American democracy has been widely seen as embattled for the last 10 years or so, but the factions seeking to undermine or replace it have been active for many decades.
We’ve covered the political groups who have been at work in this regard here on Theory of Change, but it’s also the case that many business leaders have become increasingly radicalized to view democracy as a threat to business — even though the social democratic nations of Europe have combined vigorous capitalism with strong democracy for decades without either one destroying the other.
Corporate interests have always sought influence within governments, but since the 1970s or so, right-wing business leaders have banded together to leverage the federal judiciary to evade public accountability and democratic governance, largely by making conduct that was once criminal perfectly legal.
Joining the show to talk about how this happened and how it works is Ciara Torres-Spelliscy, she’s a professor of law at Stetson University and a fellow at the Brennan Center for Justice. She’s also the author of Corporatocracy: How to Protect Democracy from Dark Money and Corrupt Politicians, which is the basis of our discussion today.
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The video of this conversation is available. Access the episode page to get the full transcript. You can subscribe to Theory of Change and other Flux podcasts on Apple Podcasts, Spotify, Amazon Podcasts, YouTube, Patreon, Substack, and elsewhere.
Audio Chapters
00:00 — Introduction
05:34 — Red-baiting as a PR strategy against holding businesses accountable
13:55 — Buckley versus Valeo and the beginning of corporate influence in federal campaigns
24:53 — Nixon and the right’s obsession with controlliong federal courts
28:57 — Bribery and the post-Buckley campaign finance regime
33:58 — Trump and the Roberts court’s almost total refusal to restrain executive power
38:03 — Poll: Democrats strongly dislike the Supreme Court, but they don’t think it has too much power
43:58 — The Supreme Court’s “shadow docket”
49:34 — Reform ideas for SCOTUS
Audio Transcript
The following is a machine-generated transcript of the audio that has not been proofed. It is provided for convenience purposes only.
MATTHEW SHEFFIELD: I always like to start with the historical angle. And your book obviously is focusing on the role of corporations in kind of hijacking American democracy. But you do talk about how this is not the relatively recent trend that I think a lot of people might suppose that it is, and it goes all the way back to World War II in some sense, right?
TORRES-SPELLISCY: Indeed. I have a whole chapter about what I consider the worst campaign finance story I’ve ever heard. And it goes something like this. We have the scene opens on a political party, and this particular political party is broke. And you could sort of ask the question, what do you do if you’re a political party that has no resources?
And what lots of political parties do in this situation is they ask the richest people in their society for money, which is exactly what this political party did. They have a secret meeting. They invite titans of industry to be there. Leaders from the political party are there and give speeches, and the speeches are pretty disturbing.
One leader says, I think something along the lines like, “Business cannot survive in a democracy.” and there were other anti-small D democratic statements that were said at this meeting. And the result of this was the businessmen opened their coffers of their corporations and gave lavishly to this political party, saving it from financial ruin.
This happened in 1933. The party I’m talking about is the Nazi political party in Germany, [00:04:00] and they literally were bailed out by German industrialists.
SHEFFIELD: They were, and it is uncanny and, unfortunate the parallels that we are seeing in the rhetoric of people like Peter Thiel nowadays who, I mean, literally, wrote a whole essay arguing that, business freedom and democracy are incompatible. And also the, voting rights of women as well are not compatible with business freedom.
So it’s a very long and unfortunate series of viewpoints that never really went away, it seems like.
TORRES-SPELLISCY: Yeah. I mean, one of the things that I found when I was doing the Nazi chapter is it wasn’t just German companies that supported the Nazis. There were plenty of American companies and American businessmen who supported the Nazis as well, including Henry Ford. Henry Ford was a rampant anti-Semite and he funded a young Hitler.
They were big fans of each other. I think Henry Ford is the only American who’s named in “Mein Kampf.” And I think Hitler had a picture of Henry Ford on his desk. So they were sort of thick as thieves. But that is also one of the ways that the Nazi party thrived, is not only did they have German corporations backing them, they had American corporations backing them too
Red-baiting as a PR strategy against holding businesses accountable
SHEFFIELD: Yeah. And, this is kind of a trend that ki- really does kind of resurface, I mean, just since the emergence of, democratic movements really beginning all the way back to the 19th century, you really saw it. And it was something that, you know, less, you know not overtly fascistic people like Milton Friedman [00:06:00] even were in, were into this kind of rhetoric.
He in fact had an argument that he would often make. He called it the “suicidal impulse of the business community,” in which he argued that business leaders who support government interventions ultimately are going to make it so that their, country becomes communist and that their business will be criminalized and nationalized or, some variation of that.
And obviously it’s not true because, we have a pretty long record of many countries around the world in which they have social democracy policies and capitalism is not a criminal offense. But there’s a, there’s... It seems to be an innate appeal to at least some people with a lot of money, it seems like.
