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Leonard Leo | Is The Supreme Court On The Right Track?

With the Supreme Court issu­ing some of its biggest-ever deci­sions this year, Leonard Leo is the leader to talk to. He’s played a cen­tral role in trans­form­ing the Supreme Court and the entire fed­er­al judi­cia­ry, with a focus on pro­tect­ing the Con­sti­tu­tion and human dig­ni­ty. Let’s hear what Leonard believes about the cur­rent jus­tices and the direc­tion they’re taking.

Key Moments

  • 02:20 What is the Federalist Society?
  • 05:28 What sparked your interest in this topic?
  • 09:40 Why were the Founders so intentional about separating powers?
  • 14:15 What overreaches brought your attention to the Supreme Court?
  • 21:35 What can Congress do to keep the Supreme Court within bounds?
  • 26:40 Originalism or Living Constitution?
  • 30:50 Why and how could a jurist go beyond their authority?
  • 36:30 How does the Constitution contend with the human condition?
  • 39:20 How can we improve civic education?
  • 43:40 How can we enforcing barriers between the branches?
Show Full Transcript

Full Episode Transcript

- [RDV] We believe and have always believed in this coun­try that man was cre­at­ed in the image of God, that he was giv­en tal­ents and respon­si­bil­i­ties and was instruct­ed to use them to make this world a bet­ter place in which to live. And you see, this is the real­ly great thing of America.

- It’s time to dis­cov­er what binds us togeth­er and find­ing it has the pow­er to trans­form our world. That’s what I believe. How about you? Well, wel­come back to Believe! every­body. Hel­lo and wel­come. We’re glad to have you with us. Today, we have a fas­ci­nat­ing top­ic and a won­der­ful guest to help us think through it a lit­tle bit more dif­fer­ent­ly. We’re ask­ing the ques­tion today is the Supreme Court on the right track or even more gen­er­al­ly, the judi­cial branch. We have a unique gov­ern­ment struc­ture. And very impor­tant for those of us, as Amer­i­cans, it’s impor­tant for us to under­stand how that struc­ture works and we may have mem­o­ries from our his­to­ry or from being young of how our gov­ern­ment works, but today’s world, lots of things get cov­ered dif­fer­ent ways and there’s dif­fer­ent expec­ta­tions that peo­ple have of our insti­tu­tions of gov­ern­ment. And so we have an incred­i­ble friend, a gen­tle­man named Leonard Leo, who is with us here today. Leonard is the co-chair of the Fed­er­al­ist Soci­ety and Leonard has worked with that orga­ni­za­tion for over 25 years, has worked in a vari­ety of gov­ern­ment capac­i­ties with Pres­i­dent Trump, with Pres­i­dent Bush, and in many oth­er dif­fer­ent capac­i­ties. So Leonard, wel­come to Believe!. We’re thrilled to have you here.

- Thank you, it’s a plea­sure to be with you.

- Well Leonard, you know more than any­body about our judi­cial struc­ture and the Supreme Court, but why don’t you take a lit­tle bit first, tell us a lit­tle bit about the Fed­er­al­ist Soci­ety, tell us a lit­tle bit about your per­son­al inter­est in this space. Our con­ver­sa­tions and with our audi­ence is all about help­ing peo­ple learn about some­thing so they can get to a place where they believe some­thing, where they feel they’ve learned some­thing, can have a belief sys­tem and a belief struc­ture. Help us under­stand how you got engaged with this top­ic per­son­al­ly and some of the work that you’ve done and the work of the Fed­er­al­ist Society.

- Sure. Well, I first became inter­est­ed in the courts and in the Con­sti­tu­tion well before law school. But real­ly what moti­vat­ed me to become so active­ly involved in help­ing to trans­form the judi­cia­ry and to become involved in the cause for our Con­sti­tu­tion was the idea that basi­cal­ly respect­ing and enforc­ing the lim­i­ta­tions of gov­ern­ment con­tained in our Con­sti­tu­tion was real­ly, in my view, the very best way to pre­serve the dig­ni­ty and worth of all peo­ple. You can have a long list of rights, and as you know, the Sovi­et Union did, it had over 100 pro­vi­sions that sup­pos­ed­ly guar­an­teed rights, but with­out a struc­ture that lim­its, con­strains, and defines the pow­er of the gov­ern­ment, those rights are mere parch­ment bar­ri­ers. They don’t real­ly mean any­thing. You have to have struc­tur­al lim­i­ta­tions on gov­ern­ment pow­er that are enforce­able. And so this con­cern about the dig­ni­ty and worth of peo­ple and the way in which the lim­its on gov­ern­ment pow­er con­tained in our Con­sti­tu­tion real­ly were the first best defense of that dig­ni­ty and worth of peo­ple was what got me involved in the law and in the Con­sti­tu­tion and in the issue of the courts. And that’s why I, many years back, got involved with the Fed­er­al­ist Soci­ety, which was found­ed in 1982, real­ly as a way of try­ing to intro­duce the Amer­i­can peo­ple, and in par­tic­u­lar, the legal cul­ture to the idea that we had to return to our Con­sti­tu­tion as it was orig­i­nal­ly writ­ten, we had to return to the idea that lim­its on gov­ern­ment pow­er were the way to pro­tect free­dom, dig­ni­ty, and worth, per­son­al respon­si­bil­i­ty. And it was all about mak­ing sure that the courts did its job, inter­pret­ed what was in the Con­sti­tu­tion, but did­n’t make things up that weren’t in it, that soci­ety was all about mak­ing sure that the oth­er branch­es of our gov­ern­ment respect­ed their bound­aries and that there was a healthy role for the states in our fed­er­al sys­tem of gov­ern­ment. And all of this again, was meant to ensure that gov­ern­ment did­n’t tram­ple on the dig­ni­ty and worth of peo­ple and giv­ing peo­ple the oppor­tu­ni­ty to pur­sue the call­ings that they had and the oppor­tu­ni­ties that they had in life.

