We Need To Talk About Court Expansion

How do you solve a problem like SCOTUS? Kate kicks off our Hot Supreme Court Reform September series with the New York Times’ Jamelle Bouie. They dig into the ins and outs of expanding the Court: what the process could look like, the argument for making the entire federal judiciary bigger, and how to avoid an FDR-style fail. Take the Strict Scrutiny survey https://crooked.com/strictsurvey. New Strict merch available here https://store.crooked.com/products/were-gonna-need-a-bigger-court-graphic-t-shirt. You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cle http://crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com http://crookedcon.com/Buy Melissa’s book,The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t&Buy Leah’s book, Lawless https://bookshop.org/p/books/lawless-how-the-supreme-court-runs-on-conservative-grievance-fringe-theories-and-bad-vibes-leah-litman/5b562d6fcb316d6e?ean=9781668054642&next=t, now out in paperback Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.socialFor a transcript of an episode of Strict Scrutiny please email [email protected]

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• 0:00Leah Litman?

  Strict Scrutiny is brought to you by Americans United for Separation of Church and State. It's back to school season, and this year, 5 million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Yes, you heard that right. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for Separation of Church and State, are taking the fight to the Supreme Court, and they need you to amplify their voices before the Supreme Court gets its hands on this case. And we all know what the Fifth Circuit did. Obviously, they let Texas get away with all of this.

• 0:40Speaker 01

  They're gonna go up, but we're gonna fight to get them taken down.

• 0:45Leah Litman?

  That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian, and their kids are in Texas public schools. The story they tell in this video is moving, and we hope everyone hears and shares it. Look, there is a human cost of Christian nationalist policies, like these Ten Commandments laws and the decisions the Supreme Court hands down. Every child deserves access to public education, where they aren't subject to state-imposed religion, or religious instruction, or coercion. Public education is supposed to be open and available to everyone. It's supposed to foster pluralism, not one specific religion. Visit au.org/10c to learn more about this case and how you can help join the fight

• 1:29Leah Litman?

  to protect church-state separation. We talked a little bit about this case on our regular episode last week, but there's so much more to be said and to learn about the people who are fighting back.

• 1:41Speaker 02

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• 2:12Speaker 03

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• 2:24Speaker 04

  She spoke not elegantly, but with unmistakable clarity. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

• 2:55Kate Shaw?

  Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Kate Shaw, your lone host for this episode of our special bonus series, which we're calling Hot Supreme Court Reform September. And for this installment of our series, I am delighted to be joined by a friend of the show, Jamel Bouie, columnist for The New York Times, and probably the person whose columns appear more frequently than anything else in our recurring Favorite Things segment at the end of every show. It's like, we really shout out your columns so much, Jamel. It's ridiculous.

• 3:25Speaker 06

  Oh, that's so nice. Thank you.

• 3:26Kate Shaw?

  We really do. Thank you, and welcome to Strict Scrutiny.

• 3:29Speaker 06

  It's a pleasure to be here.

• 3:30Kate Shaw?

  As I just mentioned, we are doing a series about Supreme Court reform. And our goal in doing that is to try to shift a little bit from general criticism of the court and its decisions, and listeners to this podcast know that that is not in short supply on this platform, but to try to move a little bit or to include some conversations with leading thinkers about specific potential reforms to the Supreme Court. And today, I want to just ask you about one of the biggest and most controversial potential reforms to the court, and that is court expansion. Maybe we can call it court packing. We will talk about terminology. But before we get to that, I want to just stay on the court more generally for a minute. And I do think that people, and maybe a growing number of people,

• 4:15Kate Shaw?

  understand that something is deeply wrong with this Supreme Court. There was a Gallup poll in late July that had Supreme Court approval at 33%. Other polls have it in the mid or sometimes high 30s, but all at or near historic lows. And while I do think SCOTUS polling is quite imperfect, the change over time is still quite striking. So Jamel, I'm curious if you have any theories or thoughts on why the court is polling so badly right now?

• 4:40Speaker 06

  I think the two immediate things, right, are first that people who identify as Democrats, people who identify as liberals have gotten very down on the court for reasons I think all listeners know. One interesting wrinkle here is that there are many Republican-leaning voters who don't think the court has been favorable enough to Donald Trump, and so that kind of structures their view. It's also the case that on the right, the political right, there's just like, kind of almost a tradition of court-hating that stretches back half a century. It's part of the language of the political right in a way that it isn't quite yet of the political left, and I think that also shapes how Republican-leaning voters and conservatives think about the court. Obviously, I think that the conservative complaint here is absurd.

