▶ 0:11:02The subcommittee will come to order. Without objection, the chair is authorized to declare recess at any time. We welcome everyone here today on a today's hearing on court packing. Without objection, Mr. Schmidt of uh will be able to participate in today's hearings for the purpose of questioning the witness if a member yields him time for that purpose.
▶ 0:11:26I'll now recognize myself for an opening Although the title today is packing of the Supreme Court, it is more than that. This committee, this subcommittee's primary goal is to empower and uh the Supreme Court to do its job while retaining its independence.
▶ 0:11:48That often means that we're being asked to consider pay, benefits, budget, and in fact, as there is a need to lobby from this body to the court, we do so with a recognition that the United States Supreme Court, unlike any other court in our in history, is in fact a court of independent decision. The Supreme Court has that critical constitutional responsibility.
▶ 0:12:17Unlike branches one and two which move back and forth with the will of the people, the constitution itself created a court empowered to act as a check against the other branches, as a check against the branches that reflect the current will of the people.
▶ 0:12:37Throughout our history, the United States Supreme Court has been at its best when it told the reflection of the will of the people of the moment that they could not do what they wanted to do. It is likely been at its worst when it succumbed to the fever of the crowd or the feeling of the moment.
▶ 0:13:00Whether that is DreadScott as may be brought up today or in fact questions of locking up Americans in concentration camps during World War II. We have had a long history of being proud of the court the vast majority of the time. That doesn't change the fact that the court must reflect that which the American people can in fact live with.
▶ 0:13:28No question at all that the court moves at a slow pace as the American people come along sometimes behind them. The court has delivered wins and losses for both political parties not just throughout history but throughout the last nearly two years. The court was f at our founding was different than it is today only in one major sense.
▶ 0:13:55It was viewed as the second court, meaning the US Supreme Court justices rode circuit. The US Supreme Court justices were effectively the appellet court in addition to being the single Supreme Court. As our country grew, that changed.
▶ 0:14:17Whether or not the American people anticipated in the Constitution the fact that the uh population would go from singledigit millions to 350 million and likely to double again in the next century.
▶ 0:14:35They did create the ability under the constitution for the high court to remain supreme while lower courts have been created by this very Democrat leaders have threatened specific justices by name, slandered family members and justices called for all manner of laws explicit to undermine the court's power under the I have not ex been
▶ 0:15:05the greatest student of history, but I strongly suspect there were times when the other party did so. Whether that party was the Republican party or the wigs, politicians have been unhappy with the court for the court doing its job in a professional matter. The witness the witness that our Democrat minority has chosen to invite today to this very hearing demonstrates my point.
▶ 0:15:35Many of the writings of professor Buouie are clearly anticipates the view of the democrat party that which tends to be more populous more the will of the moment the more will of the people that in fact democratizing the Supreme Court has been well written by our witness. I take no exception to his words. These are his words, his studies and he is well written.
▶ 0:16:02The question is today in this hearing and beyond, will the United States side with the idea that we should be more democratic in our third branch or that our third branch should remain more less if not completely outside the will of the people's will at the moment as reflected through either direct uh will of Americans or through their elected repres representatives in both
▶ 0:16:32article 1 and article two. It appears the democrats believe the Supreme Court should be prohibited from second-guessing any federal laws unless the court is unanimous, allowing any single justice, no matter how radical, to veto the entire court. I find that interesting and I reject it in every possible way.
▶ 0:17:00Democrats believe Congress should decide when the Supreme Court meets, delay when it hears arguments, force justices to resume the pre-Ivil War practice of writing circuit and acting as district judges. Democrats seem to believe that they should regulate what anyone can ask any court to do, blocking Americans from seeking relief from Supreme Court for unconstitutional laws.
▶ 0:17:30It appears Democrats believe the court should be packed with more justices who share their views. If written testimony uh of these views on behalf of the Democratic colleagues are aren't enough for the committee, Professor Buouie has written extensively in support of anti-supreme court views.
▶ 0:17:59I now ask unanimous consent to enter into the record many of these articles. I will not go through them one by one, but I will make sure they're available to all the members. These are in fact the writings of professor Buouie who I have in fact uh given a brief synopsis of and without I without objection so In contrast, Republicans understand that even the courts rule even the court rules against us.
▶ 0:18:29That is its constitutional work. We can revise laws and even amend the constitution if we want to. As I told to some of the individuals uh in the audience today, we have one of our original constitutional amendments still before the American people.
▶ 0:18:48If the American people so chose through its states, they could choose to go from the House of Representatives having 435 members determined by the body itself, or we could have over 6,000 members. If we simply enacted one of the original constitutional amendments, the 12th of the 12 original, that would in fact cap at 60,000 the number of people each member on the Deis could represent.
▶ 0:19:18At the time of our founding, it seemed like a good idea to at least some of our founders. If anyone on the day is here today thinks that a baseball park filled with house members pushing their thumbs up and down would give us more democracy, or if any of the witnesses think that it is more than just a relic of the past, I ask them all to please consider opining on it during the hearing.
▶ 0:19:45And with that, I'd like to recognize the ranking member of the subcommittee, Mr. Johnson, for his opening statement.
▶ 0:19:51Thank you, Mr. Chairman, and uh thank you witnesses for your appearance today. Last summer, Cash Patel took a taxpayer funded snorkel tour of Pearl Harbor, one of our nation's most hollowed grounds, while the cost of living for Americans The Trump administration just created a taxpayerf funed $1.8 billion
▶ 0:20:22relief fund for January 6 and others in exchange for uh dropping a 10 billion dollar lawsuit, a personal lawsuit that he filed against the IRS which he he's doing this while millions of Americans are losing their health
▶ 0:20:53President Trump is blocking clean energy projects for his fossil fuel campaign donors while the rest of us pay and pay and pay at the pump more and more every What do these facts have to do with this hearing? On its face, the daily demonstrations of incompetence and corruption of the Trump administration have little to do with the Supreme Court.
▶ 0:21:20But if you look closer, these stories mirror the far right and how far the far right has created a corrupt United States Supreme Court that too often works for the corporations, the billionaires and oligarchs at the expense of the American people.
▶ 0:21:44For decades, MAGA Republicans have chipped away at the impartiality of our third branch. They have already delegitimized our judiciary. Yet, they now stand before the American people pretending to be guardians of judicial integrity.
▶ 0:22:08Today's blatant attempt to rewrite history would be laughable if the consequences were not so dangerous for our democracy. But history matters. The American people deserve to understand how we got to this moment. And to understand how we got here, we must follow both the money and the machinery behind the modern conservative legal movement.
▶ 0:22:39The Roberts Court is the culmination of a plot that began 50 years ago. In the early 70s, soon to be Justice Powell wrote, quote, "The judiciary may be the most important instrument for social, economic, and political change." End quote.
▶ 0:22:59And he said that to reassert corporate power over the needs of the This power memo set off a decadesl long crusade by Republicans to concentrate power in the hands of the few at the expense of the many. Wealthy donors and corporate interest spent billions of dollars to reshape the in their image.
▶ 0:23:29Nowhere is the success of this decadesl long effort more visible than at the United States Supreme Court where a carefully appointed conservative a MAGA supermajority now delivers the MAGA conservative outcomes this moment spent billions of dollars to achieve. and achieve they did.
▶ 0:23:59In the last several years, the Roberts court opened the floodgates to unlimited dark money in our political system, empowering billionaires and oligarchs like Elon Musk, the Koch brothers, Leonard Leo, Harlen Crowe, and other powerful special interests to reshape the court and drown out the voices of ordinary Americans.
▶ 0:24:28This court has decimated reproductive freedoms that generations of women fought to secure, stripping away rights that millions of Americans relied on for nearly half a century. It has granted Trump vast immunity, placing him virtually above the law.
▶ 0:24:53And now the court has put the nail in the coffin of the Voting Rights Act, dismantling protections that generations of Americans fought, marched, and died for.
▶ 0:25:12Abraham Lincoln once said, "This government cannot endure half slave and half free." Yet, that seems to be the vision for America that Chief Justice Roberts and the conservative supermajority on the Supreme Court envision. Where some enjoy easy access to the ballot, others are forced to overcome legal barriers designed to make our voices quieter.
▶ 0:25:42Our nation is now in Jim Crow 2.0. We are a nation where the right to vote once again can be diluted, restricted, or simply ignored. And where the voices of rich and powerful people carry more weight than the voices of ordinary Americans, but particularly Americans who look like me.
