What it means when Democrats talk about packing the Supreme Court

Daniel Epps, a law professor and expert on court design, talks to Galen Druke about the suggestion by some Democrats that the Supreme Court be expanded.
54:26 | 10/01/20

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Transcript for What it means when Democrats talk about packing the Supreme Court
Hello and welcome to the 530 politics podcast I'm game wondering. During the past couple weeks changing the signs were structure of the Supreme Court. Has gone from an abstract idea among some activists to at least a consideration. Within the Democratic Party. Proponents say it would be a response to Republicans contradicting the rationale for not holding hearings for Merrick Garland and two and sixteen. And moving quickly to replace Rick Peter Ginsberg so close to an election. Senate Minority Leader Chuck Schumer reportedly told fellow Democrats that quote nothing is off the table. House judiciary teacher Jerry Nadler wrote that if Republicans confirmed someone in the main duck session. Quote the incoming senate should immediately move to expand the Supreme Court. And core. Other Democrats have weighed in along similar lines although the party nominee Joseph Biden has not taken up position and has refused to answer questions on the topic. The idea is very much a hypothetical. Who knows it Democrats will control the senate or whether they'll how the support for such a news. But given the recent attention to the idea it's worth discussing and putting in context. And you're admitted you that is professor of law at Washington university in Saint Louis Daniel acts. Apps when a clerk for former justice Anthony Kennedy and his research has focused on the design of the court. He wrote a paper about potential reforms titled how to receive the Supreme Court. Welcome to the shared. Extra. So you have written that this Supreme Court is feasting a legitimacy crisis wide use it. So. What I wrote that I think the crisis was actually even less than the when the court is facing now. But I wrote that last year. When the court was just going through the confirmation battle. For now justice count on. And basically that the claim is on that the court has been the site. Increasing. Partisan plan to station over its membership. That both sides are CE. That controlled the court is really really important. And they're basically pulling out all the stops to try to get controls from court and the Republicans have ultimately succeeded in that effort. He and it's increasingly. Unclear. Why a Democrats should continue to. Follow the court you know basically we think of legitimacy what we. Think that says I felt like I think the best way to explain it is it's the ability of the Supreme Court to issue decisions that people don't agree with but they necessarily respect. And fall. And the more the court is just seen as a purely partisan institution. That is just doing partisan politics and that its membership in. He is just the result of coincidences about when the vacancies arise the less security is why people who don't agree with its ruling should fall about. And I think that's what's happened. How widespread is this view within the legal community is that overwhelmingly. A view of liberal rather than conservative scholars or is this a concern across the. I'm I think it is to some degree there people on both sides to share some concerns about. The current structure this report. But I think it is overwhelmingly going to be a feud that is shared by liberals in part because the current system has created winners and losers. And the current system as presently constituted has really created winners of Republicans Republicans have appointed. Fourteen of the last eighteen justices. Or fifteen of the last nineteen. Openings depending on how you count moving associate justice Rehnquist to Chief Justice position. Their add another presumably. With the latest vacancy. Even though they have not control the presidency. For such a disproportionate amount of time. And I and I think for that reason. People the laughter Morley could save this system just doesn't make sense and isn't. Benefiting us and is going to result in a court that's actually can stand in the way of a lot of potential progressive reforms. I think that's one of the problems. With any kind of performance that it's going to create this kind of winners and losers. I was looking at some public polling on this and I saw that into 120 according to Gallup 58% of Americans approve of the of the way that the court is handling its job. And it's pretty high compared with how Americans have historically seen the core. And it's also high eight particularly compared with how Americans view other institutions. So does not kind of contradict the idea that it's facing a legitimacy crisis if it has. Significant majority approval. Yes this is this is really interest thing and so that was. That as true in historically the court has enjoyed. More popular support I think and other institutions if you compare the quirk with congress. You know congresses is generally doesn't do very well. In those kind of falls. And there have been other times historically when people constant the court is facing this fusion legitimacy crisis it is very very quickly bounce back. Had happened in bush V gore for example where the court sort of effectively. In get a presidential election dispute. In a way that was widely seen as you know kind of an unfair to Democrats hand in in favor of Republicans. But then very quickly on the court's public image. Bounce back minority seen some of that it seemed like the court. Attribution to global but it hit after the Kavanagh hearings that people get over it. Quickly and and I think part of that is. That the court this term. Led by chief Justice Roberts endured a little bit towards the center. I think chief Justice Roberts is a justice who is very aware of the courts. Institutional standing and I think he recognizes that it's important for the court not to be seen as are too far out on one partisan plan. And I guess the question that is gonna rise is. Is that gonna continue. If the court moves further right. So chief just gives Burke's departure from the court and replacement by someone who is going to be significantly more conservative and she has and probably. More conservative than the Chief Justice is going to move the courts median. Two someone like justice Kavanagh of course hedge and that's going to be a very conservative core. And and it