Legislation Introduced to Pack the Court

mistake to make as a candidate. Talking to sixty Minutes, Biden had a more measured tone. The last thing we need to do is turn the Supreme Court intogest a political football. Whoever has the most votes gets whatever they want. Presidents come and go. Supreme Court justices stay for generations. Now.

President Biden has named a thirty six member bipartisan commission to study possible changes to the Supreme Court, fulfilling a promise he made on the campaign trail as progressives pushed to overhaul a court they say has been unfairly stacked. With conservatives joining me as constitutional law professor Neil Kinkoff of the Georgia State University College of Law. So Neil tell us about the stated purpose of a commission on paper.

The purpose of the commission is to study all of the various Supreme Court reforms that have been proposed and to make recommendations to the President about which reforms, if any seemed like a good idea, which which seemed like they shouldn't be recommended. It sounds like they're supposed to come up with something that looks like a research paper. Are they actually going to make specific recommendations for change? Well, I think what they're going to do is mostly assess

recommendations that have already been made. Not having said that, a number of the recommendations that have been made have been made by members who are on the commission, so they will at least be addressed in the report. I don't know for sure whether or not the Commission will end up making recommendations. It depends on what they think

is advisable. So they certainly could they're allowed to. But whether they think that any reform to the Supreme Court is needed as a body, whether they think that that much isn't clear at all. So um, it's going to take time to tell. But having said that, I think part of the purpose of the commission is that I think President Biden really doesn't want to do much about the Supreme Court, and so you know, in politics, when you don't want to do something, you set up a

commission to study it, exactly. That's what I was going to say. When I hear the word commission, it sounds to me like a classic Washington d c. Way of dodging the issue, exactly. And there's a lot of heat during the election, especially among the President's base, to consider reform proposals, and especially to consider adding seats to the

Supreme Court. You know, people were mad about the treatment of Merrick Garland and so didn't think that seats should have gone to President Trump to fill, and thought that there shouldn't have been the rush to fill Justice Ginsburg's seat again by President Trump over her dying wishes. And so there's real movement in the Democratic base for adding seats to the Supreme Court in order to undo the

large Conservative supermajority that's that's in the body now. And Biden had to do something to respond to all of that. So he proposed a commission, and I think his inclination is not to change the Supreme Court. He was on the Judiciary Committee for decades. He knows these issues pretty well, and his instinct has always been moderation. Looking at the members of the Commission, it seems as if there are

a lot of academics and a lot of progressives. Do you see an imbalance on the on the committee in any respect? Well, actually, I think Biden did a good job of making sure there's conservative representation on the Commission. They're about ten identifiably conservative members of the Commission, and they're not token representatives. They are leading conservative legal scholars and leading scholars of originalism who are on the Commission.

You know, I've seen a number of other conservative commentators who have actually been expressing surprise and that they're impressed that there were so many conservatives on the committee. Because a commission that's put together by a democratic president, you wouldn't think is going to necessarily have the other side well represented. They are well represented. They can't out vote

the other members on the commission. But these kinds of commissions tend to try at least to work by consensus, and so if they do something that the conservative members disagree with, I'm sure there will be a sort of minority report issued by those those members. So I do think that the Commission is broadly speaking quite re presentative. It's not very representative of practitioners. I think that's a

fair point. Even some of the practitioners are really academics and thinking there of Walter Tallinger who now as a partner and a practitioner at the Supreme Court practice of Washington, d c. Law firm, but for thirty years or more he was a law professor at too. Some liberals have complained that what's missing on the Commission are some of the liberals who have done studies and recommended so called

court packing. Because even some of the liberals on the Commission, like Harvard professor Larry Tribe, has come out against court packing. So is that element missing? I think that element will be represented. Um, it could have been represented much more robustly. But again, I think President Biden's inclination is to not add seats to the Supreme Court, and so I think you see that reflected in the composition of the Commission. So one of the co chairs is Bob Bauer, who

is White House counsel to Barack Obama. Now he teaches at n y U. But Bob Bower is also on the record as opposing adding seats to the Supreme Court, so the perspective is there, but I think the momentum on the Commission will be strongly against it. The Commission is also going to study term limits and jurisdictions stripping. Might either of those turn out to be a less drastic way of affecting change at the Court, so I'm

sure there will be support. A number of members of the Commission have supported publicly those sorts of less drastic measures in the past, so there will be at least some support on the Commission for it. I don't expect that the Commission is likely to adopt any of those, and even if it does, I think it's remarkably unlikely that any kind of meaningful court reform would get enacted

by Congress. For one thing, there is serious doubt about the constitutionality of something like term limits, that that would require a constitutional amendment, which is virtually impossible in this setting. The jurisdiction stripping proposals can be done by a regular statute, but Congress has considered jurisdiction stripping statutes frequently over the decades, and very often with very strong political support for them,

and yet none of them has actually been enacted. So I'm really doubtful that any of those, even if they were to get through the Commission, could possibly be enacted by Congress. So we don't expect that there's going to be any kind of court packing recommendation. But if there were, would that just require legislation or that require more So to add seats to the Supreme Court just requires a