▶ 0:26:09Our 250year experiment in can only succeed if Americans decide that the clock has run out on the far right's attempt to overturn our So we can either sit back as our Supreme Court continues to act without any restraint or checks and balances or we can do something about it.
▶ 0:26:37The American people deserve accountability for the damage that has been done. The American people deserve a judiciary that serves our democracy, not a narrow ideological agenda that only benefits the rich and So, I want to thank the witnesses again for being here.
▶ 0:26:59I'm looking forward to a discussion about how to ensure that our democracy serves everyone, all of us, not just the wealthy and the well-connected few. And with that, I yield back.
▶ 0:27:13Gentleman yields back. We now recognize the chairman of the full committee, Mr. Jordan, for statement.
▶ 0:27:18Thank you, Mr. Chairman. Um, I want to tell you, Gorsuch, I want to tell you, Kavanaaugh, you've released the whirlwind, and you will pay the price. You won't know what hit you if you go forward with these awful decisions. Chuck Schumer, March 4th, 2020. Highest ranking Democrat in our government
▶ 0:27:41a separate and equal branch of government. And if you doubt it's a threat, just remember where he made that statement on the steps of the Supreme Court. And that threat began the six-year assault on the court by the started with that threat. Then you had Senator Marky say the court's illegitimate. Well, how is that? Every every justice I know in the court was actually confirmed by the United States Senate. That's how our Constitution works. How could it be illegitimate?
▶ 0:28:10But Senator Marky thought it was. Then we went to something that's never happened. The Democrats leaked the DO's opinion in 2022. You talk about trying to undermine a separate and equal branch of government. start leaking the opinions. That's what they did, which resulted in in protest at justice's homes, which by the way, the Justice Department at the time under the Biden administration and Attorney General Garland refused to enforce the law.
▶ 0:28:3818 USC 1507 says you can't protest at a judge's home. and they refused to enforce the law, which of course led to some crazy guy going to Justice Kavanaaugh's house with design to kill justice of the Supreme Court. Then of course we had all the hearings by the Democrats when they were in charge attacking Justice Thomas, attacking Justice Alo.
▶ 0:29:02We had a hearing where a guy come in and lied about Justice Leo and said he leaked some document which is go back and watch the hearing. Definitely a lie by this guy. And why do they do it? Why do they do it? To concoct some basis for packing the court. And now they're saying it again. Time to pack the court. By the way, by the way, why do they want four justices? Four new justices on the court. Why not one? Why not two? Why not three? Why not five? Why do they want four?
▶ 0:29:33Cuz it's a six-3 majority for conservatives. a six-3 majority for people who actually interpret what the Constitution, the law says versus making it up as you go and making some new policy. They want four because they want a 76 majority. Plain and simple, raw political power. And they've been willing to do almost anything. Threaten the Supreme Court on the steps of the Supreme Court, leak opinions, bring witnesses in who lie about justices. That's why this hearing is important.
▶ 0:30:01And frankly, I hope we move the Constitutional Amendment on the floor. I hope there's a vote and we'll see if these guys want to keep the court at nine, which it should be. It's been there for what 60 years or something. Uh this is this whole Carville is talking about it. Former Vice President Harris is they're all talking about it. The ranking members talking about it. We got to pack the court. Why? Why? Because they don't like the decisions that this good court is giving this country.
▶ 0:30:32Uh, so thank the chairman for this hearing. Thank our witnesses for being here. I look forward to hearing your testimony. And I yield back.
▶ 0:30:37Gentleman yields back. We now recognize the ranking member of the full committee for his opening statement.
▶ 0:30:43Thank you very much, uh, Mr. Chairman. Uh, and I I suppose that court packing like justice itself lies in the eye of the beholder. Um, but there are many different kinds of court packing. Here's one. Um, when Justice Scalia died in February of 2016, when Barack Obama was president, Senator Mitch McConnell announced 10 and a half months before the presidential election that the Senate would not be considering any replacement.
▶ 0:31:11The Judiciary Committee would not have any hearing, there'd be no vote in committee, and there'd be no vote on the floor. Uh when people asked why that makes no sense to hold the Supreme Court seat open, to hold that vacancy open for nearly a year, he said it was too close to the next presidential election and the people should decide. Of course, the people had decided in electing Barack Obama to one of those genuine bodafi four-year terms in office like every other president.
▶ 0:31:41Well, uh, we've got a controlled experiment about what would happen because that was held open. Merrick Garland was nominated by Barack Obama and was left twisting in the wind for nearly 11 months after the death of Justice Scalia. Then, uh, Trump when he got in, um, was able to nominate Neil Gorsuch to the seat in his first week in office.
▶ 0:32:06Um, and that seat was open for 422 days. And Mitch McConnell bragged about it, calling it the most consequential decision of his entire public career. And of course, it cemented the rapid movement of the Supreme Court to the right to incarnate the mega agenda on the Supreme Court. Well, look, here's what happened uh when Ruth Bader Ginsburg died. Now, she died on September 18th, 2020.
▶ 0:32:36so close to the next election, which was less than two months away, that early voting had started in a lot of the states. So, it wasn't even two months And then the Democrats asked Mitch McConnell, some reporters asked Mitch McConnell, "Well, of course, you're not going to have hearings or vote or anything in the next few weeks, are you?" And he laughed it off.
▶ 0:32:57He laughed off the suggestion that they would maintain the same rule that they had used to block Merrick Garland and President Obama from having a seat. And then they rammed through the nomination of Amy Coney Barrett uh within two months consolidating the right-wing anti-choice, anti-environmental regulation, anti- labor, anti- voting rights, anti-democracy majority on the Supreme Court.
▶ 0:33:23Had the original McConnell rule been applied or even a reasonable approach taken with just a few weeks before the election that that Supreme Court seat would have been filled by President Biden, not by Donald Trump. Biden won that election, by the way, by more than 7 million votes. If you're interested in what the people want, 306 to 232 in the electoral college.
▶ 0:33:46I know some people came down to overthrow the election, attack our police officers in order to accomplish a political coup to deny that, but that's what happened. So, right there, we've got two seats officially stolen by Mitch McConnell and the Republican Senate, giving them a 63 mega court with a majority of the court now made up of nominees of presidents who lost the popular vote. Lost the popular vote.
▶ 0:34:14Roberts and Alo Gorsuch Kavanaaugh and Amy Con Barrett all nominated the court by uh justices uh by presidents who lost the popular vote. Now, if you don't believe that this Supreme Court has received has uh conceived and achieved a remarkable transformation in constitutional jurist prudence, ethics and behavior on everything from abortion to voting rights to political corruption cases, then
▶ 0:34:45you don't have to believe me or you don't have to believe your own eyes. Just listen to Donald Trump who openly says it's really okay for them to be loyal to the person that appointed them to almost the highest position in the land, a justice of the US Supreme Court. He berates and vilifies justices and judges up and down the federal system who disagree with him or who he feels have been insufficiently robotic in their loyalty to the mega agenda. It's true.
▶ 0:35:13He doesn't want a justice loyal to the people, as the good chairman of the subcommittee says, or the Constitution. He wants a Supreme Court loyal to him and whatever is going to advance his interests, his money, his family, his corporations. He's got a Supreme Court majority so robotically loyal that they will pluck a doctrine out of thin air, nothing to do with originalism, nothing to do with textualism, out of thin air to insulate the president from liability for felony crimes committed in office.
▶ 0:35:43We went for more than two centuries without any president ever claiming the right to commit crimes under his office and not to be prosecuted for it. But here we are today. The Supreme Court, we must acknowledge, has been a profoundly conservative, reactionary institution for the vast majority of our history. And what did the Supreme Court ever do for enslaved people between the founding the Civil War? Nothing.
▶ 0:36:09Other than in 1857 in the DreadScott decision cement their subjugation into place, saying that the African slave and his descendants have no rights a white man is bound to respect in any way. And then even after the civil war, after the passage of the 13th, 14th, and 15th amendments, drawn from the blood, sweat, and tears of the Union and the people who fought to defend our country against the Confederacy, the Supreme Court gutted the meaning of the reconstruction amendments in the civil rights cases.
▶ 0:36:39And then in 1896 in Pie versus Ferguson, constitutionalized the the reign of Jim Crow, separate but equal. So we have a couple decades around the Warren Court, maybe the first few years of the Burger Court where the Supreme Court acted on the side of the people, Brown versus Board of Education, striking down American apartheid, the white primary line of cases, Terry versus Ohio, Row versus Wade.