• 5:23Speaker 06

  The complaint there is the court isn't partisan enough, and I think that the complaint from Democrats, liberals, independents is much more sound, which is that the court is extremely disruptive in a way that is overturning people's sense of what constitutes sort of like the status quo of American politics, in a way that they haven't voted for it, the way they haven't given their assent to. You know, voters, it's funny, voters don't necessarily have a firm sense of the potential consequences of who they put into office. And so when voters elected Donald Trump in 2016, or at least when, you know, 48.1% of voters voted for Donald Trump in 2016, there wasn't an expectation that the consequences of that choice would be the end of Roe v. Wade,

• 6:06Speaker 06

  right? But it was. That was the direct consequence of that choice. And I think that for a lot of voters, they are perturbed by the idea that this institution, which is remote and opaque, you know, most people cannot name more than a handful of members of the court. Most people do not know how the court works. I spent a lot of time talking about the court in various forums, and the level of just baseline knowledge about its basic operations is not that great. The court is this remote, distant institution that every six months, they learn, has suddenly overturned some right they thought they had.

• 6:49Speaker 06

  And I think that is driving a lot of the discontent among Americans broadly. They just don't like that idea. It strikes them, even if they could not articulate it in these terms, it strikes them as inimical to how they think the American system is supposed to work.

• 7:08Kate Shaw?

  Yeah, and I think the disruptiveness is a good way to characterize it. I mean, just to back up for a second, like, I think you're right. You make a good point about the polling, which is that there are strikingly low numbers, but obviously, you disaggregate them, and it is a combination of, I think, really sound criticism of the court and then some pretty baseless, like, they are not Trumpy enough. But regardless, like, this is an institution that is not commanding a lot of support and confidence in the public at large. I think that's a really nice point. But the disruptiveness, I think, is also critical, because I think it's such a mistake to focus on, like, how many Supreme Court opinions this Supreme Court has overruled. Like, that is a metric, but it is a wildly under-inclusive one if we're asking about just the disruptiveness of the basic operations of government.

• 7:53Kate Shaw?

  I mean, the court thankfully did not, but came very close to upending the way that a lot of states do mail-in voting in the upcoming midterm elections. Like, it didn't do that, but if it had done that, that would have been wildly disruptive to dozens of states that let people cast votes by mail and then have those votes counted, even if they arrive a couple of days after the election. And that's not about, like, overruling a prior precedent. That's just about a court being willing to invite chaos and into elections, I think, in particular, but obviously, it goes way beyond elections, destabilizing the way that federal agencies have been able to regulate, you know, pollution of the air and the water, undermining the ability of the Education Department and the president to give debt relief to student borrowers.

• 8:37Kate Shaw?

  I mean, obviously, the list is long, but I do think that it's kind of united by this disinterest in allowing other institutional players to make important choices and the settled state of affairs in terms of how we do governance to sort of rest if the Supreme Court, and it's often very idiosyncratic conception of, like, the separation of powers, doesn't like the way things have been going. And I do think there's one other thing, and this connects to the kind of disrupting elections and democracy piece, which is that obviously, there is wild dissatisfaction for lots of different reasons in kind of how government is working for people. And I think some of it quite justified and some of it less justified. But I do wonder whether, in different ways, people are beginning to understand

• 9:21Kate Shaw?

  that the court actually is an important player and bears a heavy dose of responsibility in their dissatisfaction with the way government is operating. And I don't know if anecdotally in your conversations about the court, you're seeing that kind of shift in people's minds. But as remote and distant as the Supreme Court is compared to other branches of government, it feels like, to a degree, the presence of the court in a lot of court choices that people are allowed to make in ways they live their lives is becoming a little bit more evident to people. Does that seem right?

• 9:52Speaker 06

  No, that seems right. And, you know, one of the things I have learned in being a journalist and just like talking to people, both in my capacity as a journalist and then, you know, in the past, when I would volunteer for campaigns and stuff and just talk to people. Ordinary people don't necessarily have a precise language for describing things, and they will latch on to basically like signifiers that kind of are getting at what they want to express, even if they can't say it. And so I would say that the signifier for, like, "I am upset with the court" is Citizens United. It is a stand-in for someone, there's this unaccountable power that is allowing bad things to happen. You know, legal nerds might say, "Oh, you know, Citizens United don't really agree with it,

• 10:35Speaker 06

  but like, it's hard to see how they could come to a different outcome." Like, legal nerds will have their discussion about the case as a case. But for like, the typical person, what Citizens United means is the Supreme Court let billionaires buy our elections. And when you hear people talk about their discontent with the Supreme Court, first words on their lips are Citizens United. And I think that kind of captures it, sort of these people who are unaccountable, practically speaking, and also don't feel themselves to be particularly accountable to the democratic process or to ordinary people who feel themselves and who often express this outright, that like, they are basically...