is possible that that court will. Take any further aid and legitimacy but. I think it assured the public's concern a lot of its perception quirk really is about the substantive rulings that reach and so very conservative court is likely to make. You know around half the country happier very liberal or make around half the country happy. The question is how happy does it make the rest the country. And what are the specifics here. What could happen this hypotheticals are 63 conservative majority on the Supreme Court. What could do that would make you lose legitimacy. In the public's eyes as it just ruling against public opinion to Austin. But what are the actual specific things that could put the court in in a kind of crisis position in the public's view. Well I think that's arm for a very long time public debate about the Supreme Court. Has really been a proxy battle abound abortion. And so I think that is the thing that people. Are going to be most focused on is a court. That moves further to the right where we're chief Justice Roberts is no longer short in control he's really been in control as the median justice. And he can prevent the court keeper prevent answer to cancer and talents from going too far. I think if the court were to overturn reverses wade. You know there's there's that there's a debate about where exactly public opinion would be on that question. But I think we can safely say it would make a a large plurality of the country very upset. And would probably mobilize a lot of people. On the left. But there's other things they think the court might do. That would be. Troubling I think a lot of things something that progressives. And Democrats are concerned about. Is the prospect that are very conservative court would actually stand in the way of progressive legislation. So strike down. An important progressive legislative initiatives the court came very close to doing that. A few years back. In the obamacare case and I think. She just Roberts wisely recognized that. Declaring the entirety of the affordable Carrick a constitutional would have created an unprecedented. Budget into crisis for the court. I think it's more realistic to think that a court might do something like apt. If it gets pushed further to the right with this additional appointment. How has the court dealt with this in the past presumably there have been scenario as previously were the corps has struck down. Legislation from one party perhaps that. Dinner wed significantly against public opinion how did the court and public deal with those. Kind of dissident says and our. Yeah it was a couple responses of first. I think the court. This sort of common conception the court is this is these charmer to return institution. That it stands up to majorities and says no we're gonna protect individual rights. Against you overly aggressive majorities. I think in practice. A lot of people who say the court carefully have concluded that the court has been a lot more maturity majora carrion that it scenes. And even when the court has done a lot of things that report controversial. What it is really doing was kind of standing against particular regions of the country so. During. The 1950s he had the Warren court sort of fighting against segregation in the deep south actually a significant amount with a chorus doing their had a fair amount of public support outside of the south. But there have been instances for shore where the court has really. Stood in the way a public opinion. And I think the most significant one was during the sort of last. Core pack increase its. That the court packing episode under a Franklin. Don't know Roosevelt. The Supreme Court that was in power when he came the presidency was. Quite conservative. It was the conservative coalition was made up of a mix of Democrats and Republicans. Because on the parties hadn't quite. Creek they didn't quite have the part of seem partisan alignment that they do today. But there were some there is if coalition of conservatives on the court. That was striking down a lot of the new deal initiatives. In and in ways that were unpopular hand. Roosevelt really try to mobilize public opinion against the court that he partially succeeded in partially failed. I essentially are we saying that the supreme or although. Worse would be assumed that it is not accountable to public opinion and it is true we just accountable to the constitution. Takes public opinion as a guide more often than our. Well there's a couple ways in which a public opinion might influence. The court so when I mean that the the court the justices are themselves. Members of the public and so they're likely to sheer views that are shared among the community to some degree. The they're not totally represented the public the justices are older. Here and leads. They're highly educated. And so there are some some places where maybe they can be a little bit ahead of the country. They were little bit ahead of the country maybe on some issues. Like he writes but they were sort of we're elite opinion wise and I think beavers the country caught up to their views. Pretty quickly. But I think they also. A lot of justices not all of them but I think that they are aware that they operate under constraints. That yes they have like ten year. It's very hard remove its repurchase its is very hard to. To do something. About stream court justice you don't like. But they they don't have. Guns. They don't have an army all the Supreme Court really has is the power to print PDFs and put them up on its web site. And to exit that it has power the power is to parity get other people to listen when it sand and say okay stream court told us we can't do this. We're not going to do you that. And there's a long history of you know political actors respecting this reports judgments. With us or they can be lost at it is certain point you get too far. Away from where the public is in you really lose the respect to the public and people. Don't respect your decisions and respect the decision making process that at least there's decisions. You know at a certain point you could be a court where people to start listening to your judgments. I want to Dickens about a little bit more but I mean first why wouldn't. A do you even 63 the conservative majority court also kind of understand there was constraints and just do what. Past justices have done which has as they become the median justice move more towards the center. As a sort of self preservation method. I I think it's very possible I think