Chapter 11: Slapping Stephen Field

The Judges

Most drummers aren’t allowed to name the band after themselves. Then again, Jay Sekulow isn’t most drummers.

What distinguishes the leader of the Jay Sekulow Band (or “JSB” to superfans) isn’t his musical pedigree. While the group’s guitarist and singer are professional musicians, the band’s namesake is an amateur, a sixty-four- year- old attorney who shows up to gigs sporting a blazer and what looks very much like either a hairpiece or plugs. Nor is Sekulow a hidden talent. I recently ran some JSB samples by my friend Brent Katz, an indie rock drummer and journalist. He told me Sekulow is “sticking to his basic high-hat snare beat the way a kid learning to swim sticks to the shallow end.” Among percussionists, this is apparently quite a withering insult.

No matter how uninspiring Jay Sekulow may be as a drummer, I can confidently say that as a lyricist he is much, much worse. A few of JSB’s dad rock covers are actually kind of catchy. But the band’s catalog of originals is—and I say this as someone who respects the creative process, and who appreciates how hard it is to make something new and put it into the world for public judgment—bad. Their biggest original hit, “Undemocratic,” sounds like something from a Guns N’ Roses tribute band whose members are simultaneously on mushrooms and in dire need of a nap.

Strummin’ on my Gibson

singin’ my song now,

Hopin’ that the Feds

won’t take it away now

Later in the song, Sekulow’s band rhymes “become problematic” with “smell of melodramatic.” Like I said, not good.

And yet here’s the remarkable thing about JSB: they’re popular! They book talk shows, rocking out in front of adoring studio audiences. They do massive livestreamed concerts on Facebook, where their page has 135,000 fans and counting. They’re not world-famous. But somehow, despite a glaring lack of quality, they’re for real.

Fall deep enough down the JSB rabbit hole, and you start questioning everything you thought you knew. After all, in pop music, there’s no truly objective way to judge good from bad, so who’s to say those Sekulow superfans aren’t right? Perhaps fifty years from now, Beyoncé will be forgotten. “Undemocratic,” grating lyrics and all, will be remembered as the defining anthem of the 2010s.

While such a transformation in taste may seems unlikely to you, the drummer leading JSB has every reason to believe it’s possible. Because when he’s not jamming on Huckabee, or holding a benefit concert for the right-wing nonprofit run by his family, Jay Sekulow is one of the most influential conservative lawyers in America. These days, he’s probably best known for defending Donald Trump during the president’s impeachment trial, but his real specialty is constitutional law Over his nearly five-decade career, Sekulow has seen firsthand that the way we interpret our nation’s bedrock document is largely a matter of taste. And with his help, the judicial branch of our government has been transformed into a far-right hit parade.

Today, judges who would have been laughed at just a few decades ago—the JSB of the judiciary—have soared to the top of the charts. Their unprecedented rise means that Belle faces a final brand-new veto point, yet another hurdle that did not exist for Bill. How did that new veto point get here? What does it mean for Belle, and for us? Those are the questions we’ll seek to answer as her journey, and ours, near their respective ends.

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Nothing in the Supreme Court’s origin hints at the mighty institution it would become. On February 1, 1790, the very first day of the Court’s inaugural term, half the judges were missing. Thus, the first official act of America’s first chief justice was to glumly postpone a meeting and go home.

The original justices themselves did not inspire much confidence either. There were six of them, handpicked by George Washington, all duds. Illness forced two to resign, one after five years and the other after just a week. Chief Justice John Jay spent his entire tenure obsessed with his political career; in 1795 he got the opportunity to run for governor of New York and quit the bench. Washington tried to promote another member of the founding six, John Rutledge, to the chief justice role, but the Senate refused to confirm him. Rutledge, who’d been battling depression long before the Senate’s decision, attempted suicide. While he lived, he promptly resigned from the Court.

That left just two of the original half dozen, James Wilson and William Cushing. You may remember Wilson from chapter 6, where he compared the Great Compromise to a poison. He was a brilliant jurist. But he was terrible with money. On two occasions, Wilson found himself simultaneously a sitting judge on the nation’s highest court and an inmate in debtors’ prison. He died ducking creditors in 1798. Cushing, meanwhile, lasted twenty-one years on the court but accomplished almost nothing. He wrote only nineteen opinions, most of little consequence. Apparently, he just didn’t like working hard.

It was an unimpressive start for America’s judiciary. Then again, the judiciary itself was an unimpressive branch of government. After devoting about 2,000 words to the role of lawmakers and more than 1,000 to that of the president, the Constitution gave judges just 375. If you visit the National Archives and examine the original copy of the document the Framers produced, you’ll even notice that the S in “Supreme Court” isn’t capitalized. All three branches of government were coequal. But among these equals, the judiciary came last.

What changed? Here’s the story as I learned it in high school. Chief Justice John Marshall, appointed by President Adams in 1801, swooped in and gave his fellow judges vast new powers. In Marbury v. Madison, he declared a federal law unconstitutional, single-handedly inventing the concept of “judicial review.” Ever since, the Court has been the ultimate interpreter of the Constitution, on equal footing with the other branches.

Kind of. Not really. For one thing, while judicial review wasn’t specifically mentioned in the Constitution, the idea that the Court could rule laws unconstitutional was at least a decade old by the time Marbury was decided. Alexander Hamilton wrote about judicial review in the Federalist Papers. Justice James Wilson believed in judicial review as well, and probably would have brought it to the Court himself had he stayed in good health and out of debt. John Marshall didn’t create the Court’s most important power. He just made it official.

He also used his power sparingly. What most American students never learn is that, after overturning an act of Congress in Marbury v. Madison, the Marshall Court never overturned an act of Congress again. In fact, justices wouldn’t strike down another federal statute until the 1850s. They did, however, often strike down state laws. In other words, judicial review was not a tool for judges to assert their power over other branches. It was a tool for the federal government to assert its power over the states.

Marshall’s care not to encroach on the other two branches’ territory was in part a matter of principle. As America’s Constitution author Akhil Amar points out, the Founders never expected or intended that judges would possess a veto power to rival the president’s. But there were other, more practical reasons for the judiciary to tread carefully around Congress and the White House. The Constitution gave presidents and lawmakers enormous power to punish courts it didn’t like.

For one thing, unless and until the executive branch administers judges’ opinions, those opinions are no more compelling than yours or mine. After one ruling against him, in Worcester v. Georgia, Andrew Jackson is said to have exclaimed, “John Marshall has made his decision. Now let him enforce it!” In fact, the real sign of the Court’s weakness was that Jackson never said those words and never had to. Wary of an unwinnable showdown with the White House, Marshall issued a theoretical judgment against the president in Worcester but never even tried to have it enforced.

In struggles with Congress, the danger for the judiciary was not being ignored but being downsized. The Constitution requires that we have a judicial branch, that it contain a Supreme Court, and that, once appointed, federal judges can serve until they retire or die. But that’s it. The number of Supreme Court justices, the number of lower courts, and the number of judges on those courts are all up to lawmakers to decide. Congress can expand and shrink those courts at will. With a two-thirds majority in the Senate, it can even impeach and remove a sitting judge.

Finally, Congress controls “appellate jurisdiction,” the rules that decide which cases go to which courts. Today, our court system is a single pyramid, with the nine Supreme Court justices at the very top. But for the first hundred years of American history, our court system contained multiple pyramids. In many cases, second-tier courts had final, unappealable say, with the Supreme Court cut out of the process entirely.

