Title: Will a more Powerful Supreme Court Help or Hurt American Purpose?
President Donald Trump will likely nominate a third Supreme Court justice. How will Democrats react to the total loss of liberal dominance on the Supreme Court?
Thomas B. Teston（《民主档的灵魂》作者）：“我认为，自由党人和民主党人，有必要重新与美国人民建立联系，并利用人民的选举权力推进改革议程。”
Thomas:“ I think that it behooves the liberals and the Democrats to renew their ties to the American people and to use the elective power of the people as a way to advance the reform agenda.”
The nation is deeply divided. How did the man whose case set the precedent for Second Amendment rights face school shooting victims’ families?
Dick He（原告/华盛顿特区对海勒最高法院案件）：“几年后Sandy Hook发生了大屠杀，我是否要负间接责任呢？”
Dick Heller: “I’d won this case and a couple of years later you have the Sandy Hook massacre. And I had to go have a talk with the man in the mirror and say was this your fault? ”
For most of American history the Supreme Court was an afterthought. How did the Supreme Court become supreme and come to dominate the American political system?
Ilya Shapiro（卡托研究所Robert A. Levy宪法研究中心主任）：“问题是，几十年来华盛顿的权力、联邦的权力一直在增长，这就是为什么最高法院的重要性与日俱增。”
Ilya：“ And the problem is over the decades, power in Washington, federal power, has grown. And that’s why the importance of the Supreme Court has grown. ”
Welcome to《Zooming In》，I am Simone Gao. In this edition we look at the Supreme Court. All Americans are affected by decisions made by the Supreme Court. Since the end of World War II, these rulings have changed how state legislatures draw congressional districts, stripped legal protections from unborn children, and stopped school children from praying before classes begin. The Founding Fathers created each of the three branches of the federal government in the first three articles of the Constitution. Because the legislative branch was created in Article One, legal scholars agree that Congress is to have primacy in the government. Article Two is the executive branch, and Article Three is the judicial branch, which includes the Supreme Court. In this edition of《Zooming In》，We examine how this third branch of government became so powerful and what it means to national politics when a liberal Court transitions into a conservative court. We go behind-the-scenes with participants who share their experiences in Supreme Court cases.
PART 1: Two “People”Stories
Narration: The Second Amendment states that Congress shall not infringe on the right to keep and bear arms. But for Dick Heller and millions of Americans who wanted to own a gun, it was a different story. Mr. Heller was a special police officer guarding the Supreme Court back in the ‘90s. Every day at the end of his shift, he would turn in his pistol at the armory and ride his bike home through increasingly dangerous neighborhoods–unarmed.
Dick Heller:“ It did not go unnoticed by the justices that one of the people guarding them with a government-issued firearm was the litigant. And when I thought about it, a light bulb came on one day. And it occurred to me they give me a gun, but I can’t have a gun. I can protect them, but I cannot protect myself.”
Heller applied for a one-year license for a handgun he wished to keep at home, but his application was denied. He then sued the District of Columbia for violating the Second Amendment. During the next 20 years, he took his case all the way up to the Supreme Court.
On December 26, 2008, the Supreme Court ruled in favor of Heller’s rights to bear arms. On June 26 that year, Justice Antonin Scalia delivered the opinion for the 5-4 majority.
“Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”
A large portion of the American public had waited decades for this moment. Heller told me his most memorable moment before the high court hearing.
Dick Heller: “the story that I really like to tell is “the people” story because the night before the hearing, it was very cold in March, and I went to—I only lived a block away, so I pulled up on my bicycle and said, “Hey, y’all, what’s happening here? Why is everybody sleeping on the sidewalk?” An aw-shucks kind of thing. And nobody knew. Nobody recognized me. And it was cold, so I talked to a lot of people, and there was over 50 people sleeping on the sidewalk, so I said, “It’s getting cold, the sun’s going down.” I went to the drug store and bought two big 200-piece cough drop bags. I bought 400 cough drops, and then I went back and started at the head of the line, the sun had gone down by now, and gave everybody a handful of cough drops. And I said, “Here, you’re going to need these.” And everybody was saying, man, that dude’s nice. Who was that? You know, nobody. So the next morning I’m in a coat and tie, and I go down the line and shake everybody’s hands and they suddenly recognize me. Oh, no. Oh, no, you didn’t. Oh, yes, I did. And they got a kick out of that because I was out there meeting the people because we were all kind of going in together to hear this case. I was just a normal people.”