- Wow. Well you have laid out so many impor­tant ele­ments just as you go through that a lit­tle bit and you talk about your inter­est in that. Was there any­thing that par­tic­u­lar­ly hap­pened in your life? Did you just observe or did you see some­thing that, was there a spark at some point? And I’m, again, try­ing to com­pare to our lis­ten­ers, was there a spark of some­thing in their life that gets them intrigued in this top­ic? Was there any­thing like that or did you just observe it and always have that sort of passion?

- Well, I think there were two things. One was prob­a­bly very per­son­al and the oth­er one was more intel­lec­tu­al or aca­d­e­m­ic. On the per­son­al side, my dad passed away when I was very young and so for a peri­od of time,

- I’m sorry.

- my grand­fa­ther raised me. He was an immi­grant, came from from Italy, and he was real­ly the epit­o­me of the Amer­i­can dream, right? He had this oppor­tu­ni­ty here that he would­n’t have had prob­a­bly any­where else in the world. This was per­son who came here at 14 years old, did­n’t know Eng­lish, did­n’t know how to read, end­ed up becom­ing a senior exec­u­tive at Brooks Broth­ers lat­er in his life. And real­ly, it was through the sweat of his brow and it was the free­dom and oppor­tu­ni­ty that our coun­try gave him that I think real­ly helped him become who he was. And of course his own work eth­ic and his sense of humil­i­ty and deter­mi­na­tion, but there’s no ques­tion that the oppor­tu­ni­ties that he was able to avail him­self of here because of our free­dom and our oppor­tu­ni­ty, which is guar­an­teed by our Con­sti­tu­tion, was very impor­tant. And that stuck with me as a child. And quite often, he talked about how great our coun­try was and what he wit­nessed here as some­one who immi­grat­ed from South­ern Europe. So that was kind of the per­son­al expe­ri­ence and obvi­ous­ly that formed me at an ear­ly age. And then when I went to col­lege, I went to Cor­nell Uni­ver­si­ty and I stud­ied under a num­ber of very dis­tin­guished gov­ern­ment polit­i­cal sci­ence pro­fes­sors who were trained in what we call the Strauss­ian school. That was a philo­soph­i­cal school that was very much embed­ded in the ideals of the Amer­i­can found­ing and our Con­sti­tu­tion and the West­ern cul­tur­al tra­di­tion. And I began to become intro­duced while in col­lege to what was hap­pen­ing at the Supreme Court. We had a court that was not inter­pret­ing the Con­sti­tu­tion accord­ing to its words and its orig­i­nal mean­ing. We had insti­tu­tions of gov­ern­ment that were not respect­ing their bound­aries. And it became appar­ent to me that this Con­sti­tu­tion that pro­tect­ed free­dom and oppor­tu­ni­ty and human dig­ni­ty through lim­its on gov­ern­ment pow­er real­ly was­n’t hav­ing the kind of effect and impact that it was sup­posed to have. And that a lot of that prob­lem fell at the feet of the Supreme Court and a fed­er­al judi­cia­ry that was­n’t doing its job the way it was sup­posed to do. And so that inspired me to think seri­ous­ly about find­ing a way to become involved in the law and in the legal culture.

- Wow, that’s fas­ci­nat­ing. Thank you for shar­ing that sto­ry about your grand­fa­ther. You know, it’s per­son­al. This is, and I’ve had won­der­ful con­ver­sa­tions with many who have that sto­ry of the Amer­i­can dream, of peo­ple liv­ing it, and we’ve asked in some pre­vi­ous episodes is the Amer­i­can dream still alive and well today? And you’re at the fore­front of pro­tect­ing it and mak­ing sure it still is, or cer­tain­ly that oppor­tu­ni­ty for it is. Can we dive down a lit­tle bit, you’ve talked about this idea of the lim­its on the size or the role and the scope of gov­ern­ment and the struc­ture in there. And many times peo­ple will talk about three branch­es of gov­ern­ment, but help us, can you help us under­stand the real impor­tance and why our founders took such time to sep­a­rate pow­ers and even with it, the idea of fed­er­al­ism, of the dif­fer­ence between the states and the fed­er­al gov­ern­ment. But it help us under­stand so we can have a good back­ground of why that was put in the first place and then we can con­nect it to why it’s so impor­tant for us still today.

