of this news a few moments ago, so i've not read the whole order, but just heard about it. it strikes me that this illustrates something quite interesting. if the majority is right, and abortion is not a right that is guaranteed in the constitution, then it is up for grabs in the political sphere. it is the elected branches that debate the nature of the interest, and determine the rights involved, so, if the majority is right, and they agree with the approach, it is action by the president, as well as the other debates we are seeing around the country, state legislatures, congress. they are what we would expect. that is the place to find this out. of course, if the majority is wrong, and the dissent is right, we typically don't put constitutional rights of for debate in legislatures and the political branches. we shield them. from those sorts of debates. i think what we are seeing and in the ongoing debate in congress, the state legislatures, it dramatizes the significance of the decision, and gives us two very different competing views of of what one does with a constitutional right. >> i want to talk with you about abortion cases and the debate of the case and the decisions, not only to overturn roe v. wade, but i want to share with you something that president biden said at the signing ceremony for the an executive order. he called the court decision terrible, extreme, and totally wrongheaded. what does that say to you about where the nation is at, and how it feels about the court decision, and the hands-on nature that the court has had, the luxury of having it so many years in terms of the political debates. judge griffith: again, this illustrates two things that are critical. one, it is hard to imagine an issue in public life that is more contentious when stakes are higher than trying to balance a interest between a woman's autonomy and prenatal life. these are big issues about which people strongly, understandably so, and a very important debate is vigorous. the second thing it illustrates is the approach that the court has taken to claim that abortion is a constitutional right. it illustrates another big issue. how do we, how does the court determine what is protected by the constitution, and what is not. when the constitution doesn't speak to it directly. we know the constitution anticipates that there are enumerated rights, and the bill of rights is not for most of constitutional rights, but it is a really tough issue. it is a contentious issue. how do you figure out if it is not specifically mention in the constitution, it is protected by the constitution? that is a question we have had for many years, and the decision illustrates how much of an issue this is, and the consequences for when the court renders a decision. obviously, the court said it's not a constitutional right, and it is some privilege to be debated in legislatures and congress. we're seeing that, and those two issues play out. very significant moral and political issues intersecting with a very difficult question of how do you identify rights that are protected by the constitution that are not spelled out, specifically in the constitution. >> how do you identify that? is the constitutional living document? judge griffith: that is a debate we are having since at least the last 50 or 60 years, or so, we have a court right now that makes it pretty clear that justices are not comfortable with the idea that the open-ended clauses of the constitution or invitations to the court to identify evolving standards of decency. that is a view that this court has rejected. it is a considerable review, and i don't mind the open-ended provisions of the constitution in a fight. that is the sort of change and evolution of the time. but it has been with us, in my guesses, and i'm not good at predictions, but my guess is that this will be a debate that will continue. >> i understand that you will not commit on the merits of the case of dobbs v. jackson women's health organization. but as a citizen, someone knows the consequences of legal decisions, what was your initial reaction? judge griffith: i was not surprised. because of the leak, it was basically that this was where the court was likely to be. certainly, this court and the justices on this court, knowing what we do about their approach to the constitution, their role of a judge, it was a surprise -- not a surprising decision. but a predictable decision. what i worry about, most, is that we now have an issue that is being put back into a a political sphere to debate. i worry about whether we are up to the type of debate that should accompany such a contentious issue, and it observes that this is a time of great polarization, of strong language, that looks at enemies, and it assumes things. we are entering into a debate on this difficult issue, and i worry whether we are equipped to have the type of debate that the issue deserves, and instead, we will be having a less of a debate, and more of just expressions of acrimony and outrage, and assuming bad faith by those who disagree with one another. that is not healthy for the republic. in fact, the state we are in, right now, we better get ready for it hopefully, the people who are listening to this interview, and all of us in our own spheres of influence will listen carefully, to others. listen empathetically to others and understand as best we can where they are coming from and engage responsibly. without accusations of bad faith and without the acrimony that you also characterize as a political discussion. >> interest in the court and the conversation about the core is very high. we have a lot of interest, and this interview with you, and we received over 100 questions and comments from our audience. i want to share them with you. this is from michelle in massachusetts. she asked, are there any differences now between past episodes where citizens have been disagreeing with the court. is there any greater credence from our earlier courts? judge griffith: that is a great question. last year i had the honor of serving on the supreme court. one of the things, what we were asked to do, we described the history of the debate over the supreme court, since the founding days of the republic, and i am not a historian, but we had historians on the commission who did great service, and i