that's why you will find. That there have been a lot of dire predictions made at various points in the past about how the court is moving right on that these seem kind of predictions have been made. Over and over for the past three decades or so. And on the court has unquestionably move to the right over that time period. But I think it's conspiracy at the same time that the court. Has not done a lot of things people mr. thought we do or has not acted as quickly as people expected it to you. And I'm I'm a person who made to predictions about what the court was gonna do. And I was a little surprised at that the extent to which our chief Justice Roberts triangulation and I was I was curious to see how much that was going to continue. Thumb over the next. Next few years. And it's it is quite possible that someone. In that conservative coalition might. Recognize these constraints I do think it's a certain amount of pressure to be that median justice and think it's really all coming down to me too I really want to pull the trigger on this. Or not. All that said I think that the for. Conservative legal movement has really tried very hard. To identify. People and instill in them these are on sort of really rigid. Interpreted values. That discourage them from taking this kinds of considerations into account. And they really kind of make villains out of people that do. You mentioned that vetoed. There is always this potential that the public could just lose faith in the court and that there isn't really an enforcement mechanism for the Supreme Court. What is at stake in that kind of scenario what happens if Americans. Lose faith in. The supreme court's rulings. Derby do we how'd examples from our countries are from moments in American history. So it. We have examples in American history where. We have gone truth perilously close. Two that abyss and then not gone over it. I'm in terms of other countries. There are many other countries that don't have a Supreme Court that say has the power to overturn statutes. Or overturn federal statutes. Beyond on those countries. They function fine. You know the Britain United Kingdom doesn't have are written constitution. For a long time the error. Here is Supreme Court was even calls recorded didn't have the same kind of powers are Supreme Court has yet the principal legislative supremacy. And that's it you know are free country and so I don't. Think that it's necessarily apocalyptic. Me and there's a lot of people academy who say. Let's just stop giving the Supreme Court the power to do all this stuff we've been letting the stream court to side we too many important issues. Why should we do that. And so that's another class class or kind of reforms that people are talking amount. It's an idea called jurisdiction stripping is one of them. Slight flavors of that where you just a pass catchers to see this report is not allowed to decide cases about this topic. And let's just have it be settled by legislatures that's one possibility. But there's other possibilities to you also eat you know things that we fear or. You know the court stepping in. To stop security like if if you know the president starts just jailing people. Without cause we want to have courts there are to be able to stop that in and world where on court system cavity. Legitimacy or authority. On they would they would it would be one sort of check on government power that would no longer stand. And that's deck and that could be frightened. What are the moments that you mention when the country has come perilously close to kind of garner over the edge and and the judiciary losing legitimacy. It's a wine is during the civil war you. A Supreme Court that was more conservative more sort of southern oriented I think it's the battery to describe it. Again. And certainly president. Lincoln was and there's one instance where the court sort of issued an order to. Present Lincoln. That he ignored now. There's a lot to get into the air there's a lot of disagreement about whether he actually was legally authorized. To do that. It's I don't want to get into. Specifics on that but that was it a situation where the core of the country was really literally being terror torn apart by by civil war. In and on the Supreme Court. Was later ruled that story and going back a few years before that mr. Burton issued the opinion in dread Scott that was one of the one of the events this really sort of advanced accelerated things towards the civil war. And then in any immediate aftermath there's action lot of partisan. Wrangling about this report this report the they remove seats from the court or prevent. President Andrew Johnson from importing them in him into the court and added seats after he left office. And so there is a lot of kind of wrangling. About the court that period seemed to settled down in the decades after that. I think that next. Really really you know there are some other blips but the next really really big moment as the when I talked about. Earlier this this sort of core pack increases with FDR unit entered its. What role did the founding fathers intend for the Supreme Court to have in American government and how about roll. Changed over. The centuries or Jackie. So I think it's actually. It's kind of unclear and it's it's debated and there's a lot of people who debate the extent to which. They expected the court to even have the power to overturn. Federal statute to mean there's there's certainly some evidence that they did. I don't think I think I think it is fair to say that they did not expect the court to be as powerful an institution as it has become. Or two maybe to use its power to declare statutes and constitutional. Nearly as often hesitant to just by example of that on the court exercised that aren't you for fugitive their federal statute unconstitutional. I believe twice. Before the civil war. And it now does so maybe not every term but with some regularity there's federal statutes your in the air that it says are constitutional. All time not dimensional the state statute to striking down. Left and right I also think it's hard to imagine the founding generation thinking that stream court. Which would really just sorry a lot of issues that it really come down to. Kind of philosophy and values that means that we we go to through court asks them to decide some of the questions it really must divide society like should abortion be legal. Should affirmative action. Be legal. And things like that. And I think the court really has accumulated