’t necessarily bind all the branches — it could be ongoing dispute — but at least people have to feel an obligation to obey a court decree. I would hate to see us go back to a world like that in which the Supreme Court orders desegregation and Orval Faubus stands in the [schoolhouse] door, and we don’t have a president who sends the 21st Airborne in to defend the court.

And yet the danger, when the court becomes so headstrong and so out of touch with modern reality and so unwilling to listen effectively to counterargument and so agenda-driven and so committed to its, really, alternative facts, is that at some point, people will start defying what it says. I think we’re getting closer to the point where there is no outside independent force to call us to a halt. And that’s quite scary.

As a professor you have taught so many leading jurists and political leaders. If you could speak to the nine justices now, what lesson, what advice would you want them to hear?

Well, when I was arguing before a court with people like Scalia and [William] Rehnquist on it — people who were to my right — I was having a dialogue. And I sometimes won 9 to nothing with those justices and, not always, but that was a dialogue. I don’t know what kind of dialogue I would have with Clarence Thomas or Alito these days. I think we just start from very different worlds.

I would, however, if I were just talking to them, say, “Let’s talk about why you believe so strongly that only the things that are named in the Constitution are protected. Do you really believe that? I mean, after all, you do believe, don’t you, that the court was right in the 1920s when it said that parents had a right to send their kid to a private school or a parochial school? Would you really overturn that?” Clarence Thomas would. But I’m not sure that Amy Coney Barrett would. So I would try to have that kind of dialogue. I mean, I’m never ready to give up. And maybe they would persuade me that I’m wrong about something. That’s quite possible.

You served on the president’s bipartisan commission to look at reform on the Supreme Court, which was, as I understand it, a mix of conservatives and progressives.

A very good mix. It was a great dialogue. I mean, we changed one another’s minds on a number of things. And that’s pretty rare.

Especially these days. I read that you had gone in thinking that expanding the court was not a good idea but came out thinking that’s the way we need to go. What changed your mind?

I started out with, I think, a fairly conventional view that the court-packing plan by FDR had established a kind of national consensus that it would be terrible to change the size of the court in order to shift its direction. And also there would be tit for tat: If one side added justices in order to balance the court one way, the other side would respond, and it would be an endless spiral.

By the end, I concluded that both of those things were oversimplifications. And it seemed to me — and this is the key argument — that the idea that the pendulum might someday swing back in the foreseeable future was gone. The court has been stacked in a new direction, deliberately, and this would be not so much court-packing as court unpacking. You can’t unpack by subtraction because they have life tenure. You can unpack only by addition. Expanding the court seems to be about the only thing one could do.

Some people say, “Look, if you really believe the independent judiciary is important and that we’ll have chaos if we don’t have it, you have to not add justices because that will just accelerate the de-legitimation of the court.” I don’t believe that anymore. I think the court, in fact, has so delegitimated itself that an orderly process of expanding it, for example, to 13 justices, either all at once or in two steps, that kind of orderly process would not reduce the respect for the court. It would rather show that our system can respond when one of its parts runs wild and goes rogue.

Whether you call it packing or unpacking, won’t we still have tit for tat?

It’s like saying, “We better not get rid of the filibuster, because if we do, when it would help the Republicans to get rid of it, they’ll get rid of it.” Well, I have news: If it would help them to get rid of it, they’ll get rid of it whether we have or not. If, for example, in some strange universe, the current court is not far enough right for these guys, and they have a Republican Senate and a Republican president, you think they won’t add justices if Amy Coney Barrett or Brett Kavanaugh — they won’t — but if they turned out to be a little more like [David] Souter? They wouldn’t hesitate to add justices. So, to refrain from expanding the court on the theory that, if we do, they will, is rather silly.

And do you think expanding the court is possible now?

I don’t have any illusion that we have the votes to do it. I think it should happen, but I think it’s very, very unlikely. With not even the president on our side — Elizabeth Warren is now for it and Adam Schiff — the momentum will build, but not quickly enough to have it happen in the foreseeable future.

If “unpacking the court” or adding justices is the best way forward at the moment but you don’t see that as possible now, are we on a crash course?

You know, I struggle to be optimistic, but sometimes the struggle doesn’t quite make it. I mean, we’re clearly heading to a cliff. I’m not prepared to say that we’re going to go over that cliff — it’s not like that scene in “Thelma & Louise.” But I don’t see any immediate way to avert it. And the more people raise the alarm and do so with some sober reasoning, explaining why we’re in danger, the more possible it becomes to say, “Well, it’s not too late.” This November everybody has the vote. Lots of positions are up for grabs. If enough people say that democracy is too precious to just give up on, then maybe the most hopeful scenarios can come to pass. At least, I have to think that way in order to keep going.