“ Right. They’re not allowed in the Supreme Court, right? They’re outside waiting?”
Dick Heller: “They had to wait outside because so many people wanted to get in that they were sleeping on the sidewalk to be the first to enter the Court. The Court takes about 125, I think.”
萧茗（Host/Simone Gao）：“ 现场去了多少人？”
“ How many of them were there?”
Dick Heller: Hundreds. And they were swapping them in after the courtroom packed, then they would swap standing-room only 20 at a time for about 10 minutes.
A year after he won his case, Dick Heller realized he had started a tidal wave.
Dick Heller（迪克·海勒/原告/华盛顿特区对海勒最高法院案件）：“第二修正案基金会的Alan Gottlieb发表了声明，应该是他，他说我的案子胜诉了。在那之后的一年里，有超过75个针对地方枪支管制措施的诉讼案。我当时坐在第一排，我感到难以置信，我只知道我自己的案子，我没有想到这类抗议会上升到75宗。在那之后又过了一两年，诉讼案的数量达到了300宗。我对自己说：我们掀起了维权的浪潮。这个例子显示了最高法院的权力，一个正确解释宪法的高院会影响下面那些不愿遵守宪法，尤其是反对第二修正案的巡回法院、市政府、和州政府。在一个法治国家里里，最高法院就具有这样的权力。”
Dick Heller:“And I went up to New York to do a speech. And there were a number of people up there who were more versed in the legal activity than I was. And it was Second Amendment Foundation, Alan Gottlieb, I think, made the statement. It should’ve been him. He said since Dick Heller case was heard and decided, he said there have been over 75 additional gun cases one year later that have hit the courts challenging the local restrictions. I’m sitting on the front row, and my mouth falls open because it was just—all I knew was me and my little bubble, right, in a case here and a case there and then 75. And then a couple of years later, it was announced that there were over 300. I’m going, to myself, “Oh my gosh, we have started a tidal wave.” So what you can see is the power of the Supreme Court to properly interpret the Constitution has created significant challenges to the number of circuit courts and cities and states that just absolutely detest our Constitution and the Second Amendment most of all. So that’s the power they have because we live by laws.”
Four years later, Heller got hit by another story.
2012年12月14日，在康涅狄格州的Newtown， 20岁的Adam Lanza开枪打死了20个6-7岁的学童，以及6名校方工作人员。来学校前，他还在家中打死了自己的母亲。当警方赶到现场的时候，Lanza开枪自杀。
On December 14, 2012, in Newtown, Connecticut, 20-year-old Adam Lanza fatally shot 20 children between six and seven years old, as well as six adult staff members. Before driving to the school, he shot and killed his mother at their Newtown home. As first responders arrived at the school, Lanza committed suicide by shooting himself in the head.
Dick Heller（迪克·海勒/原告/华盛顿特区对海勒最高法院案件）：“我非常难过，我被深深的触动了，我打赢了自己的官司，几年后Sandy Hook发生了大屠杀，我是否要负间接责任呢？我想明白了，这里没有我的错。我们的诉求，以及大法官Scalia的判决，是为了增强人们自卫的能力。家长们和Sandy Hook的校董们应该知道，学校必须有保安，或者有枪来防卫，他们为了省钱而不作为，没想到会有后果。如果他们仔细想想从前发生的校园枪击事件，就会意识到应该采取防范措施。我打赢了自己的官司，在法律上确认了他们拥枪自卫的权利，只是校方和家长没有实行，所以有枪才有安全。”
Dick Heller: “Don’t get me crying now. This really touches my heart. But in the case of Sandy Hook, I mean, I’d won this case and a couple of years later you have the Sandy Hook massacre. And I had to go have a talk with the man in the mirror and say was this your fault? And I finally figured out, no, it wasn’t my fault. What we did, and the Scalia decision, was give everyone the option to protect themselves. And the parents and the school board in Sandy Hook had no reason to believe that they would ever need security or armed people on their elementary school campus. So they made a financial decision by making no decision, not knowing about it. Had they ever thought through the previous school shootings, they might have said, gee, maybe we ought to protect our school. And after the Heller decision, they had the right, the specific enumerated, articulated right to do that. And they chose not to. So safety is a choice.”