• 11:15Speaker 06

  Floating above the entire political system as like a guardian counsel to whom they have no responsibility. I think a lot of voters, a lot of Americans perceive them to be like this. And Citizens United, the sense that there is all this unaccountable money in politics, that's the thing that I think captures the discontent.

• 11:36Kate Shaw?

  Yeah.

• 11:37Speaker 06

  More than anything else, more than honestly even Dobbs, it's Citizens United is on the tip of people's tongues.

• 11:43Kate Shaw?

  That's really interesting. And that's, you know, 16 years. It is really interesting to me how a decision like that has the kind of staying power that it has. And I think you're right that there are, there are people who say like, oh, there's reasonable arguments on both sides of Citizens United. Like, I am definitely not in that camp. Like, I think it was an outrage. And I do think that it's, it's striking and encouraging, actually, that the public has stayed as mad as it has about that opinion, which has a lot to do with the state of our politics today. So, okay, so I've been asking about people's perception of the Supreme Court. And I want to slightly tweak the question now and to ask you kind of how you would characterize, if it's different from what we've been talking about, what is so wrong with the Supreme Court today? Because I do think that that

• 12:25Kate Shaw?

  seems important to identifying what any effort at reform should be trying to address. So, like, what are the key kind of pathologies or problems with a court that any court reform should be targeting?

• 12:38Speaker 06

  There's a piece from about four years ago, nearly four years ago, by Mark Lemley, called The Imperial Supreme Court, which has really been my touchstone for thinking about this. I remember reading this and being like, yeah, this is, this captures the dynamic that I think is most problematic. And the argument of the piece, basically, is that the aim of the current, of the Roberts Court, like, what the Roberts Court has been doing primarily is accumulating power for itself, accumulating the power, basically, to make exceptions and to decide. And so when you begin to look at various rulings, and Trump v. US is, you know, comes after this, but Trump v. US is a very good example. The headline

• 13:17Speaker 06

  of Trump v. US is, the Supreme Court has created this criminal immunity for the presidency as it relates to the president's core duties. But the thing about that, right, is that Roberts never quite says what that constitutes. What constitutes an official act? What constitutes an unofficial act? What are the exact limits of the core duties of the presidency? He provides an outline, but it's not specific. It's not exact. It has a lot of room for discretion. And that room for discretion is room for the court, right? It's room for the Supreme Court to decide.

• 13:51Kate Shaw?

  Absolutely.

• 13:51Speaker 06

  What it thinks. Much more explicit than that is even the major questions doctrine, which, to my mind, just really seems like a vibe space. I don't know, seems like that you shouldn't be able to do that kind of doctrine. And you see this again and again, the court not actually laying down clear standards for lower courts to follow, that if the clear standards were there, lower courts could make their decisions without intervention from the Supreme Court. What you see is the court laying out vague doctrines that it can then intervene on a case by case basis when it decides that a lower court does not behave in exactly the way it wants it to. The, you should, the shadow docket

• 14:31Speaker 06

  is, again, part of this, this accumulation of authority within the court. And so that, that really structures my sense of what is to be done. And it goes back to a point I made earlier about the basic lack of democratic accountability the court has. Obviously, the Supreme Court is one of the, you know, principal counter majoritarian institutions of the American system. But the extent to which it remains responsive to the political process, responsive to sort of like democratic need, waxes and wanes throughout history. And there are times when the court is actually quite responsive to what's happening on the ground, and times when it's very remote and unresponsive to what's happening on the ground. And I think that part of the reform agenda has to be done with an eye towards, kind of, how

• 15:14Speaker 06

  do you democratize the court? Or how do you just make the court more democratically responsive? How do you, how do you break up its own authority relative to the rest of the federal judiciary, and as well, rest of the political system, to kind of bring it back down from 30,000 feet and as a live player within the political system? Some of that is discretionary choices, right? If I were, you know, advising a president about, here's my ambition, not if I were president, if I were advising a president about who to put on the court, I would look for a longtime legislator. I would look for a former governor, someone with previous

• 15:57Speaker 06

  high level legislative or executive experience, whose decisions on the court might then defer more to the political process in a way that this court full of, you know, elite lawyers just does not instinctually, elite lawyers and executive branch lawyers.

