Vikram Amar
Description: Vikram Amar is a Distinguished Professor of Law at the UC Davis School of Law. His research focuses on constitutional law, federal courts and civil procedure. In this episode we explore the Electoral College, from its historical context to modern challenges and discuss his work on establishing a national popular vote. We then turn to the Supreme Court, where Professor Amar discusses its politicization, contemporary issues such as privacy and AI, and the legality of Roe v. Wade. He also reflects on potential reforms, including term limits for justices to promote stability and accountability.
Website:
Publications:
Resources:
Constitution of the United States
National Popular Vote Interstate Compact
Title VI of the Civil Rights Acts of 1964
Cases Discussed:
Students for Fair Admissions v. Harvard (Affirmative Action, 2023)
Dobbs v. Jackson Women’s Health Organization (Overturning Roe v. Wade, 2022)
Trump v. Anderson (Colorado Ballot, 2024)
Moore v. Harper (Independent State Legislature Theory, 2023)
Show Notes:
[0:03] Introduction to Professor Vikram Amar
[2:03] Journey to Constitutional Law
[3:33] The Electoral College Explained
[7:06] Electoral College Reforms After the Civil War
[9:51] Arguments Against the Electoral College
[12:02] Counterarguments for the Electoral College
[15:12] The National Popular Vote Proposal
[17:19] Reception of the National Popular Vote Plan
[21:27] Strategies for Enacting Change
[24:15] Concerns About National Popular Vote
[28:51] Uniformity in Voting Practices
[30:10] Definitions in Constitutional Law
[34:29] Originalism vs. Precedent
[38:52] Impacts of Recent Supreme Court Decisions
[41:03] Affirmative Action and Supreme Court Rulings
[43:13] Supreme Court's Political Dynamics
[46:47] Colorado Case and State Authority
[51:24] Supreme Court Justice Appointments
[56:48] Proposed Term Limits for Justices
[1:00:30] Future Legal Issues for the Supreme Court
[1:02:29] Codifying Laws vs. Supreme Court Decisions
[1:03:47] Advice for Aspiring Law Students
Unedited AI Generated Transcript:
Brent:
[0:00] Welcome, Professor Vikram Amar. Thank you for coming on today.
Vikram:
[0:03] Thank you for having me.
Keller:
[0:05] We'd love to start off by hearing a little bit more about yourself. What got you interested in law and how you ended up at UC Davis?
Vikram:
[0:10] Well, I think I decided I wanted to go to law school when I was a sophomore in college. And I had read some books about the Supreme Court, and I'd watched some television documentaries. And I loved U.S. history and economics, and so it seemed like a natural fit. And then I went to law school on the East Coast at Yale. And then I spent two years clerking for federal judges. And then I went on the teaching market.
Vikram:
[0:39] And by the time I was a third year in law school, I realized I'd like to try to teach because I really enjoy writing about the law. And teaching is a little bit of a misnomer when it comes to prominent research universities like the University of California, Davis. We all take our teaching responsibilities seriously. But I think most of what drew most of us into these jobs is the opportunity to do research and scholarship and writing. And so I practiced for a few years before I started teaching, and I really enjoyed my practice. But I found that sometimes the issues that my clients needed me to look at were interesting, and sometimes they weren't interesting, but they were still important to my clients. And either way, I had to do a good job and really commit myself. But I decided I wanted to be in a job where everything I spend time thinking about is interesting to me and I find that's true in the academy because if I'm not interested in the project I'm working on that's my own fault I can switch and work on a different project and the law is so broad that you know you can find things to talk about and write about to suit whatever your intellectual interests are so when I started teaching I knew I wanted to be in California for the most part. So I ended up getting an offer at UCLA and UC Davis, and I kind of started teaching
Vikram:
[2:02] at both schools for a while. But I'm from Northern California, and King Hall is a great law school, and I've enjoyed my time here.
Brent:
[2:09] And was your passion for history kind of what led you towards like constitutional law?
Vikram:
[2:13] I think that's part of it. I think all of American law is grounded in U.S. History to some extent, but certainly constitutional law has a bigger history component to it than some other areas of law.
Vikram:
[2:29] Maybe being a first generation born american citizen my parents came from from india and i was born here in the u.s maybe that explains part of the draw to constitutional law because when you think about it within the whole world of law the constitution is the single thing that defines america you know american culture changes it comes and goes the american economy comes and goes, right? We used to have an agrarian economy, then an industrial economy, now a digital economy. So the one thing that is kind of unchanging about the United States is subject to amendments, both formal and informal, is the U.S. Constitution. That's the kind of the definition of what it means to be America. At any given time, America means very different things depending on where you are in history, but it's always going to mean what the Constitution is at that moment. So I think those factors. I have an older brother who's also a lawyer, and he's a constitutional law professor at Yale, and he went to law school four or five years ahead of me.
Vikram:
[3:33] And I think I probably saw constitutional law and the life of a constitutional law professor through his experience, and that seemed attractive as well.
Keller:
[3:45] Then diving into some of your work, how is the Electoral College designed, and why did the U.S. create it?
Vikram:
[3:52] So the Electoral College is, of course, the way we pick U.S. presidents. And the... It might seem weird why we don't just have a national popular election for the presidency the way we do, say, for each state's governor office. But you've got to remember at the founding, it would have been hard to have a national election when states like Georgia were so far away from states like Massachusetts, and you didn't have trains, you didn't have telegraphs, you didn't have radio. So it would be hard to conduct a national campaign and really be someone who the voters knew anything about in different parts of the country. So I think there was a concern at the founding that if you had a national election it would kind of devolve into just a bunch of regional candidates none of whom had any kind of national claim to popularity.
Vikram:
[4:48] But pretty soon after the Constitution, the advent or the rise of the two-party system became quite clear to people. So you had the forerunners of the two parties that we have today. And once you have national parties that operate in all the states, then the candidates themselves don't need to campaign in all the states because the voters know what they need to know about the candidate by knowing about the party and its local representatives. So there was discussion of a national popular election relatively early on.
Vikram:
[5:25] The southern states never would have signed on to the Constitution if there were a national popular election, because there were more voters in the free white states than there were in the southern slave states. And they were worried that the northern free states would elect officials who would gradually legislate slavery out of existence.