would suggest reading the report. it is a good read. it is an interesting read. there is a section in there about the history of the debate over the supreme court, and what we learned. from the beginning of the republic, there has been a debate over the role of the supreme court. our system, under our constitution, it is clear, the laws are supposed to be made by elected representatives of we, the people. what role does the court play in that system. the concept of constitution is that laws are made by elected representatives, not made by judges who have a lifetime appointment. judges occupy a very unusual position in our constitution. there is always been a debate about what role they are supposed to play, and thorough than those who claimed that the court on occasion has stepped outside of its lane, and has stepped into the lane of congress, and the president, and in making laws, there have been -- that is a debate that has been recurring throughout the republic history. i have to say, not as a historian but just as an observer, i can't remember a time in my lifetime, where the debate has been quite so intense as it is right now. so, this is a debate that has been with us since the founding of the republic, and it does seem this is the volume and acrimony that is higher than ever. i will leave it to the political scientists to come up with why that is the case. my armchair observation is, and as the courts take on a greater and greater role, and republic, as congress passes laws, the need to be adjudicated, as the court takes on greater roles in resolving those. it is normal, people care about this. they care about the decisions of the court.efore, t, they argue about them. again, i think it is healthy. it is the nature of the debate that worries me. we shall use the word legitimacy in there. i have to say that i worry about attacks on the court. i don't think those are accurate, and i don't think they are helpful. let us have a debate about the decisions of the court, let's read what the court has said. let's read the various opinions. let's talk about them. let's critique them. let's applaud them where we agree, let's criticize them where we did get that they fall short. but i think we go inaccurate, and it is inaccurate. i don't think it does any service to the country to claim that the court is somehow illegitimate because it reaches conclusions different than perhaps i would reach for my approach in my reading the cases. >> i want to ask about one of the reforms that the commission explored, which is term limits. you are not in favor of them. the idea behind that is, justices would still have a very long tenure on the supreme court, but then, with the neely elected president, they could put two new justices, so it would reflect the current political nature of the day, not someone who have been given the ropes to where decades and decades earlier. we keep the court fresh and perhaps how they were interpreting the constitution in the day. judge griffith: on the commission, i spoke out against term limits. when i started on the commission, i thought i would be in favor of term limits. as we heard testimony, as i thought about it, i was less enthused with it. here's why am less enthused and enamored of term limits. it is a question that u.s., which is a good question. do we want the court to reflect the political segments of the time? i don't think we do. in my view, the proper role of the court is to understand the law that is created by the we the people in the constitution through acts of progress, through the president's use of delegated authority, and what does the law require, and to apply that. and not to keep up with political times. we don't want the court that will do that because that type of court looks too much like the legislature. i am very wary about giving people with lifetime appointment who are not accountable politically, i am worried about giving that type of power. >> part of the debate has been that the current decision on a number of cases, whether it is guns or abortions, or environmental protections, the decisions are inherently political through the interpretation. is it political? judge griffith: mean by part of the question is what do you mean by political. i would draw the line that i don't think they are partisan. that is a big difference. i don't believe that this is -- i reject the view of my fellow commissioners, for whom i have great respect. they have been outspoken over the last couple weeks, calling into question the legitimacy of the court because they see the threat is a partisan effort to support the republican party, and i don't see that. what i see, is thoughtful justices on both sides of an issue grappling with issues. how do you identify a constitutional right that is not spelled out in the constitution. what is the role of the administrative state, when congress creates an agency. how much authority as a giving that agency, and how can you measure that? those are big issues. i reject the idea that this court is somehow animated by a partisan spirit that they are trying to achieve partisan ends. i could tell you that in the 15 years that i was on the circuit, i never once saw any of my colleagues make a decision influenced by their prior partisan allegiances. did we disagree? yes, vigorously. but they are legal issues. they have consequences. but the decisions are not driven by the partisan agenda to advance the republican party over the democratic party. i did not see anything like that on the circuit, and i don't believe that explains the debates that are going on at the supreme court. justices spoke to this issue and they had very good advice. they said and our opinions. -- read our opinions. when you do, you will see people trying to write clearly for us to understand, grappling with big legal issues that they are not advancing partisan agendas. >> i have to point out, the justice made those comments at an event, at the mitch mcconnell center at the louisville center, and there is some question about, could you pick a better location, because it is inherently political, given all that is been done to block president obama's appointees, and he has been instrumental in changing the face of the court. judge griffith: can i push back? >> i want to do more than question how you can increase