“ After the school shooting, many victims’ family members supported tighter gun control restrictions over Second Amendment rights. They saw it as a solution to prevent this tragedy from happening again. What would you say to them? ”
Dick Heller: “Interesting in that President Obama said when they bring a knife, we bring a gun. Well, when someone brings a gun and you are in high school and you have a knife or a baseball bat or nothing, you have a right to be stupid. Sandy Hook, San Bernardino, the Parkland high school, and the Orlando nightclub shootings, in all those cases, they were, of course, all gun-free zones. And why would a criminal, a killer, want to have a bad day at the office and face gunfire? So they’re going to pick gun-free zones. The Orlando nightclub case, if there was anyone that was concealed carry, they were outside in the parking lot because they were not allowed inside under Florida law because you cannot conceal carry in Florida in an alcohol-serving establishment. So wherever–if you look at the FBI statistics, they have a table in their crime statistics annually called Table 8, and what you can do is you can see, as gun ownership goes up, crime goes down on a macro level, a national level, or a municipality county-city level, that’s just the dynamics of humans. ”
“ Are you against background checks? ”
Dick Heller: “All it does is slow people down and puts a burden on the law-abiding citizens. We submit to background checks because we’re law-abiding. What criminal wants a background check? They don’t go into a gun store to buy a gun. Do they have guns? Yes. Where do they come from? My, my. All over the place. So a background check just doesn’t do much. All it does is slows people down a little bit. Now, what you really should have is, when they go for the background check in the gun store and they fail, then a net should drop down and hold them until the police come. Now that’s a pretty good system maybe. ”
Coming up, Has the Supreme Court grown beyond what the framers had intended?
Part 2: How Did the Supreme Court Become Supreme in America’s Political System?
The federal government is often described as a complex system of checks and balances among three co-equal branches of government. Another way of looking at it is to see the federal government as four deliberative bodies stacked as a pyramid. At the bottom is the House of Representatives. It is the most powerful body with 435 members. It is the most diffuse body, but its power is that in matters of impeachment, war, taxes and spending, the House has the initiative.
The second body is the Senate with 100 members. Its sole power is the ability to say no to bills and motions passed by the House and to approve presidential appointments and treaties.
There is no fixed number of justices, but by tradition there have been nine justices on the court. The framers gave the court no initiative authority. It can only act if someone petitions it to act. However, the court has the power to say no to any action taken by the president, the Congress, and the states. At the top of the pyramid is the president, who has both the initiative and the power to say no to Congress through his veto.
This model became broken in the took it upon themselves to create new laws on their own. This seizure of initiative is the innovation that disrupted the constitutional system created by the framers because there is virtually no check for a power the framers never anticipated.
萧茗（Host/Simone Gao）：Ilya Shapiro是卡托研究所Robert A. Levy 宪法研究中心主任。我和他谈论了最高法院角色的变化问题。
Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. I spoke with him about the changing role of the Supreme Court.
萧茗（Host/Simone Gao）：“Mr. Shapiro, 请问最高法院的初衷是什么？它今天的作用是否已经超越了制宪者的初衷?”
“ Mr. Shapiro, what was the original purpose of the Supreme Court and has its role today grown beyond what the framers intended?”