Yet from these inauspicious beginnings, the judiciary, and the Supreme Court in particular, slowly gathered power. As America became riven by fault lines—regional, partisan, or both—the courts became seen as a refuge from politics and a steward of the public trust. While other branches loudly bickered, judges quietly accumulated strength. In 1891, Congress willingly surrendered its authority over appellate jurisdiction, granting the Court the right to review any federal case it pleased. In 1925, justices were also given the right to refuse to hear any case they didn’t want to.

These changes make a big difference for Belle, just as they did for Bill before her. Assuming she becomes a law, the Supreme Court will automatically have to power to judge her. And if they judge harshly, Belle, despite everything she’s been through, is toast.

Along with judicial review and the gradual expansion of its jurisdiction, there’s one final reason the Supreme Court became so powerful: for a very long time, John Marshall didn’t die. During an era when the average white, thirty-year- old male wasn’t expected to reach sixty-five, Marshall made it to seventy-nine. Also, and no less important, he never retired. His thirty-four- years on the court set a precedent. Justices remain justices for the rest of their careers, and often for the rest of their lives.

The average tenure for a Supreme Court justice is now 16.9 years. Lawmakers flow in and out with political tides. Presidents serve a term or two and write their memoirs. But judges can last for generations. There’s a lot of power in that.

From the very beginning of partisan politics, politicians have hoped to capture some of that judicial power for themselves. In particular, presidents have hoped to shape the Supreme Court. The relative importance of the Court has only increased in the modern era. That’s because the number of lower-court seats has ballooned—it’s currently 861—while the number of Supreme Court justices has for over a century been fixed at nine. The difference between appointing a regular judge and a justice is the difference between scoring two points in basketball and scoring two goals in soccer. The first is nice but hardly earthshattering. The second completely changes the game.

Picking a Supreme Court justice ought to be the most consequential action a president can take that doesn’t involve blowing someone up. In practice, however, judges are like twenty-two- year- old quarterbacks on draft day—it’s hard to know how they’ll behave once picked. “I could carve out of a banana a judge with more backbone than that,” fumed Teddy Roosevelt after one of his choices, Oliver Wendell Holmes, ruled against him. “It isn’t so much that he’s a bad man,” Harry Truman said of a similar disappointment, Justice Tom C. Clark. “It’s just that he’s such a dumb son of a bitch.”*

There’s a good reason American history is littered with cussing, flabbergasted presidents: the public likes the Court’s independence from politics, and the Court itself goes to great lengths to protect it. Unlike Congress (which controls trillions of dollars) and the White House (which controls the armed forces, among quite a lot else), the justices draw their power almost entirely from their reputation for integrity. Where presidents tend to see adverse rulings as a betrayal, judges see them as proof, both to themselves and to the public, that they belong to no political party or faction.

Judicial independence was further bolstered by the very nature of judicial review. Over the centuries, constitutional law has developed into a philosopher kingdom, with its own abstract language, jargon, and debates. Consider the long-running conflict over “textualism.” A textualist believes that when interpreting a document, you should look only at the words in the document, while an “intentionalist” believes (as you might expect) that it’s better to examine authors’ intentions. This is the kind of debate you might imagine taking place between two stoned English majors, not judges who hold the fates of millions in their hands.

But precisely because these arguments are so airily removed from the political realm, “conservative judges” and “liberal judges” haven’t always mapped neatly onto the Republican and Democratic parties. Back when Roosevelt and Truman were picking judges, to guess how someone would rule on a future case based on their legal philosophy was like guessing someone’s favorite song based on their favorite genre. And by long-standing convention, presidents weren’t supposed to directly ask would-be judges how they planned to rule on specific cases, because that would undermine their independence.

As Abraham Lincoln rather bluntly put it, “We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it.”

Another unwritten rule of the Court, one that similarly protected judicial independence, is called stare decisis. Dressing up the concept in Latin makes it sound like you had to go to law school to understand it, but it’s really quite simple: current judges shouldn’t undo what past judges have already done. Times change, of course. Sometimes justices find an old Court ruling so reprehensible they simply have to overturn it. But they’re expected to recognize that the Court’s power—its authority and integrity—would collapse if the Constitution’s meaning flopped about depending on who was in charge. Each ruling therefore sets a precedent that future rulings are meant to follow.

The final barrier to a president nominating lackeys to the bench has been the nominating process itself. On paper, it’s a simple two-step procedure. The president picks a judge. A majority of senators confirms that judge. The end. But over time, a series of hurdles emerged to make extremists and cronies more difficult to appoint. To begin with there was the filibuster. For all its flaws, the filibuster necessitated a trade-off. The president had to be willing to pick judges who would win at least some support from both parties. In exchange, senators from both parties had to be at least somewhat willing to vote for the president’s picks.

A second Senate tradition reduced the president’s control of the nomination process even further. If you were a senator, and someone from your state was nominated to be a judge, you could withhold a “blue slip,” signaling your disapproval, and that person would not be confirmed. This meant the White House had to secure the agreement of a nominee’s home-state senators, regardless of which party they belonged to, before that nomination was announced.

The judiciary, then, was the little branch of government that could. From its false-start first meeting, the one postponed for lack of attendance, the Court grew into a sturdy and unyielding institution, independent from politicians and immune from voters. John Marshall had trod carefully around the other branches. Yet his successors would soon challenge them, at times overruling not just individual laws, but entire agendas that our leaders were elected to pursue.

No blood was shed in these clashes, at least not directly. But they became some of American history’s great power struggles—and our country would be very different today if the winners hadn’t won.

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Around 7 a.m. on August 14, 1889, Supreme Court justice Stephen J. Field was riding on a train from Los Angeles to San Francisco when an acquaintance named David Terry approached him and, in the words of historian J. Edward Johnson, “slapped his face several times.”

This was typical behavior for David Terry. Once the chief justice of the California Supreme Court, Terry had seen his judicial career cut short after he shot and killed a sitting U.S. senator in a duel. Terry then entered private practice, met a young divorcee named Sarah Hill, took her on as a client, and married her. Hill’s divorce from her first husband got ugly, and a few months before their fateful train encounter, Justice Field ruled against Terry and his client-slash- bride in an important proceeding. Hence the slapping.

That said, if you were going to pick someone to hit repeatedly in the face, Stephen Field was probably not the best choice. As a younger man, lured to California by the gold rush, he had an overcoat specially made with two extra-large pockets so that he could shoot people without the inconvenience of drawing a gun. Now older and more distinguished, he delegated matters to his bodyguard, who politely asked Terry to cool it with the slapping. When Terry ignored this warning, the bodyguard shot him through the heart.

That’s how Stephen J. Field became the first and only Supreme Court justice ever arrested for murder. Soon after, he became the first and only Supreme Court justice acquitted on murder charges. And yet, remarkably, that’s not even the most interesting thing about him. What really makes Stephen Field special—the reason he’s worth our attention here—is that he is also the first and only person to become the tenth justice on the Supreme Court.

The man responsible for adding Field’s seat was none other than Abraham Lincoln. We rarely include it in history books today, but the Civil War was not just fought at Bull Run and Gettysburg, but in the courtroom. In 1862, opponents of the war argued that it was unconstitutional. If the Supreme Court agreed with them, the war effort would be thrown into complete and possibly permanent disarray. And given that the Court’s chief justice was Roger Taney, who in 1857 had issued the infamous Dred Scott decision expanding slaveholders’ power, it was far from certain the Union would win.

But picking a fight with President Lincoln was as foolish as slapping Stephen J. Field in the face. With the Court threatening the very existence of the United States, Honest Abe fired back. As you’ll recall, Lincoln’s Republican allies in Congress were already busy carving up new states and territories to expand their power in the Senate. Now, with the justices debating the merits of the Civil War case, they also passed a law expanding the Supreme Court from nine seats to ten.