Vikram:
[5:46] The way the Electoral College formula works, each state gets a number of electors in the Electoral College equal to the number of House seats it's entitled to in the U.S. House of Representatives, plus two for the two U.S. senators that it has. So, for example, California has 54 electors because it has 52 House districts and then two senators. Well, at the founding, southern states got credit for their enslaved persons in terms of the number of house seats that they were given, whether or not those enslaved persons could vote. And of course, they couldn't vote. So Pennsylvania had more free voters than Virginia, but Virginia had a bigger share in the electoral college because Virginia got to count its enslaved persons for purposes of how many House seats and thus how many electors in the Electoral College it received. So the South had a built-in advantage under the Electoral College because all the Southern states were overweighted with respect to their House contingencies and thus their Electoral College contingencies. So for 32 of the first 36 years after the Constitution was ratified, you have a slave-owning Virginian who wins the presidency, and I don't think that was coincidental or unexpected.
Brent:
[7:06] And then after the Civil War, were there ever talks about switching the Electoral College?
Vikram:
[7:10] Sure. There have been talks before the Civil War, but certainly after we got rid of slavery in the 13th Amendment and committed to some kind of racial equality in the 14th and 15th Amendments. There have been plenty of proposals to get rid of the Electoral College. The problem is that most people, until recently, have assumed that you need to amend the Constitution to alter the way we pick a president. And to amend the Constitution, you need the three-quarters of the states to ratify a constitutional amendment. And it's hard to get 38 out of 50 states to do anything, especially when there are always some states who think that they're better off under the current system. So right now, small states think that they benefit from the Electoral College because they get two electors for having two senators, and they think, oh, well, we have some extra advantage because we get the same number of electors based on our Senate representation as the large states because they only get two electors for their two senators as well.
Vikram:
[8:12] So small states think they benefit from the electoral college. I don't think they really do because winner take all, which is the method by which states have decided to allocate their electors, that tends to favor midsize and larger states. Think about it. The campaigns usually don't spend a lot of time in small states. Presidents don't come from small states. I mean, in my lifetime, the only small state president was Bill Clinton, and that's not maybe even in your lifetime.
Vikram:
[8:42] So small states don't really have an advantage but they think they do but the states that do have an advantage and they think they do as well are all the swing states so if you're Pennsylvania if you're Michigan if you're Wisconsin if you're North Carolina if you're Nevada if you're Arizona, you don't want to give up the the power to kind of determine the the fate of the free world and so right there that's six or seven states that are that think oh well we're a swing state So we want to keep things the way they are. And states that aren't a swing state now maybe think they'll be a swing state in the future, or they have been a swing state in the recent past. For example, we used to think of Florida and Ohio as swing states. I don't think that's true. Texas may become a swing state now. Minnesota may be more of a swing state than it used to be. So even California and New York are not as red and blue as they, excuse me, as deeply blue as they used to be in a lot of ways. So that's why it's hard to change the Electoral College by a constitutional amendment. And, you know, if there's another way to do it, and I've written about possible other ways to do it, then that might have more traction.
Brent:
[9:51] Definitely.
Keller:
[9:51] And what are some of the other reasons why we should be moving away from the Electoral College beyond just the representation? Are there other arguments about the system itself that should be changed?
Vikram:
[10:01] Well, I think the two biggest reasons—.
Vikram:
[10:06] At least consider moving away from the Electoral College are, one, the national popular vote winner doesn't always become president. And so if that's true, that means at some level, people's votes aren't counted equally. So if the person with more votes in the country loses to the person with fewer votes, then the voice or the weight of each of the people who were in the minority is getting undue influence. So there's a kind of an inequality in the way votes are weighted. And we generally, in every other, other than the U.S. Senate, in every other institution in American government, we say one person, one vote, and all the votes are counted equally. So when you vote for your House of Representatives member, your votes count the same as everyone else is in the district, and every district has the same number of voters, more or less, within reason, so that people in some districts don't have more of a say in electing a House member than people in other districts. So that's the first reason is the basic inequality. The second reason relates to what we talked about earlier. The election comes down to only a handful of states, and I don't think it's healthy for democracy to have really big states like New York or California or Texas or Florida, two of which, at least at this moment in history, are pretty reliably red and two of which are pretty reliably blue, they're kind of ignored in the whole election.
Vikram:
[11:36] You see a few campaign ads for the national elections here in California, but very few, and usually only on television stations that are broadcasting nationally, not just in California. Any station that's broadcasting just in California won't carry any election ads. I was in Wisconsin a few weeks ago, totally different story. Every single ad in between timeouts of the football games I was watching was a nasty political ad either for Harris or for Trump.
Brent:
[12:01] Yeah.
Brent:
[12:03] No. And then do you see any good counter arguments for why we shouldn't move to the popular election?
Vikram:
[12:10] I think the one argument in favor of the Electoral College is the idea that things are not that bad right now. It's an imperfect system, but maybe there could be unforeseen consequences and unforeseen problems if you change. So it's kind of a conservatism with a little c, that things could always be worse, and so you should always be reluctant to move from the status quo unless you're convinced that something else is going to be better. And I guess related to that conservatism, the one advantage of having the Electoral College right now is we have a decentralized national selection process. We don't have a single national body that is overseeing the whole election. We have 51 separate entities, the 50 states plus the District of Columbia, because they also have three electors. They're each running their own election. But imagine if you had just one kind of czar, a federal election czar, who was running the whole thing, and then there was a glitch in the software, or someone was corrupt, or there was other problems. Those problems would affect everybody.
Vikram:
[13:26] The whole U.S., they wouldn't be localized to one state the way things are right now. And usually when a problem arises modernly in the Electoral College and it affects one state, usually that doesn't affect the outcome of the presidency because you guys are too young to really appreciate this, but elections don't usually come down to one state or two states in U.S. history. You're in a very unusual moment in history when Pennsylvania could decide at all, or Georgia could decide it all. That's very rare that we talk in those terms in presidential elections. And because of that, there is some safety in having the decentralization that I just mentioned.
Brent:
[14:10] Yeah. And then what do you have to say to the arguments where people believe that cities would end up just deciding and running the country if we go to a pure popular election?