Ilya Shapiro:“ Well, the Supreme Court or the judiciary in general is supposed to check the other branches. So if Congress passes a law that goes beyond its Constitutional authority, the Supreme Court or lower federal courts are supposed to strike it down. If the president or an executive agency does something that’s beyond their statutory authority, the courts are supposed to step in. And the problem is over the decades, power in Washington, federal power, has grown. And that’s why the importance of the Supreme Court has grown. And so now we have sort of gotten used to the idea that every June at the end of term, the Supreme Court rules on three or four or half a dozen of the most important political issues in the country. And you think about it in the last decade, everything from health care, immigration, racial preferences, abortion, political gerrymandering, campaign finance, voting rights, you name it, a big political controversy, the Supreme Court is involved. And it’s not because the Supreme Court is trying to get involved and trying to earn a higher profile or gain more power. It’s just a function of a system that has concentrated power in Washington. And in a large and diverse country, you’re going to have differences in opinion that ultimately end up resolved by the Supreme Court. I think, ultimately, the way to reduce political polarization, or the tension, the toxicity that we’re living the last decade, is to push power back down to the states and the localities. If the Supreme Court doesn’t have to decide these major issues of federal power or executive authority or what have you, then it won’t be as talked about. I think that would be a good thing. But it’s not just the Supreme Court. It’s also Congress. It’s also executive agencies. As power has centralized in Washington, all of these institutions start playing a larger role. ”
“ You just mentioned that these branches of government shouldn’t have so much power. But how can their powers be cut back? ”
Ilya Shapiro: “Well, just like it’s taken decades to get to where we are, it will take decades to get back. I think the Supreme Court, starting in the ‘30s, started approving uses of federal power that go beyond Constitutional authority without amending the Constitution. And that’s really the genesis of the growth of power here in Washington. But it’s not just that. It’s also Congress abdicating its authority or delegating its power to the executive branch. That way congressmen can say, I voted for this great law and I’ll just have the bureaucrats sort out the details. And if people don’t like the details, they can blame the agency. They shouldn’t blame me, I passed this great law. But it’s the bureaucrats, it’s the civil servants, it’s the agencies that are doing the bad things. And, of course, people can’t lobby the agencies or the bureaucrats.
They can only sue them. And that’s why all of these major disputes over clashes of policy views or values end up in the courts rather than being decided in the halls of Congress. There’s something unusual and unhealthy about protests going on outside the Supreme Court rather than outside of Congress because all of these major clashes of policy positions or values should be decided by our elected representatives, not pushed to the executive agencies and ultimate resolved in court.”
萧茗（Host/Simone Gao）：同样的问题，我也问了民主党人。Thomas B. Reston一辈子都在政治领域工作，在全国层面为八次总统选举工作过，在地方和州里选举经历更多。他两次被选为弗吉尼亚州民主党秘书长。他在吉米·卡特总统任内被指派做外交工作，是外交事务的助理国务卿。他是民权的拥护者，写作过《一名民主党人的灵魂》一书，听听他怎么说。
I also asked the Democratic side the same questions. Thomas B. Reston has spent a lifetime in politics, working in eight presidential campaigns at the national level and in countless local and statewide efforts. He was twice elected Secretary of the Democratic Party of Virginia. Reston was a political appointee in the Foreign Service under President Jimmy Carter, serving as Deputy Assistant Secretary of State for Public Affairs. He is a civil rights advocate and author of 《Soul of a Democrat》. Here is my discussion with him.
“ Do you think the role of the Supreme Court has gone beyond what the framers had intended?”
Thomas B. Reston（《民主党的灵魂》作者）：“我不这么认为。其实最高法院的角色或多或少的正在回归国父们想要的那样，或是，首席大法官John Marsahll想要的那样。他曾经是伟大的保守派，建立了最高法院司法审查制度，这个制度在国会之上，这样最高法院如果发现有些法律不符合宪法，尽管是国会已经通过了的，也可以废除。所以最高法院真的正在回归最早的功能，就是约束国会的功能。我认为最高法院一直在发挥美国政府中的保守派的角色。还有现在最高法院里保守派是多数，这已经是事实，我认为最高法院会回到它的本质角色上。”
Thomas Reston:“ No, I don’t think so. In fact, I think, as a practical matter, the role of the Supreme Court is returning more or less to what the framers wanted, or certainly Mr. Chief Justice John Marshall, who was the great conservative who established the principle of judicial review, over the actions of Congress so that the Supreme Court could knock out legislation that had been written and passed by the Congress if the Supreme Court found the legislation to be unconstitutional. So I think really the Supreme Court is returning to its earliest days as this staunch, as the staunch wall against an unbridled Congress. I think that it has always functioned as the great conservative part of the American government. And I think with the new conservative majority on the court, which has now been established, I think that court will return to its essential role.”