The purpose of this expansion was twofold. First, for all future rulings, Lincoln would have an extra pro-Union justice to help tip the balance in his favor. Second, and perhaps even more important, Congress was sending the Court a message: rule the wrong way on the Civil War case, and a tenth justice is only the beginning. The Taney Court took the hint. In 1863, the justices found the war constitutional by a vote of 5–4. Soon after, the violent but undeniably brainy Stephen Field joined the Court as an insurance policy. The judiciary never seriously hampered the war effort again.

Lincoln’s successor, Andrew Johnson, was also responsible for changing the Court’s size, albeit in an entirely different way. Republican senators, worried their new president was too sympathetic toward the South, refused to let him fill new Supreme Court seats when they became vacant. Instead, they gradually shrank the Court to seven members before allowing it to creep back up to nine in later presidencies.

In this turbulent era for the judiciary, there remained one cantankerous constant: Stephen J. Field. Just forty-three years old at the time of his confirmation, he ultimately outlasted the great John Marshall, setting a new record for length of tenure on the Court. Ironically, while Field’s appointment helped settle the first great clash between the judiciary and the White House, his 12,614 days as a justice set up the next great showdown. A strong believer in individual liberty, with an attitude toward property rights forged in the gold rush of his youth, Field helped establish a genre of pro-business legal thought known as “laissez-faire constitutionalism.”

This is where the musical-taste aspect of constitutional interpretation comes in. For several decades between the end of the Civil War and the Great Depression, as states created regulations to stave off a looming Gilded Age, the laissez-faire Court struck them down. The arguments in favor of the Court’s decisions were sound. But so were the arguments against them. Asking why the Constitution forbade economic regulations during the 1890s is like asking why doo-wop peaked in the 1950s. When a trend sweeps the nation, it’s impossible perfectly identify the cause.

The problem came when the public grew tired of laissez-faire and the Supreme Court did not. In 1932, Franklin Roosevelt was swept into office, promising to reshape the relationship between Americans and government with his New Deal. The Court’s nine justices—seven of whom had been appointed by Republicans—were equally determined to make sure he did not succeed.

As it happens, the person who wrote the book on the clash that followed was one of my first bosses. Jeff Shesol is a former Bill Clinton speechwriter, syndicated cartoonist, and Rhodes scholar. He’s also a current appreciator of peaty scotch and a writer of popular history. Supreme Power, which he published in 2010, is his detailed and dramatic account of what became known as “the court-packing fight.”

It’s possible you already know the basics: Roosevelt tried to get Congress to expand the Supreme Court and fill new seats with loyal judges; he failed; such a scheme hasn’t been tried since. But that’s like saying the story Lord of the Rings is that two friends visit a volcano. It’s not wrong, but it’s also not exactly right.

For one thing, the Court that FDR faced was not just conservative. It was blatantly anti-Roosevelt, lurching rightward in direct and partisan response to his election. The Court also expanded its scope. Where Stephen Field had overturned state regulation of economic activity, the 1930s Court began striking down federal laws as well. “Between 1933 and 1936,” writes Shesol, “the Court overturned acts of Congress at ten times the traditional rate. To accomplish this, justices disinterred long-neglected doctrines and breathed new life into obscure clauses of the constitution.”

Roosevelt, in other words, found himself in a position even more infuriating than Lincoln’s seventy-five years earlier. American voters had given him a clear mandate. Now the Supreme Court, a supposedly apolitical body, was going out of its way to make sure his mandate went unfilled. Still, FDR’s proposed counterattack—to add as many as six Court seats if justices over the age of seventy didn’t retire—was far more aggressive than anything his predecessors had attempted.

He came far closer to pulling it off than most Americans realize. In fact, FDR’s failure could be largely blamed on sheer bad luck; at a pivotal moment in the fight, one of his chief allies, Senate Majority Leader Joe Robinson, dropped dead.

At the same time, the Roosevelt White House made more than its fair share of mistakes. Rather than being honest about his motivations, FDR insisted he was reforming the Court for purely logistical reasons, something nobody believed. Offered compromises as his position weakened, the president foolishly refused to budge. The general postmortem conclusion was not that the Court bill was a terrible idea, but that, as one White House aide put it, “We have played a good hand badly.”

And even this badly played hand quite possibly saved the New Deal. By putting the judiciary’s fate in the hands of elected politicians, Roosevelt forced the Court to respond to public opinion. Under threat from reformers, justices bent over backward to show that they didn’t need to be reformed. Within weeks of FDR’s unveiling his proposal, the Court began shifting conspicuously toward the center, as judges who had once overturned minimum wage laws changed their opinions overnight. In the year following his reform push, Roosevelt’s administration went 12–0 in major New Deal cases.

The conventional moral of FDR’s crusade is that taking on the Supreme Court never works. But we ought to learn the opposite lesson: taking on the Supreme Court sometimes works quite well. Unlike with Lincoln, Roosevelt’s plan to expand the Court didn’t succeed. But like Lincoln, he was able to ensure more favorable rulings, thus saving the agenda he was elected to pursue.

If we define “court-packing” as appointing friendly judges, rather than simply increasing the total number of Supreme Court seats, then FDR eventually succeeded there as well. Between retirements and resignations, by the time Roosevelt died in office, he had picked eight of the Court’s nine justices. I don’t know about you, but I’d consider that pretty well packed. Thanks to a single dogged president, our collective taste in constitutional law had changed.

In fact, the justices’ role in American life had done a 180-degree turn. For most of the post–Civil War era, the Court had been staunchly conservative: enabling Jim Crow; siding with corporations over workers; refusing to intervene when democracy was being undermined. Now the Court went from impeding social and political trends to accelerating them. This was especially true during the period from 1953 to 1969, when the chief justice was a former California governor named Earl Warren.

We saw the Warren Court’s impact earlier in this book—it was responsible for Baker v. Carr and the slew of other cases that established One Person, One Vote. But that was just the tip of the iceberg. Thanks to the Warren Court, schools can’t be segregated, cops have to read you your rights when you’re arrested, you’re entitled to a lawyer even if you can’t afford one, President Trump can’t frivolously sue the New York Times for defamation, states can’t ban the sale of birth control, and Black people and white people are allowed to marry each other.

To many Americans, myself very much included, the Warren Court is a model for what the judiciary should be. The justices used their independence to stand up for those on the margins, defending those powerless who were powerless defend themselves through traditional political means. Also, call me crazy, but I think segregation was bad and birth control is good.

To a certain set of conservatives, however, the new Court was positively terrifying. In their view, the justices were engaged in a liberal power grab to rival the conservative power grab that infuriated FDR. Small-government spiritualists, those we encountered in the previous chapter attending meetings of the John Birch Society and studying at Bob Lefevre’s Freedom School, found the Warren Court particularly menacing. Their criticisms of the Court’s opinions were frequently not just impassioned but unhinged. Fred Koch, father of Charles and David, once wrote, “If many of the opinions of the Warren Supreme Court had been written in the Kremlin they could not have served the Communist better.”

Say what you will about Earl Warren; he wasn’t even close to a communist sympathizer. And that’s not the only place where facts failed to support the movement conservatives’ views. As we’ve seen, the justices FDR confronted were striking down acts of Congress, an aggressive overreach that had little in common with John Marshall’s understanding of judicial review. But Earl Warren mostly overturned state laws, far more in keeping with the Founders’ expectations.

Also, and importantly, the showdowns under Lincoln and Roosevelt were between elected public servants and unelected judges. The Civil War and the New Deal were not tangential to their political moments. They defined their political moments. By taking on the Court, presidents were prioritizing the majority of all Americans above the majority of a very specific nine. The showdown over the Warren Court was different. The Court’s staunchest opponents were not elected leaders with a nationwide mandate, but partisan ideologues with lots of money. And the positions they wanted the Court to take—on race, on economics, on social issues—had little to do with popular opinion.