Vikram:
[14:18] That's democracy. In California, we don't say, well, the governor is illegitimate because the governor is elected basically by large numbers of people on the coast. We don't say that it's unfair to the farmers in the Central Valley. We say, well, there are fewer of you. So that's why we have one person, one vote. That's why all the districts have to be the same size. The argument that people in cities have too much weight, that's what led the malapportionment that reigned in the United States before the 1960s, where San Francisco might have one representative to the state legislature, and Bakersfield might have one representative, even though San Francisco is 10 times bigger at the time. So you can say, well, it's not fair that these population centers have more voice, but that's just an argument against democracy.
Vikram:
[15:09] That's just basically saying that some people should have more voice than others.
Brent:
[15:13] Yeah.
Keller:
[15:13] And how would you describe your solution to switch the U.S. to a popular vote without amending the Constitution?
Vikram:
[15:19] So, as I mentioned earlier, you need three-quarters of the states to amend the Constitution. Because every state can pick electors any way it wants to under the Constitution, the Constitution doesn't tell states how to pick electors or which electors to pick. What a state could do is pick electors who are pledged to support the candidate, not who wins the most votes in that state, but the person who wins the most votes nationwide. So California could say, regardless of which way California comes out, the California 54 electors will support the national popular vote winner. Now, it would take as few as 11 states, if they all agreed to do that, to bring about a national popular election. Because the 11 largest states totaled up equal more than half of the electoral college.
Vikram:
[16:18] So if those 11 states all said, we're going to give our electors not to the candidates who win the most votes in each of our states, but to the candidate who wins the most votes nationwide, that would bring about a national popular election just like that. Now, those states might not want to do this unless they know other states are doing the same thing. They may not want to unilaterally disarm, if you will. They may not want to ignore the wishes of the voters in their own state in favor of the national electorate unless they know for sure that the national electorate is going to be the one to pick the president. So that's why we came up with, my brother and I came up with this idea of an interstate compact, an interstate agreement, where states would say, we pledge to give our electors to the national popular vote winner, but only if there are enough other states that have made the same pledge such that states totaling 270, that's how many electors it takes to elect the president, have locked into this plan.
Brent:
[17:20] How's that plan been received by states?
Vikram:
[17:23] Well, a lot of states have signed on to it. So right now, I think states totaling about 210, you'd have to look, I haven't looked in several months, have signed on. They're not quite at the 270, and they're not going to get there, obviously, before this 2024 election, maybe not before the 2028 election either. But the big reason why they haven't been able to get over the top is that large red states, like Texas, haven't joined, even though Texas is ignored by the current system just as much as California. So if you were thinking in rational, selfish terms and you're a Texan, you would support this National Popular Vote Interstate Compact because then people, candidates would come to Texas where there are a lot of voters and win them over. Right now, a presidential candidate who's a Republican knows he's going to win Texas. So Donald Trump isn't making any promises that benefit Texans, because he's going to win Texas either way. Whether he wins Texas 52-48 or 62-38 doesn't matter. He gets all of Texas's electors on a winner-take-all basis. But if we had a national popular vote, then the candidates would have to go where the undecided voters are. And there's a lot of undecided voters where there are a lot of voters, more generally. So the candidates would go to Texas. And so if I'm a person in Texas or New York or California, I enhance my voice by moving to a national popular vote. But here's the problem.
Vikram:
[18:50] The leaders in red states, not so much the Republican rank and file, they support the national popular vote idea. But the elected leaders of the Republican Party in these states, they think a national popular vote is a recipe for Democrats winning the White House. Why? Because seven out of the eight last presidents, in seven of the last eight presidential elections, a Democrat won the popular vote.
Vikram:
[19:18] Only George W. Bush in 2004 won the popular vote. Otherwise, you have to go back to 1988 before a Republican beat a Democrat in the popular vote. Now, it's important to remember that candidates aren't really trying to win the popular vote because they're playing the electoral college game that they've been dealt. So it's possible that a Republican might have won the popular vote if that had been the rules of the game at the time of the campaign. But there's this general sense that, demographically speaking, Republicans are going to have a harder time convincing more voters nationwide. They may win some battleground states, but it's going to be hard to win the national popular vote. That's the really interesting thing about 2024, is the national popular vote margin is so slim. Trump could win the national popular vote. And maybe this will show Republicans that, hey, they can play that game too. and maybe then some Southern red states will be more open to the national popular vote idea. Yeah.
Brent:
[20:18] And for a state to sign the compact, do they have to get like the populist vote on it or can the people already elected just sign it? Either way.
Vikram:
[20:27] So in almost all the states that have joined the compact, it has been the elected leaders in the state capital who have signed on. But there are states like Colorado that have made use of direct democracy in either signing or ratifying what the elected officials have done. And I see no problem in anything in federal law with direct democracy being used by a state to join. And in fact, there are some red states, not too many, because most of the states that use direct democracy are in the West, and the West tends to be more democratic than Republican, but there are some Republican states that make use of direct democracy, like Oklahoma has an initiative device like California. And that may be where the National Popular Vote Interstate Compact breaks through in a red state. Because as I mentioned earlier, the Republican rank and file are much more supportive
Vikram:
[21:24] of a national popular vote than Republican elected leaders. So if you circumvent those leaders with a direct democracy initiative in a state like Oklahoma, you could get a red state in the NPV column before, you know, the next decade.
Keller:
[21:41] Looking out for the next decade, what are the states, in a strategy kind of perspective, what states would need to get on for this to be the most applicable in the soonest period of time?
Vikram:
[21:52] Well, it's interesting because there are a bunch of swing states that still haven't joined on but that have Democratic governors. I think Pennsylvania hasn't joined yet, for example. I could be wrong. You can look it up. It's very easy for you to find. I don't think Wisconsin's joined, even though they have Democratic governors. So if you just picked up all the states where a Democrat has one U.S. Senate seat or the governor's office, and that means basically that at least at that moment in time, the Democrats got more votes statewide than the Republicans did in a statewide race, then that would put you over the top. But I don't think the NPV would be a good idea if it's done on a strictly partisan basis because it's not a partisan ploy. It's not a partisan scheme or idea. I think it's an idea grounded in principle. And if you're going to convince, you know, the 49% of America that doesn't like it, you've got to show them that this is not partisan. So we need a way to get some red states in the column. And as I say, I think the best way to do that is through direct democracy. And it'll be easier if the Republicans are competitive in the national popular vote as they seem to be in 2024.