TORRES-SPELLISCY: Red-baiting has a long tradition. You scare people by saying that the communists are coming, and then you get them to do things that they maybe otherwise wouldn’t. It’s a pretty long and sordid history of that type of behavior in the American context as well
SHEFFIELD: Yeah, absolutely. And, even less kind of overtly sensorial would be, like, ‘cause the other-- another thing that Friedman was very big on was stopping businesses from having corporate social responsibility policies. And, that’s been a continuous line of attack that we see now even, with the anti-DEI movements where they’re a lot of far-right people are trying to say that y- there can’t be any efforts to have diversity in business, and that’s wrong and it’s gonna ruin business, et cetera, et cetera.
Even though, in a lot of these policies actually end up promoting very often, disadvantaged rural white people and because, they’re part of diversity, in fact. And so, it’s-- it-- there, there’s a pretty consistent through line. I think that’s one of the things that you talk about in the book, like it’s-- you just-- there’s a lot of...[00:08:00]
The argumentation’s there, the history is there, and the people are there, right?
TORRES-SPELLISCY: The, the fight over ESG is one of the things that I think has been happening in the background over the past decade. It’s just been happening at shareholder meetings. And I think there are, weird caricatures of what a shareholder is. But if you have a 401, chances are part of that retirement account is invested in normal blue-chip companies.
And it all depends on whether you’re invested directly or whether you’re invested through mutual funds, how much voting ability you have as a shareholder. But ultimately, there are just everyday people whose retirement is in the stock market, which means they have a say about how these companies are going to be run.
And so under the securities laws publicly traded companies allow for what are known as shareholder proposals. And shareholder proposals are literally from shareholders, and they are trying to get their fellow shareholders to vote on something. And one of the things that shareholders have brought to one another over the past decade are what is known as ESG, so environmental, social, and governance questions for the corporation.
And this is one of the ways that shar-shareholders have demanded more transparency around corporate political spending. So one of the big watershed moments in I think the life of the country as well as my own, was the 2010 Citizens United decision from the Supreme Court. This is the decision where the Supreme Court said that corporations were [00:10:00] constitutionally allowed to spend as much money as they wanted in any American election, whether it’s local, state, or federal.
And that was a huge change because before that corporations were barred from spending corporate treasury funds directly on US elections at the federal level and in half of the states. And that decision got rid of all of those protections all at once. and that allows corporations to spend more freely and to spend money that as Justice Brandeis would say, is other people’s money.
So the money that’s in a corporation is in part money from shareholders who’ve invested in that corporation. It is not really just the money of the CEO, for example, or the, top corporate management. They are entrusted with the, those funds by investors who don’t want to spend all day running a company.
But it, at the end of the day, it is not their money. So shareholders have used these parts of the securities laws to communicate with one another. And so one of the things you’ve seen is shareholder proposals on supply chain, trying to make sure that there aren’t conflict minerals in products, that there is better human rights for workers, and more recently, that there’s more transparency of corporate political spending
SHEFFIELD: Yeah. one of the other changes I think also that had been kind of pushed through in this regard was the, shifting of the corporate priority from kind of the longer term, sustainability of the business toward a more, quarter-focused instantaneous profit-taking, motive.
And that’s been severely [00:12:00] destabilizing for American politics, I would say, and also for a lot of corporate governance. I mean, like there is a terrible irony in that as a lot of these businesses have become more politicized and right-wing over time they actually are doing the very same things that they’re that they, condemned earlier.
The, activist, right-wing investors had condemned earlier. They were saying, “we don’t, we don’t wanna have environmental sustainability. We don’t wanna have, any of these other things. But we do wanna have political sustainability for our, ideology and for, crony capitalism and things like that.”
So it’s-- There’s, an unfortunate irony, but it’s also destabilized a lot of corporations as well and made it so they don’t invest in things like training for employees or have a more long-term view of their place within the market and the market itself, I would say. What do you think?
TORRES-SPELLISCY: Yeah. I mean, I think part of why you see such virulent, attacks on ESG is concern that these shareholders were actually making a difference. And so there are all these different efforts to hem that in and to stop it and to vilify it. And, the anti-DEI aspect is just one line of trying to get at this what if, you’re more regressive, what you perceive as a problem, but the problem that they perceive is shareholders actually caring about what their corporations are up to and saying something.
So I’m a big fan of using the tools that are available to us and using shareholder proposals to raise these social issues and to encourage corporations to do better, I think should only be encouraged
Buckley versus Valeo and the beginning of corporate influence in federal campaigns
SHEFFIELD: Yeah, absolutely. And, we’re gonna circle back to Citizens [00:14:00] United in, a second here, but I think kind of the ruling that really did kind of kick off this corporatocracy within American politics was Buckley versus Valeo, and that’s a case that doesn’t... is not as infamous nowadays as, perhaps it should be.