If these considerations ever occurred to Fred Koch, his sons, or their fellow travelers, however, they proved unconvincing.

And so, in their understated way, a low-key group of warriors—one that would eventually include the drummer of the Jay Sekulow Band—plotted a legal revolution to accompany their political one. They wouldn’t be as dramatic as Roosevelt. They wouldn’t try to change the judiciary overnight. They wouldn’t try to expand the number of justices. But they would nonetheless succeed where FDR had failed.

They were going to pack the Court.

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It’s a strange historical irony that without the help of a right-wing oligarch, Elizabeth Warren would not be married to her husband today.

The meet-cute took place in the lobby of a Key Biscayne hotel, on a summer Sunday in 1979, when a legal historian named Bruce Mann glanced over from the reception desk and spotted a gaggle of fellow lawyers. This was hardly surprising, as he was attending a law professors’ conference. What was surprising, to Mann anyway, was one particular brunette. To hear him tell it, it was love at first sight from twenty-five yards away.

To hear Senator Warren tell it, it was more complicated—but only a little. “That was a Sunday, late afternoon, when we met,” she recalled to CNN’s M. J. Lee. “I wasn’t completely in love with him until sometime mid-morning on Monday.”

“Mmmph,” said Lee, with the sudden, panicked expression all young people adopt when forced to contemplate old people having sex.

“He was in the row ahead of me,” Warren quickly explained.

Warren and Mann were in South Florida for seminars on “Law and Economics,” a subject that sounds vague and timeless but in fact was specific and new. Like laissez-faire capitalism, Law and Economics, (also known as “L&E”), is a genre of constitutional interpretation, and it arrived on the legal scene in the 1970s.

Like most legal theory, L&E is both complicated and less complicated than it claims to be. Basically it says that when making a legal decision, we should consider its economic impact. Here’s an example: Jean Valjean is caught stealing a loaf of bread to feed his starving family and sentenced to five years in jail. Given the enduring popularity of Les Misérables, that’s probably not most people’s idea of justice.

But an L&E adherent might see the situation differently. If a wildly harsh punishment deters would-be bread thieves at a lower cost than hiring more police, then Jean Valjean’s sentence is a money-saving way of reducing crime, and is therefore justified. For many years, in part because its conclusions were so strikingly amoral, Law and Economics was like Bob LeFevre’s Freedom School, relegated to the backwoods of American legal thought. Then L&E’s founder, Henry Manne, caught the eye of John M. Olin.

Olin was a fabulously rich manufacturer of arms and chemicals who, in 1973, devoted his family foundation to the conservative cause.* Overnight, Manne became one of the best-funded legal theorists in America, and L&E began appearing at America’s most prestigious law schools. Today, there are John M. Olin programs and fellowships at Harvard, Yale, NYU, Stanford, Virginia, Georgetown, Berkeley, Michigan, and more. Olin also funded all-expenses- paid L&E junkets to sunny Florida, including the one where Warren met Mann. “By one count,” writes Jane Mayer of these trips, “forty percent of the federal judiciary participated, including the future Supreme Court justices Ruth Bader Ginsburg and Clarence Thomas.”

Olin and his team referred to their programs as “beachheads,” and as it happened, America’s law schools were especially vulnerable to intellectual assault. Even by elite standards, the American legal elite is elitist. Of all the current and former clerks employed by the nine sitting Supreme Court justices, three-quarters come from just 3 percent of America’s law schools. Two hundred ninety-five of them—49 percent of the total—attended either Harvard or Yale. The same handful of institutions churns out future judges, senators, law professors, and high-profile attorneys. Breach this one small corner of the ivory tower, and the ripple effects will be felt nationwide.

Which bring us to the real reason Olin spent a total of $68 million promoting L&E: partisan politics. Not everyone who studied Law and Economics became a Republican. But Olin understood that because of its natural inclination to favor the profits of corporations over the rights of workers and consumers, judges fluent in L&E were more likely to rule in ways that favored the Republican cause. Henry Manne, the L&E guru, fancied himself a philosopher king. But in a very real way, he was a pawn. For Olin, investing in a professor was no different than donating to a politician or a think tank. Possum Kingdom had arrived in American law.

Olin’s investment, and many more like it, did not just nudge the judiciary rightward. They were essential prerequisites for court-packing. The more independent the judges, the less likely they are to do what you want once on the bench—and as you’ll recall, one of the guardrails of judicial independence was that the fact that constitutional theories and political parties didn’t neatly align. Olin and his fellow wealthy donors changed that. Today, conservative jurisprudence and the Republican Party’s political positions are a near-perfect match.

But funding new legal theories was only one way the conservative movement began aligning judges and partisan politics. They also began building loyalties between the judiciary and other branches of government. To that end, in 1982, the Olin Foundation helped launch a new kind of campus organization: The Federalist Society.

The best way to think about the FedSoc (pronounced “Fed Sock”) is as a nationwide Elks Club for conservative lawyers. From its humble beginnings with just four founding members, the Society has grown into an association with 70,000 attorneys and an annual budget of $20 million. They organize campus chapters, host dinners and networking events for law students and alumni, and offer continuing legal education to practicing attorneys. It all sounds fairly innocuous.

In fact, the Federalist Society is revolutionary, an attempt to impose rigid ideological dogma on a profession once known for intellectual freedom. It’s common knowledge that if you’re an ambitious law student—and is there any other kind?—you have to become part of the Federalist Society if you want access to the best conservative legal jobs. And to remain a member in good standing, you have to believe certain things to be true, regardless of whether or not they actually are. I suppose it’s a bit like working for Philip Morris in the nineties. The more certain you were that smoking didn’t cause cancer, the more likely you were to rise through the ranks.

The result is that judges who are Federalist Society members rule differently—and more predictably—than judges who are not. This is true even when compared to fellow Republican appointees. In 2009, a pair of political scientists looked at a specific type of case, one involving police power, that traditionally divides liberal and conservative jurists. They found that among judges appointed by the first President Bush, those considered “most conservative” by a traditional metric took the conservative position 72 percent of a time. But if they were also Federalist Society members, their odds of casting a conservative vote shot up to 94 percent. Remarkably, even the “least conservative” FedSoc judges voted more conservatively than the most conservative nonmembers.

I must once again stress that I’m no constitutional scholar. Were I to debate a Society member (or, for that matter, any law school graduate), they would surely throw around terms and cite cases I don’t understand. But I’ve been around politics for a while, and I understand this: with uncanny accuracy, the Federalist Society’s interpretation of our laws tracks the goals of the conservative political movement at any given time. To put it slightly differently, Federalist Society members—including those now on the Supreme Court—are the pro bono defense team of the Republican Party.

This is hardly compatible with judicial independence. And that’s precisely the point. In the same way that Lewis Powell and the Chamber of Commerce merged government with business, John Olin and his fellow donors merged the judiciary with the broader conservative movement. Ted Cruz is a senator. Clarence Thomas is a Supreme Court justice. As of the writing, Pat Cipollone is the White House counsel for President Trump. Three men; three different branches of government. Yet as FedSoc members, they have each pledged their loyalty to the exact same set of goals.

There is one final way in which the modern conservative legal movement, as exemplified by the Federalist Society, has undermined judicial independence. To understand it, consider the video found on the FedSoc “About Us” page. In the very first clip, a former law clerk of Justice Samuel Alito’s named Barbara Smith, now a law professor at Washington University in St. Louis, describes the organization in rapturous terms. “The Federalist Society is a beacon of hope for conservative and libertarian lawyers that believe in a Constitutionally based federal government and a judiciary that says what the law is as opposed to what it should be.”