Brent:
[23:05] Yeah. And then I could foresee an issue where, say, California is part of this and all the Republicans in California, if California went red, but the national popular election went Democrat, all the people would be very upset that all of their electoral votes went towards the people who weren't voted for in that state.
Vikram:
[23:25] Certainly a state that commits to the NPV has got to acknowledge that sometimes the president is going to end up being somebody who had national popularity, but who wasn't popular in that state. So that's something a state has to decide at the front end when it decides whether this is actually a principle worth implementing. But when you lock into any principle, you realize that in the long run, sometimes that may help you and sometimes that may hurt you. If it always helps you, then you're not locking into it because it's a principle. You're locking into it out of self-interest.
Vikram:
[24:08] But the NPV is styled as something that appeals to people's sense of what democracy should be. So, the NPV. In California, you know, people may not have liked the fact that Donald Trump was president for four years, but he won that election, and you accept him as your president because you believe in the principle of the Constitution and the way our elections have operated, etc. You don't always feel like you should secede or you have a right to kind of opt out just because you lost a battle. You're in it for the war, and you pick rules of war engagement based on what you think are kind of honorable, whether or not they always help you each time.
Brent:
[24:52] Yeah. Do you think a middle ground could be like each elector gets to give their electoral vote based on what their district, who they voted for?
Vikram:
[25:00] I'm not a fan of electing electors by district for several reasons. One is the districts are so gerrymandered and they don't necessarily represent the statewide electorate in any meaningful way because you could have one party that has more voters in the state than the other party, but the other party for historical reasons may control a majority of the districts. So I think a district-by-district approach is actually worse than the one we even have right now.
Keller:
[25:31] And what are some of the biggest hurdles to getting this implemented beyond just getting states on board? Have there been any counter arguments for it or any other structural issues causing?
Vikram:
[25:40] Yeah, I think if enough states agreed that this is a good idea, then you have to have a more uniform national ballot and ways of counting the ballot. Because right now, the national popular vote is this abstract idea, but it doesn't have any legal significance. The Electoral College is all that matters. So, who won the national popular vote and by how much is something that historians might be interested in and political scientists, but it's not something that has any clear reality. And one of the reasons for that is different states use different methods of voting. So when we say the national popular vote, what does that mean if I couldn't vote if I were in Florida, but I did get to vote in California because California doesn't disenfranchise felons, but Florida does? So if you want to attach legal significance to the national popular vote, then there has to be more uniformity in the way that each state runs its election system, or at least runs this national popularity contest that would be used for the NPV plan. So, that means a more uniform ballot, that means more standardized machinery to count, more uniform rules for recounting, etc., etc.
Brent:
[26:59] Yeah.
Vikram:
[27:00] And voter eligibility. So, for example, you wouldn't want voters who were 16 to be able to vote in some states, but not others. So, you'd have to have more uniformity in who votes, how they vote, and how the votes are counted. Only then could you say there's something kind of... That the national popular vote tally has some integrity to it.
Keller:
[27:22] And are those things that are being worked on currently kind of regardless of this?
Vikram:
[27:26] Not so much. I wish they were more, but right now, if Congress wants to kind of provide more uniformity, there's not a lot that they can do because each state has the power to do whatever it wants here. If there were a national compact where enough states had signed on, that would give Congress, I think, more authority to, if not twist states' arms into being more uniform, at least set up a parallel process to what the states are doing. So a state might say, well, we don't want to be part of this NPV, and so we're not going to have a uniform ballot like everybody else. Fine. Maybe they have the right to have their own ballot to pick their electors if they are not part of the NPV compact. But at least Congress could say, okay, but on the same day that you're running your own election to pick your electors, we're going to have this popularity contest in your state that mirrors the ballots in all of the NPV states, and then we're going to use the results of the popularity contest in your state along with the ballot results in the NPV states to come up with a national tally.
Brent:
[28:33] So, you almost have to run two elections at once?
Vikram:
[28:36] In those states that weren't part of NPV, they might have to facilitate. The state might say, okay, we're going to run our own election, but at least they'd have to be open to allowing the voters to register their
Vikram:
[28:49] preferences for purposes of the national NPV tally. And Congress would have to set up some process for doing that.
Brent:
[28:55] Okay. Interesting.
Keller:
[28:57] And then diving into some of your work on the Supreme Court, and before we get into that, could you just give us some broad definitions, starting with constitutionalist versus generalist?
Vikram:
[29:09] I'm not sure what you mean by constitutionalist versus generalist, but I will say that constitutional law is a very broad area of law that cuts across all kinds of domains, but it is a field of legal inquiry and study unto itself. So people like me who teach and write in constitutional law, usually write in contract law or property law or intellectual property law. So, constitutional law is a specialty among both practitioners, lawyers, and also among scholars. And I think that's legitimate because the Constitution is really complicated, and to get to really understand its history and its contours and how the Supreme Court has interpreted it, you need to spend many, many, many years of learning. At the same time, though, the Constitution is something that all Americans own,
Vikram:
[30:06] and so everybody should know some basics about the Constitution. I often say, if I can't explain a constitutional idea to a smart high school person, then it's not a good idea, because people need to be able to understand what the fundamental law is and why the Constitution means what it means if it's going to endure, if it's going to have any attraction in the long run.
Brent:
[30:32] Yeah. And then what about originalists versus precedentalists?
Vikram:
[30:36] So, an originalist, and everybody on the Supreme Court is an originalist of some kind, an originalist is somebody who cares deeply about what the words of the Constitution meant in some kind of historical context, okay? So, if you're interpreting words at all, you have to look at the context in which they were used. You can't interpret words without context because that's not interpretation anymore. So, for example, when the Fourth Amendment talks about the right to be free from unreasonable searches and seizures, well, the word seizure could mean an epileptic spasm or it could mean a police detention. Which of those it means depends on the historical context. And so everybody looks at the history to some extent, whether it's the most liberal justice or the most conservative justice. But how they look at it and how they weigh that against prior judicial interpretations, past cases, then we get into precedent, how you balance these two things, what the original understanding was versus.
Vikram:
[31:49] Interpretations that the court has already decided, then you get into more of a disagreement. So, for example, Justice Elena Kagan on the Supreme Court, at least right now.