So w- can you walk us through, what the law that was at stake there before and then what the case was and the ruling? And then we’ll go from there.
TORRES-SPELLISCY: I have to spend a lot of time with Buckley v. Valeo because it is the foundation of modern campaign finance law. So Buckley was a review of the Federal Election Campaign Act which was a post-Watergate reform. Watergate which is now 50 years behind us, was a crazy welter of crimes that happened during the Nixon administration, and specifically during the 1972 election when Nixon was up for re-election.
And I think he and his top aides just went completely bonkers making sure that he got re-elected. And so they just started breaking all sorts of laws, including the preexisting campaign finance laws. So Nixon set up this Committee to Re-elect the President, which has the awesome acronym CREEP. And CREEP was taking in huge amounts of donations from corporations during the 1972 election.
Now, the problem with that is that it broke the law. So there was a preexisting law from 1907 called the Tillman Act, and the Tillman Act makes it illegal then and now for corporations to give corporate treasury funds directly to federal candidates, and that is exactly what CREEP [00:16:00] was doing. It took in money from all sorts of corporations and every time they asked for one of those corporate donations, that was a crime, and every time that a corporation gave money to CREEP, that was a different crime.
And this embroiled all sorts of different people. So sort of famously, this is how George Steinbrenner the former owner of the Yankees, at that point he had not bought the team yet, but he was embroiled in one of these CREEP scandals because he was the head of a shipping company and the people at CREEP wanted money from him.
And Steinbrenner, to his credit, realized that this was illegal, so he tried to make it more legal by giving fake bonuses to people at his company and then directing those executives to give to CREEP. But that in itself is a crime ‘cause you’re just circumventing the corporate ban. And that’s how he ended up with a criminal conviction ‘cause he pleads to it instead of going through a criminal trial.
So people like that literally get criminally indicted and prosecuted most of the businessmen involved in funding CREEP actually are not prosecuted, which I think is a bit of a problem. I mean, it always strikes me that when you look at the list of the biggest donors to CREEP, almost all of those corporations still exist.
And I think that is very telling, that the very corporations who break the law during Watergate are still with us. And part of why they’re still with us is they didn’t have the book thrown at them generally. A- and they also had sort of this song and dance of, “the Nixon people were nuts.”
And, [00:18:00] I, have some sympathy for this view of things because the Nixon administration was a little bonkers. I mean, they really were breaking the law whenever they asked for these donations. And so from the point of view of some of these businessmen, they sold th- their version of events as we...
This was a shakedown. Like, “They were shaking us down for money, and we had no choice but to give it to them.” But I think on further examination, almost all of these businesses that gave to CREEP had something that they wanted. So, often it was approval of a corporate merger because that has to go throu- through the DOJ.
And there was also this very weird period with CREEP where The sitting attorney general, so John Mitchell, is, both the sitting attorney general and he is running CREEP. So he’s running the president’s reelection campaign while he is still attorney general, and that gave him enormous leverage. So, he really could demand these illegal contributions from people, in part because he was the gatekeeper of whether you were going to be prosecuted for something.
And I think he really abused that power. So fast-forward to the reason why Watergate is known as Watergate. So some of CREEP’s employees break into the DNC headquarters at the Watergate building in ‘72, and they are caught and arrested. And it doesn’t take long for reporters and for prosecutors to realize that the trail doesn’t just stop with CREEP, it goes all the way to the White House.
And Nixon basically spends two years trying to cover up his involvement in Watergate, and there are congressional hearings [00:20:00] about all of this. And after those Watergate hearings, one out of four letters into Congress from the public demanded campaign finance reform. And Congress, to its credit, actually did something.
So they passed this Federal Election Campaign Act, otherwise known as FECA, and this was a huge change from the way that campaigns had been regulated before. So it had contribution limits, it had expenditure limits, it had public financing for presidential campaigns. It created the FEC, the Federal Election Commission and required disclosure of money in politics.
Almost as soon as the ink is dry on this new law, it is challenged in court, and that goes up to the Supreme Court, and that is what becomes Buckley versus Valeo. Now, the Supreme Court had dealt with the Nixon White House with- in many different cases. So they had dealt with Nixon with the Pentagon Papers case, and they had ruled against the Nixon administration, which was trying to stop The New York Times and The Washington Post from publishing the Pentagon Papers.
And they had also dealt with Nixon’s secret taping, and they had ruled that Nixon had to release his tapes And so I think court watchers might have thought, “Okay, we have this post-Watergate reform in FECA. It’s being reviewed by the courts, the same court that ruled against Nix- Nixon twice while he was president.
Maybe they will do the right thing when they are looking at this campaign finance reform.” And instead of ruling I think for democracy, instead they split a enormous amount of babies in the Buckley case. And so one of the [00:22:00] things they rule in Buckley is that expenditure limits are unconstitutional under the First Amendment.