• 16:11Kate Shaw?

  Yeah.

• 16:11Speaker 06

  Just instinctively does not do. I would be, you know, I think we should have court expansion. That's, that's, if I'm being honest, a very narrowly political thing. Like, I just do think the process by which the Republican majority was assembled is like rife with illegitimacy, you know, a minoritarian president appointing three justices, one of those justices being appointed in the process that basically sort of like broke the confirmation process for a year. The fact that the Republican majority in the Senate set down a rule, no confirmations in an election year, then promptly dropped that rule when they had a chance to do a confirmation election rule. All those things, it's just like not fair play, right?

• 16:54Speaker 06

  It's, and, another way to put it, it's hardball. And I do think that hardball is, is appropriate in response. But if I'm thinking big picture about just rejiggering the court's relationship to the political system, and the court's relationship to the larger federal judiciary.

• 17:10Kate Shaw?

  Yeah.

• 17:12Speaker 06

  My reforms would look like first, a much larger expansion over a longer time horizon.

• 17:19Kate Shaw?

  Yeah.

• 17:21Speaker 06

  With term limits and staggered additions. So it's not like, you know, let's say, let's say you're doubling or tripling the size of the court, 27. It wouldn't be 18 new members immediately, right? It would be, be four new members immediately. And then, every president after that gets a set number of, per term, a set number of appointments. And so it's still, it's still responsive to the political process. And with term limits, none of these appointments are permanent. So you can try to game the system. And as a parenthetical, I think part of the thing that perturbs me the most about the current structure of the court is that it can be gamed, right? It can be turned into a thing where you just permanently lock in authority.

• 18:07Kate Shaw?

  Yeah.

• 18:07Speaker 06

  For the duration. And I think that's just corrosive to democracy, which is a system predicated basically on the idea that you can always lose, or rather, no win is permanent, no defeat is permanent, right?

• 18:19Kate Shaw?

  Right.

• 18:19Speaker 06

  And the prospect of permanent victories, if they become possible, is a really distorting thing in a political system, like, like a democratic system. So eliminating the chance for permanent victories, introducing more randomness into the process, into the structure, I think actually fixes a lot of problems. If you have this 27 member court built over the course of, what, like, five presidential terms? So first of all, no one knows who's going to have the, be able to really construct it. But second, at a court that large, you can begin to do, you know, instead of the whole court hearing cases, panels of justices' hear cases, randomly selected from amongst the members. And that, again, introduces

• 19:01Speaker 06

  kind of this element of chance that becomes much harder to game. And I think that's important.

• 19:05Kate Shaw?

  Yeah. Wait, so let me, let me, let me pause one second. So that's, no, so that's, you're literally like speaking our love language, which is like, let's do all of the reforms. And to situate this a little bit, okay, so in terms of the problem to be addressed through these reforms, I think that you kind of touched on all the key issues of it. There is both too much power, vague doctrines that reserve enormous discretion to the court, that these pro presidency decisions are hugely consequential in what they hand to the president, but also in what they reserve for the court, both as the ultimate arbiter of the extent of congressional control over the president. But also, I do feel like there's this subtle way that the pro presidency decisions, by just announcing that any government actor can stand outside

• 19:47Kate Shaw?

  the law, like, also implicitly announce that the court stands outside of legal checks, like, there, you know, it's both and. And that kind of the imperative here is to democratize the court, to limit some of this unchecked power, to break up the authority as compared to both the lower courts and the other branches of government, and that there needs to be an approach that has a lot of different components. And we are sort of talked about, talking about expansion, but I think you're exactly right to say, the way to think about expansion is not as a one off, we're going to put four more justices on the court right now because you need to fix the current court, because it will never let anything good stand, and because, you know, it's sort of illegitimate in its current constitution, because maybe

• 20:32Kate Shaw?

  of the appointment of both Gorsuch at the beginning of and Barrett at the end of the first Trump term. But that that actually just has to be part of a larger reform conversation. I mean, I actually think a way, so maybe, maybe the Trump one experience is part of the story. But I also think the kind of critical reason that there needs to be expansion at the beginning of rolling in kind of a growing court with term limits, is that I just don't know that the court as currently constituted would permit other kinds of reforms, both to the court itself and other kinds of pro democracy reforms that are critical to solving some of the most pressing problems with our democracy. Like, I'm just not sure

• 21:15Kate Shaw?

  these nine justices would allow that. So, so I gather, so say you have four justices appointed immediately, and then phased in additional appointments, whether it's two or four for each successive presidency, and then also term limits, so you don't have a growing court that becomes enormous, although I'm not sure that would be so bad. Our court is kind of small in comparison to other kind of comparable.