Vikram:
[32:03] Says that we should give more weight to past rulings than we are giving, that the majority today doesn't attach enough weight to the past rulings. Now, other justices like Clarence Thomas would say, well, if the past ruling was correct, of course we're going to follow it. But if it was wrong, then we need a good reason to continue a mistake rather than to fix the mistake. Now, sometimes there are good reasons. If people relied on that earlier decision in a way that they're worse off now than they ever would have been if had the mistake never been made, that's called detrimental reliance, then maybe you stick with it. So, for example, if the Supreme Court says a certain investment instrument is subject to a certain tax or not subject to a certain tax. So let's say it says, well, this real estate investment is free from federal income tax, and you put your money in it. And then along the Supreme Court comes down and says, well, we were wrong about that. It's actually subject to tax. Well, then you're screwed because you put your money in something on the expectation, on the understanding it wouldn't be taxed. And if you knew that it might be taxed, you would have put your money in a different investment that would have yielded a higher after-tax return than this one does. And so you're worse off than if they had never said the first thing at all. That would be a reason to stick with the earlier ruling, even if it was a mistake.
Vikram:
[33:31] But if there's not that kind of reliance, people on the more conservative end of the spectrum say, why would we continue a mistake? Whereas Justice Kagan seems to think that it's important for the court to keep, And it's important for the court to remain consistent with its past rulings, whether they're mistaken or not, just because the court's credibility is reduced if they change their minds all the time. And I think everyone agrees they shouldn't change their mind all the time, but no one's talking about changing their minds all the time. And I think what Kagan doesn't really respond to is whether the court's credibility is undermined when people demonstrate that the earlier ruling was wrong. If the litigants have shown that the earlier ruling was wrong as a matter of how to interpret the Constitution according to its own terms,
Vikram:
[34:26] and the court sticks with that mistake, that does damage to its credibility too.
Brent:
[34:30] Yeah, definitely it's worse.
Vikram:
[34:31] So, you know, once you make a mistake, there's no easy, easy way out. And remember, too, that the modern liberal preference for commitment to precedent and stare decisis, that's a function of the kinds of cases that are being reconsidered now that may have been more moderate or liberal that the liberals want to preserve. In the 1950s, 60s, and 70s, the Supreme Court was overruling precedents all the time, but they were overruling conservative precedents to enshrine liberal outcomes. And the liberals on the court back then weren't talking about the problems with overruling past cases. So, when Brown versus the Board of Education in 1954 overturned Plessy versus Ferguson and said, states can't segregate kids on the basis of the race, no one was saying, well, we got to stick with precedent because Plessy was on the books. So, a lot of this is hypocritical on both sides.
Brent:
[35:27] Yeah. And then are there any other broad categories or worldviews within justices or lawyers, how they interpret the Constitution or what type of law they typically align themselves with?
Vikram:
[35:38] Some justices will look at history in a bigger picture sense, and other justices will look at history in a more narrow sense. So, for example, affirmative action. If you wanted to know what the—, Constitution and the 14th Amendment says about race-based affirmative action, if you were looking at that question in a narrow originalist frame, maybe you'd say, well, did the people who adopted the 14th Amendment, did they expect that affirmative action would be okay, or did they think that they were outlawing affirmative action? And that would be a narrow way to look at it. A broader way to look at it would be to say, did the people who adopted the 14th Amendment, did they really want to accomplish meaningful racial equality? And if the answer to that is yes, even if they thought affirmative action wasn't a tool to be used for that end, maybe you still allow affirmative action if you think today that it is a tool that can be used because you care more about their objectives than their narrow understandings of how to accomplish those objectives.
Brent:
[36:58] Yeah, more like letter of law versus spirit of law type of...
Vikram:
[37:00] Yeah, so how much do you focus on the purpose and the mischief or the reason as opposed to the more narrow understandings of how things would work?
Keller:
[37:12] And with the current context of affirmative action going on, like with the news the past couple of months, is that going on university letters from the state down, shifting the entire rules around them?
Vikram:
[37:23] I'm not quite sure what you're talking about in the last few months. So, say more.
Keller:
[37:27] In recent months, I'm pretty sure in the news, have changed the rules around affirmative action at some schools, essentially changed the blind system for admission.
Vikram:
[37:39] Summer of 2023, the Supreme Court decided a case involving Harvard in North Carolina that eliminated the ability of public and private universities to take the race of individual student applicants into account. So that did change things in a lot of places. Here in California, since 1996, that has been the rule for public universities anyway. So the Supreme Court decision doesn't change anything at the University of California. It does change things at Stanford, because before last summer, Stanford was free to use race and admissions in a way that it's not anymore. So we don't yet have good data about how schools have reacted to the Supreme Court decision, because it came down in the summer of 2023. And in the fall of 2023, all of those classes were already assembled by July, right? Admissions are already done by June. There's a tiny bit of waitlist activity, but that's minuscule. So the 2023-2024 admission cycle was the first cycle to really be implemented
Vikram:
[38:50] in the shadow of this Supreme Court ruling. And we're still just now in the fall of 2024 getting data to help us sift through to see what effect those rulings had.
Brent:
[39:00] Yeah. No, I think I saw some recent articles saying like admissions rates dropped for certain groups after.
Vikram:
[39:05] They did it at some schools, but not at others. And so conservatives who brought the challenges in North Carolina and Harvard are saying, how is it, Yale, that your numbers are the same as they were last year when you admitted you were using race? Are you using race without admitting it now or did you change something else? So there's gonna be some lawsuits filed against some of the schools whose numbers didn't change brought by some of these conservative groups. But the interesting thing about the numbers so far is they changed at some places but not at similar places in other parts of the country. How a school reports its data is not uniform at all schools, too. So, that's why it's hard to compare what's going on at each school, because you don't know if it's apples to apples.
Brent:
[39:49] Yeah. And then, does the Supreme Court have the ability to rule over private universities? Yes. Because I think they do.
Vikram:
[39:56] Well, for this reason. Okay. So, the reason why Harvard and not just North Carolina – so, North Carolina is governed by the Constitution, which is a federal law, the 14th Amendment, Equal Protection Clause. So, that's easy to see why the United States Supreme Court can tell North Carolina it was violating the Constitution. But there's a federal statute called Title VI that applies to every university, public and private, that receives any federal support funding. So, that means any university you've ever heard of.