- Well real­ly, the Con­sti­tu­tion is just ground­ed in an under­stand­ing of human nature. And the idea is that if you don’t con­strain pow­er and author­i­ty, if you don’t place lim­its on the dis­cre­tion that some­one can exer­cise, there will be an enor­mous temp­ta­tion for peo­ple in lead­er­ship or peo­ple in pow­er to abuse their author­i­ty, some­times for evil or bad rea­sons, or for some some­times because they think they’re doing good. But the point is that they will nat­u­ral­ly be tempt­ed to extend their author­i­ty beyond what is per­mis­si­ble and beyond what is appro­pri­ate if what you’re try­ing to do is give peo­ple the space they need to be who they are sup­posed to be and to take up the call­ings that they may have in life. And so when you look at the way the founders struc­tured our gov­ern­ment, it was with this under­stand­ing in mind that if you put the pow­er of leg­is­lat­ing and the pow­er of enforc­ing the law and the pow­er of judg­ing in one set of hands, the risk of abus­ing peo­ples’ free­doms, the risk of con­strain­ing peo­ples’ tal­ents and abil­i­ties, the risk of offend­ing their dig­ni­ty and their worth was much greater. And of course, that’s the expe­ri­ence we have. If you’re even the most casu­al stu­dent of human his­to­ry, going all the way back to the ear­ly civ­i­liza­tions, there have been very, very few rul­ing gov­ern­ments or regimes through the course of human civ­i­liza­tion that have suc­ceed­ed in pre­serv­ing the dig­ni­ty and worth of the human per­son. And it’s real­ly only been those regimes that have had the kinds of con­straints and divi­sions on gov­ern­ment pow­er that we’re talk­ing about where the human con­di­tion has been bet­ter, has flour­ished, and has pros­pered because of the lim­i­ta­tions on the pow­er of gov­ern­ment and the abil­i­ty to enforce those lim­i­ta­tions when they’re transgressed.

- So, so.

- The founder under­stood this, right? They knew, if you read the Fed­er­al­ist Papers, they talk a lot about the regimes of West­ern civ­i­liza­tion and some of the good things and not so good things that all of those regimes had. And they bor­rowed from all of that expe­ri­ence to build this gov­ern­ment that had the bells and whis­tles attached to it that would ensure that that peo­ple were free and imbued with dignity.

- Yeah, yeah. Thank you for going back and help­ing us under­stand the sig­nif­i­cance and the work that went into the Con­sti­tu­tion and the eval­u­a­tion of civ­i­liza­tion or his­to­ry before and try­ing to take the best of every idea and make sure we leave the worst on the side of the road if you will. Can you help us? So let’s kind of get, you know, fast for­ward again, you talked about some of the things that were dri­ving you towards this direc­tion in your life. Can you give us some of those exam­ples? What were the things that you saw in the Supreme Court where bound­aries were not being respect­ed, where pow­er was not being lim­it­ed in an appro­pri­ate way and how it had an impact on human dig­ni­ty and free­dom? Give us a cou­ple exam­ples, again, to set the tone in our mind, some of the things that you saw at that time, and then we’ll keep kind of mov­ing our­selves for­ward to maybe start talk­ing about a few things clos­er to today.

- Well, I think there are a num­ber of dif­fer­ent areas. First of all, because the court, because the Supreme Court in par­tic­u­lar, was­n’t respect­ing the lim­its on its pow­er by inter­pret­ing the Con­sti­tu­tion as it’s writ­ten and inter­pret­ing the Bill of Rights as it’s writ­ten, there were many areas of con­sti­tu­tion­al law that just were total­ly messed up. We had very inap­pro­pri­ate con­straints on the free­dom of reli­gion because of very poor deci­sions ren­dered by the court regard­ing the estab­lish­ment and the free exer­cise clause. And of course, that had an enor­mous impact on free­dom of con­science, which in turn has enor­mous impact on the dig­ni­ty and worth of the human per­son, per­haps more than any­thing else. We had a court that decid­ed to take onto itself the pow­er to judge the pro­pri­ety of many dif­fer­ent aspects of social pol­i­cy in areas like repro­duc­tive health, sex­u­al free­dom, pri­va­cy, and so forth. Those were deci­sions that should have been left to the polit­i­cal branch­es. And peo­ple, rea­son­able peo­ple, in the polit­i­cal world could have made their views known and could have devel­oped the poli­cies that best suit­ed them in the var­i­ous states around our coun­try. And then there was just the struc­tur­al prob­lems at the fed­er­al lev­el, a ver­sion­ing, grow­ing, admin­is­tra­tive state that in many instances, wield­ed leg­isla­tive exec­u­tive and judi­cial pow­er all at once, depriv­ing the elect­ed polit­i­cal branch­es of much of the dis­cre­tion to make pol­i­cy that the Con­sti­tu­tion expects of them, depriv­ing states of much of a dis­cre­tion that they have to chart cours­es for their own cit­i­zens. This isn’t about a par­tic­u­lar pol­i­cy agen­da, this isn’t about whether you like reli­gion or don’t like reli­gion, like abor­tion or don’t like abor­tion, like cap­i­tal­ism or don’t like cap­i­tal­ism, like reg­u­la­tion of the envi­ron­ment or don’t like reg­u­la­tion of envi­ron­ment, none of what I’m talk­ing about is nor­ma­tive in the sense that it dic­tates a cer­tain result. What I’m say­ing is we try to leave things as best we can to the polit­i­cal branch­es, that’s where most deci­sions, when gov­ern­ment deci­sions need to be made, that’s where most deci­sions ought to be made. And to the extent pos­si­ble, we allow those deci­sions to be made at as local a lev­el as pos­si­ble because it allows the great­est amount of par­tic­i­pa­to­ry democ­ra­cy when you do that. And so that’s how our sys­tem was devised. And what I saw in the 1980s was a trend in a com­plete­ly oppo­site direc­tion. So for me, it was more about how do we restore our democ­ra­cy, our repub­lic, in ways that give peo­ple the free­dom, dis­cre­tion, choice, polit­i­cal auton­o­my that they were intend­ed to have under our Con­sti­tu­tion. And then let the polit­i­cal process play out the way it will. You know, if pro­gres­sives in our coun­try have the votes for cer­tain kinds of reg­u­la­tion or cer­tain kinds of repro­duc­tive and sex­u­al free­dom, then fine, that’s the way our coun­try’s gonna move. If they don’t, then they lose. But the Con­sti­tu­tion isn’t a ratch­et for cer­tain kinds of pol­i­cy. It’s a doc­u­ment that cre­ates a process that ensures the peo­ple have dis­cre­tion and author­i­ty to make most deci­sions. And of course, the Con­sti­tu­tion sets bound­aries so the peo­ple can’t do cer­tain things. And of course the first three arti­cles of the Con­sti­tu­tion and the Bill of Rights explain that. And if you look care­ful­ly at the lan­guage of those pro­vi­sions and the orig­i­nal mean­ing, you can get some sense for what those bound­aries are and they’re healthy bound­aries and they need to be followed.