That means that you can’t have an expenditure limit basically on anyone who’s spending in politics. That is a huge gift to the ultra-wealthy because the way that this case was Done. It, didn’t really have to do with corporate political spending because corporate political spending was still and is illegal under the Tillman Act.
But what this really freed was the, your friendly neighborhood billionaire because it said, I mean, what the, bumper sticker misreading of Buckley is that money is speech. It never actually says that in the case. It gets very close to saying that. It basically said that you need money to communicate in a country as large as ours, which is true.
If you’re running a presidential campaign and you’re trying to reach 50 states, you’re going to need money to do some communication to voters. But you sort of take that grain of truth and the Supreme Court, I think, has distorted that out of all reason. And so the court upholds contribution limits.
They uphold disclosure. They uphold the presidential public financing system. But because they rule that expenditures are un- expenditure limits are unconstitutional, that really empowers the wealthy to spend as much as they want to in American elections ever since 1976. The other lesser-known case which happens after Buckley is a case called Bellotti.
So Bellotti was a challenge to a restriction on [00:24:00] spending by corporations and banks, and it arose in an election where it was a ballot measure and the, First National Bank who’s a party in this case they challenged the law that said that a corporation couldn’t spend in basically a ballot initiative.
And the Supreme Court agreed with them and said that the restriction on corporations and banks spending in elections where all that was on the ballot was either a referendum or an initiative, that was also unconstitutional under the First Amendment. And so Bellotti created this First Amendment right for corporations to spend in politics, which they did not have before that case.
Nixon and the right’s obsession with controlling federal courts
SHEFFIELD: Yeah. and also I think it’s worth pointing out that just quickly that the Buckley in Buckley versus Valeo was in fact James Buckley, the brother of William F. Buckley Jr. And that’s, it, that really did kind of, I think in a lot of ways, kind of reorient or begin reorienting, right-wing political movements toward the Supreme Court and trying to take it back over.
And you can see that, um, with regard to, w- the, Warren Court a- and the Burger Courts being, ano- anomalously quite liberal compared to all previous courts and subsequent courts. And so there was, there was this there were many protest movements in the country against the court, the Massive Resistance protests against civil rights rulings and, um, there were, for decades there was the, signs and people carrying around about a “impeach Earl Warren,” um, that they had argued that the court had, infringed upon the silent majority.
That was a, [00:26:00] common Nixon phrase as well. and so they, there, there was like a reorientation almost entirely of right-wing rhetoric and political strategizing to educate their, voters or people who agreed with them to understand that the court is something that we need to have power over.
And it became, a really persistent focus, um, ev- and, w- with Ronald Reagan as well, and, all the subsequent Republican presidents after him.
TORRES-SPELLISCY: Describe the Supreme Court to my law students is often the presidency is the party and the Supreme Court is the hangover. And but with the Supreme Court, the hangover can last two decades because they’re appointed for life. No Supreme Court justice has ever been successfully impeached and removed, so they really are there for life.
Even if on paper they could be removed through the impeachment process, it’s never worked. It was only attempted once, and it, failed, and I think that set the precedent that we’re not gonna do this on a whim, which is probably good. You want the Supreme Court to have some independence from the political branches.
But the life tenure combined with increased life spans of, human beings means that we really are gonna get some very old justices who were appointed by a president, decades before, but they still have an enormous influence over the fate of the nation because, the Supreme Court is our final arbiter of what is constitutional and what is not
SHEFFIELD: Yeah. and it wasn’t-- doesn’t seem to have been intended that way by the founders [00:28:00] either, but this is how it is right now. Or what do-- no, you-- what do
TORRES-SPELLISCY: Yeah. I think when lifespans were a lot shorter, it’s... the stakes are lower. So if you really think that, So it’s my understanding that the reason why the retirement age was once set at 65 is that most people died around that age. And so there was an, anticipation that you could have, you know, social security for people around age 65, in part because by, 69 they’d be dead.
And I think part of the same strain that you see over the social security system, which is now has to deal with like lots and lots of people living to 100 our court system have a very similar problem. Like we have lifetime appointments where you would’ve had someone there for maybe 15 years and now you have them there for 30 to 40 years
Bribery and the post-Buckley campaign finance regime
SHEFFIELD: Yeah. True. I think so. And yeah, and I, and that’s a separate discussion in terms of, like the judicial supremacy, so we don’t have to get into that. But I do wanna kind of r- bring it back to the, implications of Buckley versus Valeo because, one of the other things that you talk about in your book is, essentially one could say that corporate bribery of politicians effectively could you could say that it became legal in a lot of different ways.
And that’s not exactly what you say in there, but walk us through what you mean when you, refer to corporate bribery.
