2016 hasn’t been a great year for the Supreme Court. February saw the passing of Justice Scalia, whose self-professed mission was to interpret the law using a principled, apolitical methodology that respected the role of an independent judiciary in a democracy. And when President Obama attempted to replace Justice Scalia, Republican Senators dishonored Justice Scalia’s judicial philosophy. The Senate Judiciary Committee cynically refused to even allow a vote on Judge Merrick Garland, a well-qualified, moderate nominee, so that Republican-appointees could continue to constitute a majority of the Supreme Court. With a new President-elect who displays an apparent lack of knowledge of constitutional law, the Supreme Court’s legitimacy as a nonpartisan institution that safeguards our constitutional rights is now more important than ever.
One bright spot in this bleak SCOTUS year is a new podcast that covers the Court expertly and candidly. Ian Samuel and Dan Epps, both former Supreme Court clerks, recently launched First Mondays. This podcast, inter alia, reviews grants of certiorari, discusses oral arguments, and makes predictions about both the outcomes of cases and which Justice will be assigned to author the majority opinion for each case. Samuel and Epps present both sides of each case charitably, and allow the listener to understand the import of the outcome of a case and the nuances of the doctrine. They share nuggets about litigant strategy and provide tips about the Justices’ thinking while never allowing the listener to forget that legal reasoning matters. They host guests who are experts in their fields and make areas of law as abstruse as Johnson retroactivity and bankruptcy settlements scintillating. They banter about securities fraud.
Samuel, a Climenko Fellow at Harvard Law School, and Epps, an Associate Professor at Washington University Law School and former Climenko Fellow, often have different takes on cases, and both always maintain a reasonable position. One of my favorite segments is their aftershow, where they dive into current events somewhat divorced from pending cases. Last week’s aftershow featured a political science article that predicts (with not stellar accuracy) the outcome of a Supreme Court case based on the pitch of the Justices during oral argument. While highlighting the contributions of the paper, Samuel noted that political scientists, in their zeal to predict and track case outcomes over large data sets, cannot code for what is most important to the law – the reasoning of cases. He summarized the chasm between the approach of empirical political science about the Court and the legal approach by stating that “political scientists and lawyers often talk past each other because they think that our focus on the internal legal doctrinal questions is touchingly naive, and we think that their focus on empirical models that can actually be statistically validated … is completely irrelevant.”
First Mondays gives listeners both real talk – addressing the ideological import of cases – and smart talk about the law. Although public engagement and understanding of the judiciary is critical to maintaining its legitimacy, the public’s view of Supreme Court cases has become oversimplified due to both the media and our politicians using cases as shorthand for the political results of those cases. A mal-informed public undermines the Supreme Court’s function to serve as an independent body that gets cases “right.” In last week’s episode, Epps mentioned that, especially in cases without a political valence, Justice Scalia served as a legitimizing force, pressing the Court to make sure the Justices really understood the law, respected the text, and got the right answer. I see First Mondays as another legitimizing force, and I am grateful for its insights and entertainment. I mostly listen to First Mondays while exercising, and I actually look forward to the elliptical machine (I sometimes have to replay parts a few times to make sure my exercise brain followed along). I never miss an episode.
Full disclosure- I know both of these guys from when I was a Climenko Fellow. They are easily as hilarious and incisive in real life as they are on the show. This week’s episode, which I will begin listening to today, offers an introduction for nonexperts and nonlawyers on how the Supreme Court works (but I’m sure will have something for everyone).