Brent:
[40:23] Yeah, NIH and all those.
Vikram:
[40:24] NIH, NSF, CDC, Department of Agriculture, Department of Energy, Department of Defense. UC Davis gets tons of federal money. So it's governed by Title VI. And Title VI says if you receive federal funds, you cannot discriminate on the basis of race. And what the U.S. Supreme Court said is the meaning of Title VI and the meaning of the Equal Protection Clause of the 14th Amendment have been understood to be the same thing. And the Supreme Court says we're going to stick with that parallel interpretation. So, if it violates the Constitution for UNC or UC Davis to do something,
Vikram:
[40:59] then it also violates Title VI for Harvard or Stanford to do it.
Brent:
[41:04] Okay. And then do you agree with the legal reasoning behind overturning affirmative action?
Vikram:
[41:10] You know, I am not wholly convinced that the Supreme Court's decision holds up well under an originalist framework. And I tend to start by looking at the text and history. I'm not sure that the framers of the 14th Amendment meant to forbid use of race in trying to accomplish some kind of racial equality. Having said that, I do acknowledge that there are challenges posed by race-based affirmative action, not the least of which are how you categorize any individual person. For example, people from the Middle East? Are they considered, you know, African? Are they considered Asian?
Vikram:
[41:54] How do you count an Arab? And even at the oral argument, the lawyer for North Carolina didn't know. It just goes to show some of these categories of race are kind of arbitrary. You know, another problem with the way it operates, right now, for example, all Asians are lumped together. And so presumably people who have Japanese ancestry and people like me who have Indian ancestry were kind of lumped together. Now maybe I have a lot in common with people of Japanese ancestry, but I'm not sure that I have more in common with them than I do people of South American ancestry or European ancestry. So this stuff is really, there's no easy answers to it. My own instinct and preference would be.
Vikram:
[42:40] There's no clear constitutional prohibition. You should leave it up to the other branches. The courts shouldn't be micromanaging. But that's a different question than whether affirmative action as being practiced prior to 2023 was done in an absolutely wise way. I think there was room for improvement, but I think that improvement should take place generally in the policy-making branches of government and not in the federal courts.
Brent:
[43:05] Yeah.
Keller:
[43:06] And not just in the context of affirmative action, but more broadly in the last five, 10 years, do you think the Supreme Court has become too politicized?
Vikram:
[43:14] Well, I think the Supreme Court has, not been good at being consistent in its methodology. So, the Supreme Court overruled Roe versus Wade in the Dobbs case. And, you know, I worked for the justice who wrote Roe versus Wade, albeit almost two decades after Roe, and he's one of my personal heroes. But even I would admit that as written, Roe versus Wade is not kind of very legally, constitutionally tight.
Vikram:
[43:51] And liberals at the time criticized Roe versus Wade as being kind of made up. Even Ruth Bader Ginsburg at the time had some mixed things to say about Roe versus Wade. Now, there may be arguments in favor of a right to abortion that were not considered or discussed in Roe versus Wade, and I'm certainly open to looking at those more carefully, but as a matter of constitutional craft, Roe versus Wade doesn't really explain very well why abortion is something that's grounded in the Constitution. So, when the Supreme Court and Dobbs got rid of it, what they said is Roe versus Wade was kind of made up, it wasn't rooted enough in the Constitution, and so we're not going to do that. We're not going to follow that. We think for a constitutional right to be recognized by the court, the basis for that right has to be tethered to the Constitution more firmly. And that's a fair line of criticism of Roe.
Vikram:
[44:47] If the court is going to say, we're not going to make rights up, we're not going to make stuff up, then it's hard to see how they decided the two big cases from the last term, the Trump immunity case and the Trump case from Colorado, where they said a state can't decide to enforce Section 3 of the 14th Amendment and exclude someone from the presidential ballot on the ground that he was an insurrectionist. Because there's nothing in the text or history or structure of the 14th Amendment or the original Constitution that tells states that they can't run a presidential election any way they want, and there's nothing in the original Constitution that creates the kind of broad immunity that the Supreme Court recognized in the Trump immunity case. So those cases were as or more made up than Roe versus Wade, and so then the court's going to lose credibility, loses confidence. And it should be open to very kind of forceful criticism this year. I think those two cases were two of the worst cases in the past 50 years.
Brent:
[45:49] Yeah. Could you expand on the Colorado case?
Vikram:
[45:57] So the Colorado case involves Section 3 of the 14th Amendment, which says if you take an oath to uphold the Constitution and then you engage in insurrection, you're ineligible for federal office. And so what Colorado said is, well, we've had a court that has decided that Donald Trump did engage in insurrection, not so much what he said on the lawn outside the Capitol, but what he did in trying to interfere with the results in Georgia and other places and twist Pence's arm and all the like. And so he's not going to be eligible to compete for Colorado's electors. And what the U.S. Supreme Court said was, well, we don't think a state should be allowed to implement Section 3 of the 14th Amendment. That's up to Congress alone.
Vikram:
[46:48] Because otherwise, each state would have its own way of implementing it. And you'd have disuniformity in the states with regard to who's on the ballot. So, as John Roberts said at oral argument, well, you know, Trump might be on the ballot in some states, but not in others, and same with Biden. And that's kind of, you know, daunting to think of that being so disuniform. And anyone who's listening who's lived in the United States would say, what are you talking about? The ballot in every state is disuniform. RFK Jr. is on the ballot in some states, but not others. Jill Stein is on the ballot in some states, but not others. Those two people might determine the fate of the election. In 2020, Ralph Nader was on the ballot in Florida, and that's what gave the election to George Bush, even though Nader wasn't on the ballot in other states. So it's inherent in the Electoral College that every state gets to do it its own way. So it was just kind of ridiculous for the Supreme Court to say disuniformity is a reason why Colorado could not implement Section 3 of the 14th Amendment. That's something different than the so-called independent state legislature theory, which the Supreme Court repudiated, not quite as forcefully as I would have wanted, but 90% as forcefully as I would have wanted, in a case the year before that was called Moore v. Harper.
Brent:
[48:03] Okay. Could you expand on that?