TORRES-SPELLISCY: I, think there’s bribery and then there’s the campaign finance system, which are distinct. And I understand the impulse to conflate the two. However under Supreme Court precedent and our laws, most candidates for office in the United [00:30:00] States have to run by raising money from other people.
And so we have this privately financed campaign finance system which most candidates have to use. Now, there are very limited opportunities for public financing in places like New York City and certain states, but that is the exception and not the rule. The other way you can avoid the campaign finance system is being independently wealthy yourself.
So you can have the Mike Bloombergs of the world who, I think he once turned in, a campaign finance report when he was running for mayor that simply said, “I spent $100 million on my own re-election.” And that’s all it said, and that’s all it needed to say because it was truthful. He had self-financed his campaign, and so he had the luxury of not asking other people for money.
But everyone else basically does have, have to ask for campaign contributions when they’re running for an office in the United States. So all of that, when you ask someone for a lawful donation and they give it to you, I do not consider that bribery There is bribery that happens with certain corporations who, much like, the Nixon administration and CREEP, just go far beyond the campaign finance system to literally give a politician a bribe.
And one of the ways you can think about the distinction is with a bribe, the money tends to go directly to the candidate’s personal bank account or something that they control. And that is different than giving to a lawful campaign. With a lawful campaign, there are personal use restrictions. You are not allowed to use campaign finance dollars [00:32:00] to enrich your own lifestyle.
That is personal use, and that is illegal. When you actually take a bribe and you put it into your own bank account, as, say you’re the governor, that’s when I think it really is bribery. And there are cases of that in my book as well. So there was this, guy named Larry Householder. He was the speaker of the house in Ohio, and there was this company called FirstEnergy, and they wanted a bailout at taxpayer expense of some of their nuclear facilities.
And they knew in order to do that, they needed legislation to get through the, Ohio legislature. And so they literally bribed him and other individuals in Ohio to get that legislation passed. and the sad part of the story is the legislation did pass. It w- it did become law. The, voters in Ohio did have to foot the bill for bailing out these crappy nuclear facilities that FirstEnergy owned.
And so I think that’s where things get very distorted, but part of that story of how they did that was actually perfectly legal. So the perfectly legal part of it is, I think, something we can blame on Citizens United. So Citizens United, again, allows corporations to spend in politics. So to the extent that FirstEnergy was simply buying political ads in the Ohio elections, that’s the legal part.
The illegal part was when they were literally giving checks to Larry Householder, and he was depositing them in his own bank account. That’s where you get to real corporate bribery.
Trump and the Roberts court’s almost total refusal to restrain executive power
SHEFFIELD: Yeah. [00:34:00] and we keep unfortunately seeing a lot more of that. And Trump has really kind of, I mean, just taken that off completely beyond what anyone, even before this, even his first term, really imagined. Like overtly saying, with the Supreme Court’s permission basically, that the E- Emoluments Clause and anti-bribery laws, they don’t apply to him because he’s the chief executive.
That seems to me effectively what...
TORRES-SPELLISCY: Like, not exactly.
SHEFFIELD: go, go ahead then. You tell, me how I, said that wrong
TORRES-SPELLISCY: Okay. So, the emoluments clause cases I think were deeply, disappointing, For those of us who cared about them so there are two emoluments clauses in the US Constitution. One is the foreign emoluments clause, which essentially says you can’t take gifts from a foreign prince. And then there’s a domestic emoluments clause, which says that the president’s salary can’t be augmented by either the federal government or the 50 states.
And arguably Trump was in violation of both of those clauses during his first term because of funds that went through his businesses. Now, I think unfortunately the Supreme Court didn’t take this threat seriously enough. So there were multiple lawsuits to enforce the emoluments clauses.
One was brought by members of Congress in the minority, so by the demo- by Democratic representatives and senators. And when that case gets to the Supreme Court essentially says, “you guys don’t have standing to bring this lawsuit.” And this is not completely off the wall for the Supreme [00:36:00] Court and for the federal judiciary.
The federal judiciary is very stingy about recognizing what would otherwise be legislative branch standing to bring federal lawsuits. And the idea behind being stingy about doing this actually makes constitutional sense. The, the legislature has its own branch of government. If they wanna change something, they can literally make new laws and they are not powerless.
And so the courts have always been very hesitant to let them argue about what is sometimes called a political question. Like there’s a whole political questions doctrine. Like we wanna keep the political branches doing what they wanna do, like in their own spheres. We’re not going to let them also do this in the courts.
So that was one missed opportunity to opine on the merits of the emoluments clause issue. And then there were other lawsuits that were brought essentially by states and by competitors of the Trump organization, and those are mooted out by the Supreme Court because by the time that those get up to the Supreme Court Trump has left office and the Supreme Court basically says there’s no b- no longer a case or controversy here.