• 21:38Speaker 06

  That's true.

• 21:39Kate Shaw?

  Democracies. And you could do panels of the sort that you were just alluding to.

• 21:46Leah Litman?

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• 26:23Kate Shaw?

  So I think that that kind of larger package of reforms is exactly the right way to approach it. To stay, though, for a minute, just on the kind of expansion question, some of these reform proposals have constitutional objections that can be raised to them, right? Term limits is obviously, in some ways, the one that people think is the edgiest constitutionally. Size is not, right? Like, the Supreme Court is created by the Constitution, but the Constitution says literally not a word about the size of the court. That's just a creature of ordinary statute. So a statute currently sets the size at nine. It could set it at some smaller number or some larger number. It's been six. It's been five. It's been 10. It's now been

• 27:02Kate Shaw?

  nine for 150-ish years. But this part of any reform proposal should not be remotely constitutionally suspect. A statute could change the size of the court. So I want to talk for, in a little bit more detail about that. But actually, I said at the beginning, I wanted to talk about nomenclature, and I forgot to come back to that. So I just kind of want to ask, if growing the court is part of a reform agenda, like, what do you think is the most constructive way to kind of describe that? Is it court expansion, court packing, expanding, embiggening? Like, what should we call it? What do you call it when you think about it?

• 27:38Speaker 06

  Yeah, I've been calling it court expansion, and I haven't been calling it Supreme Court expansion. I really have been calling it court expansion because the other part of this, for me, is just a larger expansion of the entire federal judiciary. This is a bit of a hobby horse of mine. But the last major expansion of the whole judiciary was in 1979. The United States had about 220 million people, right? We have a third more people. The US Judicial Conference is always complaining about the fact that there are too many cases. It takes too long for things to make its way through the process. Many Americans, they have to wait for years for cases to be heard. It is, you know, if we have a constitutional right to a speedy trial, the bottlenecks in the current system challenge

• 28:22Speaker 06

  that right. They make it so that that right isn't really being something that people can expect, especially if they lack resources. So I've been thinking about this, as the Supreme Court expansion is actually being subordinate to a larger expansion of the entire federal judiciary for very technocratic reasons. We just need more judges. We need more judges. We need more courts to do more things. Now, on the political level, there is like advantages to this, right? If what you want to do, for example, is dilute the influence of Donald Trump on the federal judiciary, then expanding the size of the judiciary by a third would do it, right? Expanding, you're creating new circuits. Several circuits already are enormous. Split them up and make them new circuits. And you can do a thing,

• 29:08Speaker 06

  right? Where you say, well, for every circuit, there has to be two justices associated with it. So that gives you kind of a peg for your overall court expansion, Supreme Court expansion. But the idea here, for political reasons, is actually to say to the public, this isn't everyone knows this somewhat about the politics of the court, but this is also about your ability to exercise your rights in the court of law, your ability to get a speedy trial, your ability to have a judge hear your case. And we need to alleviate the bottlenecks. And so, expanding, vastly expanding the number of judges across the board allows us to do that. And, I mean, the funny thing is, is that like, plenty of people have thoughts

• 29:51Speaker 06

  about Supreme Court expansion. Not a single person thinks about larger federal judiciary expansion. Like, it's not politically salient in any way. And it might actually be the more significant reform, because as we're experiencing right now, it is the trial courts that have been the most effective institutional barrier to authoritarian consolidation. And I think it's important, recognizing that, to bolster the trial courts.

• 30:18Kate Shaw?

  Yeah.

• 30:18Speaker 06

  The other aspect of this is that I think one of the problems with the Supreme Court is it just doesn't hear enough cases. Like, I think part of the reason why you get the justices sort of like musing about their Baroque theories is that they just like have too much time on their hands. And so, a larger court, more judges on lower courts, might mean more churn, more cases with the Supreme Court to handle, instead of 60 a year, 120 a year. And that may, I think that would have, I think it would be good. I think it'd be good for the Supreme Court.

