Richard Rosenthal testifying before the Senate Judiciary Committee in support of the nomination of Ketanji Brown Jackson.
Richard B. Rosenthal is an appellate lawyer who has been involved in high stakes, high-profile legal disputes across the nation. He has served as a personal attorney to President Barack Obama and is a lifelong friend of Supreme Court Justice Ketanji Brown Jackson. He is teaching a two-part course with us this winter, “The U.S. Supreme Court: The Last Bastion of Democracy or a Failed Institution?”
Your course title asks if the Supreme Court is the last bastion of democracy or a failed institution. Given its recent rulings, where do you come out?
Honestly, I think it’s still an open question — one I hope to explore with members throughout the course. The Court looks very different depending on the day. Sometimes, it feels like the last refuge for democracy, the institution that can still protect rights when other branches fail. And then, almost overnight, it can feel like the opposite: that it has abandoned that role, that it’s not fulfilling its duty to safeguard individual rights and democratic norms. So the answer shifts with events. That’s what makes this course so timely.
When I think back, summers used to be quiet — you hardly heard anything from the Court until October. Now it feels like rulings land almost daily. What do you make of that?
It really is no rest for the weary. The Court used to recess in the summer, regroup, and prepare for the October term. That’s gone. Now it’s a constant drumbeat of decisions, orders, and emergency rulings. It has changed the Court’s character in ways that, frankly, aren’t positive.
For litigants, the Court once felt nearly unreachable. Statistically, your odds of getting a case heard were one in a hundred, sometimes one in a thousand. And if the Court did take your case, it was deliberate — it moved slowly, with a full briefing and oral argument. Today, the Court jumps into controversies quickly, sometimes without that deliberation, particularly through the “shadow docket.”
Some of this comes from a very active executive branch pressing the Court to intervene on emergency applications. But I also think much of it is self-inflicted. The Court doesn’t have to be this active. It chooses to weigh in without full reasoning or explanation. That’s a profound change.
What explains that? Is it John Roberts’ leadership style? The politics of the moment? Or just polarization in general?
It’s really a perfect storm. On one side, you’ve got an executive branch testing the boundaries of power. On the other, you have Chief Justice Roberts, who from the start of his tenure described his vision of a “humble court” — a Court that should defer more often to the political branches rather than policing every line of separation of powers. That philosophy alone shifts the Court’s role.
Then add the 6–3 conservative majority, which means there are very few institutional guardrails left. Put those pieces together — an emboldened executive, a deferential Court, and six solid votes — and you get the Court we see today.
The tone feels different too. The dissents seem more alarmed, and lower courts sometimes appear unsure how to apply new guidance. Is that new?
In some sense, nothing is new under the sun. There have always been fierce disputes between the branches about the Court’s role. Think about Reconstruction, the New Deal, the Warren Court. Conflict is baked into our system.
What feels new is the Court’s failure to guide the lower courts. The Supreme Court isn’t just the last word — it’s supposed to create a coherent body of precedent. Most cases never make it to Washington. The lower courts need guidance to handle the vast majority of disputes.
But the shadow docket changes that. When the Court issues a one-paragraph order staying or blocking a lower court ruling, it provides no explanation. What should judges do when a similar case with a slight variation comes before them? They’re left guessing.
That guessing has led to real friction. There was a recent case where a respected federal judge in Boston was publicly accused by two justices of flouting their order. He responded in open court, apologizing and saying he was simply trying to interpret the ruling with the limited guidance he had. That kind of open tension between the Supreme Court and lower courts is unusual — and it weakens the system.
What reforms could address these problems? And are any feasible in today’s polarized climate?
During the Biden administration, a commission studied these very questions. They looked at term limits, expanding the size of the Court, and other structural reforms. Ultimately, they didn’t recommend expanding the Court, but they did propose other measures. None gained traction.
Some fixes wouldn’t even require changing the Court itself. Congress could take its oversight responsibilities more seriously. Executive agencies could reassert independence rather than acting as rubber stamps. The Department of Justice, for instance, is supposed to serve the law, not simply the President. If each branch truly did its job, the system might correct itself without dramatic Supreme Court reform.
Still, there are specific steps Congress could take. For example, until the 1970s, certain categories of cases — like voting rights disputes — went automatically to the Court. Congress could revive that practice. Requiring the Court to hear particular kinds of cases could ensure consistency and clarity. So, there are tools available, but whether anyone will use them is the harder question.
You were one of President Obama’s personal attorneys and are a lifelong friend of Ketanji Brown Jackson. Talk about being in the thick of things.
Do you recall the movie Zelig where the character just seems to be around historical events? He doesn't seem to have any significance himself, but events seem to happen around him? I feel like Zelig.
I began as a campaign lawyer in 2008, working on everything from ballot access to election law disputes. I’d already had experience in Bush v. Gore in 2000, so I knew the terrain. In 2012, I represented President Obama personally in ballot access challenges, which really meant defending against the birther lawsuits. Those cases were baseless, but they had to be litigated. As absurd as it felt, someone had to stand up in court and say, “Yes, the President of the United States is a natural-born citizen.”
As for Ketanji Brown Jackson, we grew up in the same neighborhood and went to junior high and high school together. We’ve remained close friends ever since. Watching her rise to the Supreme Court has been extraordinary. It’s been inspiring on a personal level, but I still think of her first and foremost as my friend from way back.
Finally, what do you hope OLLI members take away from this course?
I hope it’s more than a place to vent frustration — though it can be that, too. My real goal is to give people context. Many of the debates we’re having now go back to the founding of the Republic. We’ve always wrestled with questions like: What is the judiciary’s proper role? Should unelected judges make decisions for millions? How should power be divided among the branches?
Other democracies answer those questions differently. There’s no single “right” model. By looking at history — both American and comparative — I hope members leave with a clearer understanding of how we got here, and why today feels so fraught.
Their feelings may not change. Outrage may still be outrage, and comfort may still be comfort. But I want them to have historical grounding for those feelings — to know why the system sometimes feels broken, and also why it has, in the past, managed to right itself. That deeper understanding is what I hope they carry away.