simple statute. It doesn't require a constitutional amendment. There's nothing in the Constitution about how many justices there have to be. It's left entirely to Congress. So there could be one, there could be fifty one. It's entirely entirely up to Congress. Having said that, you know, Congress has considered these kinds of proposals over the years and has almost never responded

to them. There was a brief period when the Court went to ten justices around the time of the Civil War, but since then it's been back to its um complement of nine justices, and it's been there pretty stably. Franklin Roosevelt very famously proposed what was known as the court packing plan. When the Supreme Court kept striking down his new deal legislation, and that was voted down pretty overwhelmingly by a Congress that was overwhelmingly democratic and supportive of

Roosevelt and the New Deal. So that's often thought of as kind of a precedent for the proposals to add seats today and as sort of a harbinger of just how unlikely they are to be enacted. But having said that, I think it's also important to remember that simply by proposal in the Court Packing Plan FDR had a real impact on the Court itself that the Court shortly thereafter changed its its view on the scope of federal power

to regulate commerce and started upholding New Deal statutes. And I think it is fair to imagine that the current climate and the current discussion of adding seats to the Supreme Court has a kind of moderating influence on the Supreme Court. That is, justices like Justice Roberts, who carell out about the legitimacy and integrity of the institution, I think fear those kinds of proposals, and I think it

tends to make them moderate their positions on issues. So it's not surprising that, for example, over this past weekend, we've seen headlines talking about how the Supreme Court is dodging a lot of the hot button issues that you might have expected them to be taking up. Issues on guns, on abortion, on a bit of action, they're pretty well staying away from. And I think these court packing proposals

may maybe playing a role now. On Thursday, a group of Democrats unveiled legislation in both the House and the Senate that would expand the number of justices on the Court from the current nine to thirteen. Here's one of the sponsors. House Judiciary Committee Chairman Jerry Nadler. Some people will say we're packing the court. We're not packing, we're unpacking it. Why I introduced this bill before the Commission

has a chance to make its recommendations. I think it's just a response to some of the interest groups that have been demanding that the Court be expanded and to

show sort of a commitment to that. I imagine it's also aimed at putting some pressure on the Commission, because, as we were discussing earlier, the personnel on the Commission I think are largely opposed to court packing, and so I think the people who want to pursue court packing want instead of being in the position of responding to the Commission to actually put pressure on the Commission and to say this has been their position even before the

Commission issued any kind of report. Congressman Nadler said that in light of the fact that there were thirteen federal appeals courts, it makes sense to have thirteen justices to oversee them, as was the previous tradition. Does that make sense to you, Well, I don't for a minute believe

that's actually the reason. And when FDR proposed his court expansion plan, the proposal was to add one seat for every justice over the age of seventies, and the reason he gave was because judges at that advanced age needed help. No one believed that was his reason, and I don't think anyone's going to believe that the reason is to

have one justice for every circuit. It is true that there are some justices who are sort of the circuit justice for two circuits and others who are circuit justice for only one, but I don't think there's any real concern that they're overburdened by having to oversee two circuits. So I really don't for a minute believe that that's

the actual reason for making it thirteen Justices. I think the reason is the six to three conservative majority on the Court, and adding four seats gives a democratic president

an opportunity to realign that balance. How Speaker Nancy Pelosi says she won't even be bringing the bill to the floor for a vote, so's it's just dead as it's introduced, right, It's dead anyway as a as a practical matter, um, the Senate wouldn't pass it because unless the Senate goes to the nuclear option, there wouldn't be enough votes to defeat a filibuster um. And even if you went to the nuclear option, there are enough moderate Democrats in the

Senate that the bill couldn't pass anyway. Even on a bare majority vote, um, the bill wouldn't pass. I think it's probably better to understand this as an attempt to build momentum and to start reaching out of the public and making the case for expanding the court, and to do that in advance of the Commission coming out, presumably the Commission coming out and saying that we shouldn't expand

the court. I think really the court that this plays to is the court of public opinion, rather than being kind of a legitimate with a chance to pass legislative proposal that fits in with what one of the sponsors, Senator Ed Markey said that the first stage is education and that this is the education of the public. Right, um, And and frankly, I imagine at this point the public

is not really attending class. I mean, I think if you want to get the public to pay attention and be educated, or perhaps better yet, to be engaged on the issue, Um, the Supreme Court is going to have to, as we discussed before, it's going to have to overstep its mandate in a number of significant cases. So if Congress passes important campaign finance reform and the Court strikes that, doubt, if Congress passes common sense gun reform and the Court

strikes that. Now, if the Court keeps striking down sort of sensible public health requirements on religious freedom ground, and I think most significantly, if the Court overrules Row versus Way. If those things happen, then I think the public will really engage with this issue. But right now it just looks like a partners an attempt to gain control of