• 30:47Kate Shaw?

  There's like an idle hands are the devil's play thing argument here.

• 30:50Speaker 06

  Absolutely. I think it'd be good to have them much more focused on kind of ordinary work, ordinary legal work.

• 30:59Kate Shaw?

  Yes, right.

• 31:00Speaker 06

  That's churning through the system, rather than...

• 31:02Kate Shaw?

  Creating rules for the ages, like, as they think they're doing in the immunity case.

• 31:06Speaker 06

  Which, I mean, just, this is, I feel like this is... You know, obviously, we're progressives here. But this really speaks to my own kind of like conservative disposition. It's like, what do you mean rulings for the ages? Like, who do you think you are?

• 31:19Kate Shaw?

  Totally.

• 31:20Speaker 06

  Right? Like, no one elected you.

• 31:22Kate Shaw?

  Nope.

• 31:23Speaker 06

  You have, you happen to make the right, you make the right friends at the right time.

• 31:28Kate Shaw?

  Yes.

• 31:28Speaker 06

  Like, that's, that's why you're there. And so, show some humility.

• 31:31Kate Shaw?

  They have none.

• 31:32Speaker 06

  Show some recognition that you are a servant

• 31:35Kate Shaw?

  Yeah.

• 31:36Speaker 06

  of the public and not some kind of, you know, judicial wizard. It's for the same reason, I'm gonna ramble, but so it's in here. It's for the same reason why I think that their papers should be the property of the United States and should be released on the end of their term. Like, no hoarding papers, none of this. It's not, it's not yours. It belong, it belongs to the public.

• 31:57Kate Shaw?

  Some kind of, you know, a judicial records act as an appendage to like a big package of Supreme Court reforms, I think, would be totally appropriate. Yeah, people just might not realize that unlike the Presidential Records Act, which Trump obviously thinks is unconstitutional, but which does set forth the principle that the papers, the official papers of the presidency are the property of the public and that subject to complex statutory regime, like go into the National Archives and are ultimately accessible to the public in various ways. We don't have that for the courts. Like, the justices have complete control over whether they provide their papers, the Library of Congress, or some other place, or literally set them ablaze if they choose. Like, it's wild. And so, and that, that, that is intolerable. And I think it's right. It is just a small but really significant

• 32:41Kate Shaw?

  example of the kind of hubris that we see on display. Like, they think that they cannot be regulated the way other institutional actors can. And they're just officials who serve in government, like so many officials who serve in the executive branch and the legislative branch. And they have, of course, like distinct kinds of authorities, but they don't view themselves as fundamentally public servants, and that's an enormous problem. And I think that's why, at a high level, just reasserting political control over an institution that has attempted to basically like slip the bonds of all political controls in really dangerous ways is critical. And so, I, I do like the idea of court expansion and a package that the court is part of. I wonder whether you worry about packaging it that way,

• 33:26Kate Shaw?

  about the potential historical parallels to, you know, in 1937, when FDR famously proposes and then pursues and ultimately doesn't get this court packing plan through Congress. One of the justifications given is that, well, the justices are overworked, and so, we need to put more justices on the court. And like, that was not the justification. The reason that FDR wanted to change the court was because it was striking down critical New Deal legislation. And so, and I, and I wonder, I don't, I have such mixed feelings about how to understand that historical episode. So, I guess, I guess I'll just, you know, sometimes we think, well, FDR failed. He didn't pack the court. Sometimes we think, well, he ultimately succeeded because he got the court to blink and stop striking down this New Deal legislation.

• 34:09Kate Shaw?

  But then, the counter argument to that counter argument is like, maybe it was a failure because ultimately, the court was still in control. The court said, all right, we will change course, but we are still the ultimate deciders. We're just gonna hand down more defensible decisions. And we didn't fundamentally recalibrate power that shifted it away from the Supreme Court and to elected officials in ways that we are, we are still kind of like seeing the effects of. So, I guess I'm curious, you know, you're a student of history. Like, what you make of that historical episode?

• 34:37Speaker 06

  As far as the politics of it, I think it's important to recognize there that it was somewhat abrupt, right? It was, there are several rulings and quick succession that are frustrating the New Deal agenda. And then, FDR, who has not ran, run on court expansion, who has not talked much about the Supreme Court, is something like, oh, well, they're overworked, and we need to do something about that. It was just an unconvincing rationale for what was clearly a power move. I, I think, and the other part of it as well is that, you know, this is, has to be understood in terms of FDR's own force of personality, force of will, efforts to sort of consolidate more of government within the executive branch.