▶ 0:37:06But it didn't last long before it all sank away with uh the Renquist court and the Roberts court. And now they've returned to the historic baseline of political white supremacy. They wiped out our voting rights act. First in Shelby County versus Holder in 2013 and a couple uh months ago in the Cala decision.
▶ 0:37:27And we are about to see they're not going to be able to accomplish it all in 2026, but by 2028 we will probably see all white congressional delegations from the deep south wherever the Republicans control the state legislatores. Okay, that is court packing. That's political packing by a packed Supreme Court.
▶ 0:37:46The court today has a legitimacy crisis, not just because of the way it's been composed and stacked and packed and gerrymandered and divided by uh uh Mitch McConnell who laughs about it. He thinks it's funny what they did. Why do some people want 13 circuits, Mr. Chairman? Very 13 members of uh the court. Uh you don't need a conspiracy theory for that.
▶ 0:38:08There are 13 federal circuits in America and traditionally the Supreme Court has been made up of the number of justices equal to the number of circuits and we got 13 circuits but we only have nine justices. So that means that under the best of circumstances, four entire federal regions, four federal circuits will be left out completely. And it's much worse than that today because we've got five justices from New York City alone, one for each bureau.
▶ 0:38:36But you're telling a majority of the people who live in a majority of the states that they they can't find anybody qualified to serve on the Supreme Court. So, uh that's the answer to that particular question. But we've got a complete structural, ethical, juristprudential crisis in the Supreme Court whose name is in the gutter because of these terrible decisions uh that they keep uh issuing like the overthrow of Row versus Wade, Plan versus Plan Parenthood versus Casey,
▶ 0:39:06uh the complete construction out of thin air, of uh immunity of presidents uh to commit felony crimes while in office uh and so on and I I hope that this court will do its best to try to behave like a Supreme Court.
▶ 0:39:21But there are things that we can do and I uh introduced one bill yesterday called uh the Scotas Act and the Scotas Act um is creating a new way for Cert to be granted because this Supreme Court is obviously acting like a legislature. I mean they set up an agenda where they want this case about the Voting Rights Act. They want to destroy it. Oh, now it's time for us to overthrow abortion rights. We're going to take that case. All right.
▶ 0:39:49A lot of countries uh don't leave the agenda setting authority to the court itself. And certainly, we should not leave it in the hands of this Supreme Court. It belongs with the 13 federal circuits. We should have a panel made up of the chief judge of each federal circuit or their designate if they want another judge to do it. and they should decide when there is a meaningful circuit split or a federal question that should go up to the Supreme Court. This court obviously cannot be trusted with that uh agenda setting authority.
▶ 0:40:19Let's begin to create a real Supreme Court in the country uh by moving in this direction. And I thank you, Mr. Chairman. I yield back to you.
▶ 0:40:28I I thank the distinguished member from Maryland. uh your uh your length of time as a professor shows in in the history dating back to 1929 when the 10th circuit was created. Um can I just ask one question as a point of inquiry? Are you saying that the circuits should push involuntarily to the high court the uh uh the cases they should take?
▶ 0:40:55No, not involuntarily. We should set up a new system where uh cert is granted by a cert panel that's made up of 13 judges, the lead judges of each federal circuit in the country. And those would be the cases that go to the court instead of the court determining like a legislature what bills it wants to bring up in order to overthrow this or that particular policy or law they don't
▶ 0:41:19Interesting. I look forward to seeing your your bill for that.
▶ 0:41:22We'll get it to you. We'll get you a copyright. I thank I thank the Without objection, uh all other statements will be included in the record. We'd now like to introduce our our panel. Mr. Lewis Caposi is the solicitor general of Missouri. He previously worked in private practice at Jones Day growing up in Cleveland. That's a household word I appreciate.
▶ 0:41:47and has served as an adjunct professor at the University of Pennsylvania Kerry Law School. He clerked for Justice Neil Gorsuch, Judge Wilkinson uh and Judge Wilkinson on the high on the fourth circuit court of appeals, Judge Anthony Scalia on the third circuit court of appeals. Thank you and welcome, Professor William Ross. Mr. Ross is the Albert P.
▶ 0:42:15Brewer, professor of law and ethics at Stanford University, Cumberland School of Law. Professor Ro Ros Ross teaches courses on professional responsibility, civil procedure, constitutional law, and American legal history. Mr. Jean Sher is a partner at his own firm of Shara Jaffy LLP where he practice his practice focuses on civil appellet matters.
▶ 0:42:44He has argued seven cases before the US Supreme Court and previously was chair of the US Supreme Court and appellet practice group at Winston and Strong. He is a u a constituent of our ranking member in Maryland and perhaps we'll be able to uh answer the ranking members questions in full. Professor Nicholas Buouie, Mr. Buouie is the Lewis D.
▶ 0:43:14Brandeise Professor of Law at Harvard University. Professor Buouie teaches courses on federal constitutional law, state constitutional law, and local government law. We welcome our witnesses here today. And as is the rule of the committee, I would ask all our witnesses to rise to take the or oath and raise her right hand.
▶ 0:43:38Do all of you solemnly swear or affirm under penalty of perjury that the testimony you're about to give will be true and correct to the best of your knowledge, information, and belief. So, help you God. Let the witness or let the record reflect that all witnesses answered in the affirmative. You may be seated.
▶ 0:44:02I know all of you were learned and have certainly watched us on C-SPAN intently in the years uh leading up to this, but I have to say for the record that your entire statements will be placed in the record and that what you say in your opening statement preferably will be abbreviated portions of it or exemporaneous but most importantly your entire written statement will be placed in the record.
▶ 0:44:28So the five minutes in an opening statement can be either similar or dissimilar at your choice, but we do ask you to stay as close as you can to those those little timers that tell you your time is coming close to an end and then eventually that it has ended. With that, I'd ask uh Mr. Caposi uh to begin. Okay.
▶ 0:44:56Now, this is a major test. Even members of Congress get it wrong. So, we we will test each of you for your ability to get the mic on and then back off again. This is your second chance, sir. Chairman Isa, Ranking Member Johnson, Chairman Jordan, Ranking Member Rascin. Uh, thank you for the opportunity to testify today. Uh, I'll do my best to turn the mic on for the rest of the hearing.
▶ 0:45:21The framers of the Constitution guaranteed the Supreme Court's independence because they understood that independent courts are essential to the rule of law. The Supreme Court's insulation from partisan politics preserves its ability to adjudicate disputes on what the law requires, not the fleeting goals of political actors.
▶ 0:45:43Nevertheless, at various points in our history, partisans have proposed reforms that would undermine the Supreme Court's independence, with court packing being the obvious example. Today, I urge Congress to reject proposals to interfere with the court's independence. I'd like to start by emphasizing what is at stake. The Supreme Court, as with all courts, relies on respect for its judgments. This critical respect did not arise automatically.
▶ 0:46:11As Justice Brier has explained, during the 19th century, an independent judiciary was more an aspiration than a reality. As an illustration, Justice Brier pointed to President Andrew Jackson's infamous refusal to respect the Supreme Court's decision in Worcester v. Georgia, which led to the removal of the Cherokee from their native homeland. Fortunately, by the 20th century, respect for the Supreme Court became firmly entrenched.
▶ 0:46:39Thus, despite southern efforts to resist desegregation, state officials eventually followed the court's orders to do so. Today, we take it for granted that government officials will follow the Supreme Court's order. But that could change if politicians interfere with the Supreme Court's independence. That is why I am alarmed by the current trend of attacking the Supreme Court's legitimacy. But even on their own terms, the trending criticisms of the Supreme Court make little sense.
▶ 0:47:07First, critics frequently claim that the Supreme Court consistently rules in favor of President Trump and Republicans, but this is not true. During his first term, the Supreme Court ruled against President Trump in several crucial cases, including on rescending DACA, adding a citizenship question to the 2020 census, and allowing subpoenas of the president's personal financial records. The Supreme Court has also not hesitated to rule against President Trump early in his second term.
▶ 0:47:37For example, the court struck down the president's tariffs, prevented him from deploying the National Guard in major cities, and barred the removal of Lisa Cook from the Federal Reserve. Another common attack on the Supreme Court's legitimacy is that it has been more willing to overrule president than in the past. A quick look at history refutes this proposition. During the 1930s and 1940s, the Supreme Court revolutionized constitutional law and allowed for the massive growth of the federal government.