- Yeah, yeah. Well, that’s very help­ful as you go through those sorts of things and let me try to explore a cou­ple issues in there. One of the things that it seems there’s a lot of dis­cus­sion about today is leg­is­lat­ing from the bench, that peo­ple are look­ing to judges to make law or to advo­cate one thing or anoth­er. I think that’s what you’re refer­ring to is what you saw in the 80s. And it seems to me, there might be an exam­ple, I’ll still take a some­what con­tro­ver­sial exam­ple, but maybe less so, of with regard to immi­gra­tion. Immi­gra­tion, many ten­ants are the prin­ci­ples of an immi­gra­tion pol­i­cy from data that I’ve seen are wide­ly agreed across the coun­try that we wan­na wel­come peo­ple in and there should be a process, cause some of those kind of basic ele­ments and prin­ci­ples with regard to immi­gra­tion, but yet Con­gress does­n’t seem to act on them and we end up with a lot of fights either with one admin­is­tra­tion has an exec­u­tive order one way and the next admin­is­tra­tion rescinds it and has an exec­u­tive order the oth­er way and it just tends to go back and forth and then the courts get involved in try­ing to get engaged in that. But does­n’t it just make sense for Con­gress to write the new law, review the things that many of them on both sides com­plain about that they see lack­ing cur­rent­ly? Am I just miss­ing some­thing like that or talk about a lit­tle bit what Con­gress can do to help, if you will, the judi­cial branch to stay in its lane. Are there things that it can do?

- Here’s part of the prob­lem, Con­gress right now does­n’t have as much of an incen­tive to do its job. Because if you have courts that are going to make all the tough calls for you and if you have an admin­is­tra­tive state that’s gonna make all the tough deci­sions for you, all you have to do is show up, engage in lofty plat­i­tudes, give your floor speech­es, shake hands, look good on TV, but you don’t have to leg­is­late, you don’t have to gov­ern. And that’s the prob­lem that we’ve had in our coun­try in part because courts just don’t wan­na fol­low the Con­sti­tu­tion. When the court allows the admin­is­tra­tive state and its own judges to leg­is­late, to take all the tough ques­tions and decide them on their own, and not require Con­gress to do its job con­sti­tu­tion­al­ly, Con­gress does­n’t have an incen­tive to do its job. And of course, what would you expect if some­one has to run for office every two years or every six years, right? You know, there’s a real incen­tive to pass the buck and not have to make those tough deci­sions that some peo­ple may not like. And that’s what’s hap­pened since the 1960s or 1970s, Con­gress has abdi­cat­ed a lot of its respon­si­bil­i­ty, it’s been able to do that because it’s had a Supreme Court that has his­tor­i­cal­ly allowed the admin­is­tra­tive state to leg­is­late and it’s had a Supreme Court that has decid­ed that it will leg­is­late itself. When you take that away, there’s no place else for any­body to go but Con­gress or the state leg­is­la­tures. And that’s what you want, right? That’s what you want. Because right now, who can the peo­ple hold account­able? Con­gress can just say, Well, that’s not my fault. The admin­is­tra­tive agen­cies did that.” Well, that’s not my fault. The courts did that.” And so Con­gress can pass the buck. I can’t count the num­ber of times I’ve heard sen­a­tors and mem­bers of the house say, Oh, we don’t have to decide that ques­tion. The agency will deal with that.” We don’t have to decide that ques­tion. A judge will inter­pret what we wrote.” No, arti­cle one, sec­tion one, the leg­isla­tive pow­er rests in a Con­gress, not in a judge, not an agency bureau­crat. And that’s a big part of the prob­lem that we’ve had. And again, that does­n’t say any­thing about the out­come of a par­tic­u­lar pol­i­cy bat­tle, right? This is not about out­comes, this is about who decides, and we should­n’t be afraid of that. Both sides, pro­gres­sives and con­ser­v­a­tives, should not be afraid of the demo­c­ra­t­ic process and allow­ing the Amer­i­can peo­ple and their elect­ed rep­re­sen­ta­tives to sort through the tough questions.

