Sarah and David break down the Supreme Court’s 6-3 interim docket decision letting President Donald Trump’s mail-in ballot executive order proceed for now – and discuss why nearly every headline about it was either wrong or wildly misleading. They also revisit the White House ballroom fight, making the case that the judiciary is a poor forum for resolving fast-moving political disputes on a short timeline. Then Rep. Jake Auchincloss, a Massachusetts Democrat and former Marine, joins for Advisory Opinions’ first-ever conversation with a sitting member of Congress, and the three attempt to diagnose why the institution has stopped doing its Article I job – and Auchincloss spars with Sarah over expanding the Supreme Court.
Agenda
- [2:55] Bad criming
- [4:59] Even if a judge is in their courtroom, they’re not always acting as a judge
- [8:36] All the headlines are wrong (except ours)
- [17:06] Who wrote the per curiam?
- [29:53] Reforms to the Supreme Court
- [54:59] Are your kids violent?
Episode Takeaways
- Twitter got it right (for once): The Court’s 6-3 per curiam allowed Trump’s mail-in ballot executive order to proceed. David called out the “extremely misleading early reporting” that followed – all nine justices agreed the states hadn’t yet suffered a concrete injury. Justice Sonia Sotomayor’s dissent, joined by Justice Elena Kagan, didn’t object to the “doesn’t reach the merits” framing – instead, she wrote she’d let the states’ challenge proceed rather than wait for a final rule. Sarah’s POV: An executive order by itself won’t confer standing, regardless of which party is in the White House after Trump.
- An “interim docket for the interim docket”: With the ballroom case following the same pattern – Chief Justice Roberts presumably issuing an administrative stay to buy the full Court more time to write – David argued the two cases back-to-back expose the design flaw in handing courts cases that are “deeply wrapped in contemporary politics” and need quick resolutions.
- Congress’ own diagnosis: Auchincloss agreed with the show – Congress isn’t fulfilling its role as the Framers’ “prime bulwark against tyranny,” whether from an out-of-control executive or the mob. He pointed to three structural culprits: gerrymandering combined with partisan primaries pulling members to the ends of the political spectrum, social media rewarding performance over legislating, and entrenched committee leadership – he wants term limits there too. Asked what Congress should prioritize clawing back from the executive, his order was war powers first, the power of the purse second, and reining in independent agencies (paired with a legislative answer to the end of Chevron) third.
- Ditch the district, not just the gerrymander: Rather than betting everything on banning partisan gerrymandering, Auchincloss said he’s increasingly sympathetic to multi-member districts, where several representatives are elected proportionally from one larger district instead of a single winner-take-all seat. David floated pairing the idea with expanding the size of the House itself. Auchincloss was open to it but warned that adding seats without fixing the underlying incentives wouldn’t accomplish much on its own.
- A split verdict on court reform: Auchincloss co-sponsors an 18-year Supreme Court term-limit bill that would cycle justices to senior status, backs a mandatory ethics code, and says nine justices “is not sacrosanct” – though he wants any change to the Court’s size handled carefully so it doesn’t become a partisan “ping-pong game.” Sarah pushed back, particularly on expanding the Court: Her worry is that the underlying justification – “we don’t like the decisions of the Supreme Court, so we’re going to add justices” – would prove impossible to contain once a future trifecta reached for the same tool, especially since doing so would likely require killing the filibuster. David’s preferred fix is a constitutional amendment locking the Court at nine justices while still adding the 18-year term limit, so no single election ever produces a sudden takeover.