▶ 0:48:07The Warren Court also regularly overed president and dramatically overhauled many areas of the law. For example, in Reynolds v. Sims, the Supreme Court restructured state legislatures across the country, finding the state's equivalence of the US Senate unconstitutional. Compared to its predecessors, the current Supreme Court overrules president at a slower pace.
▶ 0:48:31Indeed, the Supreme Court has conspicuously declined to overrule president in several recent important cases, including Fulton v. City of Philadelphia. But at the same time, the Supreme Court can and should overrule president when it believes a past decision was wrong, with Brown v. Board of Education being an obvious example. The Supreme Court continues to strike a balance between preserving precedent and correcting its mistakes, just as it has always done.
▶ 0:49:01As solicitor general of Missouri and a recent Supreme Court clerk, I can attest that the Supreme Court is working exactly as it should be. The Supreme Court derives its legitimacy from the fact that it is not a partisan institution. No political group gets everything it wants there. Disagreeing with the court's decisions is no excuse to threaten judicial independence, a cornerstone of our republic that took centuries to build.
▶ 0:49:27I urge Congress to continue its tradition of respecting the Supreme Court's independence. Thank you again for your invitation to be here today. I look forward to your questions.
▶ 0:49:37Thank you, sir. We now recognize Professor Ross. Okay, you get two chances, too. Yeah, don't don't feel bad. Like I say, we've had senators not be able to get it right, sir. Thank you. So, Chairman Isa, Ranking Member Johnson of Chairman Jordan, and Ranking Member Rascin. Yeah.
▶ 0:50:04Distinguished members, you thank you very much for inviting me to testify here today. I'm here to testify in opposition to proposals to expand the number of United States Supreme Court justices and to provide historical perspectives about so-called court packing.
▶ 0:50:21Increasing the court sides for political reasons could could diminish judicial independence and interfere with separation of powers because it would permit the president and the senate to manipulate the outcome of judicial decisions by appointing additional justices who would be expected to conform to the political predelections of the president and his or her party. Moreover, the prospect of court packing could intimidate justices and influence the court's decisions.
▶ 0:50:51The court's independence from political pressure and intimidation has helped to ensure its ability to protect the civil liberties of Americans in countless cases involving racial, religious, political and ethnic minorities whose rights were ignored or impuged by Congress, the president and state governments.
▶ 0:51:12Similarly, you know, the court generally has protected the liberties of speech, press, religion, and assembly more faithfully than have the president, the Congress, or the three branches of state government.
▶ 0:51:26A politically motivated increase in the number of justices could also erode public respect for the court since it would exacerbate the growing tendency of Americans to believe that the court's decisions are guided by political prejudices rather than by constitutional principles. Advocates of court packing claim that the appointment of additional justices, presumably by a Democratic president, would restore balance to a court the conservatives have allegedly hijacked.
▶ 0:51:57But how and where would court packing end once it began? Court packing is a game that both parties can play. If a Democratic president could obtain a liberal majority on the court by appointing additional justices, a subsequent Republican president could restore a conservative majority by appointing still more justices. It is therefore clear that both parties and both conservatives and liberals should have compelling reasons to fear and oppose court packing.
▶ 0:52:28Tampering with the size of the court also is ill advised because a nine-member court is deeply rooted in tradition and is based on practical considerations. Supreme Court justices and legal scholars have tended to agree that nine is the ideal size for the court since that's large enough to distribute the court's heavy workload and provide a range of viewpoints but small enough to promote collegiality and efficient deliberation. Increasing the court size could impair the court's ability to function effectively.
▶ 0:52:59In particular, an increase in justices would provide individual members with less time and opportunity to ask questions during oral arguments and to participate in the court's conferences. It could also dilute the clarity and force of the court's opinions by increasing the number of concurring opinions.
▶ 0:53:18As Chief Justice Charles Evans Hughes explained in opposing Franklin Roosevelt's ill- fated court packing plan in 1937, quote, "There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced, and to decide. The present number of justices is large enough so far as the prompt, adequate, and efficient conduct of the work is concerned." Close quote.
▶ 0:53:44Although advocates of court packing contend that the court's new conservative majority should not frustrate the programs of the other two branches of government, it is the very role of the court to filter political agendas through a constitutional lens. Tethering the court to the president and Congress contravenes the fundamental concept of separation of powers. The court often has fulfilled its most important function when it has overturned unconstitutional legislation.
▶ 0:54:12Although proponents of court packing also argue that the present court is out of step with public opinion, the court throughout its history has broadly remained within the general parameters of public opinion even during periods when it has had a distinctly liberal or conservative tinge.
▶ 0:54:28Justices are keenly aware that as Alexander Hamilton wrote in the Federalist, the court has neither the power of the purse nor the power of the sword and that its decisions are ultimately dependent upon the goodwill of the coordinate branches of government and the American people. Since court packing proposals jeopardize the court's integrity and independence, it is my hope and expectation that Americans today will reject such interference with the court just as they did in 1937. Thank you.
▶ 0:54:59Thank you, Professor Mr. Sharer. Good morning, Chairman Isa, Ranking Member Johnson, Chairman Jordan, Ranking Member Rascin, um, and distinguished members of the subcommittee. Thank you for this opportunity uh, to address recent proposals for packing the US Supreme Court, which is an issue of enormous importance to all who care about the rule of law, as I know each of you does.
▶ 0:55:24Uh, in 1983, a well-known Democratic politician, uh, Senator Joe Biden pointedly referred to Franklin Roosevelt's 1937 attempt at packing the Supreme Court as quote, "A terrible mistake and a boneheaded idea." Um, so let me offer five reasons uh, why that remains true today in addition to those that have been mentioned by my my esteemed colleagues here on the panel.
▶ 0:55:51Uh first, the current curt court packing proposals are really based on an incorrect factual premise, namely that the Roberts court is relentlessly partisan and consistently reaches conservative outcomes. Now, uh we've heard already today about about a a handful of decision that decisions that people on the left don't uh don't like. We've heard about Citizens United, which recognized First Amendment limitations on the government government's ability to curb or regulate political speech.
▶ 0:56:22Uh people on the left are also concerned about DOBS, which we've heard about, and and uh and the recent Supreme Court decision in Louisiana versus Cala, which some people claim gutted the Voting Rights Act. Uh but in fact, and I'll come back to those specific examples in a minute, but in fact, the Roberts court, often joined by some of President Trump's nominees, has also ruled against what most people view as Republican or conservative interest in several hotly contested cases. Mr.
▶ 0:56:51Caposi mentioned the recent tariff decision. Another example of that phenomenon is the is the Ober Burgerfell decision from a few years ago which ruled that states are constitutionally forbidden from limiting the definition of marriage to manwoman unions. And then there was the Bosdoc decision which extended Title 7's protections against non-discrimination to gay and lesbian and transgender people.
▶ 0:57:16And don't forget the Supreme Court's earlier decision in NFIB versus Selius, which upheld the individual mandate. Uh that was the heart of Obamacare. Each of those decisions was uh was excoriated by by folks on the right. Um uh but and and they were as a political matter and a policy matter, they were big wins for uh for progressives.
▶ 0:57:39Um, and so the claim that the Roberts court is somehow in the pocket of conservatives or Republicans just doesn't withstand analysis of the facts. Um, second, uh, current uh, proposals rest on an unrealistic predictive judgment about new justices voting powers or voting likely voting patterns.
▶ 0:58:03In Row versus Wade, for example, the key votes supporting abortion rights came from justices appointed by the conservative President Nixon, while one of the most vocal dissents uh in Row versus Wade came from Justice Byron White, who had been appointed by uh uh by President Kennedy. Um and we've all seen examples of where Supreme Court justices uh vote against the wishes of the president who who appointed them.
▶ 0:58:27And so even adding four more justices to the Supreme Court is by no means any guarantee that that the shift would that the court would shift more towards progressive priorities. Um third as has been mentioned uh court packing proposals really ignore the incentives of the other side once they regain gain power.
▶ 0:58:50uh if if Democrats have a trifecta in in the next election and are able to expand the the Supreme Court to 13, uh does anybody think that that Republicans are going to stand still for that and not do the same thing the next time there's a Republican trifecta? And before long, uh the only venue in Washington DC that'll be large enough to accommodate the Supreme Court's uh conferences, their private conferences, will be the new White House ballroom. Um, and I don't think that's in anybody's interest.