At first glance these words sound bland, almost corporate. In fact, they are radical. I’m not even talking about the implication that nonconservatives don’t believe in a constitutionally based government, which is both condescending and untrue. Instead, let’s focus on Smith’s final half-sentence: “What the law is as opposed to what it should be.”

I emailed Professor Smith to ask her more about her experience with the Federalist Society, and, in a spirit of intellectual inquiry and open debate, she declined to email me back. But what she’s saying in this video is quite simple. The Constitution is not open to interpretation. Our bedrock document says one thing and one thing only. Adherents of this judicial philosophy frequently refer to it as “originalism,” but “fundamentalism” would be more accurate.

Whatever you call it, this approach flies in the face of centuries of American jurisprudence. If the Court’s job is to interpret the Constitution, then by definition, it must be open to interpretation. In the FedSoc view, the Constitution is fixed and knowable. Every Court case has a right and wrong answer, and the justices’ job is to pick the correct side. This is not just a rigid approach to judgment, but an attack on the very idea of judicial review. After all, if the Constitution has only one valid meaning, how can justices claim to interpret it?

This question is not theoretical. Under guidance issued by the Reagan Department of Justice, federal lawyers were expected to follow the vision of the Constitution set forward by the administration, even if it conflicted with the one set forth by the courts. In essence, the Reagan White House said that when it disagreed with the Court, that was because the Court was wrong—and if the Court was wrong, there was no reason to take its opinions seriously.

A fundamentalist approach to law similarly weakens judicial restraint. In a world where the Constitution has One True Meaning, stare decisis, the doctrine that current judges should follow prior precedent, makes no sense. If every case has a right and wrong answer, and a previous ruling was wrong, then judges have not just the ability but the obligation to overturn it ASAP. At the moment, the only conservative jurist willing to take this idea to its logical conclusion is Clarence Thomas. “When faced with a demonstrably erroneous precedent, my rule is simple,” he’s written. “We should not follow it.” But while other FedSoc judges still pay lip service to stare decisis, they also believe in a version of the Constitution that does not allow for it.

It has now been forty years since two young law professors locked eyes in the courtyard of a Miami hotel. A lot has changed in that time. For one thing, Elizabeth Warren is no longer a Republican. But a far more sweeping change has come in the law itself. Conservative legal theory is much more likely to match up with a partisan political agenda. Conservative judges are more likely to see themselves as cogs in a larger ideological machine. And when those judges issue rulings, they are less likely to feel bound by stare decisis and judicial restraint.

In other words, after centuries of unsuccessful assault by politicians, the wealthy donors of Possum Kingdom were finally able to deal judicial independence a mortal blow. They had filled the country with lawyers who could turn the courts into a wing of the Republican Party. All the Republican Party had to do was get those lawyers onto the bench.

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On a fall day in late 1987, Judge Roger Miner, a genial man with a high forehead and a trim, small-c conservative mustache, picked up his phone and heard the voice of a prominent Republican on the Senate Judiciary Committee. The judge had been expecting this. President Reagan’s Supreme Court nominee, the far-right Robert Bork, was flailing. The well-regarded Miner was assumed to be next in line.

What Miner didn’t expect, however, was the question the senator asked him: What was Miner’s view on Roe v. Wade?

As you may recall from the start of this chapter, such direct questions had for centuries been off-limits. You may further recall Lincoln saying that “We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it.” Lincoln was clearly comfortable pressuring the courts, but even he understood that if you crossed this line—if you demanded policy outcomes in exchange for nominations—the judiciary as we knew it would be finished.

Roger Miner’s wife, Jacqueline, who was active in Republican politics, later told the New York Times that she urged her stubborn spouse to play along. To the judge’s credit, he passed Lincoln’s test. A Supreme Court seat is literally the job of a lifetime, but rather than promise to overturn Roe, Miner said he would decide each case on the merits.

“My reputation was too high a price to pay for a seat on the Supreme Court of the United States,” Jacqueline Miner later remembered her husband saying. We’d be lucky to have a justice with that kind of integrity, don’t you think?

Apparently the Republican senator on the phone didn’t think so. Neither did President Reagan, who chose the anti-abortion Anthony Kennedy instead. Nor was Miner’s snub an isolated incident. Where Truman could be found swearing at disappointing judges, and Teddy Roosevelt was left lamely whittling bananas, the McConnell–era Republican Party has engineered judicial loyalty more aggressively and strategically than ever before. Today, those efforts have paid off. Just as Reagan hoped—and as Lincoln feared—today’s judiciary is a completely different, less independent branch of government than it was when Roger Miner took that call.

The first president to seize full control of the judicial nominating process—not just for the Supreme Court, but for the circuit courts below it—was actually Jimmy Carter. Before then, most judicial nominations were what Time magazine called “political plums,” rewards bestowed on loyal friends of senators, local officials, and party machines. But rather than pack the courts with liberal true believers, Carter used his leverage to increase diversity on the bench. As Mark Joseph Stern detailed for Slate, Carter appointed five times more women than all thirty-eight prior presidents combined. He appointed fifty-seven nonwhite judges, nearly tripling the nation’s total.

“The first time I ever thought of being a judge was when Jimmy Carter announced to the world that he wanted to change the complexion of the U.S. judiciary,” said Ruth Bader Ginsburg in 2015. We don’t give Carter credit for his impact, partly because he never got to pick a Supreme Court justice and partly because we tend not to give Carter credit for anything he did as president. But if he’d won a second term, the courts would be vastly different today.

Instead, Ronald Reagan took over. Under his administration, the White House retained control of the judicial nominating process. But where his predecessor prioritized diversity, Reagan prioritized ideology. He saw the courts as a tool for shifting American policy to the right.

Fashioning that tool became the job of the Justice Department’s Office of Legal Policy. I know that sounds like the kind of bureaucratic backwater where staff wear green visors and speak in nerdy Jerry Lewis voices, but the Reagan presidency the OLP was a judicial war room. This was especially true after 1985, when Stephen Markman, one of the earliest FedSoc members, took charge.

If you wanted to become a judge in the Reagan years, here’s how the process worked. First, Markman and his OLP team would scrutinize everything you’d ever written, hunting for deviations from conservative orthodoxy. If you made it through the initial screening, you’d fly to Washington, where a team of lawyers would grill you for four to five hours. These interviews included questions like the one posed to Miner. “Of course we discussed particular cases, real as well as hypothetical,” said Grover Reese, a top Justice Department advisor at the time. “Otherwise, you’re settling for somebody’s slogans.”

Even after you passed this interview, promising to decide certain cases in certain ways, the vetting process was not finished. It simply moved to the White House, where a presidential committee double-checked your conservative bona fides. Only after that committee approved you did your name go to President Reagan for his consideration. And this was merely for lower court judges. For prospective Supreme Court justices, the process was far more thorough. At the end of Reagan’s two terms, the courts didn’t just have more Republican-appointed judges than before—those judges were far more reliably conservative than previous Republican appointees.

Reagan’s successor, George H. W. Bush, tried to continue the court-packing scheme, with mixed results. On one hand, before the first President Bush, the American Bar Association would give a “not qualified” rating to judges it thought were insufficiently independent. Under pressure from the White House, the ABA changed course, agreeing to rate nominees as qualified even if they were likely to issue partisan decisions once on the bench. Bush also appointed Clarence Thomas, who was and remains the Supreme Court’s most conservative justice.

At the same time, the first President Bush also appointed Justice David Souter, whose thin judicial record made him easily confirmable, but who tacked sharply to the left once on the bench. To conservatives, for whom “Soutered” to this day remains an adjective meaning “hoodwinked,” this botched nomination was unforgivable, and when George W. Bush took office, he was determined not to repeat his father’s mistakes.