And so they don’t rule on those emoluments cases, which I think had stronger standing arguments than the congressional plaintiffs. But nonetheless, the long and the short of all of this is we didn’t get definitive rulings on the constitutionality of the two emoluments clauses as applied to a business president in the first term.
And I think that explains some of the [00:38:00] behavior that we’re seeing in term two
Poll: Democrats strongly dislike the Supreme Court, but they don’t think it has too much power
SHEFFIELD: yeah. Okay. I think I agree with that, but it’s also like he, he’s basically, with their permission, able to relabel anything that he does as an executive function. Um, that’s essentially what he tries to do. And, like we’ll see if he can get away with it in terms of the ... ‘Cause people are still suing for some of these things that he’s doing.
But I don’t know. I ... Not, not looking so good for the plaintiffs as far as I can tell. Back to the idea though of the Citizens United, within this environment that they’ve created. It really has I, I think that there’s an unfortunate gap between public awareness of just how radical that ruling was and what it actually enables. ‘Cause most people would not want to have anything remotely close to this in, and be the campaign finance law. An Example of this that came out recently, the Pew Research Center, they have a, I guess it’s about every two years or three, they do something they call their Political Typologies Report.
And they ask tens of thousands of people a series of, really important questions that don’t get asked as much as they should be in polling. and one of the questions that they ask people, or they ask several, p- questions about the Supreme Court, and one of them is, what is the political ideology of the Supreme Court?
And one of the... And what they found was that there’s a significant, like the biggest plurality group of Democrats, wh- which they called the Order and Opportunity Left, which is effectively kind of people who are not quite as engaged in politics and have a more socially conservative but socially fiscally liberal viewpoint.
Only 45% of them knew that the Supreme Court was [00:40:00] conservative. And among Democrats as a whole, or like Democratic leaners, we’ll say that not even 50% believed that the Supreme Court had too much power. And this despite the fact that the left-leaning groups gave the Supreme Court a 22% approval rating.
So it’s like in a large way, the, right-wing political figures, they, educated their voters, extensively, repeatedly, and like that was kind of the s- one of the central messages of Trump in 2016 was, “if you don’t like me, you should get over it because I’ll give you a Supreme Court that will do what you want.”
And, doesn’t seem like that people on the left have succeeded as much in mirroring that. What do you, think about that? I know that’s a lot.
TORRES-SPELLISCY: That is a lot. So I mean, the Supreme Court is supposed to be independent of the two political branches. And depending on, where you take your snapshot in time, you have had justices who start farther to the left and migrate to the right while they are justices. And you’ve also had the exact opposite, where someone who is more conservative, I think of someone like Souter, he was not a raging liberal when he started, but, in the strange world that is the Supreme Court, he becomes like a reliable liberal vote.
So... And I think part of the reaction to the behavior of Justice Souter and, say Justice O’Connor, who also sort of ended up, I think, more progressive in her later years than she started that I think upped the ante for those who really [00:42:00] wanted a more conservative, reliably pro-business Supreme Court.
And so I think there was a lot more put into vetting Supreme Court justices, supporting their nominations to the court. It has become its own little mini industry of trying to place particular people with a particular ideology on the Supreme Court, and that effort, I think, is reflected in the 6-3 split that we have today, where it’s, and it is completely mapped to the party of the president that appointed them. This has not always been true. So for example, Justice Stevens had been appointed by a Republican, but by the end of his life was voting reliably with the liberal wing of the Supreme Court. Now, um, the six who are voting reliably for conservative, and pro-business stances were all Republican appointees.
So it, we might have a recency bias that this Supreme Court looks incredibly partisan, but it has not always been that way, even in the relatively recent past.
SHEFFIELD: Mm-hmm. Yeah, that’s true. And I mean, it, changed though because of people like McConnell and various people in the Federalist Society of, trying to reorient sort of right-leaning opinion. I think that there was some of that and also the kind of consensus after World War II, the kind of global consensus of things in favor of social democracy that kind of leached into that as well.
And there was... I don’t know. I mean, anyway, but that’s perhaps a different podcast episode.
The Supreme Court’s “shadow docket”
SHEFFIELD: [00:44:00] so one of the other areas that I think, has really enshrined a lot of corporate power was the implementation of the shadow docket by the court. It was not something that really was that common in the past for the court.
So let’s talk about that a bit. So for people who don’t, know what that is, can you explain it and then what, exactly people, they’re using it for nowadays?
TORRES-SPELLISCY: So I’m not a huge fan of the phrase shadow docket because it, it’s something that you could look up. I mean, I work on the issue of dark money in campaign finance, and with dark money, you really can’t tell where it’s coming from. It is completely secretive. The only way that you discover dark money is either through litigation or a leak if you get lucky.
But with the shadow docket, it is the procedures docket of the Supreme Court, and this is where emergency requests come into the court and usually on procedural matters. Like, are you going to stay what a lower court has done, or are you going to allow what a lower court has done? Now, that is a lot of lawyerly gobbledygook for who’s winning right now.