power in ways that weren't anticipated slowly but surely over the last 200 years. And so how did we get to the place where we are right now where. It seems like we're on a constant outing this 63 conservative majority. The court has accumulated a lot of power in this particular we weighing in on very divisive issues can strike down you know. Federal statutes as you mentioned for example the entirety of Affordable Care Act if it wanted to you in this case coming in November. How did it all gets it. Well I mean it's it's it's a it's a long story it's complicated. But I think from the period so you have the court packing crisis in the thirties. With hefty armor he tries to pass a statute that would enable him to pass. Budget to get more justices the court ultimately fails but the court kind of backs down from. The confrontation and stops striking things down. As aggressively. As it had been and ultimately FT RC able to replace almost all the justices. On the court. And then you have a period of time you have the Warren court in the 1950s. The court accumulates manages to accumulate a lot of prestige. Issues a lot of opinions some of which are extremely controversial at the time brown vs board of education brand or vs Arizona. That that generates a resistance. But ultimately. In retrospect. Have engendered a lot of public respect. And and then what happens I think pretty the next part of the story is the court decides are reverse his way. Me and says that abortion it's constitutional right that's extremely controversial ruling it really mobilize his people on the right. To focus on courts and to develop. Sort of asset. Legal commitments and ideology is that are going to. Build a framework for for moving courts to to the right. And you have a series of court battles. Between Democrats Republicans over the coming decades as they're kind of judicial philosophies I think diverge. More and more. Mean and so now we're in a period where Democrats and Republicans need to appoint judges that through decide cases very very differently. He and and meanwhile the court as he says as accumulated all this parent prestige as the court really looks like this big prize for the taking you can get the court you can get five justices were with you. You can do anything. It seems like. Our I want to talk a little of it now about some of the reforms that have floated around the legal community and amongst activists and now maybe even some Democrats. So let's start with what. The overall goal so you know. These ideas are floated around in the legal community for a while some activists talked about them during the democratic primary. In fact he booted jets mayor southbound of course talked about court reform during the primary it didn't really take off what many have the other candidates. But it's been simmering for a bit and now we've heard from people like Jerry Nadler and even Chuck Schumer who said everything as on the table. What do people who want to change the court want to accomplish. You know what I think there's different there's different flavors and I think. You know for a lot of people. Ultimately. He comes down to they're sort of policy preference it's and so. How you feel that change the court is ultimately gonna be determined by how you feel about the current court whether it's doing stuff that you like or don't like. And I think the issue has become particularly urgent. Four Democrats as they're seeing a court move. Four for the right and threw tactics that scene. Very hard to justify it seemed very unfair. Underhanded. And I think really bring to light some of the structural problems with the court it just doesn't make sense I think. Driven execution with all this power whose membership has decided through random events if you win a particular octogenarian dies. Or retire its. There's also a lot of other I think reformers. That are kind of more motivated by sort of more. Mutual good government concerns. An and let's just have a system that seems fairer. It forces were negatively. And I think that. Where you were in that spectrum. Me inform a little bit which reforms you find more palatable I think there are some reforms that are a little bit more human to kind of neutral. And there are some reforms that are just seem to be more about. You know equalizing partisan advantage are taking partisan. Advantage and so one of those being the latter being just restrict or quirk Jack adding justices to to the court. Is an example of that you know it's hard to just for justify that as sort of a neutral good government reform but I think that in the justification that Democrats would offer his. This is ups are principled retaliation. For Republicans violation of problems. Out of curiosity. The refusal. The senate majority leader McConnell Q consider Merrick Garland in 2016. And then now this question to you confirm a new justice. Before the election over four inauguration day. What are of a historical norms are precedents that exist for there has been. Yours. You know it's again a situation we are you're gonna get different answer is depending on what you're talking as someone who's a Democrat or Republican. I think that there you know if you look back historically you know there have been. Justices that are confirmed during election years for sure there have been justices that are confirmed. By opposite party senate. During the election year for example so. Justice Anthony Kennedy in my clerk for. What his confirmed in 1988 which was a presidential. Election year by a democratic senate. And so some of the justification is that have been offered just. I think are just what are just dishonest or are rocks it would do him in some are part of the McDonald's initial statement aegis and we don't do this election years. That was wrong incident it they they've kind of gerrymandered the the rule little bit more carefully it's. You know no confirmations. By a opposite party senate in a presidential election year where the vacancy arises during election here took OK in the thing is when you when you define it that way. The universe gets really small because. Many justices time their retirement strategically. Most of the openings that have occurred in recent decades have been earlier in presidential terms precisely because the president that the justices are are retiring. In werder to. To to create an opening dad did in a wit and waited in the field we're simply. And then if you go back further in history. It's harder to draw analogies from it because. The roles for