Vikram:
[48:04] So basically, in Moore v. Harper, what Republicans argued was when the Constitution, gives the power to the legislature of each state to run federal elections, whether it's congressional elections at issue in Moore v. Harper or presidential elections, as in Bush v. Gore, that when the Constitution gives the legislature of each state power in those two realms, that means that the elected legislature, like the people in Sacramento, the House and the assembly and the senate that they get to violate the state constitution uh when they administer federal elections so here's an example um colorado state constitution and california for that matter says that the electors shall be for the electoral college from the state shall be selected by the people in a popular election okay if the mem if the folks in sacramento passed a law that said Well, we think the electors shall be picked by us rather than the voters, or shall be picked by the governor rather than the voters, or shall be picked by this group of three people that we're going to designate rather than the voters.
Vikram:
[49:24] Under the ISL theory, they'd have the power to do that, even though the state constitution that created those folks in Sacramento, even though it says the people get to pick electors. So the question is whether the state constitution is supreme or whether the elected legislature is supreme. And the Supreme Court, more or less unanimously on this point, said the state constitution is supreme. That when the U.S. Constitution mentions the legislature of each state, it did not use that word advisedly. What legislature there means is whatever lawmaking system the state has, including the state constitution and the state courts and the governor's involvement, etc. et cetera.
Keller:
[50:08] And do you think, going back to the Colorado example, that choice was more so to appear apolitical in a sense, because making a stance hard that he couldn't be included in Colorado would make them seem as if they are leaning to a given side?
Vikram:
[50:25] You know, maybe. It's hard to know what there was on their minds, because it's such a crummy opinion. And I don't know that, you know, it's going to stand the test of time and support the court's credibility. But I'm sure there were some justices. And this was a decision that was stupid, but in a bipartisan way. The result was unanimous. It wasn't a 5-4-6-3 decision like the immunity case that broke down between Republicans and Democrats. So I'm guessing, but it's really just a guess, that they thought that allowing Colorado to exclude Trump would look like they were favoring the anti-Trump forces and validating the idea that Trump did engage in insurrection. But, you know—, In Dobbs, they said, it's not our business to wade into these things. We just call it the law, you know, as it appears to us.
Vikram:
[51:20] So, I don't think they should be really basing their decisions on things like that. They should have said, look, is there anything in the 14th Amendment that says states can't implement this on their own? It doesn't seem to be. States implement other aspects of the 14th Amendment on their own. Why not this aspect? That would have been a much, I think, cleaner way to get in and out.
Brent:
[51:41] And then is part of the issue that Trump was never fully convicted for insurrection itself? How do you deem someone an insurrectionist?
Vikram:
[51:48] So, the Colorado courts had a trial.
Brent:
[51:52] Okay.
Vikram:
[51:52] And Trump had a right to appear. He didn't maybe appear as vigorously as he could have, but that's his choice, him and his people. And there's nothing in Section 3 of the 14th Amendment that says you have to be criminally convicted. The definition of insurrection and rebellion in Section 3 is not tied to any criminal statute defining it. There's no crime of rebellion, per se. It's just a concept. And Colorado's definition of that concept was clearly plausible. And Trump had his day in court. He chose not to use it. Now, just because Colorado finds him to be an insurrectionist doesn't mean that Texas has to find him. Every state could do what it wants in this respect, because every state gets to run its presidential election any way it wants. But I don't think that there was a due process problem per se with the way Colorado proceeded. The court was just afraid of the issue, the Supreme Court that is, and I think they just thought it's calmer to not allow this to kind of go sideways right before the election.
Brent:
[52:55] Yeah. So like a high-level summary, it's like the states have their ability to run elections the way they want as long as it aligns to the state's constitution.
Vikram:
[53:03] I think that's exactly right under Moore versus Harper. And if you add Moore versus Harper to the Trump versus Colorado case, Trump versus Anderson, here's what you end up with. The Supreme Court says states can't ban someone for being an erectionist, an insurrectionist under Section 3 of the 14th Amendment. That's not a good reason for them to exclude someone. To which I say, okay, a state can just exclude that person for reasons of its own. So the state constitution can say, nobody can compete for electors in our state, if he is guilty of interfering with the lawful transfer of power. Not invoking Section 3 of the 14th Amendment at all. This is now purely under state law, under the state constitution, has nothing to do with federal law, and under Moore v. Harper, a state has to be able to do that. So that just is another way of illustrating the stupidity of the Trump v. Anderson decision. Because states can do exactly the same thing under state law that the U.S. Supreme Court said that they couldn't do under Section 3. And so you're going to have exactly the same specter or prospect of disuniformity that the Supreme Court said, oh, we can't have.
Keller:
[54:13] And then thinking more broadly in terms of the structure of the Supreme Court and the judicial system at that level, do you have any criticisms to the way that Supreme Court justices are appointed? Are there ways we could add in members that can maybe change the dynamic or is it just more of a cultural moment?
Vikram:
[54:30] There's so many bases for criticizing the way Supreme Court justices are picked and confirmed. The confirmation process has been a joke for decades. It's just a kabuki theater, but there's no substance there. The senators don't know what they're asking. They can't ask follow-up questions. They're reading a script. They're pretty unimpressive. uh the problem i think today is twofold one the president has an incentive to pick not just someone whose ideas and philosophy aligns with the party that elected the president that's to be expected and that's been more or less true throughout all of u.s history but the president has an incentive to pick someone very young someone in her 40s or early 50s and why because Because if you have life tenure on the court, that person may be on the court for 40 years. So a president gets to extend his influence past the four or eight years he's in office.
Vikram:
[55:29] That's fine, except that maybe people are not as ready to be on the Supreme Court at 49 or 51 as they would at 63 or 64. And so that's one reason why term limits are a good idea, because if you had a single 18-year term limit for justices, then presidents wouldn't pick someone who was 50, they'd pick someone who was 63 who was going to serve till they were 81, at which time maybe it's it's the right moment to move off anyway.
Vikram:
[56:01] Moreover, justices wouldn't time their retirements to coincide with the replacement being picked by the party that they like. So right now, people decide when to step down from the Supreme Court depending on who wins the election. So if Trump wins the election, you will see Justice Thomas and Alito likely resign in the next four years, assuming the Republicans have the Senate, to allow Trump to replace them and get confirmed by the Senate with younger versions of them. So that the conservative majority of the court will be cemented for that much longer. By contrast, if Harris wins, then I would expect a good chance that Sonia Sotomayor
Vikram:
[56:46] would step down over the next four years. And that's unfortunate. If you had term limits where people had to step down once they hit their 18-year term, then you'd have much more regularity in when people rotate off, and you'd also have –, Presidents getting to pick two justices every four years of a presidential term, right now it's very haphazard. You can be there in the White House for four years, like Trump was, and have three picks, or you could be there for four years and have zero or one pick. So, term limits, I think, is the reform that I favor most because it would fix some of these things, and I don't think you need a constitutional amendment to accomplish it.