trust in the court, because you hit on something significant about -- go ahead. judge griffith: i have to push back on that. she said the best way to determine whether we are patterson hats is opinions. that is good advice. i think too much of the discussion i doubt it is coming from people who actually read the opinions. they read what partisans have said about them and what critics have said about them. i think we do have done a disservice when we look at the work of the supreme court filtered through other people's eyes. read the opinions and then form your opinion. i think of people do that, they will be deeply impressed by the work of the court. they will see strong opinions that disagree about fundamental things, but i do not think they will come away with the view that these are partisan hats. -- tax. justice breyer in the last couple of years with his service on the supreme court, this was something he was outspoken about the judges are not partisans in robes. >> how can you -- i don't know, but how can you encourage that transparency, or increase the public's faith in the court, that you so clearly have. according to a gallup of, 25% of americans have a confidence in the supreme court that is a historic low, and we see concerns about clarence thomas and his ties to the wife and with political engagements, and we see investments, and what the investment portfolio justices should have. this is something you thought about on the commission. what reforms do you see that could help the american public have that confidence? judge griffith: i'm not a political scientist, and my sense is that a large reason for the public having that view of the court comes because they are hearing from critics of the court. they are hearing from people who say there is a right wing cabal and agenda to advance the needs of the republican party. if you hear that constantly, that will affect the decision. that's why i am saying that antidote for that is to read the opinions. read what the chief justice had to say about the epa cases. read the powerful dissent by kagan. read the debate they have. neither of them is calling into question the good faith of the other. they know that that is not the issue. they know that these are legal issues significantly requiring our best thinking. they require time and energy, which is tough to come by, and i know, but i'm afraid that is the cost of being a citizen. i would attribute some of the the comparatively little approval ratings of the supreme court to people who are attacking the court, i think the antidote to that would be people taking time to look at the court as what it saying to itself. >> how much should the court considered the real-life implications of the decisions? and not just looking back in time to determine how the framers meant it? what about women and girls who become pregnant over the coming weeks and years? a harvard law professor called the court's decision on dobbs institutional suicide. how much do we need to consider how their decisions are perceived and how they affect the lives of people? judge griffith: that is a difficult issue. this is not an academic exercise. dobbs decision in particular. these are decisions that have profound impact on fundamental values that people hold dear. i think the court needs to take into account the impact that its decision will have on the republic and democracy, but the fundamental decision that they are involved in is trying to figure out what is the law. that is where debate takes place on the court. the question they need to take into account, the consequences of their decision. i think once again the best thing that justices can do to persuade us they are not partisans in robes, that they do not have some agenda, is to explain their decisions clearly, to explain what goes into the decision, what are the issues they are grappling with. when you do that, you come out with the different image of this court and what it is doing. >> there is the question of the nomination process and how much we really learn through the nomination process. deciding who gets to go before the senate and be considered. what is the influence of the federal society in judicial nominations? judge griffith: that is beyond my pay grade, but it gives me a chance to say something. i have been very public about my view of the confirmation process. i was honored that justice jackson asked me to introduce her to the judiciary committee in her hearings. there was some novelty about that. i tried to make the point then there should not be anything novel about that. there was a time not too long ago when presidents --. justice ginsburg 96-3. that does not happen now. are we in a better place because of that change and i do not think we are. i think it is telling and not in a good way that justice jackson was not confirmed 100-0. i think it is telling that justice barrett was not concerned -- confirmed 100-0. they should be on the supreme court. that is obviously not where we are now. i wish we were. i would like to return to regular order on judicial nominations and to not politicize them. much of the confirmation process is grandstanding for senators who have their own agendas. i think it is unfortunate and i think it has cost the supreme court a great deal. >> judge griffith, one more question for you. the court has agreed to hear a case that could change american democracy. this north carolina supreme court case holding that the state constitution precludes gerrymandering. the state court should not have any role in overturning federal election rules put into this place by state legislatures. what do you make of this independent state legislature theory? judge griffith: i am not an expert in this. i try to learn as much as i can about it. i worry about this. it is not something i know a great deal about right now. i have a briefing binder of materials i plan on studying very carefully over the next weeks so that i can be up to speed. my instincts are with you. this is something that worries me a great deal. i need to study more about it. >> we look forward to having you on again in the future. thank you so much for talking with us. we really appreciate it. judge griffith: thank you. >> and thank you for watching washington post live.
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