Corus very different there's a lot of it's a sister people people just would leave the court after British were ten years. That it presents Richard throw peoples from quirks that really didn't do we know what else to do with them. And so. It's hard to even come here are you know between what's going on now with what was happening. A hundred years ago. It is true that. My understanding is that a Republican senate has not confirm a democratic. Nominee for the eastern port just period in something like a hundred years. We're has democratic tenets have confirmed Republican. Nominees to this report. Much more recently. So what. The constitution and say about. So packing taking that as the first example. Or Foreman will get into some of the other sometimes more complicated ones is a constitutional. So this or that the constitution does not specify how many justices on this record and so it necessarily suggests. Gaps congress has to a role in. Defining the court and how many members it it's what happens in the constitution makes reference to the Chief Justice the United States and associate justices but gives no. Number and the number has. Varied between five and tan. Over American history. Is it constitutional I think most people think is pretty plainly constitutional for those reasons that the congress just has the power. To do it. There are arguments this thing by constitutional or there's always arguments that you could make about why something isn't constitution. And their people have tried to make arguments for why plainly partisan. Quirk packing would be unconstitutional. And you for example people in congress the Senate Judiciary Committee made arguments that FDR's court packing plan. Was unconstitutional because it is an attempt to coerced the court. In two ruling on the wave it he. Wanted but I think that we're packing. Most people think you would be constitutional. Four plainly constitutional four. Congress to just pass that you're seeing here now. You know two more for more harbor many more seats. On this record. Why hasn't it been dark so the numbers Supreme Court justices hasn't changed from nine cents -- 69. Why hasn't somebody just pack the Supreme Court. So I think that it's what we have a call kind of like a soft constitutional more so that he any system. Government. There's going to be this stuff that the constitution explicitly says you can't do you. And people are in hospice view that. But then there's a whole range of other things are going to be thought are to be written down in the constitution kind of rules of fair play. Rules of the game that people. Follow. And that it seems that if you do people organize the other side is just gonna sort of lose confidence and you maybe don't retaliate in some way. This is you know for lack of a better were just these kinds of norms. And I and he has really been settled as a norm I think for a long time since the FDR episode since FDR tried it your actually had. His party controlled congress but nonetheless was not able to get it through was not able to sufficiently mobilize a public support for packing the court. And I think that it it gets people's hackles of it sort of seems like you're trying to undermine. Another branch of government trying to kind of reduce. Limits on your power. It has the sort of flavor of authoritarianism we see you know. People who come to power an authoritarian countries try to undermine their independent judiciary is we have this strong tradition of an independent judiciary in this country. And so it also for the most part it just hasn't it hasn't really been seen as necessary. You know that you have a limited capacity for legislation when your president that you want to kind of try to push here trickier congress to push through. And a court techie plays going to be a big part fight here. Why bother when it just focus on says of legislation care about but I think that. Progressives and Democrats are really comer and the view that. If you don't do this or not to be able to do anything else anything he wanted to if you want to do a green new deal. You want to do universal health care. The supreme court's gonna stand in the way unless you fix the court. And it means there is there and we are talking about the Supreme Court and legitimacy. Darryl. Wood packing the court. Kind of throw the Supreme Court NC even further of the legitimacy crisis. It's hard to imagine that it wouldn't that certainly would. Generating outrage upon the rights. And necessarily. I generate some kind of greater escalation or Republicans the next time they had the opportunity they were given to get both houses of congress. And presidency I mean they would be crazy not to pack back or do something. Even more press it's hard to even imagine. What that would be. And I I think it's hard to think that there wouldn't. You know diminish the court's standing in some respect diminish the courts the public's view of the court is the sort of lofty institution that is above politics and that might not necessarily be a bad thing. You know depending on your how you feel the courts if you you love this record and wanted to have a lot of power that since terrible. But if you're someone who thinks you know I'd actually rather than a world where. Congress has more power to do stuff. In the court isn't setting all these questions. That may be is not into the world. That's more of a situation like Great Britain or Canada or Netherlands or something like that where via the courts don't come as much power. Yeah we the courts. You know there's a range of possibilities so in. In Canada for example this record does have the power to declare legislation constitutional. But there is some avenue sort of date tonight now it's really really ever taken but there is some at least theoretical avenue. For the legislature overturned Supreme Court rulings. And maybe the existence of that. Safety valve might also cause the court itself to be less willing to strike down legislation and so forth. That yeah I mean you can have. Democratic society with talent. A quartet has. The the power of judicial review now I mean. There is some danger that if just sort of confidence in law more generally is undermined if people to sort of lose faith in this whole idea that there's like law that sort of separate from just. Democrats vs Republicans. I think that gets a little skier I mean. You sure a lot of people talk about the phrase the rule of law. And it's a very slippery concept what exactly the rule of law means basically I