- Right, right. Well, and that’s what brings every­thing clos­er to us, right? Because those elect­ed rep­re­sen­ta­tives have to come and talk, they have town halls, peo­ple get mad, peo­ple that wel­come them, what­ev­er the case may be, if they’re liked or dis­liked, but the more you get into the admin­is­tra­tive state and to the judi­cia­ry, it’s removed from the cit­i­zens, isn’t it?

- Yeah, it removes elect­ed lead­ers from respon­si­bil­i­ty for what’s hap­pen­ing and it cre­ates a mis­match in terms of trans­paren­cy and account­abil­i­ty in our gov­ern­ment. It’s a big prob­lem. The founders rec­og­nized that prob­lem, they under­stood it. And they tried to do some­thing about it in the way they struc­tured our government.

- Yeah, yeah. And this may give a good time for us to, we’re back and forth in time to some more cur­rent issues and then kind of going back to the found­ing, but talk about this con­cept, and I think there’s a term that a lot of us will hear, orig­i­nal­ism or tex­tu­al­ism or going back to read­ing what the doc­u­ment said, help us under­stand what that is. I think there’s anoth­er term that peo­ple use, they talk about like the liv­ing Con­sti­tu­tion or mak­ing it cur­rent with where we are today, because there’s a lot of things in the his­to­ry of our coun­try that were not so good and things that we did is a nation that, yeah, we don’t look back nec­es­sar­i­ly with pride. We may have learned from them or gone through or con­tin­ue to car­ry the scars from some of those things in the ear­ly days. So help us under­stand what that term means, orig­i­nal­ism. How could we think about it?

- It’s a very sim­ple con­cept. It’s basi­cal­ly you’re inter­pret­ing the Con­sti­tu­tion and the laws of the Unit­ed States accord­ing to the plain and ordi­nary mean­ing of the words at the time the doc­u­ment was adopt­ed. It’s just that sim­ple. It’s how you inter­pret any oth­er doc­u­ment that you deal with on a reg­u­lar and ordi­nary basis. And through much of Amer­i­can his­to­ry, it was under­stood that that was how you inter­pret­ed legal texts. It’s not a tough con­cept. And the rea­son that con­cept is so impor­tant is because if you require judges to stick to the mean­ing of a doc­u­ment accord­ing to its words as they were under­stood at the time of adop­tion, a judge can­not begin to engage in free­lanc­ing, can’t begin to engage in his own pol­i­cy mak­ing. And that’s why orig­i­nal­ism is so impor­tant, it’s because it pre­serves the abil­i­ty of the Amer­i­can peo­ple and its elect­ed rep­re­sen­ta­tives to chart a course for our coun­try. You know, we’ve had peri­ods in our his­to­ry where very con­ser­v­a­tive jurists failed to respect the lim­its placed upon their pow­er and failed to inter­pret the Con­sti­tu­tion accord­ing to its orig­i­nal meet­ing in its text. You know, the Dred Scott deci­sion of the 19th cen­tu­ry, which legit­imized the prac­tice of slav­ery was a deci­sion that was not ground­ed in our Con­sti­tu­tion’s orig­i­nal mean­ing and text. And there’s a won­der­ful dis­sent in that deci­sion writ­ten by Ben­jamin Cur­tis that explains that if the major­i­ty of the court, led by then Chief Jus­tice Taney, if the major­i­ty of the court had respect­ed the orig­i­nal mean­ing of the Con­sti­tu­tion and if the court had respect­ed the very basic con­sti­tu­tion­al restraints on its pow­er, that deci­sion would’ve come out the oth­er way. And of course, sub­se­quent to that deci­sion, we fought a very bloody civ­il war to right that wrong. And then ulti­mate­ly adopt­ed the 13th, 14th, and 15th amend­ments to the Con­sti­tu­tion as a way of deal­ing with the scourge of slav­ery in our coun­try. But the pain of that peri­od in his­to­ry was in part brought up out by a Supreme Court that did not respect the orig­i­nal mean­ing of the Constitution.

- Oh, wow.

- In part.

- Yeah, inter­est­ing. And you also con­nect the cost and the suf­fer­ing that goes along with the lack of respect of the orig­i­nal text as you see it, but there’s oth­ers. What would moti­vate some­body to want to go out­side of those bound­aries? What would moti­vat­ed a jurist to want to go out­side of those bound­aries to, in effect, leg­is­late from the bench? And you’ve talked about that a lit­tle bit in the view of it does­n’t mat­ter, right or left, or you’re a con­ser­v­a­tive or pro­gres­sive, how­ev­er you want to make dif­fer­ent terms, just the idea of it is bad prac­tice, but what dri­ves some­body to do that?

- It prob­a­bly varies from judge to judge. I think in cer­tain instances, a judge might see what he or she views as a par­tic­u­lar injus­tice and wants to take it upon him­self or her­self to right that wrong. And it may well be some­thing that is not just, but it may not be that judge’s job to address that issue. Cer­tain injus­tices are, right? No ques­tion about it. I mean, the Bill of Rights and the Con­sti­tu­tion set forth very spe­cif­ic things that are beyond the pale in that a judge can enforce, but there are oth­er things that are open ques­tions. And so often I think a judge, a well mean­ing indi­vid­ual who’s a judge, just says, Well, this is wrong. This is unjust, this is not right and I’m gonna find a way to rem­e­dy that wrong.” But not every wrong under our Con­sti­tu­tion is intend­ed to be reme­died by a court.