Like Reagan, the second President Bush used both the Department of Justice and a presidential committee to screen prospective judges. But he made some updates. For one thing, the full membership of Bush’s committee was kept secret. He further diminished the nonpartisan role of the American Bar Association, and brought top young FedSoc lawyers into the White House to advise on judges. The most notable of these was Brett Kavanaugh, a Yale Law graduate and leading authority on malt beverages consumed at scale.

Bush’s greatest contribution to the court-packing process, however, was to bring in the influence industry. These leading ambassadors from Possum Kingdom became known as “the Four Horsemen” and each served a specific purpose. Jay Sekulow, the conservative movement’s favorite drummer, connected Kavanaugh and the White House to the evangelical community. C. Boyden Gray and Ed Meese, who had handled nominations for the first President Bush and Reagan, respectively, provided institutional knowledge.

The final horseman, Leonard Leo, was the Federalist Society’s executive vice president. Under Leo, the FedSoc, which had been officially nonpartisan, began to change. As Leo himself later put it, “Judicial confirmations these days are more like political campaigns.” The Society spun off a sister organization, the Judicial Confirmation Network, which along with other conservative groups ran commercials backing Bush’s nominees. These ads were virtually indistinguishable from Republican campaigns for senator or president—a typical spot warned listeners that if Sam Alito were not confirmed to the Supreme Court, the war on Christmas would be lost forever. (Alito was confirmed, and Christmas was saved.) Supreme Court nominations had always been fundamentally political. But political donors and operatives had never been so directly involved in the nominating process.

Since the end of the Bush administration, America has been home to the following contradiction. On one hand, a small group of extraordinarily wealthy people fund the campaigns of presidents who nominate the judges; the campaigns of senators who confirm the judges; the law schools and seminars that educate the judges; the Federalist Society that reeducates the judges; the nonprofits who write friend-of- the- court briefs that persuade the judges; the lawyers who argue cases in front of the judges; and sometimes, as you may remember from Antonin Scalia’s hunting trips, the travel expenses of the judges themselves.

On the other hand, we have a theoretically independent judiciary.

What is perhaps most remarkable about the Republican judge-picking machine is that, for better or worse, Democrats have nothing like it. When Obama took office, there was no liberal equivalent to the Federalist Society. No judicial philosophy mapped neatly onto Democratic Party goals. The deep institutional knowledge—the kind of long-game approach that could elevate a judge up the ranks over decades—simply didn’t exist among progressives.

Nor was Obama eager to fill the bench with ideologues. He wanted judges who broadly agreed with him, but like presidents of both parties prior to Reagan, he also wanted judges who thought for themselves. Besides, after George W. Bush’s highly controversial nominees, he didn’t want to see the courts further politicized. “We went out of our way to find candidates who couldn’t be called liberal activists, who wouldn’t be controversial at all,” said Greg Craig, the White House counsel at the time. Obama’s first judicial pick, a midwestern moderate named David Hamilton, even received a begrudging thumbs-up from the president of the Indiana Federalist Society.

Mitch McConnell’s Republicans filibustered him anyway. To movement conservatives, any judge who did not fit the Bush and Reagan mold might as well have been the second coming of Earl Warren. Any seat filled by a Democratic president was one that couldn’t be packed by a Republican down the road.

For the next six years, nearly every judicial confirmation was a battle. Then, in 2015, Republicans took control of the Senate and judicial confirmations virtually ceased. In 2016, Antonin Scalia passed away while on a hunting junket, Obama nominated Merrick Garland—as close to a true middle-of- the- road judge as you can imagine—and McConnell nonetheless refused to confirm him. In fact, back when it seemed certain that Hillary Clinton would be the forty-fifth president of the United States, Ted Cruz proposed a new court-shrinking scheme to deny her the chance to fill any Court vacancies. “There is certainly long historical precedent for a Supreme Court with fewer justices,” he said.

Of course, Cruz never had to put his reverse court-packing plan into action. Donald Trump became president, and, thanks to McConnell’s obstruction, he lots of open spots to fill. When Obama took office, twelve federal Courts were considered “understaffed.” When Trump took office, it was twenty-nine. “In my first day,” President Trump recalled, “I said to one of our assistants, ‘How many judges do I have to pick? How many are there?’ And I figured I’d hear none or one, maybe two. They said, ‘Sir, you have 142.’ ”

For Senator McConnell, who had spent his entire career trying to amass power without needing popular support, this was a once-in- a- lifetime opportunity. And to seize it, Brother Mitch rewrote the rules yet again.

One important change was covered in a previous chapter: Republicans made Supreme Court nominations impossible to filibuster. But to fill the 142 positions he’d kept open during the Obama years, Mc- Connell went further. He slashed the amount of debate time required for nominees from thirty hours to just two. Now that Republicans were in charge, no stalling would be allowed. For nominations to appeals courts, the tier of the judiciary just below the Supremes, Team Mitch also did away with blue slips, the old tradition that gave senators of either party a veto over nominees from their state. This meant President Trump (or really, at this point, the Federalist Society) could pick whomever they wanted without worrying about whether that pick was unqualified or too extreme.

To say the FedSoc took advantage of this new flexibility would be a bit of an understatement. The American Bar Association found that Republican Senate aide Jonathan Kobes was “unable to produce sufficient writing samples of the caliber required” to demonstrate that he was qualified. He’s now a judge on the Eighth Circuit. John Bush wrote a right-wing blog that compared abortion to slavery. He was roughly as undistinguished a lawyer as he was a blogger, but he chaired the Louisville chapter of the Federalist Society. Today, he’s a Sixth Circuit judge.

Other Trump nominees, while not incompetent, seem to have trouble following the law. While serving as general counsel for President Trump’s Education Department, Steven Menashi devised a plan to access students’ Social Security data in order to deny them student loan forgiveness. In a harshly worded reprimand, a judge found the scheme illegal. Just eighteen months later, Menashi became a federal judge himself, on a court far more powerful than the one that overruled him.

In fact, by elevating extremist judges, President Trump and the Federalist Society encourage all right-of- center judges to become more extreme. To use just one recent example, Judge Neil Gorsuch spent years as an unflashy but highly conservative judge. But during the 2016 campaign, when Trump put forward a shortlist of FedSoc-approved Supreme Court picks, Gorsuch’s name wasn’t on it. In the months that followed, Gorsuch began issuing sweeping rulings and violating procedural norms, a kind of audition to prove that he could be the firebrand his party wanted. It worked. Today, Justice Gorsuch is on the Supreme Court, and other judges are busy with their own extremist auditions as they hope to catch the president’s eye.

Thanks to Mitch McConnell’s blockade of Obama’s judges, there have been plenty of open spots to audition for. President Trump appointed as many Supreme Court and Circuit Court judges in less than four years as President Obama appointed in eight. When we zoom out to look at all the judges appointed in my lifetime, the numbers are even starker. Sixty-two percent of the active federal judiciary has been appointed by either Reagan, George H. W. Bush, George W. Bush, or Trump. A supermajority of judges has now been chosen through an ideological screening process that did not exist as recently as forty years ago.

If these judges are supposed to be nonpartisan, President Trump seems not to have received the memo. According to the White House website, among the president’s accomplishments is “flipping the United States Court of Appeals for the Third Circuit from a Democrat-appointed majority to a Republican-appointed majority . . . The Second and Eleventh Circuits are likely to flip by the end of this year.” For a president to brag about winning a circuit court as though it’s a swing state is not just rare. It is unheard of.

