Ilya Shapiro is an attorney and legal commentator who appeared as a guest on The Bob Zadek Show to discuss the Supreme Court, judicial philosophy, and the confirmation process. In the excerpts, host Bob Zadek introduces him as a returning guest and frames the conversation around the effect of presidential elections on the composition of the federal judiciary Ilya Shapiro on the Supreme Court in the Balance (2016).
The Supreme Court as an election issue
Bob Zadek opened the 2016 episode by describing himself as a one-issue voter who votes for the candidate who will make appointments to the Supreme Court of the highest quality. He said the next president would for sure appoint one Supreme Court justice and probably as many as three more, and that the Court has a profound effect on Americans in today’s civic life Ilya Shapiro on the Supreme Court in the Balance (2016).
Shapiro agreed that judicial appointments are a major concern, noting that most cases do not reach the Supreme Court and that a president, especially a two-term president, has a tremendous influence going forward decades over the composition of the lower federal courts as well. He said the Court was evenly balanced on big culture war issues and issues of government power, that whoever replaces Justice Scalia would affect the direction of the court, and that three justices were 79 or older, so there would be a lot of turnover at the High Court in the next term and the next two terms Ilya Shapiro on the Supreme Court in the Balance (2016).
Litmus tests and legal theory
Bob Zadek criticized the use of a single case or issue as a litmus test for nominees, citing Citizens United v. FEC and Roe v. Wade, and asked Shapiro to explain the more fundamental issue of the relationship between the branches of government and the checks and balances the Founders gave us Ilya Shapiro on the Supreme Court in the Balance (2016).
Shapiro described the judiciary as one of three supposedly co-equal branches supposed to check the excesses of the others, with federal judges holding life tenure once confirmed and reviewing cases brought before them rather than reaching out to declare a law unconstitutional or to change precedent. He said it is very hard to have a litmus test because a candidate who said ahead of time how he would rule on a case would have to be recused if that case came up, since he would not be going into it with an open mind. He listed the questions that make up basic legal theory: a judge’s approach to the First Amendment, how broad the power of Congress is under the Commerce Clause, and when courts should limit executive discretion Ilya Shapiro on the Supreme Court in the Balance (2016).
Protecting against excesses
Asked what it means for the Court to protect against the excesses of the executive or legislative branches, Shapiro said it depends on the area of law and the type of challenge. He cited a lawsuit then at the Supreme Court about President Obama’s executive actions on immigration, where the Court was examining whether the executive branch had gone beyond the immigration laws and, if it had not, whether Congress had delegated too much legislative power to the executive. He said Congress could not pass a law saying that for tax policy the president can set whatever taxes he wants Ilya Shapiro on the Supreme Court in the Balance (2016).
He also cited the first Obamacare case, what ended up being called NFIB v. Sebelius, and the question whether it goes beyond Congress’s authority under the Constitution to require people to buy a commercial product, in this case a health insurance policy. The operative clause there, he said, is the federal power under Article I, Section 8, the congressional power to regulate interstate commerce, and the question is whether requiring someone to buy the product is a regulation of interstate commerce. He added that how John Roberts ruled on Obamacare raised the question of the proper role of a judge: whether to bend over backwards to defer to Congress so as not to strike down a law, or to apply his or her theory of the law Ilya Shapiro on the Supreme Court in the Balance (2016).
Judicial deference versus judicial engagement
Bob Zadek raised the concept of judicial deference and the related idea of an activist or engaged judiciary versus a less engaged one, describing the choice between a presumption that the government is acting constitutionally and a posture in which judges put the government’s feet to the fire and require it to prove its action is constitutional. He noted that the issue transcends party lines and asked Shapiro to explain it and how it fits a libertarian point of view Ilya Shapiro on the Supreme Court in the Balance (2016).
Shapiro said that until the New Deal—1937 is where legal historians trace it to—the court thought its job was simply to decide cases and not apply a thumb to the scale on either side, deciding based on the text of the Constitution as the justices viewed it. He said this did not mean the court always got it right, citing Dred Scott v. Sandford before the Civil War and Plessy v. Ferguson, where separate but equal was the rule. In the late 1930s, he said, the court changed its mind after striking down certain New Deal legislation, and began allowing the federal government under President Roosevelt to impose regulations and national programs in ways it had not before, while bifurcating rights so that certain rights were treated as more fundamental than others Ilya Shapiro on the Supreme Court in the Balance (2016).
The result, Shapiro said, was a presumption of constitutionality: courts began to presume that anything Congress or state legislators passed was constitutional unless so blatantly against the Bill of Rights or beyond enumerated powers that it simply could not stand. In effect, he said, between 1937 and 1995 no piece of federal legislation was struck down by the Supreme Court as exceeding the enumerated powers of the Constitution, and states could legislate in ways that infringed on property rights, the right to earn a living, and occupational licensing as long as the legislation did not involve speech or discrimination based on race or certain other protected things Ilya Shapiro on the Supreme Court in the Balance (2016).
