When it comes to reforming the Supreme Court, Don Ayer is exactly the sort of person America needs to hear from more. Ayer is a veteran of the Reagan and George H.W. Bush administrations, where he served as principal deputy solicitor general and deputy attorney general. Before that, he clerked for Justice William Rehnquist (Rehnquist was later elevated to chief justice, and one of his clerks in that post was the current chief justice, John Roberts).
He might have followed a similar ideological path to Roberts and the other older conservatives on the Court, but he went in the opposite direction. During the Trump years he has spoken out frequently, in both the media and in Congress, about the damage the president and the Roberts Court are doing to the nation.
Earlier this year, Ayer joined the board of the Brennan Center. As the Court winds down another topsy-turvy, precedent-smashing term with several major rulings still to come, I reached out to talk about his front-row seat to the Originalism Era, the half-century rise of what is now a right-wing supermajority, and what we might expect in the Court’s future. Along the way, he offered a striking new detail about his old boss William Rehnquist’s views on Court reform.
This interview has been condensed and edited for clarity.
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JW: You served in the Reagan administration and in the first Bush administration. As you explained in a 2021 New York Times piece, you worked at times alongside three of the current justices, John Roberts, Samuel Alito, and Clarence Thomas. You were all products of the same conservative counterrevolution in the courts. How did you end up in such different places?
DA: I was always an old-line Republican and a latecomer to Washington in the mid-1980s. Like Charles Fried, the solicitor general for whom I worked, I never really was persuaded by the most extreme doctrinal thrusts of the Reagan Revolution in the law, including the then-unsuccessful effort to literally reverse decisions of the Warren Court, or what has been, in the long run, the extraordinarily successful promotion of textualism and originalism as the key tools of legal interpretation.
My experience as a law clerk in the mid-1970s, which I took (and still do) as the best model of constitutional judging, was of a court made up of people with different backgrounds and views, considering a broad range of factors, including purpose, history, context, and consequences, along with the document itself. No justice was seriously arguing for a monolithic approach based on the text, and certainly not then about original intent or meaning. There was a lot of give and take in writing opinions people could agree upon, drawing upon what they variously found important. It was a common law kind of reasoning. And that has always struck me as a very sensible way for the highest court to interpret a document meant to last in perpetuity.
At the same time, the Reagan revolution in the law was based on the idea that we all shared: that the Warren Court — and also the Burger Court — in enunciating constitutional rights sometimes with little or no connection to the Constitution, had gone too far. The biggest single point was that when unelected judges just go off and do what they think is right or fair, you lose contact with any legitimate basis in law. Hence the appeal of the arguments forcefully advanced by the Department of Justice in the 1980s under Ed Meese, that textualism and originalism are virtually the only proper tools for reading the Constitution. But this was a very hard sell to those then on the court. I think it was 2008, in District of Columbia v. Heller, before the court actually decided a case on the basis of originalist reasoning. Of course, the last six years have been a very different story, as originalism has been episodically invoked to support a variety of outcomes.
JW: In your 2021 Times piece, you spoke of the conservatives’ “resistance to judicial meddling” that they felt the Warren Court had engaged in. You described the principle that judges should be stewards of the law, not “innovators charged with radically remaking it.” And then you wrote that this court, the Roberts Court, has “morphed into what it was meant to curtail.” Say more about that.
DA: This was said based mainly on those half dozen or so cases that they had just decided in the 2020–21 term. The reason I got excited to write that article was, here we just had Justice Barrett added to the Court, making a supermajority of pretty compatible conservatives, and we saw the court acting several times in quite unprincipled ways to reach a conclusion. There were no blockbuster opinions that made big news that year, but several times the conservative majority handed down decisions that, as dissents calmly pointed out, could not be squared with clear existing Supreme Court precedents. I was frankly shocked that the court, mostly in opinions by the chief justice, would simply defy existing law, mostly without even acknowledging it.
JW: It’s easy to be cynical, but are you saying the doctrines of textualism and originalism were mostly just a cover for ensuring there would be different people in charge of judging, and different policy preferences getting approved by the Supreme Court?
DA: I really can’t say that about what was going on in the DOJ in the 1980s. I think it was a good-faith, though misguided, effort to change legal thinking in ways that would curtail the exercise of judicial discretion.
But in recent years, as the irrelevance and shortcomings of originalism have become increasingly apparent, it has become a sort of cudgel to be used selectively to support answers that otherwise defy common sense. Heller has made the Second Amendment a topic on which rational thought by judges is off limits, in favor of asking whether a given regulation has a close enough historical analogue. At the same time, in other circumstances — the immunity case, Trump v. United States, for example — the court has taken very sharp turns in the law without material reliance on text or original meaning.
JW: In a 2022 article for The Atlantic, you wrote, “The court cannot both be the willful instigator of radical changes in the law based simply on disagreement with the views of prior justices, and remain the faithful steward of a legal system that commands widespread trust and respect.” Say more about that, especially in the light of the last four terms.
DA: I think it’s really significant that popular trust in government does turn a lot on faith in the rule of law. What that means to most people is that we live under rules that are knowable and that will usually be applied consistently and fairly. That is really not compatible with having a high court that feels empowered, even with regard to quite important legal principles, just undo them when you have the votes because you disagree. You can write some words that will say it was “egregiously wrong,” but it isn’t very comforting for people to be told that we’re going to change this rule that’s been around for 50 years, because the dumbasses that wrote it were just stupid, and we know better. [Samuel Alito used “egregiously wrong” to describe the Supreme Court’s ruling in Roe v. Wade, which was decided 7–2, with both Republican and Democratic appointees in the majority. —JW]
So, the Supreme Court that we all thought was the Supreme Court for all these years, they didn’t always agree, but they came up with resolutions that created some semblance of stability, and now we just sweep it all aside because the current crew has a better idea. When you do that many times in six years, it becomes hard for people to believe that they are dealing with a court that’s sitting on top of a real system of law.
JW: You have said that, to the extent that the justices’ behavior undermines the public trust in the institution and increases calls for structural change, you’re in favor of certain reforms.
DA: Objectively, there is really nothing to recommend our approach of life tenure, in which justices increasingly hold these key decision-making roles for 30 or more years. It is quite important that justices remain genuinely independent of any influence based on threat of premature termination or any other sort of coercion. But that is perfectly consistent with a set term — perhaps of 18 years. There’s no good argument for saying the justices ought to be deciding these cases until they drop dead, or even after they become senile. And that’s why this approach is nearly unheard of in the world. I recall as a law clerk hearing Justice Rehnquist say that 15 years is long enough for a Supreme Court justice to be able to serve. This was five years into his time there. Of course, he ended up staying for almost 34 years.
The questions about term limits are not about whether it is a much more desirable system, but about its precise form and how it can be accomplished. There are debatable questions about the legitimacy of doing it by statute, and there are different ways of doing it by statute. Or maybe, some argue, you need a constitutional amendment. At that point the discussion tends to be diverted to the challenges inherent in adopting an amendment. Instead of bogging down in that quagmire, we should be focusing on the fact that term limits would be a huge benefit to the functioning of the Court and get on with figuring out how to get it done.
JW: What about adding justices?
DA: I think any effort to just pack the Supreme Court would greatly aggravate the rampant cynicism that people now feel about the court. Any reforms should be careful changes that are actually real improvements in the way the Supreme Court and its processes would work.
JW: Are there any other reforms you think would be valuable?
DA: I think one that is an absolute no-brainer would be clear ethical rules that are independently enforceable by the judicial council or its designee. Not doing this is the cause of a recurring self-inflicted wound that is hard to fathom.