▶ 0:59:20Um,
▶ 0:59:21you you're assuming that there will be
▶ 0:59:24I'm assuming that. I'm not advocating for it, but I'm assuming it. Uh, number four, court packing proposals distract from the more important work of building political and legislative coalitions. Um, and and I think that's illustrated by some of the recent court decisions that we've discussed today. If you look at the Cala decision for example, that decision was premised on the court's interpretation of a federal statute, namely the Voting Rights Act.
▶ 0:59:51And the court held that uh that there was a violation of equal protection in that case because the Voting Rights Act did not establish that majority minority districts were required. Well, if Congress goes back and changes the Voting Rights Act uh to do what progressives would like and require majority minority districts, my guess is that that decision would come out very differently. Um DOS is another example.
▶ 1:00:17Uh many progressives and even not so progressive states have already effectively neutered DOS within their own state boundaries by passing laws that protect abortion to an equal or greater extent than Rorow once did.
▶ 1:00:31Um, number five, uh, we other panelists have already discussed how court packing would erode public trust in the court and ultimately in the entire federal government because the Supreme Court has long been viewed correctly as a bit of ballast or a counterweight to to the other branches of the government. They can correct the the mistakes that the other branches occasionally make.
▶ 1:00:55I think it's also instructive that court packing uh in other countries has become a favorite tool of tyrannies around the world like Robert McGabi in Zimbabwe um Victor Orban in uh in in Hungary and Hugo Chavez in Venezuela. And so there are many reasons to reject the the current court packing proposals. Thank you.
▶ 1:01:16I thank the gentleman. We now go to professor Buer for Boyer Bouie for his I'm terribly sorry to me medulate your name. No worries but thank you chairman Isa ranking member Johnson chairman Jordan ranking member Rascin. Thank you for inviting me to testify before the distinguished members of the My name is Nicholas Buouie and I am the Louis D. Brandeise professor of law at Harvard Law School.
▶ 1:01:44For the past seven years with my colleague def Daphna Renan, um I have researched a forthcoming book called Supremacy: How Ruled by the Court Replaced Government by the People. The book shows how the Supreme Court acquired the power it now wields and what Congress can do about it. We're here to assess whether court packing is a threat to the Supreme Court's legitimacy.
▶ 1:02:08But we first need to answer a more basic question which is what is the legitimate role for the court to play under our As professor Renan and I wrote in our book, this question was a critical one for the people who founded the Republican party. Their mission was to fight the spread of slavery.
▶ 1:02:30But in 1857 in Dread Scott versus Sanford, the Supreme Court declared that mission for Congress to put into practice. That founding generation of Republicans had never before experienced an attempt by the Supreme Court to override Congress.
▶ 1:02:49They called such an attempt despotic and unwarranted by the When Abraham Lincoln and other Republicans won in the 1860 elections, Congress enacted statutes that rejected DreadScott and began reconstructing the South into a multi-racial democracy. That Republican controlled Congress wanted courts to enforce their laws, but they were wary of a second Dread Scott decision. So, they changed the court's size.
▶ 1:03:19They stripped it of jurisdiction to review its most important laws. and they proposed further regulations to check and balance the court. They understood that under our constitution, the legitimate role for the court is to enforce federal law against anyone who considers themselves above it, whether that person is a corporate executive, a state official, or the president.
▶ 1:03:44The court's role is not to defy federal law by placing itself itself above you all, our nation's representatives of we, the people, to whom the Constitution gives primary responsibility to determine the Constitution's meaning.
▶ 1:04:01The Supreme Court's assertion of power to defy federal law has a name, judicial The founding generation of Republicans argued that this idea undermines Republican governance, but they failed to bury it.
▶ 1:04:16And it reemerged when the court declared Congress constitutionally incapable of banning lynching, of banning racial discrimination by businesses or banning widespread In the years since then, the court has continued to undermine federal voting laws, federal civil rights laws, and federal laws that prevented the wealthy from dominating our elections and your daily call time.
▶ 1:04:42Judicial supremacy has also unleashed presidential authoritarianism, disabling the laws Congress enacted to prevent corruption, self-deing, and attacks on the peaceful transition of But like those early Republicans, we need not accept judicial supremacy any longer.
▶ 1:05:01Those Republicans and their abolitionist allies advocated for an alternative tradition that Professor Renan and I called democratic This is the idea that we the people have the power to interpret and define the meaning of the constitution through the process of federal lawmaking. This was the position of the lawyers who argued Brown versus Board of Education in the 1950s.
▶ 1:05:27They urged the court to stop defying Congress's civil rights laws and to start enforcing it against discrimination in the South. One law in particular, the Ku Klux Clan Act of 1871, explicitly directed courts to prevent state officials from violating anyone's constitutional rights. The court applied that federal law in Brown to end segregation in the South, and it has applied it in many landmark cases since.
▶ 1:05:56Meanwhile, a bipartisan Congress inaugurated a second reconstruction with the Voting Rights Act of 1965. That law overrode Supreme Court decisions that had interpreted the Constitution to be consistent with all of the Jim Crow laws that disabled black people from voting in the South. You have the power to continue this legacy and replace judicial supremacy with democratic constitutionalism. The Constitution says nothing about the court's power to defy acts of Congress, but it explicitly empowers Congress to regulate the court.
▶ 1:06:26Your predecessors use that power to curb the court's defiance of federal statutes and to override harmful constitutional interpretations. And in fact, nearly everything about the court can be regulated by statute, including the number of justices, where it sits, and what it has the power to do.
▶ 1:06:44If the current majority of the court is exercising an illegitimate supremacy over federal law, one the Constitution does not grant and that is being used to make Republican governance unviable, then regulating the court is not just legitimate, it is your duty. Thank you very much.
▶ 1:07:03Thank you. We'll now proceed to the five-minute rule, but I I'll ask unanimous consent at this time to place into the record a judges act HR1702 uh a bill to expand the district courts uh over a phased in period.
▶ 1:07:23Additionally, I'll in uh put in HR 3422, the Judiciary Act of 2023 uh to expand the court and uh and I'll put in a new story from uh 2026.
▶ 1:07:49Just a few days ago, Democrats renewed call for US Supreme Court overall after the Voting Rights Act decision. Without objection, so ordered. We now proceed to the gentleman from Wisconsin, Mr. Fitzgerald, for five
▶ 1:08:02Thank you, Chairman. Mr. Ross, for the first 80 years of our nation's history, the size of the Supreme Court changed with some regularity. Why was that?
▶ 1:08:14Microphone. Microphone.
▶ 1:08:18Pardon. the expansion of population. Originally every the justices were chosen largely on geographical grounds and you know every of course every the justices wrote circuits. You know the justices wore two hats until 1891. You know they they served as circuit court judges and they also served as US Supreme Court justices. Uh and in a smaller nation you know you there were only four million people in the 1790 census.
▶ 1:08:44uh you know there was less need you know for a larger court as the country expanded you know as the number of circuits expanded uh you know the the number uh increased but only to nine you know from five to nine uh maximum of 10 and then only for for you know of six years from 1863 to 1869 there were 10 and since 1869 we've had nine and so you know that's a long history a century and a half uh with nine members uh and it's worked very well so far And uh you know in
▶ 1:09:14my opinion you know that ought to be the number.
▶ 1:09:17Well let me follow up then. So in 1869 uh when Congress did pass that judiciary act uh why did they set it at nine justices at that point? Do you feel if the court divided then that would be you know five to four. If you have 10 then you know the courts could be split and if the court splits and the lower court decision stands. uh but uh it's generally better to have a decisive uh you know decision of the court.
▶ 1:09:44So you know you nine you know you permits the court to divide you know one way or the
▶ 1:09:49and has been alluded to a couple times when uh President Roosevelt tried to unsuccessfully in 37 to expand the court to 15 justices. Um, was there any sound logic to this expansion that the president was using or making or was it merely an overreaction to uh to a Supreme Court that had repeatedly struck down the the uh New Deal?
▶ 1:10:14Historians are unanimous in uh or virtually unanimous to the historians are never unanimous in anything, but yeah, about as unanimous as they can be. Uh that the court packing plan in 1937 was politically motivated. You know the Supreme Court had struck down a number of significant new deal statutes in the previous two years. Uh and uh the social security acts and the national labor relations acts were coming up for adjudication before the court.
▶ 1:10:42Uh you know these were the signature legislation of the New Deal. Uh and uh Roosevelt was understandably worried that the court would strike those down. And so his remedy, you know, was to increase, you know, you you know, the number of justices to, you know, pack the court, you know, so that the social security acts, you know, both the old age pension and the unemployment compensation uh laws and the national relations act, which was hugely important at a time of industrial unrest, uh you would be secure.