Shapiro argued that the conservative response to what conservatives called judicial activism was not to reject the legal theory but to ask why unelected judges were striking down laws passed by the people’s elected representatives, producing what he called a faux battle between activism and restraint. He said activism these days really just means that the person criticizing the judge or decision does not like that judge or decision, and that nobody on either side says judges should never strike down laws. What judges should be doing, he said, is being engaged: scrutinizing closely what the other branches are doing and striking down what goes beyond the statutory text or constitutional provision, and upholding what does not. He named Robert Bork, Antonin Scalia, and John Roberts as judges in the school that judges should defer as much as possible, until the breaking point, to Congress or to executive agencies, and called this conservative judicial passivism, saying neither it nor activism is good Ilya Shapiro on the Supreme Court in the Balance (2016).
Politicization of the confirmation process
Bob Zadek observed that a nominee who told the Senate Judiciary Committee that his job was to make sure the Senate and the House do not overstep their bounds would hardly be confirmed, and hardly be nominated if he said part of his mission was to restrain presidential power, so that the process itself mitigates against an engaged judiciary Ilya Shapiro on the Supreme Court in the Balance (2016).
Shapiro said he would not necessarily say such a judge would not be confirmed; the real issue, he said, is that over these decades dating back to 1937 the notion of constitutional law has deviated so much from the actual Constitution, so that politicians responding to incentives treat judicial confirmation battles like examinations of candidates for political office rather than judicial office. He called this constitutional corruption, which he said has led to ideological litmus tests and the politicization and poisoning of the whole process Ilya Shapiro on the Supreme Court in the Balance (2016).
He said it did not used to be that every Supreme Court vacancy was a whole national to-do. The first confirmation hearings for a Supreme Court justice were in 1916, he said, because the nominee was Jewish—anti-Semitism against Louis Brandeis—and there were no hearings after that for years. The first nominee to testify at his own confirmation hearing was Byron White, nominated by President Kennedy in 1962, in a very short hearing. What we think of now as the poisoned, very politicized, nasty, brutal, long slog started in the ’80s with Robert Bork, when Ted Kennedy went on the floor of the Senate and attacked Bork in a big speech about what would happen in Bork’s America. Shapiro said it has really only been less than 30 years that the nomination and confirmation process has gotten to what it was, and that he does not necessarily blame the political actors, who are responding to the constitutional corruption that has led to a state of affairs where Democratic appointees hardly ever find that Congress or the federal government is going beyond its constitutional authorities, while on the Republican side there is a battle between people who think it is their job to call balls and strikes, as John Roberts said at his confirmation hearings, and people who think they should be restrained and defer Ilya Shapiro on the Supreme Court in the Balance (2016).
Gorsuch nomination
A later episode, from March 2017, has Bob Zadek discussing the significance of Neil Gorsuch’s nomination to the Supreme Court with Shapiro as guest, exploring the court’s growing influence on major political issues and how the vacancy left by Justice Scalia became a pivotal point in the 2016 election Judge Gorsuch on the Hot Seat (2017). The excerpt for that episode consists of a summary and speaker list; it records no statements by either speaker beyond that framing.
Across episodes
Two episodes in the excerpts feature Shapiro as guest: the 2016 discussion of the Supreme Court in the balance and the 2017 discussion of the Gorsuch nomination. The 2017 excerpt is a summary only and contains no substantive statements, so the excerpts show no development between the earlier and later treatment. A third episode, from November 2021, touches the same general topic of judicial selection through Timothy Sandefur’s remarks on term limits, in which Bob Zadek relays that a colleague, Ilya Shapiro, said “one and a half or two cheers” for term limits for Supreme Court judges, mildly welcoming the discussion but not feeling strongly about it Timothy Sandefur on The Libertarian Constitution (2021).
What the sources do not cover
The excerpts do not state Shapiro’s title, employer, or field beyond Bob Zadek’s introduction of him as a guest and his own reference to legal pundits. They do not give the outcome or holding of any case discussed, the name of any bill, or the amendment on which any case turned. The 2017 Gorsuch episode appears only as a summary with no quoted statements, and the 2016 excerpt breaks off mid-sentence in Shapiro’s final answer.
Episodes
2 appearances, 2016–2017.
- Ilya Shapiro on the Supreme Court in the Balance (2016) — Supreme Court and the 2016 Election.
- Judge Gorsuch on the Hot Seat (2017) — Significance of the Neil Gorsuch Supreme Court nomination. Cato Institute Senior Fellow