think were the Q kind of know where you see it and you know you're societies that don't happen right. You know societies where. There aren't any kind of like. Clear rules that the government has to follow this basically just who has parity any given moment and and that's scary to me. Does that does that happen if we have this battle of its report does that undermine confidence in law more generally. If so. That frightens field. The guys who we've talked about packing the core we've talking we talked about stripping jurisdiction in general which means. Making sure that the Supreme Court cannot strike down particular laws that the congress passes. Some other ideas I've heard horror term limits. And and that I think also you have developed some ideas on your articles like science and whack your weapons yet you doesn't lack derived spoke iso. Let's determine its first though I mean. An action term momentum currently working on project. Purple project about serving for term limits with. My Chan it. My sense of Harvard at a Chilton of Chicago and count was among my colleague here question diversity. And we are looking at all the different turn on its proposals interest simulate how they would have worked. In. If the Doc Rivers which history. There's a very common proposal a lot of people it's critical restaurant different versions which is to give us repurchases eighteen year terms that would be stagger. The idea being each president would get 2.2 justices per term. We have one opening every two years in images go like clockwork. And so no longer which we have a system where. On the court's membership. Can just in and ran a chance so right now in our system you can have O a one term president. To could appoint nine justices have been and when vacancies happen so that President Nixon got four to report vacancies during his first term in office. Carter surfer when tourniquet zero. And eighteen year term limit would kind of solve that problem I've ever do rising appointments. And it would also. Prevent justices from serving until very old agencies with. Justice Ginsburg. And I think it would it would prevent. Having to really big. Swings happen just just on the basis of win a particular person dies repairs and I think. Whatever you think about who should be in charge the truth or what kind of methodology through which follows is I think it's fundamentally crazy to say. That. What constitutional rights the court recognized it should turn on. Whether Justice Ginsberg died in. September. Of 22 when he or January tweaked when he won. That should not be like a world historical event. That influences what rights people African. So I mean artery downsides to turn laments. Yeah well so one is it's less clearly possible to do through ordinary legislation. Here are there is a version of the proposal. That that would tried to do it there and ordinary statute. And I actually think the arguments for why that's possible I find them pretty persuasive. But it is much more controversial and more people who have endorsed a proposal say there has begun three constitutional amendment. And it. Yet it is mr. she's really are we haven't done it in a long time we don't do it much in the twenty century. And in a especially hashish amendment that would likely be favored. By Democrats it's it's very hard to see that happening soon because. You need a bunch of states to agree. In Republicans tritium have the advantage yen Democrats often have more. Support among numbers of people but that Republicans typically have more support in total number of states and so it's hard to see that. Happening at least anytime soon now there's ways you could change the proposal that would make it a little bit more possible and so when is. You see you sort of save me don't accurate track incident and determine which are not complied need to justice is currently on the court and so. You get to have your six justice majority Republicans missiles this will apply you know. Decades down the line. But. Target in the constitution hand. It just doesn't seem to have gotten any traction. Our to you have proposed a couple ideas yourself. That. Could potentially I what's the goal what used to turn the kind of leveled down on how heated the argument over the court has become. Yeah and so in my work with and belts get nation a Roman we tried to identify him I think proposals. That were kind of had some features in common tournaments in the sense that. They were. Neutral in the sense that there be something that on it put into place may be. Both sides could live with it didn't necessarily lead to partisan retaliation. I think that you know for reasons we already discussed. Court packing flunks that test for packing is just an attempt by one side say we want more justices give us more neither side would. With Dan have an incentive to pack pack and so forth. You we don't love. Term limits proposals though because. It actually makes the court even more sort of a focal point of electoral politics basically every. President you'd know exactly how many justices they would get to a point. And you basically every election would be someone is somewhat for about this report and maybe that's already true or current system. But it beats the court a little bit more. Salient. And so we offered a couple proposals. One of which we called the lottery court which is just say. Let's let's them formally make all the judges who were on. Units is court appeals the intermediate appeals court. Supreme Court justices. In and we'll just have on them said in sort of randomly picked panels to decide cases for limited periods of time. And so anyone appoint and it's not going to be a big deal it's there's not an apocalyptic consequences from anyone justice leaving the court are joining the court. And he will sort of diminish the importance of individual justices. To make their proposal worker I think you have to combine it with a couple other. Requirements. Such as like eight a supermajority requirement for the court to it to clear statutes unconstitutional because otherwise you can get that weird swings. Between over the extremely liberal extremely conservative. Panels. That's for one of the idea it's. The other that we talked down which is the one on that mere had a huge edge. Ultimately doors. We call the balance bench. And here. The idea is to count. Bake in partisanship to his system in the way that we currently do. Four. Things like independent agencies were wearing government we have sort of requirements about how many members