▶ 1:11:12Uh and so you know Franklin Roosevelt originally claimed uh that he was doing this because uh the Supreme Court was overworked and the justices were geriatric. Uh you know there were six of them who were over the age of 70. That's why he chose six one a new justice for every justice who was over the age of 70 but uh the older justices were for the most part quite vigorous including Lewis Brandise. uh and uh you know, Chief Justice Hughes was in you peak of health, you know, despite his his age over 70.
▶ 1:11:42Uh and so that it was so disingenuous uh that uh it was almost laughed at. And so Roosevelt about a month after he introduced the plan admitted that his motives were frankly political. By the way, uh the then chair of the House Judiciary Committee, Hatton Summoners, Democrat, opposed Roosevelt's plan from the very first day. You know, that's why Roosevelt introduced it in the Senate rather than in the House.
▶ 1:12:12Very good. Thank you. Uh so there's already this morning there's been some attacks on the Supreme Court um by some of my colleagues on the other side over um well just as former clerk as a former clerk Mr. Caposi you state in your testimony that if too many come to view the Supreme Court as a partisan actor rather than a neutral arbitrator of law uh the losing parties will be tempted to disregard court orders.
▶ 1:12:41What would that mean for our government as a whole? I know that's a big question.
▶ 1:12:45It would mean the end of the rule of law, plain and simple.
▶ 1:12:49Do you think that uh there are certain uh are there certain parameters to criticizing the court or is that uh unacceptable beyond the first amendment?
▶ 1:13:00I think it's perfectly acceptable to criticize the Supreme Court. People always have. Um presidents from the beginning of our country have lost major cases before the Supreme Court. Uh, President Jefferson frequently criticized decisions from the Supreme Court. Um, I think there's a line between criticizing decisions, criticizing their reasoning, and attacking the legitimacy and the independence of the Supreme Court
▶ 1:13:24Very good. I yield back.
▶ 1:13:26Gentleman yields back. We now go to the ranking member of the subcommittee, the gentleman from Georgia for five minutes.
▶ 1:13:31Thank you, Mr. Chairman. Uh, Professor the Supreme Court's recent decision in Louisiana versus Klay represents the culmination of a decadesl long campaign led in part by Chief Justice Roberts to dismantle the Voting Rights Act from Shelby County to Bronovich and now Klay.
▶ 1:13:53There has been a systemic and systematic effort to substitute judicial skepticism for Congress's explicit constitutional authority to protect the right to vote. Professor Buouie, how does the Klay decision compare to the Supreme Court's treatment of reconstruction era protections in the initial passage of the Voting Rights Act?
▶ 1:14:19And it's directly related because for the first century after Congress proposed the 15th amendment to protect the right of people to vote um and to prohibit states from violating that right on account of race, the Supreme Court interpreted the 15th Amendment to prohibit only laws that it thought had the intent of discriminating on the basis of race.
▶ 1:14:41And applying that test, the court allowed literacy tests, pole taxes, and all sorts of other state laws to effectively disenfranchise all black people or nearly all in the south. When Congress passed the Voting Rights Act in 1965, its goal was to overcome those decisions and instead apply an effects test or something that said when a state law has the effect of making it more difficult for people of color or any other group to vote on account of their race,
▶ 1:15:12then that is illegal. When the Supreme Court interpreted that law in the 1980s, it said that actually what Congress did was apply the same sort of intent test. you have to prove that a state legislature intended to discriminate against black people. And Congress again said, "No, you're getting this wrong.
▶ 1:15:31We think the problem is all of these laws that have the effect of making it more difficult for people to vote." And what happened in the recent decision just a few weeks ago is the court said, "No, we think what we we think what Congress actually did was apply the same test that we've applied for generations that's had the effect of making it far more difficult for people of color to vote.
▶ 1:15:52And we're seeing the consequences right now as every southern state considers laws to take away representation in Congress that's currently occupied by black or Hispanic Many Americans increasingly view the court as acting less like a neutral judicial body and more like a political institution advancing a part a particular ideological agenda.
▶ 1:16:18When the court repeatedly invalidates laws enacted through the democratic process to expand voting rights and representation, does that contribute to a crisis of legitimacy of the institution itself?
▶ 1:16:36I think it does in the sense that what people expect from the Supreme Court is what Congress has asked the court to take an oath to do before anyone can become a justice, which is to apply the law without fear or favor to rich and poor alike.
▶ 1:16:53And when people look at the kinds of rulings coming out of the court that seem to systematically favor one party or the wealthy or corporations or any number of people on a pretty predictable basis just knowing kind of what is going on in the case before the court even issues a decision. I think it does have an effect on what people think the court is in effect doing.
▶ 1:17:15I agree with my colleagues on this panel that to the extent what people think the court is doing is simply issuing truth social posts, then no one will take it The court's power comes from the idea that what the justices are doing is different from what you are all doing as But when all of the evidence and all of the public information about the court suggests that actually the same kinds
▶ 1:17:45of policy decisions are happening on the bench that are happening in Congress, it becomes very difficult to treat the court as a different kind of institution than your esteemed body. Thank you. If the court continues to narrow Congress's ability to protect voting rights under the Reconstruction Amendments, what does that mean for the balance of powers as envisioned by our Constitution and for the future of multi-racial democracy in this country?
▶ 1:18:13The Constitution is ours to interpret as Americans. It is a document for all of us. And people have marched in protests and died in order for the Constitution to reflect that we are a democracy. We should protect the ability of all of us who can vote to do so and that we should not tolerate laws that make it more difficult for people for people to access the ballot.
▶ 1:18:37When the Supreme Court interprets the Constitution to say that that kind of rule is not constitutional, that the 15th Amendment when it specifically empowers Congress to adopt appropriate legislation, but that a law as fundamental as the Voting Rights Act is not appropriate, that is a misreading of the document that we do not have to accept. because if we do, the consequence is going to be the end of our ability to govern ourselves and the end of our ability to enact voting
▶ 1:19:07Thank you. With that, I yield back.
▶ 1:19:09The gentleman yields back. With that, we recognize the chairman of the full committee, Chairman Jordan.
▶ 1:19:13So, their argument is the court's too political, so let's let the political body add four new seats. That's one of the dumbest things I've ever heard, but that's the argument the Democrats are making. Their witness just articulated. Makes no sense. That's why that's why we need need to keep the court at nine. I will yield to the former attorney general from the great state of Kansas remain of my time.
▶ 1:19:34Thank you, Mr. Chairman. I I appreciate uh the chairman and the chairman convening this hearing. I sitting here listening to this today. I I was musing about something I often think about when there's no point in debating it. Uh, and that is what what things in Independence Hall would have been like all those years ago if we'd had all had cameras and cell phones and social media where every statement is calibrated for consumption by a particular audience somewhere not in this room.
▶ 1:20:01This is one of those heavy issues that is not solely about the issues of the day. This is one of those questions that is about the professors uh to paraphrase the professor how we choose to govern ourselves. And the discussions we're having here aren't materially different in nature than the ones they had in Independence Hall about how you balance out the decision-making and who does what.
▶ 1:20:24The difference is we have come to focus on looking at this through a lens of the issues of the day, not a lens of how we should structure our And our history is one that when we have attempted to do that before, when we have aired in looking at these important structural questions through the issue of the day, we have so far rejected that notion.
▶ 1:20:48I'd like to on that point go back to what we've referenced many times but not talked a lot about today, which is the failed effort to pack the court by expanding its numbers in the Roosevelt administration uh in 1937, I believe it was. You know, remember the context of that time. And it's been mentioned by professor Ross and others about the court overturning a number modifying and reversing its view in some cases on the appropriate limitations on the constitutional powers of Congress to act in the economic space in particular.
▶ 1:21:18But remember what was happening politically less than a year before there had been a presidential election in this country and Franklin Roosevelt was reelected and these issues were central in that election. I wasn't alive then but it's a little personal to me. The Republican nominee for president that year was Alfon. from my little hometown of about 9,000 people. He was the only Republican governor reelected in the country in 1934, which is why he became our nominee in 36. And he lost in a landslide. In fact, he only carried Maine and Vermont. Didn't even carry Kansas.