• 35:19Speaker 06

  And for me, at least, I think one has to think of court reform not as a way of getting rid of impediments to the presidency, but as a way of dealing with potential impediments to Congress being able to act, right? Congress being able to legislate on behalf of the people who put them there. And, you know, part of my larger vision, you might say, for, you know, post-Trump reform is beginning to reassert the primacy of Congress in leading the government. And that's everything from, you know, bolstering Congress's capacity to make policy, bolstering Congress's ability to do investigations, right? Sort of decentralizing power within Congress itself. You know, I've, I've read proposals about beginning to think about basically moving the administrative state

• 36:05Speaker 06

  into the legislature as a way of getting around current Supreme Court doctrine, but also, again, to bolster Congress's ability to make law and to act. And so, for me, the court reform is, ought to be considered a part of a larger democratization

• 36:21Kate Shaw?

  Yes.

• 36:21Speaker 06

  process, not so much executive aggrandizement here. But the other thing, I mentioned the US Judicial Conference earlier because, in fact, they talk about being overworked.

• 36:31Kate Shaw?

  Yeah.

• 36:31Speaker 06

  Like, it is, it actually isn't the case here of Democrats saying, oh, look how, look how hard they're working, they need more. It much more, it's the, it's the judges themselves. It's John Roberts himself writing about the barriers to timely judicial work in the current judiciary. So, for me, it's just sort of, well, let's just take that seriously.

• 36:53Kate Shaw?

  Yeah.

• 36:54Speaker 06

  Let's, let's take the complaints of the judges themselves seriously and provide them with relief. And relief necessarily takes the form of just more people. And there's also, I mean, there are all kind of other reforms you can, that, that fall under this. So, there's, you know, the immigration courts, which are not Article III courts, are rife with problems. You're currently filled with a bunch of people who shouldn't be there, adjudicating cases. Make the immigration courts Article III courts, right? Sort of like, bring them under the, the auspices of the federal judiciary with a proper confirmation process and the whole nine yards. But there's all this stuff, like just, again, technocratic reform

• 37:31Kate Shaw?

  Yeah.

• 37:31Speaker 06

  that is clearly needed. And I think you can, I don't know how you think about it. You can either smuggle that into Supreme Court reform or smuggle Supreme Court reform into that, like, you know. But I, I, I do think that the judges themselves are actually providing the rationale for doing this.

• 37:49Kate Shaw?

  Yeah. And I think you're right, that's a really important distinction from the kind of FDR episode. And I, I'm not sure which way the smuggling runs or if it's even smuggling at all. Like, if I think, I think that situating it in a larger court expansion, federal court expansion, that is not just a Supreme Court expansion effort that also has a lot of other components, I think seems both really smart and maybe good politics, but also like good governance. And like, it's really nice when those things all align, like, that would be great. It does feel like this is the kind of thing that, again, all of these reforms that we're talking about are creatures of statute. Like, none of these are remotely constitutionally questionable. So, all this could be done through ordinary legislation. It would maybe mean, probably mean, killing the filibuster and then passing

• 38:32Kate Shaw?

  this kind of thing through the ordinary legislative process. I, I guess, a question I have is some or maybe many components of, say, a big reform package of legislation, I could imagine this Supreme Court perceiving as threats to its authority, because that is fundamentally what they would be, and finding ways to strike down some or all of a reform package that we might imagine. And I guess, how do you think about whether that should inform thinking about how to put together a package? I mean, in some ways, that, this is a fundamental problem. It's like, this is a court that is, has not acknowledged checks on its own power and is unlikely to look favorably on efforts to, to check it afresh.

• 39:17Kate Shaw?

  And yet, that is exactly why it's so important that it be checked. So, I, I guess I'm curious how we should think about and game around the possibility that this court might just try to say no.

• 39:29Speaker 06

  I don't, that's such a good question. I mean, my, my immediate inclination is kind of to say, oh, we'll let them, you know?

• 39:36Kate Shaw?

  Yeah.

• 39:36Speaker 06

  If a Democratic Congress, you know, 53 senators, they, they make a carve out to the filibuster to allow for judicial reform and pass a big judicial reform package, and it's signed by the president.

