NICK EICHER, HOST: It’s Monday morning and the start of a new work week for The World and Everything in It. Today is the 3rd of June, 2019. Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. The Supreme Court will hand down opinions next Monday, according to its latest calendar. Thirty-eight decided up until now; thirty-one still to go.
Now, last week, I invited you to suggest story ideas for summer Legal Docket. And I’m grateful to you. Some really excellent suggestions have come in.
So today, I take up listener Bryan Wolff’s suggestion.
He wants to know more about the recent effort to increase the number of Supreme Court justices.
What’s being proposed?
How likely are any of the proposed ideas to happen?
What’s the history behind this?
EICHER: No doubt you’ve heard Democrat candidates for president talking up this idea lately.
And we’ve pulled together a sampling of the commentary from leading Democrats.
The first three are among the more than 20 running for president. Senator Elizabeth Warren is the first voice you’ll hear, followed by South Bend, Indiana, Mayor Pete Buttigieg, and then Senator Cory Booker. The last voice is a leading Democrat not old enough to be president, but certainly an influential voice: Congresswoman Alexandria Ocasio-Cortez.
So here, in this order, is Warren, Buttigieg, Booker, and Ocasio-Cortez.
WARREN: First they steal a Supreme Court seat, then they turn around and change the rules on filibuster on a Supreme Court seat. And so, when it swings back around to us: what are we going to do? And my answer to that is: all the options are on the table.
BUTTIGIEG: One idea that I think is interesting is you have 15 members but only 10 of them are appointed in the political fashion. Five of them can only be seated by unanimous agreement of the other ten. But the bottom line is, we’ve got to make some kind of structural form to depoliticize the Supreme Court.
BOOKER: I think I’d like to start exploring a lot of options and we should have a national conversation. Term limits for Supreme Court justices might be one thing. Give every president the ability to choose three.
OCCASIO-CORTEZ: I think that we take back the House, we take back the Senate, we take back the Presidency and we pack the Supreme Court of the United States.
You can hear the frustration and anger behind the push to expand the number of justices on the Supreme Court.
But is that a good reason to change the structure of the court?
REICHARD: It’s not a new idea.
Back in 1936, an exasperated President Franklin D. Roosevelt proposed expanding the number of justices beyond nine, as well.
He was frustrated and angry that the Supreme Court blocked parts of his New Deal. So he recommended restructuring the court to as many as 15 justices. If a justice at age 70 refused to retire, then FDR wanted to add a new, younger justice. At the time, six justices met FDR’s threshold age.
EICHER: Let’s go back to March 9th, 1937, one of President Roosevelt’s famous “fireside chats.” Listen to the way he describes his court-packing plan.
You’ll hear him acknowledge objections to it, but say they’re necessary, that the problem isn’t the institution but the particular people in charge of it.
Please listen carefully. It’s an old recording.
ROOSEVELT: Those opposing this plan have sought to arouse prejudice and fear by crying that I am seeking to “pack” the Supreme Court and that a baneful precedent will be established…I regret the necessity of this controversy. But…Our difficulty with the Court today rises not from the Court as an institution but from human beings within it.
That plan ultimately failed. Even most of FDR’s own party called the plan unconstitutional.
Well, here we are again. Except this time around, Democrats seem all for it.
Republicans, including President Trump, say Democrats’ call for more justices is a blatant power grab.
One thing is for sure: this is not a fringe issue. It’s an organized effort to pressure Democrat candidates for president to support big changes to the Supreme Court.
REICHARD: I called up two lawyers on opposite sides. One is Randy Barnett. He’s a professor of constitutional law at Georgetown University. He’s argued a case before the Supreme Court and worked to challenge the Affordable Care Act.
The other is campaign manager for Pack the Courts, Kate Kendell. It’s also known as Take Back the Courts. The organization is unapologetically partisan. You can hear echoes of President Roosevelt in the way she frames the issue.
KENDELL: The current Roberts majority on the court presents a clear and present danger to the most basic democratic ideals. Between support for voter suppression and gerrymandering, the flow of dark money, corporate interests, elevating corporate interests above individual liberty and justice means that the very democracy we love and our constitution protects is imperiled. And we need to do something dramatic. We need structural reform of the court.
The problems she mentions are subject to political interpretation. Gerrymandering? Both sides do it. Dark money? Again, both sides. What some call voter suppression, others call voter I.D.
You get the idea.
Professor at Georgetown, Randy Barnett, sees this differently. To him, Kendell’s efforts are misguided.
BARNETT: So her solution to all of that is to appoint justices on a completely partisan basis. That’s going to solve the problem she says she sees on the court. So obviously the solution doesn’t fit her diagnosis of the problem. One of those, one of those two things isn’t right. Either her diagnosis of the problem isn’t right or her solution isn’t really meant to address that particular problem.
To Kendell with Pack the Courts, it seems to come down to how the court interprets the Constitution. You may hear this phrased as the difference between those who support a “living Constitution” that changes with the times, versus an originalist, textual interpretation that states the law as it is and leaves it to Congress to change and make them.
Conservatives would point to the court finding a right to abort implicit in the 14th amendment as proof of that “judicial activist” problem. Liberals would point to 2010’s decision in Citizens United. That opinion overturned legislation designed to limit corporate campaign donations.
Kate Kendell is in the “living Constitution” camp.
KENDELL: And the two of those things don’t need to be in conflict, but to have the Constitution be fixed in 1776 and have that never change and have the words never applied in a modern setting does not seem a tenable, or as the sort of exercise that yields the right results.
“Right results?” How many times on Legal Docket have you heard me say a case turns on the meaning of a single word?
Consider Kendell’s word “right,” as in “right results.” For Randy Barnett, that’s the problem inherent in the idea of a “living Constitution” manner of interpretation.
BARNETT: So the last thing that someone on the left should want is a Republican nominated judge to be a living Constitutionalist conservative judge. Because that means that judge can override the Constitution to reach conservative results. So everyone on the left ought to be grateful that President Trump is nominating textualist originalist justices who will not always rule and who will not always reach a conservative outcome, although they will sometimes. If they really believe in living constitutionalism, then it should be living constitutionalism for thee, as well as for me, and they don’t really want that. Or if I were them, I wouldn’t want that.
Back now to the question of the makeup of the Supreme Court, how many justices. The Constitution’s silent on the question.
We’ve had as few as six as when the court had its first-ever session in 1790. As the United States expanded westward, Congress added justices to handle cases from the new territories and their corresponding judicial circuits.
It’s been set at nine for 150 years—stretching back to 1869.
So, what’s the likelihood of adding more justices now?
The conservative Barnett and liberal Kendell agree on that one: It’s a long-shot.
KENDELL: And now the only way we could possibly exact this strategy, add these justices to the court is with a Democratically controlled Congress and the White House and a bill that then goes forward and adds these justices to the court.
I mentioned Barnett says that’s a long-shot, but even that is not a long-enough shot.
BARNETT: The most important thing to know is that this is an effort to deal to delegitimate the Supreme Court of the United States because it is comprised of justices that people who are proposing this disagree with. So they wish to delegitimate the court because they don’t like the results that justices are reaching. In the short term, what they want to do is intimidate the court to rule the way they want them to rule out of fear of a court packing scheme rather than because of the justices own genuine commitments about what the Constitution requires or does not require. This is a very dangerous effort to delegitimate a very important branch of our three branches of government.
The election of 2020 may well determine whether the plan goes forward or dies and resumes another day.
And that’s this week’s Legal Docket.