of any one party can be. Pertinent and on the board of person and agencies. The idea being that we have five seats that are reserved for justice is affiliated in some way with the Democratic Party. Five for justices voted Republican Party and then we'd ask those that group of justices to select. Five other justices who from the lower courts reset. With the court for a limited period of time and decide cases the hope being that they would have some incentive to pick. Judges who had a reputation for moderation and fairness. And the idea being that this would be sort of another kind of just fear away to Alec cage the power of the quirk. I've read a little bit about this idea had I seen kind of two criticisms. Or at least challenges but this one is that the constitution gives the president. The authority to nominate Supreme Court justices so if the five liberal on five conservative justices are choosing another five kind of more independent or moderate. Members and is about taking power unconstitutionally away from the president. So you know our answer to that is that there's a bunch of ways in which the system kind of currently does stuff like this. And at least itchy extent that this is sort of the kind of judicial office that would be created. By statute. It wouldn't necessarily be problematic so for example are retired Supreme Court justices often go sit on lower federal courts they were never appointed. Or confirm of the senate to be a judge on. The lower federal court so justice O'Connor opened has and it was never confirmed to be in ninth circuit judge she was confirmed to be Supreme Court justice. But she's allowed to the statute lets her go see it as a ninth circuit judge. When she wants to you on district judges often go sit up on. But the ninth circuit and so forth has lots of things that happen. Like fat and those have not been treated as constitutionally problematic. And so we say this is really just fundamentally the same thing as long as some has an article three appointment. It's okay for them to sort of shuffle. A little bit between courts no hasn't happened at the Supreme Court level and there's there's arguments you can make for why it's different. For that to happen it's true worked level verses at the lower federal courts. But. You know we think that it's it's not as different is as my deck. And then at who are these kind of independent minded more moderate justices. I mean I think. Increasingly today we see people as falling into liberal or conservative camps. Wouldn't be easy to find these theoretical five people who. Are really neither liberals or conservatives when it comes to their judicial philosophies. Yeah I mean this is this is. That was something that I can we struggle with a little bit with a proposal which is that. Even in that limited period Texans we publish this article at 4019 I think. The law has continued to become more color in it's only it's only happening further it took the drug administration in particular. Has taken a very very aggressive approach judicial nominations. And has been very very focused on identifying. Sort of rely ideologically reliable. Nominees. That said I mean there's a lot of judges on the lower federal courts especially if you expand. The university to look at not gest on judges on the experts appeals also look at federal district judges. There's a lot of people in that group. And they are not all going to. You uniform ideology. And they're gonna you know in the even if even if both sides are really really trying hard to identify people that are sure if about partisans. Some people that are kind of a little bit more in the middle are gonna slip through. Over time I think you still see them I think that you know it certainly looking at. The nominees. Recent presidents there's been you know there's some more liberal or conservative judges and the bench and so much more moderate. Nominees they've put on the bench and I expect the same thing will ultimately be. Thought to be true of some of the trump nominees even a lot of them seem very much be reliable right now. When I think of Republicans or conservative legal scholars you know observing this debate about reforming the court. On Iain art or more oral last partisan ways. I mean wouldn't they just think booklet we spent decades trying to shape the court in the way that we wanted to see it shaped and once we actually achieve that and then you in one Phelps group or whatever in one congressional term kind of blow it all out. I mean how. Would that ever fly. And we have Republicans whether it's straight up packing the court. Or something you know more corn and quote non partisan like this balanced court idea or the rotating. Courts that use described first. Yeah well a couple points and in so even rain and even some people. You know you wouldn't necessarily expect. Do you support kind of the sort of neutral good government trying to kind of spring performed so Stephen count raise the co-founder of the federal society who's been. Against which has been a really important part of the rise the conservative legal movement federal say there's a huge role. In right now in the staffing. Identification of candidates for on the federal bench. If he's a proponent of term limits and he came out re you know this last week with and I with another bad. Still arguing in favor Supreme Court term limits even though giving his ideological preferences. They're not a receivers I think there are deer can be people who recognize. That if this is and it's just really kind of hard to justify and I'd like to think that even. You know Republicans conservatives were happy with their gridlock. Are gonna recognize that maybe it doesn't make sense to the system were written so luck controls. So many things. That's ahead. You could have you can imagine reforms. That are kind of put in place on on your partisan lines. But then then people kind of can learn to live where. And I think that's more true of some than others I think if a let's just imagine that Biden wins Democrats get both houses of congress they think put your quirk hacking. It's very hard to imagine. There are Republicans. Coming into office. For eight years whatever it on the line and saying okay. We've got you know seven. Seven to six democratic Supreme Court that seems great which is live with that. As I said before I think that they would be crazy not to not to act Barack. That maybe there's other reforms that you know they would cook public support cholesterol and then people would say OK