萧茗（Host/Simone Gao）：“下一节还有更多Thomas Reston的采访。”
“ We will have more with Thomas Reston in our next segment. ”
Coming up, it is possible that president Trump could appoint another justice during his presidency. If that happens, how will Democrats react?
Part 3: How Will Democrats React to the Loss of a Liberal Supreme Court?
After Neil Gorsuch and Brett Kavanaugh, it is possible for President Donald Trump to nominate a third Supreme Court justice during his presidency.
The 85-year-old Associate Justice Ruth Bader Ginsburg is currently recovering from lung cancer surgery. She was absent from oral argument on January 7th for the first time in her 25-year career on the court. She participated in deciding the two cases being argued by reading legal briefs and transcripts of the oral arguments.
金斯伯格是法院自由派的领袖。她在法律生涯中花了相当大的一部分时间，倡导促进性别平等和妇女权利，并在最高法院的辩论中多次获胜。她曾在美国公民自由联盟（American Civil Liberties Union）担任志愿律师，并于20世纪70年代成为其董事会成员和总顾问之一。
Ginsburg is the leader of the court’s liberal faction. She spent a considerable part of her legal career as an advocate for the advancement of gender equality and women’s rights, winning multiple victories arguing before the Supreme Court. She advocated as a volunteer lawyer for the American Civil Liberties Union and was a member of its board of directors and one of its general counsels in the 1970s.
During Barack Obama’s presidency, some progressive lawyers and activists called for Ginsburg to retire so that Obama would be able to appoint a like-minded successor, particularly while the Democratic Party held control of the U.S. Senate. Ginsburg rejected these pleas.
If President Trump will be able to appoint another conservative Supreme Court justice, how will that affect national politics? Here is the rest of my discussion with Thomas Reston.
“Ever since the 1950s, the Supreme Court has had a liberal majority. Now with the confirmation of Justice Gorsuch and Justice Kavanaugh, that situation is changing. Now, with the possible replacement of Justice Ruth Bader Ginsburg, the Democratic Party will lose a reliable left-leaning Supreme Court. How will they react?”
Thomas B. Reston（《民主党的灵魂》作者）：“我不认为最高法院现在是左翼的最高法院。但我认为你是对的，在1950年代、1960年代和1970年代的一段时间里，最高法院的多数成员非常同情美国社会的改革力量，并以一种非常有力的方式行使法院的权力，协助美国的改革力量。我认为，这个国家的自由党已经习惯于在他们的头脑中，认为法院是一个可靠的盟友，他们认为，即使人民不同意他们的意见，或国会中的人民代表不同意他们，只要人民代表能简单地去支持他们，就能实现他们的目标，他们认为，即使人民不同意他们的意见，或者国会中的人民代表不同意他们的意见，他们也可以做到这一点，在法庭上赢得法律诉讼。我认为现在最高法院变得更加保守，而且已经保守了一段时间，但现在它将变得非常保守，现在关于谁在最高法院拥有权力不会有太多的歧义。我认为，自由党人和民主党人有必要重新与美国人民建立联系，并利用人民的选举权力推进改革议程。”
Thomas Reston:“ I don’t regard the Supreme Court now as a left-wing Supreme Court. But I think that you are correct that for a period during the 1950s, 1960s, and 1970s, there was a majority on the Supreme Court which was very sympathetic to the forces of reform in American society and exercised the power of the court in a very robust way to assist the forces of reform in America. And I think that liberals in this country sort of got used to thinking in their own minds that the court was a reliable ally and that sometimes liberals might be able to get—that they thought they might be able to get their way even if the people didn’t agree with them or the representatives of the people in Congress didn’t agree with them if they could simply go to the courts and win legal cases in the court which would get them the same result. I think now that the Supreme Court is getting much more conservative, and I think the Supreme Court has been reliably conservative for some time, but now it will become extremely conservative, and there won’t be much ambiguity about who has the power on the court now. I think that it behooves the liberals and the Democrats to renew their ties to the American people and to use the elective power of the people as a way to advance the reform agenda.”
“ So you think this is actually an opportunity for the Democratic Party to search for its soul, if you will, and be connected with the American people again?”