Like runners who lose their form in the final few yards before a victory, even Republicans famous for their self-control have begun to celebrate the big win. “We have flipped the Second Circuit, the Third circuit, and we will flip the Eleventh Circuit!” McConnell declared to applause at the Federalist Society’s annual black-tie dinner. Brett Kavanaugh’s 2018 confirmation hearings—the ones where he blamed sexual assault allegations against him on the Clintons and vowed that “what goes around comes around” even as he promised to be independent—were even more stunning than McConnell’s speech. It’s no longer just the other two branches who claim the judiciary has been politicized. So does the Court’s newest judge.

Frankly, I think we can at least appreciate the honesty. With Kavanaugh’s confirmation, three justices are current or former Federalist Society members. Two more (Gorsuch and Alito) are described as “closely associated” with the Society, speaking frequently at its events. All five of these judges are to the right of Anthony Kennedy, the justice Reagan picked when Roger Miner proved too neutral and who, until 2018, was the court’s swing vote. Even before Kennedy left, the Supreme Court had tacked for to the right. The Kavanaugh Court will be the most conservative since FDR’s first term.

Even this undersells just how different the role of the federal judiciary has become. I’m not saying Republicans will win every single case, but the Court—by the admission of members of all three branches—is now more political than at any time in American history. The next Democratic president will not just confront judges who oppose his or her priorities. He or she will face a judiciary that has been packed by, for, and full of political operatives.

What does this mean for Belle? Well, if she’s supported by Republicans, our refashioned judicial branch won’t bother her at all. If Belle is a priority for Democrats, however—if she makes drinking water cleaner, reduces gun violence, expands health insurance, protects workers, addresses climate change, or defends a woman’s right to choose—then she will face a veto point unlike any in American history. After passing the House, passing the Senate, and being signed by the president, she will inevitably wind up before a brand-new kind of Court.

The people who will render final judgment on Belle were not elected. Nor are they politically independent, by any reasonable definition of the term. Instead, after completing her journey, Belle will have to win the approval of the conservative movement, and by extension the party it controls. If these judges, groomed over decades and handpicked for ideological purity, reject her, then the entire political process will be rendered irrelevant. Belle will die.

I can’t promise we can save Belle from a partisan Court, at least not immediately. But regardless of what happens to her, we should be at least as honest as Mitch McConnell about why it’s happening. For hundreds of years, politicians have tried to break down the judiciary’s independence and seize its power. At long last, they’ve succeeded. The question we face now is what to do about it.

How do you unpack a court?

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Historically, the way to fix a lopsided judiciary is simple: you win the White House. Choose a president, and that president gets to choose the judges nominated to the bench. It’s not a perfect system, but it’s self-correcting. In a very roundabout way, We, the People shape the judicial branch.

Thanks to Mitch McConnell’s blockade of judges in 2014, that system is gone. One of the new unwritten rules of American politics is as follows: a Senate majority will never confirm a judge nominated by a president of the opposite party. If we want to appoint new judges, the American people no longer have to elect a new president. We have to elect fifty senators as well. And because the Senate is deliberately built to withstand swings in popular opinion, that’s a far more difficult task.

Thanks largely to random chance, the twenty-first- century judiciary is especially removed from people’s will. President Bush was declared the winner of the 2000 election in a 5–4 Court decision. He, in turn, nominated two new justices to the Supreme Court. President Trump was legitimately elected thanks to the Electoral College, but as we’ve noted, a clear majority of voters chose his opponent. Had the people gotten what they wanted, the Court would likely have a liberal majority today. Instead, we have a Court that opposes voting rights, making it even more likely that the people’s choice will fail to become president the next time round.

I say this not to complain (okay, maybe a little to complain) but to warn that we are approaching a vicious circle. An unbalanced democracy leads to an unbalanced Court, which tips our democracy further out of balance, and on and on. In such a situation, we can’t just hope the problem solves itself. But neither should we give up hope entirely.

And where better to look for inspiration than the bridge of Jay Sekulow’s hard rock classic “Undemocratic,” which, for completely inexplicable reasons, features a white guy rap in what appears to be an ill-conceived tribute to the Beastie Boys.

We’ve got to resist just throwing hands in the air

We need to reform the pieces already there.

A chance to restore what’s great without any fear

Where common sense is common here.

The lines may not scan well, but truer words have never been spoken. Today’s judiciary is reaching far beyond its historical mandate. Indeed, the moment Democrats regain power in an election, the Court is almost certain to stand in the way of the entire agenda that the American people just chose. But we’ve been here before. Lincoln faced the threat of an overreaching Court during the Civil War. Roosevelt faced such a Court at the start of the New Deal. Our elected branches of government have taken on the judiciary before. We should do it again.

We should start not with the Supreme Court’s questionable rulings, legal theories, or even judges, but with its questionable ethics. One of the most telling examples of the Court’s accumulation of power is that it’s exempt from even the most basic transparency and conflict-of- interest requirements. The late Justice Scalia is an excellent example. He passed away during a hunting trip Cibolo Creek Ranch, in what Washington Post reporters Mark Berman and Christopher Ingraham described as “a 1,100 square foot, $700-a-night room overlooking a lake.” Who was paying? Not Scalia. It turned out that John Poindexter, a billionaire who was involved in at least one recent Supreme Court case via his companies, had footed the bill.

The only reason we know any of this is that Justice Scalia died in his hotel room. Judges on the Court are required to report who pays for their travel—but remarkably, they don’t have disclose how much those trips cost. We have no idea whether organizations are buying them a coach ticket on Spirit Airlines or flying them by private jet. For gifts of “hospitality,” defined broadly as food, lodging, or entertainment, justices don’t have report anything at all. Are Supreme Court justices ruling in favor of people who comp them hotel suites or loan them the Gulfstream for a weekend? We just don’t know.

Even more stunning, Supreme Court justices are exempt from the same ethics rules that apply to every other federal judge. In 2007 and 2008, for example, Justices Thomas and Scalia attended what the Post described as “private political meetings” run by conservative billionaires Charles and David Koch. Lower-court judges would be reprimanded for such blatantly partisan behavior, and required to recuse themselves if future cases presented conflicts of interest. But for some reason, the highest Court in the land has the lowest ethical standards. (That’s also why Brett Kavanaugh was never disciplined for his embarrassing confirmation-hearing outburst; had he not been confirmed, and remained an appeals court judge, he would have been in deep trouble.)

For the branch of government that most relies on its reputation for integrity, higher ethical requirements are a must. Yet given the partisan packing of today’s judiciary, standards alone are not enough. The courts are meant to be a check on unrestrained power. But like Lincoln and Roosevelt, the next progressive president will have to check the unrestrained power of the courts.

Whoever that president is, he or she should follow Lincoln’s rather than Roosevelt’s lead. Our goal should not be to replace Republican rubber stamps with Democratic ones, or create enormous numbers of new Court seats just to fill them with cronies. Instead, we should try to restore the Court’s necessary role in our democracy—as a neutral interpreter of the Constitution, a center of nonpartisan integrity, and a formidable yet restrained watchdog against abuses of power, especially by the states. Our goal, in other words, should not be to pack the courts for either party.

Our goal should be to protect the republic we love. To begin with, we can reduce the influence of wealthy partisan donors and the groups they fund. Right now, ads for or against judicial nominees are treated like issue advocacy, as though they’re public service announcements. Instead, we ought to treat these efforts as the political campaigns the Federalist Society’s Leonard Leo admits they are. Money given to support a judge’s confirmation shouldn’t be tax-deductible, and it should be fully disclosed.