- And that’s the point you were mak­ing ear­li­er. We have a process for rem­e­dy­ing or for get­ting a rem­e­dy for things when we get it wrong, it’s a leg­isla­tive process. We go back and we argue about it in the states or we argue about it in Con­gress, right? So a judge may feel that way and maybe have a plat­form to talk about it, but maybe restrain them­selves from mak­ing a deci­sion and push it back to the oth­er arm of gov­ern­ment who’s sup­posed to make the laws. Am I under­stand­ing that correctly?

- Yeah, the Con­sti­tu­tion’s text and orig­i­nal mean­ing does­n’t give the court author­i­ty to enforce a cer­tain right or to con­strain a cer­tain gov­ern­ment actor. Then it’s real­ly up to the polit­i­cal process. And the framers del­e­gat­ed an out­sized amount of author­i­ty to polit­i­cal insti­tu­tions to make a lot of dif­fi­cult pol­i­cy judg­ments. Oth­er peo­ple who may not like that sys­tem. There may be peo­ple who think, Well, I don’t like the polit­i­cal branch­es, I don’t like pol­i­tics, I don’t trust politi­cians, I don’t trust the Amer­i­can peo­ple. I don’t want these deci­sions being made by those polit­i­cal lead­ers and the vot­ers, I’d rather they be made in the rar­efied atmos­phere of a court with a small num­ber of men and women who make the deci­sions.” There may be peo­ple who feel that way. Well, then you should go find some­place else to live because that’s not our sys­tem of gov­ern­ment, okay? Our sys­tem of gov­ern­ment vest­ed a lot of author­i­ty with the peo­ple and their elect­ed rep­re­sen­ta­tives. And I’ve always felt that peo­ple should­n’t be afraid to have the polit­i­cal process work those things out. Look, I mean you know this, there are a lot of areas in Amer­i­can life right now where if you leave things to the polit­i­cal branch­es, con­ser­v­a­tives may not be hap­py. I mean, the fact of the mat­ter is that the con­text of abor­tion, for exam­ple, they’re gonna be a lot of states, okay, that allow abor­tion well beyond what a major­i­ty of the Amer­i­can peo­ple might think is advis­able. It’d be a num­ber of states. And there are a lot of oth­er deci­sions that leg­is­la­tures and Con­gress will make that may not be wel­comed by con­ser­v­a­tives and mod­er­ates. And there’ll be oth­er areas where pro­gres­sives and lib­er­als won’t be hap­py with the polit­i­cal deci­sions that get made, you know? And that’s part of the thrust and par­ry and the push and the pull of pol­i­tics. And there are some peri­ods of time where cer­tain forces hold sway and there are oth­er peri­ods of time where oth­ers hold sway, but that’s a process that we’ve had for over 200 years and it’s not per­fect, but it’s prob­a­bly worked bet­ter than any­thing else.

- Yeah, yeah, absolute­ly. Well, it’s a lit­tle like sport, right? You want the home team to win, but it does­n’t always win, but there’s a next game. You know, you can go back, it goes back and forth. And I was just observ­ing or think­ing a lit­tle bit, when you talk about this temp­ta­tion to right an injus­tice and how easy human behav­ior can get dragged in there. You’re a par­ent, I’m a par­ent, a lot of times, you see a sit­u­a­tion, you assess it, you make a deci­sion, and then after talk­ing to your spouse or actu­al­ly under­stand­ing the sit­u­a­tion a lit­tle bit more, you go, Huh, maybe I did­n’t get that right.” As a busi­ness exec­u­tive, you’re asked to make a deci­sion and I know some­times when I moved quick­ly, when I did­n’t ask more ques­tions, when I did­n’t have more dis­cus­sions, I usu­al­ly regret­ted the deci­sion I may have made, because there’s ben­e­fit in hav­ing dis­cus­sion and going through a process. And even if it takes time and even if it’s ugly and even if maybe most of the peo­ple have a dif­fer­ent idea, you can still have some lev­el of uni­ty. And so when you talk about our founders, under­stand­ing the human con­di­tion and how some­times we get away from these lim­i­ta­tions on pow­er, it just links right back to the human con­di­tion, does­n’t it?

- Oh, yeah, absolute­ly. I mean, there’s a prac­ti­cal com­po­nent to this. Courts, for exam­ple, are just not par­tic­u­lar­ly well suit­ed to make real­ly com­plex pol­i­cy deci­sions. And that’s part­ly because of the way busi­ness gets before court. It’s a sin­gle case, only two par­ties, very nar­row set of facts, courts don’t have the kind of staffing and resources to do research and to sort of explore things, so they’re con­strained by the prod­uct that comes before them and they’re con­strained by the resources at their dis­pos­al to ren­der deci­sions. Courts are not well suit­ed to be pol­i­cy mak­ers because of their func­tion­al lim­i­ta­tions. They’re good at decid­ing indi­vid­ual cas­es and just inter­pret­ing legal text. And that’s what they’re good at.