• 39:51Speaker 06

  And then through some convoluted process, I mean, who would even have standing here, right? Like, but there's some convoluted process. You know, the Supreme Court says, oh, we don't think this is constitutional. Let's have that political battle, you know? I think that that's not a political battle Supreme Court's going to win.

• 40:08Kate Shaw?

  Yeah.

• 40:09Speaker 06

  Just, just, just kind of, they don't have the people, right? But it's, it's, it's one thing to go after, you know, doctrines established by previous courts. It is still another thing. It's one thing even to go after executive actions. It's very, something very different to begin striking down the duly passed acts of Congress, especially ones done to regulate you. That I think would go be beyond the pale for many Americans and would expose the court to a much worse backlash than I think it's able to handle. But beyond that, I suppose, you know, in passing the legislation, Congress can just make an explicit constitutional claim, right?

• 40:50Speaker 06

  Just to say, we are doing this under our authority under Article three. We are doing this in accordance with previous Congresses whose authority to do that has never been questioned, right? Recognizing that, as you pointed out, Kate, that basically everything about the Supreme Court, other than the fact that it exists, is structured by statute. Its ability to handle its own docket, its size, its building, its clerks, its, you know, everything is established by statute. That is, that, that's just how it's been. It's been, that's how it's been since the Judiciary Act of 1789, right? And so I think, I think this should be a place for Congress to begin asserting its own constitutional authority explicitly, saying that this is a power we have.

• 41:32Speaker 06

  Under, under every, every possible reading of a constitution says that we can do this. Past Congresses have done it. Nothing about that has changed. And then you can go in and add, this is not judicial.

• 41:45Kate Shaw?

  Yeah. Yeah, that's right. To strip the court's ability to even decide cases challenging Congress's authority to legislate in, in the way that it would be doing here. And I also really like that, that the kind of, well, then let's have that political fight response, because I think that, that seems exactly right. And that, that just seems like it should embolden policymakers, Hill staffers, members of Congress to be ambitious and then, and to know that like this has, this court has been lawless in some instances, and there's no guaranteeing that it would not be lawless here, especially when its own kind of skin is in the game in this way. And that's not a reason to trim your sails in terms of what you're trying to achieve legislatively. So I really, really like that.

• 42:28Kate Shaw?

  Maybe one last question is, I guess, how much do you think, Jamel, candidates for Congress right now in the midterm election cycle, once we're past that, will be already probably like well into the, or it's going to come fast, the next presidential election cycle? Like, how much should candidates for the highest offices be talking about the Supreme Court and court reform right now?

• 42:47Speaker 06

  I think they should be talking about it a lot. But that's another way to say, I think that people, like actual voters, need to be asking them about it, right? Like, this is, voters ask candidates about their plans for healthcare, about their plans for affording a house, affording college, like all these things. Voters should also be asking candidates about their plan for the Supreme Court, about their plan for the federal judiciary. If a, if a candidate for your House seat, your Senate, a Senate seat, for, for the presidency, if it's primary season, and they show up in your town to do a town hall or forum, you should be asking them, what is your plan for this? I really think that, like, I, I do not think we should have any expectation that candidates for office, unless they themselves already have this ambition, are going to be forth,

• 43:32Speaker 06

  open about this or want to talk about it, because it smacks of controversy and politicians don't like that. So I do think it's up to voters to, to grill them. It's up for people like us, right? Like, if we are in a position to be interviewing candidates, to be speaking to candidates on camera, to ask straight up, what, what do you think about this? What is your plan for this? Do you support Supreme Court expansion? Just straight up. And kind of force it onto the agenda and make it something that lawmakers have to respond to. If lawmakers get the sense that their voters want this to happen, that changes the calculation. It doesn't mean you get everything that you want, but it does mean that everyone kind of feels that you have to do something.

• 44:17Speaker 06

  And that's, that's the first part of winning the battle.

• 44:19Kate Shaw?

  Indeed. All right. Well, having these conversations is our effort to do our small part in making that reality. I'm so, Jamel, but we really appreciate you taking the time to talk to me today. Thank you so much for coming on.

• 44:29Speaker 06

  I thank you so much for having me.

• 44:35Kate Shaw?

  Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rauel and Michael Goldsmith. Music by Eddie Cooper. Our team includes Matt DeGroot, Ben Heathcote, Johanna Case, Kenny Moffett, Adam Lippert, and Eric Schut. Our production staff is proudly unionized with the Writers Guild of America East.

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