Law, Culture, Politics,

An Interview with David Orentlicher, Professor of Law at University of Nevada, Las Vegas


“All of us should be represented. Not just half the people at one time and half the people at another time, all the people all the time. So how do we redesign the system to make sure that's what really happens?”

By Madison Breshears
January 18, 2019

David Orentlicher is a professor of law at UNLV, and a former Democratic member of the Indiana House of Representatives. He holds a degree in medicine from Harvard Medical School and a law degree from Harvard Law School. His areas of expertise include health law and Constitutional law, his scholarship on which has been cited by the U.S. Supreme Court. A link to his paper discussed in this interview may be accessed here. A link to purchase his 2013 book Two Presidents are Better than One: The Case for a Bipartisan Executive Branch may be accessed here.

In your piece in the Southern California Law Review you write that “reform to depoliticize the [Supreme] court is essential” (30). You suggest a couple of methods to get this done, but first I’d like to ask you to explain why you think the current situation in the Supreme Court is so problematic?

The fundamental feature of our judicial system is that people who go to court have to have a neutral court that doesn't address their problem or concern in a biased way. We don't want judges to have a financial stake in the outcome of the case, we don't want them to have some personal bias against one of the litigants or a personal connection with one of the litigants, a friend or family member, and we don't want them to have any ideological bias. If they are conservative and you have a more liberal position, you're not going to get a fair shot. Similarly if they’re a liberal court and you take a conservative position, you're not going to get a fair shot. We know that judges decide based on their philosophical bias and you don't really get a neutral court, an objective court, when it's deciding your case.

You argue that elections, presidential or otherwise, shouldn’t necessarily have consequences for the judicial branch. The notion of a totally apolitical court obviously sounds really appealing to me and I’m sure it sound appealing to a lot of people, but when every branch is made up of human beings who invariably have their own subjective beliefs and biases, what would you say to people who might call this proposition unrealistic, or idealistic?

Well, that's the position the court has taken, that anybody who has the training and experience that you'd want in a judge, especially a Supreme Court justice, is going to have developed some kind of ideological bias. We are all either one side or the other, and that's inevitable. We just have to accept it. That's true about any one individual. It's not realistic to say that we are going to find somebody who doesn't come to their job with a view, with preferences. If the issue is abortion, they're going to be sympathetic to abortion rights or not. That's true. But just because it's true about each individual judge or justice doesn't mean it has to be true about the court as a whole. We can make sure that we bring overall ideological balance to the court. We can make sure overall its a neutral court even if we have to accept biases for individual judges. As I say in the article, you can make sure that any decision has the support of all the justices, so both conservative and liberal justices agree. Then you neutralize the biases.

Can you go over some of your suggested measures, I know that's one of them, the super majority. You give a couple in your piece though. Can you give us an overview of the ones you think would be most effective?

There are three models that I talked about. One is that, you can try to identify those that are more moderate, rather than those on the extreme of either end. And so, in Germany and some other countries you have to get approval of a super majority of legislators, for each nomination. If we did that here, if we said you needed a 2/3 vote in the senate, then you would require support from both Democrats and Republicans that would make for more moderate justices, rather than strongly conservative or strongly liberal. The other way is that we say ok, we have a mixture of conservative and liberal judges or justices but they all have to agree, so that will ensure that we have compromises and decisions that reflect both sides of the philosophical spectrum. The third is to say, we have an even number of conservative and liberal judges or justices. In our country we would say Democrats can nominate half and Republicans can nominate the other half, we will just have an even balance. Since it's an even number you'll have to have support from both sides to get a majority. What I like about requiring consensus, why it makes the most sense is, one of the disadvantages of looking for just moderate judges is that you don't get a wide array of perspectives and it’s good to have a wide range of viewpoints. You want people bringing diverse perspectives. We know that the researchers who study decision making have found that we get better decisions when we have a diversity of perspectives involved in the decision making. The problem with trying to get an even number of conservatives and liberals is that some people change their perspectives over time. Somebody who started out a conservative might become more liberal over time, this happened with Gary Blackman. Or you might have someone who starts out liberal who becomes more conservative over time. It’s hard to be confident you'll always have that even balance. If you just say they all have to agree then you know you are always going to have a mix of conservative and liberals. Requiring them to come to a common decision ensures you'll have both sides represented. The other thing, getting back to it being too idealistic—the answer is we don't even have to look to other countries for this approach, we can just look to the jury. The tradition jury is 12 people who bring a variety of perspectives and we ask them to agree. And they do, almost all the time. We do get hung juries, but it doesn't happen very often, maybe about six percent over all. People understand that these are the rules of the game, to reach a decision you have to reach consensus and once they understand that those are the rules of the game they will figure out how to make a decision. If you tell them to make majority decisions, they'll make majority decision, they won't make common ground. If they understand that the only way to make a decision is by making a compromise they'll figure out how to do so, just as juries do.

That's an interesting point. You mention the framers at one point, you write “...the framers did not anticipate the extent to which political parties would form dominant factions that could gain command of government power… the framers did not anticipate how partisan ties between presidents and members of congress would limit the legislative branch’s checking and balancing of the executive branch. Similarly, the framers did not expect—nor did they want—a Supreme Court that would reflect the views of only one side of the ideological spectrum” (33).