- And that’s their lane, right?

- You know, and just like in per­son­al life, when we get out of our lane or we have lim­it­ed resources to make a deci­sion, there’s a high­er like­li­hood that we could be mis­tak­en or wrong about what we did.

- Yeah, yeah, exact­ly, exact­ly. Just goes back to the wis­dom of how things were set up, the struc­ture of the Con­sti­tu­tion in the first place. Let me take a dif­fer­ent track here and ask you about civic edu­ca­tion. Will you talk about the details and the his­to­ry and the impor­tance of the dif­fer­ent aspects of the Con­sti­tu­tion, but yet many cit­i­zens do not have that lev­el of a full under­stand­ing. What’s your per­spec­tive of how we can inform our cit­i­zens even bet­ter about why things were set up the way they are. And even if you don’t like the par­tic­u­lar deci­sion that a Con­gress or a state may have made, that there’s oth­er things you can do to be active and first of which is vot­ing and under­stand­ing the can­di­dates. Help me under­stand your per­spec­tive on the role of civic edu­ca­tion and how we can share this infor­ma­tion with more peo­ple and the impor­tance of hav­ing cit­i­zens with this understanding.

- Well first of all, par­ents always have the pri­ma­ry respon­si­bil­i­ty to edu­cate their chil­dren. So every par­ent needs to instill in their chil­dren a sense of under­stand­ing and appre­ci­a­tion for the coun­try we live in and for the Con­sti­tu­tion that we live under. And there’s real­ly no sub­sti­tute for that. You know, you can blame the schools all you want, but first and fore­most, par­ents have a respon­si­bil­i­ty to edu­cate their chil­dren about civics. And that means just explain­ing to them what this coun­try stands for, what the Con­sti­tu­tion means, how our sys­tem works. Now of course, schools play an impor­tant part here and edu­ca­tion­al insti­tu­tions, begin­ning at the ele­men­tary lev­el, pri­ma­ry lev­el, need to be instill­ing in their stu­dents a sense of under­stand­ing and appre­ci­a­tion for our sys­tem of gov­ern­ment and for our Con­sti­tu­tion. Why we’re here in Amer­i­ca, how we got here, what the peo­ple who came here want­ed, why that was so impor­tant, how they achieved that through the ear­ly years of our Repub­lic or the Con­sti­tu­tion, before that, the dec­la­ra­tion. Those are impor­tant things for peo­ple to learn about and to under­stand in school. And again, it’s not that our sys­tem of gov­ern­ment is always per­fect or always right, there are flaws, we should teach our chil­dren about those, cause we can learn from them, but again, it’s prob­a­bly the best sys­tem that has exist­ed and there’s noth­ing better.

- Yeah, yeah. Yeah, and when you look around the world, you see a lot of chal­lenges that peo­ple are fac­ing and always nice to come home. I love trav­el­ing and dif­fer­ent places that I’ve been able to vis­it and peo­ple all over the world, but you see some­times where they get it right and some­times when it does­n’t seem like it’s got­ten so right. Leonard, as we kind of wrap things up a lit­tle bit here, let me go back to kin­da the orig­i­nal ques­tion and ask for your per­spec­tive because you had, and you have had through­out your career, a very impor­tant role in iden­ti­fy­ing or try­ing to artic­u­late the char­ac­ter­is­tics of some­body who would be a good judge, who under­stands the things that you’ve talked about. And so the orig­i­nal ques­tion we start­ed with is this a Supreme Court on the right track or is the judi­cial branch on the right track? Nobody oth­er than you would have a bet­ter under­stand­ing of that. And again, as you artic­u­late, it’s not a polit­i­cal view, it’s more of an aca­d­e­m­ic or foun­da­tion­al or fun­da­men­tal or prin­ci­pled view, it would be my opin­ion. So help us under­stand or help us get a view from your per­spec­tive, are we start­ing to put some of these bound­aries back in place again in the coun­try? Are we start­ing to artic­u­late and put up the prop­er bar­ri­ers between the branch­es and hav­ing our elect­ed offi­cials in our gov­ern­ment, I guess, because a lot are not elect­ed, stay in the lanes that were orig­i­nal­ly intend­ed? Should we be encour­aged or do we have a lot of our work to do?

- Well, I think we should be both. I think we should be encour­aged that progress has been made in this area. We see on the bench today more jurists who are com­mit­ted to the lim­it­ed judi­cial role that we’ve dis­cussed than there were 15 or 20 years ago. So we should be encour­aged in that. But yes, of course, there’s a lot more work to do. The Supreme Court pushed jurispru­dence in a lot of mis­guid­ed way for a lot of mis­guid­ed ways for gosh, you know, 50 plus years.

- Right.