Brent:
[57:28] Yeah. And would you see that also being played into like where a Republican president would also have to like cater to like maybe a Democratic House to ensure that – Senate.
Vikram:
[57:38] You mean.
Brent:
[57:39] Yeah, Senate for them to like get their justice like confirmed?
Vikram:
[57:43] Well, whether or not we reform the Supreme Court and have term limits or any of that, there's already a challenge when a president of one party is trying to nominate somebody to get confirmed by a Senate controlled by the other party. We saw that with Barack Obama and Merrick Garland. It'll be interesting to see what happens in the next four years if the president and the Senate are of different parties and there are vacancies in the Supreme Court, whether the Senate will say, well, we're just going to wait four years until we get a president of our liking. And of course, the Senate could change makeup in two years because remember, there's a Senate, one third of the Senate gets elected every two years. So it'll be interesting to see not just who wins the White House, but also who wins the Senate for these purposes.
Brent:
[58:29] Yeah. So, kind of taking a step back and just looking into the future, what do you see as some of the biggest legal issues? You referenced the two cases earlier this year, just kind of like, where do you see a lot of the attention going for the Supreme Court in the near future, or where would you like to see it going?
Vikram:
[58:46] Well, you know, even after Dobbs, there's still a lot of questions surrounding abortion and what some states can do with respect to citizens of other states, what federal power there is to regulate abortion, clashes between federal statutes and state abortion policies. So abortion is not going away, even though it's a different ballgame than it was before Dobbs. There are questions that are going to arise even after the Harvard and North Carolina affirmative action cases that ask if a university or a high school, for that matter, is not formally taking the race of individual applicants into account, but it is tinkering with the criteria of admissions in order to change the racial outcomes. is that a problem? So for example, if you could prove that California.
Vikram:
[59:40] Got rid of the SAT altogether and the ACT for University of California admissions, if you could prove that they did that to reduce the number of whites and Asians and to increase the number of Latinx and black students, is that a problem? That's the next generation of race and affirmative action cases. Uh, you've got cases involving, um, you know, privacy that are with, with technology, privacy is always under pressure. AI will generate all kinds of cases. Climate change will generate a lot more disputes in the coming decades. Uh, I imagine that, uh, something as, uh, mundane, but hugely important as insurance law will find its way to the Supreme Court because we have, we have a national crisis in a lot of insurance markets and especially property insurance.
Brent:
[1:00:29] Yeah. California especially. Right.
Vikram:
[1:00:30] So if you think about what it is that is making everyone anxious these days, immigration, AI, climate change, the culture wars, all of those things are going to feed the docket of the Supreme Court in the coming years.
Brent:
[1:00:49] Yeah. And then do you think we rely too heavily on Supreme Court decisions instead of codifying laws, especially with something like Roe v. Wade, where we relied so heavily on that and just kind of took it for granted that it was going to stay in place instead of codifying a national law saying it is legal or it's not legal or however you want to define it?
Vikram:
[1:01:08] Well, I do think that legislatures probably don't accomplish as much as they could and should. And, you know, Congress – basically, Obamacare is the only major statute that's been passed that I can think of in a long time. This is a Congress that really can't get much major done. There's been nothing significant on climate change, no immigration reform, nothing to deal with the deficit, entitlement reform. They just keep going on and wanting to get reelected pretty much.
Vikram:
[1:01:38] So, I do think that there's a lot of room to criticize our legislative bodies for not doing much. The problem with codifying something like Roe, and I'm not opposed to that, is, you know, it doesn't have the permanence that a constitutional right might, because what you codify, you can always uncodify if a different group of people get elected. Now, of course, as we saw in Dobbs, the Supreme Court can reverse its own precedents, but no doubt that the Supreme Court evolves at a much slower pace than Congress. Congress can change over from one party to the other very quickly. The Supreme Court takes a lot longer to change its personnel. And so, there's a reason why Roe was on the books for as long as it was.
Vikram:
[1:02:23] It took a lot of work for one side of the spectrum to get the justices in place to overturn it. So, I don't know that a federal statute codifying Roe, while perhaps a good thing, is going to fully satisfy the people who didn't like the Dobbs decision.
Brent:
[1:02:42] Yeah. And is there a different interpretation in the Constitution or a different place for like Roe v. Wade to apply that would be like longer lasting? Or also maybe for background too? Yeah.
Vikram:
[1:02:53] So, again... What I said earlier is there might be arguments in favor of a right to abortion that are not grounded in this nebulous concept of personal privacy that Roe versus Wade relied upon. Maybe looking at abortion through a gender equality lens, even though the Supreme Court in Dobbs was very flippant about that, there might be a lot more there. Maybe you can think of anti-abortion laws as conscripting the bodies of women who are bearing fetuses, and then it's kind of like a 13th Amendment problem where they're literally forced into unwanted labor. So, there's other perspectives that one could use, and scholars are working
Vikram:
[1:03:42] on these things, but that's a slower process.
Brent:
[1:03:47] Yeah, definitely. And then as we kind of wrap up here, do you have any broader advice to students who are interested in law and or politics?
Vikram:
[1:03:54] Well, if you're interested in law, and I hope you are because I think it remains a really, really vital profession, increasingly so, especially as democracy is under stress. The most important things for undergraduates to focus on, I think, if they want to be good lawyers is to learn how to write well, learn how to think critically, challenge yourself, take a lot of classes that involve not just history and economics and psychology and sociology, those are all relevant disciplines, but even things like mathematics and philosophy that have a formal, linear logic to them. A lot of law is based on logic, and you've got to be comfortable with formal logic, and you also have to be comfortable in writing. So don't take classes that just have multiple choice exams. Take classes that require you to write papers and write essay exams if you're really interested in law school.
Brent:
[1:04:58] Perfect. Thank you so much.
Vikram:
[1:05:00] You're most welcome.