let. We don't have a great argument it's you know four and doing this so if if the reform that goes in is term limits. Or something that looks more like one of our reforms that really is at least designed to try to look. Like it distributes power in some relatively fair way. You can imagine a universe where on the other side gets back in power and says look. It's not the one that we like but we can live with it they can be especially true. If you imagine. Kind of people's predictions about what the future is going to look like changing. So it could be that life tenure. Is great four. Republicans right now the current system but that there could be other scenarios where it looks like they're gonna be more likely to lose the presidency for a period of years and it's I am not saying that's gonna happen to saying that. You know things can change over time in what looks advantageous for one party that could change you know down the road and people could. Decided screw over the status quo. What about this idea of passed limiting the supreme court's power and preventing them from striking down certain laws that congress and the president have signed into law. I mean is that the kind of thing has any durability over time or does every party do that and that just undo whatever laws prevented the Supreme Court from. Striking down to draw in the past but he does that also kind of like we're packing. Yeah it's it's it's your friend and I think it's is. It would have a partisan. Cast you in the sense that presumably. You knew you would strip the courts jurisdiction to hear issues where you think they'd be likely to stop you from stop your side from doing what it wants to deal. And so. I would imagine that a democratic congress for a pastor section sure thing it would say. We are. You gonna teachers actually from the court to hear cases involve a challenges to the affordable care. Or challenges to. The green new deal or challenges to Medicare brawler into what it whatever you can and you progressive legislation in future you can imagine. But not taking away the parents report to hear challenges to you. Abortion laws in Mississippi. And then so I think that once you create that president's. You can see it going to from which you could see. People just getting used to the court have a list argues the court not stepping and you can see bee movie really outraged and one and two citric bring back full jurisdiction or you could see just being flip flops we're they say okay we're gonna come back and we're gonna put in. Provisions that are gonna allow the court to hear all these things cases that where they can stricken things we don't like. But take a waiter jurisdiction. In other areas I think it's just it's it's just hard to know. It doesn't. Necessarily it might be part of the plot necessity have to kind of escalating. Feature at that or packing some people worry about words. You know we pack the court you packet Acme Packet back again and then you've got you know you've got a 1003 we're justices at the end of the day. Because it's not like there's there's only so far you can go eventually. And I think that some of the advocates jurisdiction stripping say okay the audit of the into the road is to report doesn't have any jurisdiction. Assuming that you're putting aside constitutional problems with that which. And some of them is a great I don't you know I have more confidence in legislatures I want in my belief in democracy and I want us to solve these firms were cells. Let's just take the court of the picture so that might be a feature not a bug. Lastly here it seems like. A big part of the argument about the Supreme Court from the laughed it is that its anti majority area writes oh. Republicans have lost six of the past seven presidential contests error. Justices appointed by trump abortion of course terms were not appointed by president with popular support. Republicans have not won more votes nationally for all 100 senate seat combined since the ninety's. There's also are just the arguments about the norms more recently with McConnell. Aren't those largely criticisms about the whole. Of American government addict structures like if you if that's your issue with the Supreme Court. Then you probably also take issue where the senate as a whole and then of course the Electoral College. So. Weird does this and like can you actually accomplish your goals if making the system work. By messing with the supreme ordered you have to abolish the senate and the electoral I mean. Where does that stand. Well I mean support that fixing or presentation in the senate. That tore right because the constitution has a provision that says. No state shall be denied it equals average in the senate without its consent so that's even harder to do. And all the other stuff that her constitutional manner or parts like everybody to agree to it and that's just never gonna happen. That's we have been the only way to do that is to have some kind of new constitutional convention some kind of new. You know. Suddenly looks like a second American revolution. But. The way the court currently works it kind of has magnified some of those problems. In the sense that because. The court's vacancies are kind of ring and they have. Happen to come up at times win. Some of these two marquee deficits have been most must presence as he as you noted like. Both. You know public bush. Lost market voters first term trump lost popular its first term. Obama only got was her for two terms only got two nominees why does he get. Only get to and trump it's gonna get. Three. You know just coincidence and so you could. You can fix this even if that doesn't fix everything I do think it makes it a little better I think having some fix correspondents to. Street where vacancies at some way to respond to sort of winners of electoral. Contests I think would be improvement even doesn't solve all problems American cars. All right well let's leave things there we've covered a lot of ground thank you so much for joining me it's my pleasure thanks. Dana apps is a professor of law at the University of Washington scene press. My name is deal entered Tony chow is in the virtual control room you can get in touch by emailing us at pod cast at 530 dot com. You can also of course treated us with any questions or comments if you're a fan of the show beavis or reading a review in the apple podcast store. Or tell someone about us. Thanks for listening and world sees. And and.

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