You make a lot of claims about the expectations and foresight of the founders. What makes you jump to the idea that the framers didn’t foresee the current state of affairs? And, is it possible that, instead, the framers might have foreseen the current state, but merely did what they could or what was possible—doing the most to prevent corruption without impeding too harshly other elements of the democratic system? In other words, a best of the worst situation. What makes you confident that the founders would have been appalled by the current state of our judicial branch?

Good question. They certainly knew about the risks that political parties could bring, they knew from England. They had plenty of experience with party politics, and they hated what they saw from England. They knew that factions could arise, so they thought they designed a system that would protect against it through checks and balances and by having large constituencies. If everybody gets to vote for the president the assumption was that if there was a faction—if you had a tea party, for example, a tea party could win a small homogenous area. But a tea party would have to win support from a lot of people and they wouldn't be able to. They worried about it and they thought they'd protected against it, and they were wrong. So that's why I think, if you look at what they were trying to accomplish, we should say they were right in what they were trying to accomplish—they didn't want either party to be able to dominate, they wanted policies to emerge from deliberation among people from a wide range of perspectives, who would reach common ground. How can we redesign their system to get there? I don't know. Specifically, with the judiciary. When you read the Federalist Papers, you look at the appointment process—the appointment process they had for judges as well as executive branch officials like cabinet members, they had a single system. What they say, what Hamilton wrote in the Federalist Papers was that this was a system that will ensure that nominations aren't based on ties—familial, ties to friends, other kinds of what he called “partialities.” We would make sure we get people who would represent all of us, not just some of us. If that's what the goal was, and I think it's the right goal, all of us should be represented. Not just half the people at one time and half the people at another time, all the people all the time. So how do we redesign the system to make sure that's what really happens?

Your call for ideological balance extends beyond the Supreme Court, you wrote a book called “Two Presidents are Better than One: The Case for a Bipartisan Executive Branch.” I’ve attached a link to the book in the introduction to this interview. Of course, the idea of collaborative bipartisan government is very attractive to anyone that's been paying attention to Washington, the grid lock is so exacerbated amidst this government shutdown. But at what point does the impartiality you're advocating for become a perversion of popular will? For example, what would you say to someone of a more populist bent, someone with purist views of democracy, who might say that manufacturing consensus impedes the will of the majority?

Well you know, you can say we should just look for the smallest majority and what they want, or we can say we should try to maximize our majority. This is more of a European view of a consensual model of democracy where the goal is to find policies that satisfy the largest majority not the smallest majority. You can't deduce the right answer from theory, but I can tell u that if the goal of democracy is to make sure we all have a voice in our government, then it seems to me that you want to try to makes sure that we have policies that reflect the views of as many people as possible.There are also consequentialist arguments. What we get with the system we have now, where one side gets 52 percent of the votes and 100 percent of the power, we get the kind of hyper-polarization and high partisan conflict, and that's exactly what you'd expect when you have a winner-take-all competition. There’s a great book called which talks about this. Whenever you have high stakes winner-takes-all competition you get excessive levels of conflict and people will do whatever it takes to win because there's so much at stake. Better to have a system that encourages collaboration rather than conflict. We see the same idea from game theory, the kind of tit-for-tat behavior you get—Pelosi says you can't have the State of the Union, Trump says you can't have a plane. We get this escalation, they each try to hit back. As game theory teaches us, if you want people to work together and look for win-win solutions rather than zero-sum game solutions then you have to give them the right incentives. We don't do that now. I think we're better overall in a system where everyone has a voice, that's a fair system, you get better results because we know that no one side has a monopoly on the truth. If both sides have a say, we will get overall better results in terms of successful policy, and we take away the incentive to fight and have the high level of partisan conflict that are so detrimental and destructive.

This will be my last question. In your conclusion, you express concern about a Gallup poll that shows that only 37% of Americans express confidence in the Supreme Court. Why is the public’s perception of the Supreme Court important?

Well, for a few reasons. One is that we give the Supreme Court the authority to decide the law and, especially, the meaning of the Constitution. It's important that, once they have their say, that people accept the decision. Whether or not it's not how you would have decided, our system says the Supreme Court is the ultimate authority. You can't expect people to respect an ultimate authority if it doesn't act in a fair way or respect basic principles of justice and due process. So that's critical, that we have a court that operates in a way that treats everyone fairly. A big part of the idea of due process is that you want people to accept a judgement. To do that, you have to give them their day in court, make sure that they are heard, so even if they lose, they can say that they got to speak and can say that “they heard my argument.” But if you don't have a voice and you don't get a chance to make your argument, then it's hard to feel like a choice was made in a fair way. Public trust is critical to the ability to give authority to the Supreme Court and have it be respected. If the perception is that the Supreme Court is not deciding in a fair way, it's easy for elected officials and candidates to disparage the Supreme Court and say, ‘if it's not fair why should we accept their judgement?’ If we call into question those decisions then it’s chaos—we have to have rules that people will abide by. If you don't trust the rule-maker, then you can't play the game.