▶ 1:21:47Roosevelt had a mandate, we might say. And yet, he overreached. And it took a bipartisan majority to say notwithstanding that clear message from the people and notwithstanding the power of the presidency, we are going to defend the structure of this democracy and of this court. And has been mentioned, the chairman of the House Judiciary Committee at the time, a Democrat, didn't favor uh packing the court.
▶ 1:22:13And ultimately, when it came to a vote in the Senate, the Democrat-led Senate Judiciary Committee said they don't favor the packing of the court. and the US Senate, which was a majority Democrat at the time, voted overwhelmingly. It was 70 to something not to adopt a court- packing plan. So, what's happening in this room today and in our politics today is different.
▶ 1:22:35It's different because for some reason, we seem incapable of having what I would believe to be a more reasoned, bipartisan, or apartisan, nonpartisan discussion about how we want our Supreme Court to function and what its appropriate role is. I won't read all the statements. They've been entered into the record. But right now, at this moment in our history, it is my friends on the other side who seem intent because they don't like the direction the court is headed to pack it with new members.
▶ 1:23:04I suppose those of us on the more conservative side could have made the same argument for many years after the Roosevelt courts uh because we didn't like a lot of those decisions. We for the most part didn't as viciferously argue about just fundamentally changing the structure. So I want to return to just a couple of questions here uh that have been touched on but before can any of you tell me let me start professor Ross you've addressed this Mr. Posie let me ask you Mr. Sher and then Mr.
▶ 1:23:27Bowie let's assume that a a court expansion plan is adopted in some form what is the limiting principle that would limit its further expansion in the future if we succumb again to the political passions of the moment Mr. proposing.
▶ 1:23:42I don't think there is any limit that that's one of the fatal flaws of the proposal that uh if one president packed the court then the next president could pack the court and you know it just be a never-ending cyclical process and you end up with you know potentially hundreds of Supreme Court justices.
▶ 1:23:58Thank you Mr. Ross. Mr. Caposi
▶ 1:24:00the only limit will be what each side can get away with.
▶ 1:24:03Mr. Chair,
▶ 1:24:05professor what's the limiting principle? the role of the court is an important question as you've laid out and the role is not to be this undemocratic super weapon in the middle of our democracy. The role is not to try to put as many of our people
▶ 1:24:23Is there a limiting principle on if we expand it today because one side's mad? Uh do we expand it tomorrow because somebody else is? What's the limiting
▶ 1:24:32The limiting putting justices on the court for their own sake is not a good idea. nor is changing the size of the court simply because nine is a better number than eight or 10 is a better number than nine.
▶ 1:24:44Thank you, professor. I yield back. I'm out of time.
▶ 1:24:46I appreciate that. Gentleman yields back. We now go to the ranking member of the full committee, the gentleman from Maryland, for his questions.
▶ 1:24:53Thank you, Mr. Chairman, and thank you, Mr. Schmidt, for those thoughtful comments. One of the things you say is we should be talking about how the Supreme Court should function and is it consistent with the Constitution and the rule of law. So, let's talk about the the shadow docket and what's actually going on in the Supreme Court today. Uh, when Trump's policies, whether it's an attempt to directly nullify the first sentence of the 14th Amendment, which establishes birthright citizenship, or his attempt to usurp the spending powers of Congress, are challenged.
▶ 1:25:21He is losing 60% of the time in the district courts. He's lost 57% of the time in the federal circuit courts. Then it gets up to the Supreme Court and it's shadow docket and there he has won 84% of the time. So he goes from losing 40% of the time to winning more than 80% of the time when it gets up in the Supreme Court. Now obviously we would disagree about substance.
▶ 1:25:49Those who want to go with Trump and say that he can nullify birthright citizenship in the country are just going to disagree about that. Fine. But what about the shadow docket and how it operates? Nobody's uttered a word about what that does to undermine the legitimacy of the court.
▶ 1:26:06We have a 100page opinions, authoritative magisterial opinions being written by district court judges or panels, circuit court judges that are being overturned with one sentence or one paragraph in the shadow docket. Uh is that legitimate or is that illegitimate? Maybe we can just go down the line. Mr. Sure.
▶ 1:26:26In general, it's legitimate. Every appellet court has the authority to stay a decision of a lower court.
▶ 1:26:31Okay. Mr. Ross, do you think it's legitimate what's taking place with the shadow docket?
▶ 1:26:35I'm I'm I share your your concern about the shadow docket. I'm troubled by it, too. But I don't think that offers any justific I don't think criticism of the shadow docket provides any justific.
▶ 1:26:47Is it legitimate or illegitimate? I'm just asking whether it's legitimate or
▶ 1:26:51I don't think it's illegitimate.
▶ 1:26:52Okay, Mr. Caposi,
▶ 1:26:54it's legitimate. It's been around for a long time. I mean, you look at the state of execution litigation going back.
▶ 1:26:59Thank you. And Mr. Buoie, what about
▶ 1:27:02I don't think it's legitimate in part because of the damage it's doing to the court's credibility as well as to our country. I mean, we have a court right now that is um issuing decisions without the benefit of argument, without the
▶ 1:27:13I mean, that really is truth social, meet the Supreme Court. We we'll send you one sentence and overturn an entire analysis. The legitimacy of the rule of law depends upon the character of the analysis that's given to the legal question. Nobody has uh taken me up on my invocation invitation to discuss the legitimacy or the illegitimacy of the court based on what Senator McConnell did.
▶ 1:27:36Um, is there anybody who uh would argue that what he did was legitimate in saying, "We will not even have a hearing on President Obama's nominee, Merrick Garland, and we will not have any votes, but uh 11 months before the election, but we will rush through the nominee um to take Justice Ginsburg's seat." Anybody think anybody want to argue that that's legitimate?
▶ 1:28:00Well, I'll certainly take you up on the on the first part of that. I mean, when uh when McConnell did that, he he announced that he was applying the the pre-existing Biden rule, which is that we don't consider new Supreme Court nominees during an election year. I agree that the Amy Coney Barrett uh hearing was an exception to that. But,
▶ 1:28:19okay. Uh, anybody else want to defend the legitimacy of what Senator McConnell did? And anybody, would anybody agree with me that that's a form of court packing just as much as the mythical court packing that we're denouncing today? Since I'm not aware of any proposal on the table,
▶ 1:28:34I think it's fundamentally different. Um, the Senate plays a role in our separation of powers. It has to check and balance the president. The people that are in the Senate matter. If they don't want to confirm a justice to the
▶ 1:28:45If the Senate does it, it's okay. It's just you don't want a president nominating. But of course, if a president nominated under new law, then that would be legitimate, wouldn't it?
▶ 1:28:54I think it's a different thing. When the Senate plays, it's constitutional. Do you know how many times we've changed the the number of people on the Supreme
▶ 1:29:02It's been almost 160 years since it's
▶ 1:29:06No, we it's it's happened six different
▶ 1:29:12eight times ending in 1869 as the last
▶ 1:29:16Right. So, well, in any event, it's changed numerous times throughout our history. There's nothing remotely illegitimate about it. It's not frozen in the Constitution. Would you agree? I agree it's not frozen in the Constitution, but we have a tradition D.
▶ 1:29:30All right, but in any event, I I don't know why we went off on this numerical thing because that's not what this is really about. The question is about the legitimacy of a court that is demolishing the voting rights of the people, essentially overruling democracy at every turn.
▶ 1:29:44And I wonder, Professor Bowie, in the time remaining, if you could discuss what it means for the Supreme Court to intervene in elections like in Bush versus Gore or like with the Voting Rights Act in a way that undermines the people's ability to Well, one thing to to speak about in terms of the 1869 precedent that keeps coming up is in 1866, Congress passed a Civil Rights Act in order to guarantee citizenship to all people born in this country.
▶ 1:30:10They feared that President Johnson was going to appoint justices to the court that were going to try to overrule that law which has become foundational for our democracy. So, Congress changed the number of justices. It reduced the size of the court to prevent the president from appointing new justices.
▶ 1:30:27Thank you. I yield back, Mr. Chairman.
▶ 1:30:29I thank you. for the ranking member. Uh apparently, uh Congressman Green did put in a uh court expansion in this Congress and there were ones in the last Congress. Would you join with with me in a discharge petition to do that
▶ 1:30:44But but the fact that I've not heard of it tells you exactly how much political traction it has. But look, there are a lot of things that we should do in terms of Supreme Court ethics.
▶ 1:30:52The question is, do you support that?
▶ 1:30:53I I've never seen it. You'd have to
▶ 1:30:55If I drop one today, will you co-sponsor it for this Congress? co-sponsor what?
