The Modern Law Library

SCOTUS faces 'a catastrophic loss of institutional legitimacy,' warns author

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In his new book, The Supermajority: How the Supreme Court Divided America, Michael Waldman identifies three times that the U.S. Supreme Court caused a public backlash against itself—and warns that the court may be well along the path to a fourth massive public backlash.

In this episode of The Modern Law Library podcast, Waldman walks the ABA Journal’s Lee Rawles through the prior episodes of backlash, starting with the fallout from the Dred Scott decision in 1857.

He explains the “switch in time that saved nine,” when in 1937, the high court narrowly avoided then-President Franklin D. Roosevelt’s plan to change the makeup of the Supreme Court by unexpectedly upholding the constitutionality of New Deal legislation. And he posits that much of the contentious legal wrangling of the past half-century can be seen as a backlash to the Warren Court’s decisions, such as Brown v. Board of Education.

Waldman, a constitutional lawyer who is the president and CEO of the Brennan Center for Justice at the New York University School of Law and a former speechwriter for former President Bill Clinton, says over the period of three days in June 2022, “the Supreme Court changed America.”

With decisions overturning Roe v. Wade, loosening gun restrictions and reducing the authority of the Environmental Protection Agency, Waldman argues that the court’s six conservative justices signaled a sea change for the court.

He warns that the change from a 5-4 ideological balance to what he terms a “supermajority” of conservative justices will mean a more turbulent relationship between the public and the Supreme Court.

In this episode, Waldman shares his thoughts on the position of Chief Justice John Roberts in the new balance, his advice on how the public can respond when the Supreme Court acts in opposition to the public will, and a counterintuitive theory on why having more former politicians on the Supreme Court might have made the court less politically divisive.

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In This Podcast:

<p>Michael Waldman. Photo provided by the Brennan Center for Justice.</p>

Michael Waldman. Photo provided by the Brennan Center for Justice.

Michael Waldman is the president and CEO of the Brennan Center for Justice at the New York University School of Law, a nonpartisan law and policy institute that works to revitalize the nation’s systems of democracy and justice. He was director of speechwriting for former President Bill Clinton from 1995 to 1999 and is the author of The Second Amendment: A Biography and The Fight to Vote. Waldman was a member of the bipartisan Presidential Commission on the Supreme Court of the United States convened by President Joe Biden in 2021. A graduate of Columbia University and the NYU School of Law, he comments widely in the media on law and policy. The Supermajority: How the Supreme Court Divided America is his newest book.

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