The same is true of the organizations that pay for “amicus briefs.” These are the supplementary materials and arguments that go to the justices before they make their decisions. Today, I can fund a brief in a Supreme Court case without disclosing my identity to the public. In other words, not only are justices being influenced by wealthy donors— we don’t even know who those influencers are. Tougher disclosure rules would help the American people understand how politicized our Court has become, and decide for ourselves whether judges are acting independently.

A final way to depoliticize the Supreme Court would be to end lifetime tenure for its members. One of the reasons picking a justice carries so much political weight is that someone like Brett Kavanaugh, who was fifty-three when appointed, could easily serve another thirty-five years. As American life spans grow longer (at least among the kinds of people who serve on the Court), the political value of each pick will only grow.

It’s commonly believed that you can’t impose term limits for justices without changing the Constitution. But that might not be the case. Gabe Roth, founder of the nonpartisan group Fix the Court, points out that while Article III requires that judges remain on the federal bench “during good behavior,” it doesn’t say where they have to serve. Gabe thinks Congress could pass a law declaring that one Supreme Court justice will be nominated every two years; at the end of an eighteen-year term, he or she would remain on the federal bench, but be rotated down to a lower court, making way for a replacement. (Current justices would be grandfathered out of the new system.)

Finally, if and when we must confront an overreaching judiciary, we should do what Lincoln did with the Union at stake: reassert the power of the government’s elected branches.

In a showdown with the Court, Congress and the president have plenty of tools at their disposal. For one thing, there’s control over appellate jurisdiction. The reason we’ve granted the Court so much power, allowing it to examine or ignore any case it pleases, is that we trust it to behave in a nonpartisan manner. If the Court no longer holds up its end of the bargain, lawmakers should take some of its responsibility away.

We should also reestablish the principle that John Marshall, Stephen Field, and Earl Warren all held to. The Court should wield its power primarily as a check on states. As we’ve seen with recent court fights over everything from Obamacare to the Consumer Financial Protection Bureau, the Republican Party has refashioned the Court into a tool to undo the work of Congress and the executive branch, while leaving conservative state laws (and President Trump’s executive orders) intact. It may therefore be time to consider a rather harsh, but entirely constitutional, option: Congress could require a 6–3 or even a 7–2 majority to overturn a federal law.

Given the transformation of the courts over the past three decades, it’s also no surprise that politicians have begun talking about an option not seriously considered since FDR’s humiliation eighty-three years ago—adding seats to the bench. It is, however, a surprise that the politician most vocally in favor of expanding the judiciary is President Donald Trump.

“Would you like to add a few judges?” he asked a group of Republican senators, Mitch McConnell included, at a recent White House event. “How about adding another hundred or so?” The transcript of the president’s remarks noted several other instances of audience laughter. But this time no one laughed. The president’s proposal was no joke.

Nor is it just Donald Trump the only conservative who takes the idea of growing the courts quite seriously. In 2017, Steven G. Calabresi, a founding member of the Federalist Society, argued that Republicans should increase the total number of seats by a third. * Like FDR, Calabresi pitched his idea as rooted in logistics rather than partisanship. “As it happens,” he wrote in The National Review, “the judiciary desperately needs more federal judges.” As it also happened, Calabresi’s plan called for President Trump to fill all the new seats himself.

In fairness, Calabresi wasn’t wrong when he said the courts must add seats in order to function properly. Since the last major expansion of the judiciary, in 1978, America’s population has grown by nearly half. America’s caseload had grown with it. We need more judges to handle all that extra work.

But appointing these judges should be done carefully, with an eye toward restoring balance rather than seizing power. If Democrats are in charge when the Court is expanded, it would be fair to start by filling a number of seats to equal the number McConnell left open during Obama’s final two years. But after that, seats should be created, and filled, in a staggered and scheduled way that lasts beyond a single presidency. The American people should get to decide for themselves what kinds of judges Belle must face.

Finally, Democrats should follow Lincoln’s lead and expand the Supreme Court as well. As with the lower courts, there are practical reasons the Supreme Court is overdue for an expansion. We’re a more diverse country than ever, and Americans, especially young Americans, want their institutions to look like them. There simply aren’t enough Court seats to make that possible.

But the real reason for expanding the Court is not logistical. The way the nine current seats have been filled has devastated the Court’s integrity. Democrats shouldn’t try to add five seats, or ten seats, or twenty. But they should make sure that when a majority on the highest court issues a ruling, the justices who make up that majority were appointed in a consistent and ethical manner. Put simply, that means adding at least one seat to the Court, to make up for the seat Mitch McConnell held vacant.

Because of the specific cases of President Trump’s conduct, I believe we ought to go even further. The president is “Individual #1” in a criminal investigation related to his election. He both asked for and received Russian help during the campaign. Yet his two Supreme Court justices can serve for life despite the deeply questionable circumstances that led to their appointments. That’s a dangerous precedent. Whether or not Justices Gorsuch and Kavanaugh serve “under good behavior,” the bad behavior of the president who picked them colors every opinion they reach.

The least we can do is establish a new norm in America: if a judge is chosen by a president who committed crimes to win his office, and that judge chooses not to resign, we’ll add a new seat to counterbalance that judge’s impact on American life.

As both Lincoln and Roosevelt demonstrated, the sooner you confront judicial overreach, the less likely you are to have to confront it in the future. If the conservatives on the Roberts Court know that partisan behavior will cost them their majority, they’ll be more inclined to settle for restrained, nonpartisan (but still small-c conservative) rulings instead. Similarly, if future Mitch McConnells understand that packing the courts won’t work, they’ll be less inclined to try it in the first place.

I don’t want to understate the risks here. Any plan to unpack the courts and restore their independence is not guaranteed to succeed. But the situation we find ourselves in today—a selective veto point that nullifies Democratic mandates while enabling Republican ones—looks very similar to the worst-case scenario. We simply don’t have much to lose.

And Belle has an awful lot to gain. When we met her, she was sitting on the Capitol steps, presumably singing to a child, or practicing her own unique take on “Oh yay-us!” But we now know the truth. In our democracy today, it doesn’t matter if Belle would make life better for millions. It doesn’t matter if the American people love her. Her odds of navigating a minefield of newly added veto points are stunningly low. And the more ambitious Belle is—the more good she would do—the lower her odds have become.

We can change her path, and ours. Imagine if Belle started her journey in a House designed to give expression to the people’s will. Imagine if she then went to a Senate that genuinely deliberated her merits, ensuring that she was not only popular but wise. The influence industry would still affect her, but Possum Kingdom would no longer be shrouded in shadow, and Belle’s ultimate success or failure would be decided by people who work for us. Finally, if necessary, Belle would be reviewed by judges who defends the rights of all Americans, not just one party or ideological cause.

Exchanging our current path for a better one will take time and tremendous effort. But that effort is worth it. Back when I was a kid, which wasn’t that long ago, our legislative process was inspiring. It was something a child could sing about. Despite all that’s been broken in the last few decades, the way we make our laws is—like the way we elect our lawmakers—still up to us to decide. Can we reestablish a legislative process worthy of the greatest country on earth? Can we reassert the consent of the governed, passing laws meant to tackle our most urgent challenges and help all Americans build the kind of future we deserve?

To borrow a pair of phrases: Oh yay-us! We can.

[1] If you’re paying very close attention, you may remember Justice Clark as the judge whose last-minute change of heart proved decisive in Baker v. Carr and established One Person, One Vote. On that occasion at least, the dumb son of a bitch came through.

[2] We’ve actually encountered Olin once already. Remember when Nixon’s reelection campaign was hoovering up secret campaign cash, and donors brought their checks to a private game reserve? The reserve belonged to John Olin.

[3] Calabresi’s uncle, Guido Calabresi, was a pioneer of law and economics. Constitutional law is a seriously cloistered world.