And I think the pernicious part of the shadow docket is the Supreme Court has been making nearly in some cases election altering decisions because part of what gets litigated today is which congressional map are we using? Which campaign finance laws are we enforcing? All of these different rules that have to do with the mechanics of democracy, those are often up at the shadow docket asking for an emergency ruling on what [00:46:00] some lower court has done.
Now, what I dislike about the shadow docket is it’s typically decided very quickly without full briefing, without a full record in some cases, and without oral argument. And so you’re making huge decisions, the Supreme Court is, without the benefit of all of that information, both factual and legal. And so I think the chances for grave mistakes with such a procedure is astronomical.
And because, these tend to come up on an emergency basis, that is usually not the Supreme Court deciding something on the merits. So they’re only deciding stay, not stay, of the lower court decision, for example, which is purely procedural. It’s basically do you keep the status quo ante in place with a particular legal challenge or not?
And so in some ways it is all like so cut and dry and boring. But when you sort of look underneath that, I mean, one example of this is congressional maps, which have been the source of enormous, litigation over the past few decades. And usually the political party that controls their legislature also controls the drawing of these maps.
And so what lots of legislatures have done over the years is they will draw a map that just puts their party back in power. And there used to be more checks on that because of the Voting Rights Act and a- and other con- constitutional doctrines that allowed you to challenge some of these maps as violating equal [00:48:00] protection And, but the instinct of lawmakers to make maps that are good for their own political party is so intense that often they will do it even if they think it breaks the law.
And you, run up to the Supreme Court if you win a case below that allows you to keep that bad map in place, and if the Supreme Court agrees with you on the shadow docket, then that map is going to be used for the next two years. Because typically that’s how long litigation is going to take to round trip back to the Supreme Court.
So, what I least like about the shadow docket, besides the you don’t have a full record, you don’t have full briefing, you don’t have oral argument, is it can reward really bad actors two years at a time. And even if when you get back up to the Supreme Court, they finally make the ruling that was more constitutionally dictated and they’re like, “no, that map has got to go.”
Elections have already been held using that perfectly illegal map but voters were trapped in it. So I think there are huge implications for how the shadow do- sha- how the shadow docket is used and/or abused, especially in the context of democracy.
Reform ideas for SCOTUS
SHEFFIELD: Yeah, absolutely. and, at the end of the book, you do talk about some reform ideas that people have been proposing, and you discuss your, views on them. But one of them that you don’t talk about and I did wanna touch about it and why you don’t like it, is the idea of court packing.
So what is it, and what is wrong with it in your view?
TORRES-SPELLISCY: The most famous attempt at court packing [00:50:00] was done by FDR. He was hitting a Supreme Court which had these justices which he named like the Four Horsemen of the Apocalypse. And the reason he gave them this negative name is they kept on voting down his New Deal reforms. And so he threatened to pack the court so that he would keep appointing justices until he had enough justices to actually uphold the New Deal And there’s a lot of scholarly debate about whether this mere threat of court packing changed the opinion of the justices.
But shortly thereafter, there is what is known as the switch in time to save nine. And the justices suddenly, especially one of them in particular suddenly switches sides and upholds his New Deal reforms. And so it, goes from being a five-four court one way to being a five-four court the other way.
And they actually uphold s- many of the New Deal pieces of legislation. Now, I think part of why scholars debate whether the threat of court packing changed that behavior is that threat of court packing didn’t happen alone. What also happened was Roosevelt is reelected and the justices are no fools.
They know that means he has four more years of appointments, so whether he adds new seats to the court or not, he’s going to have an enormous influence on who their new colleagues are. So whether it’s just knowing he had that appointment power or it was his threat to pack the court, they do change their voting [00:52:00] behavior.
But we’re-- it’s, hard to pin down exactly why. And the other thing is that in its own time, there was huge resistance to packing the court because it made the court look like it would be the president’s plaything which I think is not a constitutionally great place to be either. As I, I think I alluded to earlier, the Supreme Court was designed to be independent of the political branches.
That’s why they have life tenure in the first place. So they can be-- They can make hard decisions that are not politically popular and be faithful to the Constitution So I worry about that perception that if you pack the court, that you will have lost some of the independence of the court itself and some of its legitimacy in the eyes of the general public.
So I go back to Alexander Hamilton that the court is the least dangerous branch because it lacks the sword or the purse. And it really relies on all of us thinking of it as a legitimate source of law. And when you lose that, the game really is all over. Now, I get the frustration with this court especially in the last couple of terms.