Thomas B. Reston（《民主党的灵魂》作者）：“我认为是这样的。这并不是说我反对利用法院来推动或利用法律来帮助这个社会中的人们。我曾几次担任墨西哥裔美国法律辩护基金(MALDEF)的董事会主席。他们在维护拉美裔的权利，总部设在洛杉矶。因此，我为民权领袖们在法庭上所做的工作感到自豪。但我确实认为，作为一个政治问题，民主党需要——这是民主党重新与美国人民建立密切联系的机会。这就是我在我的书中所说的重新拾回初心的一部分，就像民主党重新认识自己的初心一样。”
Thomas Reston:“ I do indeed. I do indeed. It’s not that I am opposed to using the courts for advancing or certainly using the law to help people in this society. I have been the chairman of the board of the Mexican American Legal Defense Fund, MALDEF, a couple of times. And they stand up for the rights of Latinos here in the United States. It’s headquartered in Los Angeles. So I am proud that the work that civil rights leaders do in our courts. But I do think, as a political matter, the Democratic Party needs–this is an opportunity for the Democratic Party to renew its very close ties deep into the American people. And that is part of what I mean in my book when I’m talking about regaining the soul, as the Democratic Party regaining its own soul.”
“ Do you think the establishment of the Democratic Party will do that?”
Thomas B. Reston（《民主党的灵魂》作者）：“嗯，我认为他们需要这样做，因为民主党的支持率不再上升了。现实情况是，两党派在这个国家政治上是平分秋色的。在上次选举中，虽然民主党取得了重大胜利，但并不是那种‘上帝之手’式的选举才把保守党彻底击败。我认为这次选举表明美国人民仍然有很深的分歧。民主党需要做的，不是仅仅试图动员更多的支持者，而是寻找方法，超越现有的基础。事实上，进入共和党，进入美国人民的大群体，因为这些人现在投票给共和党，他们曾经是可靠的民主党选民。毕竟，这个国家的白人工人阶级，是罗斯福新政联盟的核心。”
Thomas Reston: “Well, I think they’re going to need to because the numbers don’t add up for the Democrats anymore. The reality is that the country is sort of evenly divided politically. And the last election, while the Democrats registered major gains, it was not the sort of ‘hand of God’type of election that just swept the conservatives out all across the board. I think the election revealed that the American people are still deeply divided. And what the Democratic Party needs to do, instead of just trying to mobilize more of its current supporters, it needs to look for ways to move beyond its current base and back into the middle and back, in fact, into the Republican—into large groups of the American people who are now voting Republican who at one time were reliable Democratic voters. The white working class in this country, after all, is the heart of Franklin Roosevelt’s New Deal coalition.“
萧茗（Host/Simone Gao）：美国最高法院的发展已经超过了国父们提出的计划，但和其它部门一样，建造这座建筑的不是蓝图，而是人民。最高法院这座雄伟大厦提醒着人们法院的权力，但仍然是大厦背后的人——大法官、当事人、律师以及美国人民决定了法院的未来。感谢您收看这一集关于最高法院的节目。如果您喜欢我们的节目，请推广给更多的人。您也可以加入我们Facebook页面上的群聊，并订阅我们的YouTube频道《Zooming In with Simone Gao》。我们下次再见。
The Supreme Court has outgrown the plan set forth by the Founding Fathers, but like every other institution, it is not the blueprint that does the building; it is the people. The imposing edifice of the Supreme Court is a magnificent reminder of the court’s power, but it is still the people behind the edifice–the justices, the clients, and the attorneys, as well as the American people–who decide the court’s future. Thank you for joining us for this episode on the Supreme Court. If you liked it, please share. You can also join the conversation on our Facebook page and subscribe to our YouTube channel 《Zooming In with Simone Gao》. Goodbye until next time.
Writer：Joel Slaughter, Simone Gao
Editors：Julian Kuo, Bonnie Yu, Frank Lin, Bin Tang, York Du
Narrator: Rich Crankshaw
Translation：Greg Yang, Bin Tang, Juan Li
Transcription: Jess Beatty
Cameraman: York Du
Special Effects：Harrison Sun
Assistant producer： Bin Tang, Merry Jiang
Host accessories are sponsored by Yun Boutique
New Tang Dynasty Television