On April 21, the Brandeis Democrats hosted “The Supreme Court: Legitimacy and the Future,” a panel discussion featuring Prof. Daniel Breen (LGLS) and Prof. Jeffrey Lenowitz (POL). The panel brought the two professors together to discuss “all things Supreme Court,” according to the Brandeis Democrats’ weekly email. 

Adah Anderson ’24, treasurer of the club, and Noah Risley ’24, the communications director, organized the panel as their First Year Leadership Initiative project. FLIP gives first-years the opportunity to join the Brandeis Democrats’ executive board, and introduces them to leadership responsibilities within the club. 

Club President Rachel Landis ’23 introduced Breen and Lenowitz before giving the floor to Anderson and Risley, who moderated the panel. Breen, a senior lecturer in Legal Studies, has a law degree in addition to his Ph.D. Lenowitz is the Meyer and W. Walter Jaffe Assistant Professor of Politics. 

The first question was if Supreme Court justices should be subjected to stricter laws than average Americans. Breen said they should be. “It’s silly and disgraceful that Justice Alito can give big speeches to raise money for his friends,” he said, “The APA (Administrative Procedure Act) recommends that if a justice speaks at an ideological organization like the Claremont Center, there shouldn’t be fundraising involved.”

Lenowitz agreed, adding that justices have very little accountability for their actions. “The only accountability for the Supreme Court is their own desire to be popular and a conception about their legacy in the law review community, which itself is polarized,” he said. 

The conversation then shifted to judicial reforms and their efficacy. One such reform that is often discussed would be to have lifetime appointments to the federal judiciary, but not all of that time would be spent serving on the Supreme Court. Yet, “even if judges were to go back to the federal bench after being on the Supreme Court … I don’t think it would make them rule differently,” Lenowitz said.  

Instead, Breen suggested that justices be appointed on 18-year terms, rather than life terms, giving every president a fair chance at appointing justices during their time in office. “That’s plenty of time to make a legacy,” Breen added. He explained that on average, justices serve a 16 year term before retiring, so “[18 years] would be generous.” 

Lenowitz explained another reform, proposed by a Yale Law student, that would repeal the 1925 Judiciary Act, which gave Supreme Court justices the ability to choose which cases they hear. “This agency-setting power heightens [the justices'] ability to make policy,” Lenowitz said, arguing that a panel of federal judges should decide the docket instead. 

One of the more “wild reforms," Lenowitz added, would involve dismantling and reconstructing the current Court system in order to make necessary revisions. He explained that there would be “a revolving group of federal justices that serve on the Supreme Court for a few years.” 

The panelists also discussed the current Supreme Court justices and the legacy they will leave. For instance, in a recent opinion, Chief Justice John Roberts argued that having to travel out of state to access an abortion is not an “undue burden,” the standard for ruling whether an abortion restriction is legal. “Roberts is gifted at crafting opinions leftist newspapers celebrate, but his opinions are quite vicious and scary,” Lenowitz said, “He’s just a smarter conservative. Justices are savvy creatures and they don’t need to overturn Roe v. Wade if they can accomplish it more quietly.” 

Speaking about Justice Neil Gorsuch, Lenowitz said, “He’s a wild card — his ideological purity leads him to support some strange things for a conservative, like supporting the Environmental Protection Agency’s power against Exxon Mobil.” Breen agreed, explaining, “Gorsuch is consistent with his ideological application, and sometimes that leads him to places progressives applaud.”

When asked if Justice Steven Breyer, who has served on the Court for 27 years, should retire, both Breen and Lenowitz said yes. “Breyer thinks he uniquely can do this job and that’s sad,” Lenowitz said. Lenowitz asked the audience rhetorically, “who would abdicate that kind of fame and power?”

Before opening the panel up to audience questions, Risley asked Breen and Lenowitz what they wished more people knew about the Supreme Court. Lenowitz pointed to the fact that the average American doesn’t know the Court chooses the cases it hears. “That fact pokes holes in the myth and ceremony that haunts people’s minds when they think about the Supreme Court,” Lenowitz said. Breen added, “I wish more people would read court opinions. They’re educational, and sometimes they can be a lot of fun.”