Fixing the Dysfunctional Supreme Court

PoliticsHow to Save the Supreme Court From Itself | The David Frum Show

TL;DR

Professor Kate Shaw and David Frum discuss how the current Supreme Court undermines democracy through decisions on voting rights, gerrymandering, and corruption, proposing structural reforms including term limits, ethics codes, and shadow docket oversight.

Key Takeaways

1The Supreme Court has systematically dismantled voting rights protections and enabled partisan gerrymandering, undermining democratic participation and election integrity.
2Post-Watergate reforms addressing presidential power—including the Presidential Records Act and campaign finance laws—are constitutionally vulnerable under the current Court's expansive view of executive authority.
3Structural reforms like 18-year term limits, ethics codes binding justices to the same conduct rules as other federal judges, and supermajority voting requirements for striking down legislation have broad public support.
4The shadow docket enables the Court to intervene in high-stakes cases without explanation or full briefing, recently used dozens of times to favor Trump administration immigration and military policies.
5Democratic voters and politicians have failed to prioritize the Supreme Court as Republicans have, ceding strategic advantage in judicial nominations and confirmation battles.
6Court expansion, while constitutionally permissible, risks destroying the institutional legitimacy and mythmaking that enables the Court's authority, as seen in Mexico's authoritarian court reform.
7Individual accomplishment has gradually replaced institutional authority in American culture, reflected in how younger people now say 'I graduated' rather than 'I graduated from,' signaling a shift toward personal agency.

Notable Quotes

“What America needs is government by grown-ups. Government that rejects conspiracy theories, that tries to solve real world problems, that tries to inspire people rather than animate their prejudices and fears.”
— David Frum

“This Supreme Court, which is controlled right now by Republican appointees, is functioning in a way that is honestly kind of antithetical to a well functioning constitutional democracy.”
— Kate Shaw

“The court has basically rendered the voting rights act a dead letter.”
— Kate Shaw

“There's not really anything stopping the scenario you're describing from happening right now. They can leave voluntarily if they want and take up a lucrative post in the private sector.”
— Kate Shaw

Chapters

1. Opening Remarks on Party Radicalism

Frum contrasts his 2013 frustration with Tea Party Republicanism to current Democratic primary extremism, arguing Americans want sensible governance from the middle rather than conspiracy theories and radical positions from either party.

2. The Supreme Court's Democratic Dysfunction

Shaw explains how the Court systematically undermines democracy through dismantling the Voting Rights Act, enabling partisan gerrymandering, unleashing unlimited campaign spending, and narrowing anti-corruption statutes.

3. Presidential Power and Immunity

Discussion of the Court's expansion of presidential immunity in Trump v. United States and its potential to invalidate post-Watergate reforms like the Presidential Records Act, leaving Congress unable to check executive overreach.

4. The Shadow Docket Problem

Shaw details how the Court has increasingly used emergency orders to intervene in high-stakes cases without full briefing or written explanation, favoring Trump administration actions on immigration, military service, and rendition.

5. Structural Reform Proposals

Shaw outlines reforms including 18-year term limits (structured to avoid constitutional amendment), ethics codes binding justices to federal conduct rules, supermajority voting to strike down legislation, and inspector general oversight.

6. Concerns About Court Expansion

Frum warns that expanding the Court risks destroying its legitimacy and institutional mythology, citing Mexico's authoritarian court restructuring as a cautionary tale of how politicization can render courts powerless.

7. Democratic Party's Judicial Failure

Frum argues Democratic voters and politicians have largely ignored the Supreme Court as a strategic priority, unlike Republicans, ceding advantage in nominations and creating institutional imbalance.

8. What to Preserve in the Court

Shaw emphasizes the Court's limited but important role protecting underprotected rights and ensuring democracy functions, warning that loss of institutional legitimacy could eliminate a crucial check on executive and legislative overreach.

9. The Word 'Graduate' and American Culture

Frum traces linguistic evolution from 'graduated from' to 'I graduated,' reflecting America's shift toward individualism and personal agency over institutional authority, with both positive and negative cultural implications.

Key People & Entities

Kate Shaw: Professor of law at University of Pennsylvania Law School, co-host of legal podcast Strict Scrutiny, former Obama White House counsel, Supreme Court clerk for Justice John Paul Stevens
David Frum: Staff writer at The Atlantic, former Republican, host of The David Frum Show discussing politics and institutional reform
Donald Trump: Former and current U.S. President; central to discussion of presidential immunity, abuse of power statutes, and shadow docket interventions
Justice John Paul Stevens: Former Supreme Court justice; Shaw served as his clerk
Samuel Alito: Current Supreme Court justice; gave 2023 Wall Street Journal interview claiming Congress lacks power to regulate the Court
FDR (Franklin D. Roosevelt): Former president whose threat to expand the Court to 15 justices reportedly influenced the Court to uphold New Deal legislation
Bob McDonnell: Former Virginia governor whose corruption conviction was overturned by the Supreme Court in a case limiting anti-corruption prosecutions
Daphna Renan and Niko Bowie: Harvard Law scholars who proposed supermajority requirements for striking down legislation

Glossary

Voting Rights Act (VRA): Federal legislation enacted in 1965 that prohibits racial discrimination in voting; the Court has struck down major provisions in Shelby County (2013), Brnovich, and Louisiana v. Cade cases.
Partisan gerrymandering: The practice of redrawing electoral districts to advantage one political party; the Court declined federal review in Rucho (2019) but elevated state legislatures' right to engage in this practice in Kelly.
Shadow docket: Emergency appeals decided by the Supreme Court without full briefing, oral arguments, or published opinions explaining the reasoning; used increasingly by Trump administration since 2025.
Judicial review: The power of courts to declare laws or government actions unconstitutional; established in Marbury v. Madison (1803) but sparingly used historically.
Term limits: Proposed reform limiting justices to 18-year terms after which they become senior justices, hearing cases only by designation or when recusals occur.
Supermajority requirement: Proposed reform requiring six, seven, or eight justices (rather than a simple five-justice majority) to strike down an act of Congress.
Presidential Records Act: 1978 legislation establishing that presidential papers are public property held by the National Archives, not personal property of the president.
Recusal: A justice's decision to withdraw from a case due to conflict of interest or appearance of bias; the Court has no binding ethics code governing when recusal is required.

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