- So there’s lots of work to be done. The way to get across the fin­ish line is real­ly sim­ple, you have to have pres­i­dents of both par­ties who appoint jurists who have a cou­ple of very sim­ple, basic qual­i­ties and char­ac­ter­is­tics. One is they have to be drop dead smart. They have to be real­ly, real­ly smart. And that’s because when you’re smart, it’s hard­er for you to get snuck­ered into accept­ing an argu­ment that’s dumb and stu­pid, okay? And does­n’t make any sense. Sec­ond­ly, you have to be coura­geous. You have to be in a posi­tion to do it to what’s right even when you know peo­ple aren’t gonna like what you’re say­ing. Absolute­ly essen­tial. And that courage is what leads to the inde­pen­dence of the judi­cia­ry. If you have judges who are gonna cow­er under their desks and are gonna put their fin­ger in the wind to see what the Amer­i­can peo­ple want, you’re not gonna have courage and that means you’re not gonna have an inde­pen­dent judi­cia­ry and that means you’re not gonna have that check on the oth­er branch to gov­ern­ment. So you need courage. Third­ly, you need peo­ple with humil­i­ty. The fact of the mat­ter is that being a judge is not a par­tic­u­lar­ly glam­orous job or it should­n’t be. Should­n’t be a celebri­ty. Judges wear black ropes for a rea­son, it’s a sym­bol. It’s a sym­bol of their anonymi­ty. It’s a sym­bol of the fact that it’s not about them, it’s about the text of the law. And so you want peo­ple who are hum­ble and who under­stand that they’re not the ones who are mak­ing the big deci­sions, okay? It’s nor­mal­ly the polit­i­cal branch­es, it’s nor­mal­ly oth­er peo­ple, civ­il soci­ety, oth­er branch­es of gov­ern­ment, the states, who­ev­er. So humil­i­ty is real­ly impor­tant too. And so the more you can get jurists who have those per­son­al qual­i­ties and char­ac­ter­is­tics, the more like­ly you will have a judi­cia­ry that con­tin­ues to move in the direc­tion we’re dis­cussing. One final thing. We don’t want judges who have pol­i­cy agen­das, okay? The media and a lot of forces in our cul­ture right now are in a fren­zy over one Supreme Court deci­sion or anoth­er because they don’t like the out­come in those cas­es. You know, I know a lot of peo­ple who hat­ed the out­come of Supreme Court deci­sions for 50, 60 years, okay? It’s not about out­comes. It should­n’t be about out­comes. It should be about what the Con­sti­tu­tion says, what it means, what spheres are reserved for the polit­i­cal branch­es. And we should not want judges who have pol­i­cy or polit­i­cal agen­das. We should­n’t be talk­ing about judges who have par­tic­u­lar pre­dis­po­si­tions on one issue or anoth­er, that should­n’t mat­ter. Should­n’t be think­ing about judges who are pro-immi­gra­tion or anti-immi­gra­tion, pro-reli­gion, or anti-reli­gion. No, no, a judge should be pro rule of law. He should be pro-Con­sti­tu­tion. He or she should be hum­ble. He or she should be coura­geous and there­fore inde­pen­dent. He or she should be smart and there­fore capa­ble of dis­cern­ing the best pos­si­ble argu­ments for a posi­tion. That’s all we need. And if peo­ple think of the judi­cia­ry that way, I think we would get past some of this acri­mo­ny and par­ti­san­ship and every­body would focus on the insti­tu­tions they should be focus­ing on. Go focus your atten­tion on those state leg­is­la­tors and on those sen­a­tors and con­gress­men who have not had the respon­si­bil­i­ty to do their jobs for the past sev­er­al decades, who have been able to pass the buck. Ren­der them account­able. You know, get out there and vote, get out there and push those elect­ed rep­re­sen­ta­tives to adopt what you want adopt­ed. You know. what­ev­er that might be and let the chips fall where they may. And that will deter­mine the fate of our coun­try. And there’s no ques­tion that when you have a democ­ra­cy or repub­lic like we have, it can turn out to be a great place cul­tur­al­ly or it could turn out to be a cess pool. It’s up to the people.

- Right. Right. Well, I, in some sense, would like to try to have a sum­ma­ry of all the wise things that you said, but it was the whole time that we’ve spent togeth­er, Leonard, of all the wis­dom that you’ve shared with us. And I hope for all of our lis­ten­ers that as you lis­ten to Leonard talk about these things, he does such a beau­ti­ful job and I wan­na rec­og­nize and thank you, Leonard, of artic­u­lat­ing issues in a way that can uni­fy us because we sep­a­rate the out­comes from the issues of process and what the Con­sti­tu­tion was talk­ing about. Out­comes will find their way, but to a place, but Leonard, what you were telling us is how to think about or how to help us think and under­stand and come to our own belief sys­tems about the role of the court, the Supreme Court, the judi­cia­ry. What it’s sup­posed to do, what it isn’t sup­posed to do. And when we see protests and when we see anger as we are see­ing in our coun­try today, maybe the ques­tion comes and you just artic­u­lat­ed, okay, how should we think about that? How could we think about that? Smart, coura­geous, hum­ble, no pol­i­cy agen­da. And how do we think about the actions we could take? Active, vote, pick our issues, and get local, do the things in our town­ship, our city, our state, and all come togeth­er in one way around this as Amer­i­cans. Leonard, thank you for your work

- Thank you.

- that you’ve done for so many years. Thank you for shar­ing your wis­dom with us. Thank you for the time that you’ve tak­en with us. And we look for­ward to just real­ly pon­der­ing your wis­dom and your thoughts. So thanks so much.

- Thank you very much.

- Okay. All right, take care of your­self. And for all of us, thanks for join­ing us on Believe!, thanks to Leonard Leo for his wis­dom and insights. And we’ll look for­ward to being with you again very soon.