the third branch. Coming up next, I'll continue this conversation with Professor Neil Kinkoff and we'll talk about Justice Stephen Bryer's comments on court packing at a Harvard Law School event last week, just as Stephen Bryer spoke out against liberal calls to add justices to the Supreme Court, saying that step could undermine public trust that the Court is guided by legal principles, not politics. I hope and expect that the Court will retain its authority, but that authority,

like the rule of law, depends on trust. A trust that the Court is guided by legal principle not politics. Structural alteration motivated by the perception of political influence can only feed that matter perception. I've been talking to Professor Neil Kincoff of the Georgia State University College of Law. So Neil Justice Brier painted this ominous picture of court packing. So I think it's not at all surprising. The current

members of the Court don't love the idea. They are very committed to the institution and the institution as it is, and they see the potential for adding seats to politicize the Supreme Court. For some people, you would say, well, it's already thoroughly politicized, and so what's the problem. I just think current members of the Court don't see it that way. They don't see it as thoroughly politic size. They disagree with one another, but they don't see the

Court as politicized. But if you start adding seats in order to either gain or prevent particular outcomes, then the legitimacy of the institution is really in jeopardy. And I think that's what Briar is responding to. I think Justice Ginsberg took the same position before her death. I think Justice Roberts others in the conservative camp see that, and so I think there would be broad opposition among members

of the current Supreme Court to adding seats. Ryan also rejected the characterization of the Supreme Court as conservative now, even though legal experts widely describe a six to three

conservative majority on the Court. I can see why he says that, because even you know, just a year ago, the Supreme Court, by a six to three vote, ruled that Title seven protects individuals based on sexual identity and sexual orient patian right, so transgender and and homosexual protections that we're certainly not in the mind of the Congress

that enacted that law. So you find cases like that where the Court doesn't come to the expected conservative conclusion and it allows somebody like Justice Bryer to say, you know, the Court's not conservative, or as Justice Roberts puts it, there aren't Obama judges and Trump judges or Clinton judges or Bush judges. They are just judges. And that's really

vital to the legitimacy of the institution. Having said that, I mean, I think it really kind of blinkers reality to not recognize the very conservative tenor of the overwhelming

number of cases that the Supreme Court decides. And I think it's unrealistic not to expect that conservative bent to deepen with the addition of Justice Barrett, which is a new phenomenon and one that really hasn't liquidated in actual rulings, but I think that's coming, and we see the harbinger of it with the Court continuing to strike down California's response to COVID on religious freedom grounds. When Justice Ginsburg died, Briar became the leader of the minority on the Court.

So how can he not acknowledge that there's some sort of split. Yeah, I think it's vital to his position and for him to be effective that he hold to that position, because in order for him to be able to write majority opinions. I think he's not interested in

writing dissents. He's interested in writing majority opinions. He needs to be able to appeal to at least two conservative justices, and he's had some success doing that, mostly in cases that people don't pay attention to, personal jurisdiction cases and the like. But in order for him to be able to do that, he needs to be on record that he doesn't regard the Court as conservative, but rather as sort of doing its best to figure out what the

law requires. And as long as that's the position that he's taking, he can appeal to justices like Corsuch or Aledo or Kavanaugh to see things differently than their colleagues in a particular case and most of the issues that people really care about. I don't think there's very much hope of doing that, but in if you look at the mind run of the courts cases, UM, he's had some successes. He also called for more compromise and fewer dissents.

Is he sending a message to his colleagues on the bench. Yeah, So that used to be the way the court operated, um, and things changed, particularly with Justice Scalia, who was rather adamant about the way he saw things. So I think the way he would put it is he stuck by his principles and he wouldn't agree to anything in an

opinion that he disagreed with. Whereas I think through most of the Court's history, justices may not agree really with every word of the opinion, but if it comes to the conclusion that you know, they think is the right one, they're willing to go along and compromise about the language

that goes into the opinion. And so during Justice Scaliah's time on the Court, there was a real flourishing of separate opinions that either concurred with the majority but were written in order to point out some fine point of disagreement or dissenting opinions right. And so I think what Justice Brier is calling for is compromise and collegiality um. And those were not the hallmarks of the Court during the years Justice Scalia was on there. The reaction of

some liberals to his speech was Riyer retired billboards. He's eighty two, the oldest justice on the court. Do you think he's likely to retire soon? So, I think it's always unlikely that they will retire. We've seen it with Justice Ginsburg. We saw it with Justice Renquest. They think they can continue, even when they're in terrible health. They think they can continue, and so justices do not lightly

give up that position. You know, I think a lot of the calls for Justice Brior to retire were being made before he gave the speech, just based on his age, and based on the recent experience with Justice Ginsburg, and based on just how thin the majority and the Senate is, and how any vacancy and vacancies do happen in the

Senate could flip control of the Senate. And so it's such a precarious position in the Senate that a lot of people would like Justice Bryor to retire now while a successor could be confirmed, instead of waiting to a later date. Thanks Neil. That'th Neil Kinkoff of the Georgia State University College of Law. I am June Lso, and you're listening to Bloomberg.