They have shown so little respect for their own precedent and that is deeply disturbing from a rule of law point of view. But I’m not sure that, adding, say it’s three more seats is going to solve that. And the other thing that I worry about is just the tit for tat. So if the Dems when they are-- have the presidency add three more seats then I’d imagine the Republican president that follows will add [00:54:00] four, and it will create sort of a large and unwieldy Supreme Court, which could create rulings that are even less clear than the ones we get today.
So one of the things that is really a challenge as someone who has to teach constitutional law is often there isn’t a clear five-four on these decisions. It’s really three-three-three, four-one-four, and so you literally have to parse words and decisions that do not agree with one another to try to figure out what the law is on any given constitutional subject.
And that is also bad for the rule of law, because if it’s not clear what the law is, that, I think, invites all sorts of coloring in the gray for unscrupulous lawyers everywhere. So what I would love is a Supreme Court that is a lot more coheres- clear and cohesive in their decisions, even when I disagree with them, if it’s clear what the rule is.
SHEFFIELD: Yeah, you also are in favor of several other reforms that court reform advocates are favoring. So, let’s talk about some of those.
You obviously like the idea of term limits and rules on justices, because right now they, have no ethics rules governing their behavior, and that’s a big problem
TORRES-SPELLISCY: Yes. It-- And I have to be pretty hypercritical of John Roberts and his leadership at the court on this issue. He put out... So, I have to give hats off to ProPublica for asking really basic questions about our complement of sitting [00:56:00] justices. I think the most basic question they asked which the press probably should have asked a long time ago, is how are the justices spending their summers and who is paying for it?
And when they asked that simple question they got these just crazy revelations of the justices having, these junkets with individuals who have matters in front of the court, maybe not directly, but definitely indirectly. And that, I think, has contributed to the public’s distrust of the Supreme Court.
And Chief Justice Roberts put together this non-binding ethics code for them, and the biggest problem w- I think with that sentence is the non-binding part of it. So I understand that it’s very difficult to have rules that apply to the justices because they literally are the ones who are the final word on what the law is, but they can’t be a law unto themselves.
And so I think they could still get their ethical ducks in a row if they want to. I think the real question is do they want to? Because the more that they act like the law doesn’t apply to them, I think the more you’re going to get more sort of radical reforms imposed on the court, which could themselves be damaging to the long-term sustainability of constitutionalism and respect for the rule of law.
SHEFFIELD: Yeah. and also you are in favor of term limits for the justices. Let’s talk about that, or judges in general. Yeah.
TORRES-SPELLISCY: Yeah. I think the frailty of the human mind definitely is something to be [00:58:00] concerned about if you can live to be 90 or 100. And while I’m sure there are some perfectly sentient 90-year-olds and perfectly sentient s- centenarians the risk that someone who has, suffered dementia or some other debilitating illness of the mind, who is nonetheless the final word on what law is...
I mean, we had this happen before. Like Justice Douglas, I think in his later years, was not all with it, and the other justices knew that. And so they basically agreed among themselves that they wouldn’t create five-person opinions where he was the deciding vote because they knew that was untrustworthy.
Now, that showed a lot of self-awareness on the part of the other justices, but I don’t think we can be lucky enough to rely on that in the future. I think there are two things that speak in favor of term limits for federal judges. One is the frailty of the human mind once you get very, old that you can lose your capacity to reason. And then the other is just the happenstance of which presidents get to make which appointments. If we could regul- regularize that a little bit so that every president gets one appointment to the Supreme Court, but not four, or, whatever the numbers we think are reasonable I think that would take some of the sheer panic and high stakes out of some of the Supreme Court nomination fights that we’ve been having.
I think part of why they have become so contentious is not [01:00:00] just that people have different views of ideologically of where the Supreme Court should end up. It’s that every time you nominate someone in their 50s, that person could be there for decades. So the stakes are much higher than if you thought, “Oh, they’ll only be there for a decade or, less.”
So I think having some sort of retirement age for federal judges would lessen the temperature on some of these fights that we’ve been having about the courts.
SHEFFIELD: there, I mean, There’s so much more we could discuss here, but we, both have things to do, and I don’t wanna burden the listener and the viewer too much here.
So if people want to keep up with your projects besides getting the book here what’s some of your advice? What, would you like them to check out?
TORRES-SPELLISCY: You can find my podcast, “Democracy and Destiny,” on wherever you get your podcasts. You can find my books wherever you buy your books. And then I’m over on Bluesky @profciara, so P-R-O-F-C-I-A-R-A. And I post frequently, not just about law, but a lot of birds and flowers, too
SHEFFIELD: Okay. All right. sounds good. I encourage everybody to check that out. Thanks a lot for being here.
TORRES-SPELLISCY: Of course.
SHEFFIELD: All right, so that is the program for today. I appreciate you joining us for the conversation, and you can always get more if you go to Theory Change show where we have the video, audio, and transcript of all the episodes. And if you are a paid subscribing member, you have an unlimited access to the archives and I thank you very much for your support.
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