Jeffrey Minear, former counselor to Chief Justice John Roberts, speaks at the Big Ten Collaboration: Democracy in the 21st century discussion in Hutchin’s Hall, organized by the The Democracy & Debate Initiative at The University Tuesday morning. Alyssa Mulligan/Daily. Buy this photo.

The Democracy & Debate Initiative at the University of Michigan hosted several students from across the Big Ten Athletic Conference for the Big Ten Collaboration: Democracy in the 21st Century discussion in Hutchin’s Hall on Tuesday.  

The event included a conversation between Jeffrey Minear, former counselor to Chief Justice John Roberts, and Jeffrey Sutton, chief judge of the United States Court of Appeals for the Sixth Circuit, and was followed by questions submitted by students. Catherine Carver, lead of the Democracy & Debate Initiative at the University, helped organize the event. 

“(The event) grew out of conversations that we had with (the University of) Maryland in 2020 when we were thinking about ways that institutions could collaborate to address some of the challenges that were happening in the 2020 campaign season,” Carver said. “From that grew this notion that pulling partner institutions together to engage students across the Big Ten in issues that impact our democratic systems, impact our democracy and also to provide a level of civic education so that students were more informed as they engaged in the democratic process would be a great thing.”

The event began with an introduction by law professor Barbara McQuade. She said Minear is a University of Michigan Law School alum and has argued 56 cases before the United States Supreme Court while serving in the Department of Justice. She said Sutton is currently serving as the chief justice of the U.S Court of Appeals for the Sixth Circuit and also teaches seminars on legal topics at The Ohio State University and serves on the council of the American Law Institute.

Sutton began the event’s conversation by posing the overarching question for discussion. 

“How does an unelected, politically unaccountable judiciary have anything to do with promoting or facilitating democracy?” Sutton asked. 

Minear responded by discussing the mindset of the Founding Fathers when creating the foundation of the judiciary system as a check-and-balance measure. 

“The question really reflects the genius of our framers,” Minear said. “They were naturally skeptical of the national government and they recognized that even a democratically elected Congress and democratically elected president could engage in excess, and they formulated the idea of the judiciary to basically establish guardrails to police those excesses.”

The discussion largely focused on questions of legitimacy and the relationship between the judiciary and the public. Minear said it is important to note the difference between the court’s legitimacy and public confidence in the judiciary. 

“In my mind, legitimacy connotes a quorum, lawfully appointed … and that’s important in the foreign countries, where there are clearly illegitimate courts around the world,” Minear said. “I think people would have higher confidence in the court overall if they read the opinions and saw how the justices are grappling with these issues.”

The two speakers also discussed the diverging legal philosophies governing the Supreme Court. Sutton described the legal philosophies as “originalist” and “living constitutionalist” and talked about how they relate to the broader political debate.

“The whole point of having methods of interpretation is to say there’s a way I’m doing this that has nothing to do with whether I liked the outcome or not,” Sutton said. “That’s a part of judging where we get uncomfortable, where the fear is that what the judges are doing under the rule of law, interpreting the Constitution is simply a cover for getting outcomes they like.”

The question of originalists versus living constitutionalists was again mentioned when the speakers moved on to answering questions submitted by students at Rutgers University, the University of Maryland and the University of Michigan. 

“I think sometimes even the legal literature can be a little misleading about (originalism), that originalism is something that only one type of judge practices,” Sutton said. “And that’s really a false dichotomy.” 

Sutton said judges of both sides of the legal philosophies refer to historical context and questions of originality. 

Minear then addressed a final question about how the bench and bar address the public’s decreasing confidence in the federal judiciary. 

“I think in terms of the court’s opinions, it’s important the opinions be accessible and that excessive language not be included,” Minear said. “It’s become more common for language and opinions to be somewhat strained and aggressive, and that’s not helpful.”

Law student Nicholas Gadola Holmes said he was motivated to come to the event because of the current state of the American legal and political system, and how it relates to the importance of the federal judiciary. He also said the experience and views of the two speakers drew him to attend the event.

“One of the most interesting comments, that both speakers emphasized, is that many of these divides that Americans read into the judiciary — that divide between originalism versus living constitutionalism that many interpret as a liberal-conservative divide — really is not that,” Gadola Holmes said. “All judges care about the original meaning, all judges struggle with when that original meaning should apply.”

Carver said the initiative hopes that events such as this will increase the engagement of students in the democratic process.

“You don’t just have to be a public policy or a law student to engage in democracy, to engage in our democratic processes,” Carver said. “All of us are responsible for furthering our democracies, both here in the U.S., but also globally.”

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