▶ 1:31:00An expansion of the court pursuant to what you had in the last court.
▶ 1:31:02We haven't had a single hearing about it. I mean, if if you have a hearing about it, then we can analyze it. I mean, we got to take this seriously, right? I honestly don't even know what his proposal is.
▶ 1:31:12Well, why don't I just take the one that you had when you were in majority and uh and present it.
▶ 1:31:17Well, what I'm interested in term limits of 18 years. I think the vast majority of the American people support term limits for justices and if they want to stay on the court as a district judge or an appeals court judge that's consistent
▶ 1:31:28constitutional change you'd
▶ 1:31:29no it's not if they stay on the court as a district judge or a circuit court judge that's consistent with the command of life tenure so I'm interested in term limits for members of Congress we can look at the question of whether every federal circuit should be represented on the Supreme Court which was the whole original idea behind it that's what circuit writing is all about
▶ 1:31:48you really mean to say for members of
▶ 1:31:52for the Supreme Court.
▶ 1:31:53Okay, just checking.
▶ 1:31:54I'm actually for that. I'm actually for
▶ 1:31:56Just just checking after you and I have been here past the
▶ 1:31:59It was a Freudian slip. Uh I'm I'm actually I I'm not opposed to term
▶ 1:32:04The longer I stay, the more in favor of that I am, including in this term. But I I thank the gentleman for the colloquy. With that, we go to the gentleman from Virginia, Mr. Klein.
▶ 1:32:13Thank you, Mr. Chairman. Uh I think this hearing is very important especially when uh and I appreciate the consistency of of the ranking member. The attempt thereof uh the importance of consistency when talking about judicial decisions when you have judicial decisions that uh may not comport with your understanding of the constitution that somehow democracy is being overturned and that was the rhetoric that was just used by the ranking member and it's offensive to me. Uh but when uh
▶ 1:32:41the gentleman yield for just a second.
▶ 1:32:42I will not I will well yes for a second.
▶ 1:32:44I actually wrote a book with that title which I will give to you called overruling democracy the supreme court versus the American people about Bush versus Gore and right that the gentleman is being consistent with the book that he wrote. But uh uh it is equally um frustrating to to see that uh in not all cases do you have especially in the shadow docket you have examples where uh they did not um rule in favor of a
▶ 1:33:15of a conservative philosophy. If you look at the just the mis miffa pristone ruling last week uh that or this week
▶ 1:33:25if you'd yield for one sec um there have been 27 cases in the shadow docket and Donald Trump has won 25 of them. So you may have identified one of the two that he didn't win.
▶ 1:33:34I understand that and and one of the things I want to talk about is just because um you agree with the decision a court makes shouldn't determine whether or not democracy is being upheld or overturned. It's it's uh going down a road that is uh very destructive and and I want to talk about what's happening in Virginia because in Virginia right now we have a destructive path that is being pursued by the majority in our legislature. Now we're one of two states where the legislature actually appoints the judiciary.
▶ 1:34:02So you have a somewhat um convoluted process that actually uh doesn't work as efficiently as some other states. But uh Mr. composi. You may be aware that Virginia Democrats passed a redistricting amendment through a procedurally flawed process. Um the Virginia Supreme Court struck that process down as a violation of the Virginia Constitution. Undeterred by their state court laws, Democratic Attorney General Jay Jones appealed to the US Supreme Court.
▶ 1:34:30Um although I think in his filing it indicated he was appealing to the Supreme Court of Virginia again, but and it was vagina and it was supreme. Oh, it was centator, but uh there were a lot of misspellings. Um he appealed to the US Supreme Court despite raising no federal claims and was denied. Rather than accept that, Senate Majority Leader Scott Saravevel took to X to spin the ruling claiming that only one justice had weighed in.
▶ 1:34:54But in fact, the denial itself stated, quote, "The application for stay presented to the Chief Justice and by him referred to the court is denied. No noted dissents, not even from the three Democrat-appointed justices." Yet, Democrats immediately attacked quote far-right extremists on the Supreme Court and quickly used the unanimous rejection to continue their campaign against the court's conservative justices. Mr. Kapazi, how damaging is it to the rule of law when political actors use a legally correct unanimous court ruling as a pretext for attacking judicial legitimacy?
▶ 1:35:27Yeah, just to clarify, um, a decision like that would have been referred to the full Supreme Court. So it wasn't just a single justice. All nine justices agreed that that appeal lacks merit. And you know, I think most intelligent observers in the Supreme Court bar agreed that that was a borderline frivolous appeal. Uh it presented only a question of state law. And so at minimum, I would encourage people not to attack the Supreme Court when they unanimously reject a frivolous appeal.
▶ 1:35:56Mr. Sher, court packing isn't just a federal ambition. After the Virginia Supreme Court struck down the state's redistricting map, Democrats floated the idea, encouraged by well, encouraged by um alleged phone conversations with the with federal Democrats, slashing the mandatory retirement age for its justices from 75 to 54 to purge the entire bench.
▶ 1:36:19Uh, Virginia Delegate Dan Helmer went further publicly vowing to remove Justice Kelce who wrote the opinion from the bench when he is up for reappointment this coming year. For a party that has made no kings its rallying cry, isn't threatening a justice by name and purging an entire bench a rather dictatorial definition of democracy? Absolutely, Mr. Klein.
▶ 1:36:42And it it's a move reminiscent of the author of the authoritarians that we discussed earlier like Robert McGabi in Zimbabwe and Hugo Chavez in Venezuela. That's the kind of stuff they did to their judiciaries to try to get them in line with their programs. Um agreed and I appreciate the comments of the gentleman and I yield back.
▶ 1:37:02Gentleman yields back. We now go to the gentle lady from California, Miss
▶ 1:37:07Uh Mr. Chairman, uh, with all due respect, keep hearing about how court packing is the greatest threat facing the judiciary and the rule of law, but I don't think that's the, uh, crisis facing the court right now. Real crisis is a growing ethics and corruption problem at the Supreme Court, and it is one that Congress can actually do something about.
▶ 1:37:30Unfortunately, my time does not allow me to list every undisclosed luxury trip, a private jet flight, billionaire funded vacation, yacht excursion, and lavish gift uncovered so far. But the scale is staggering.
▶ 1:37:47According to Fix the Court, Justice Clarence Thomas alone reportedly received more than 100 gifts worth over $2.4 4 million, while all of his fellow justices combined received gifts worth only $248,000 over the same uh period, a 20-year period. Here are just a few examples.
▶ 1:38:09Uh Justice Thomas reportedly accepted luxury vacations on a billionaire's super yacht in Indonesia that ProPublica estimated likely exceeded half a million dollars. more than two decades of repeated private jet flights on billionaireowned aircraft, including trips on a Bombardier Global 5000 and even a private Boeing 737 with some individual flights estimated in the tens of thousands to over $100,000.
▶ 1:38:40at least 26 private jet flights and eight helicopter trips identified by investigators. Annual stays and exclusive private aderondex resort where nearby rooms can cost more than $2,000 a night. Luxury resort stays in Florida and Jamaica. VIP skybox a access and luxury suite tickets to major sporting events.
▶ 1:39:08trips to Bohemian Grove, private school tuition payments for a child he was raising, and real estate transactions involving property tied to his family. According to fix the court, Justice Alo accepted approximately $170,000 in gifts over the same uh period, including private jet transportation to a luxury Alaska fishing lodge, expensive lodging and fishing accommodations tied to billionaire Paul Singer, and gifts that the
▶ 1:39:38Senate Judiciary Committee concluded should have been disclosed under federal law. Now, Americans watching at home understand that this is wrong. billionaires should not be getting the kind of undisclosed access and luxury relationship with Supreme Court justices. So, let me ask you this, Professor Boa. Yes or no? Do you believe these kinds of gifts and luxury travel arrangements undermine confidence in the
▶ 1:40:07Thank you, Mr. Chairman. I would ask a unanimous consent to put into the record a CNBC uh article on Justice Thomas's um acceptance of gifts, a ProPublica article on the same two ProPublica articles on the same topic, a Senate Judiciary Committee, a press release, and an additional uh article from
▶ 1:40:30Without objection, so ordered.
▶ 1:40:31And I would yield the balance of my time to the ranking member.
▶ 1:40:34Thank you kindly, Miss Lafka. Just picking up on that point, there's a $50 gift ban, a $50 gift ban that applies to all of us in Congress and to the executive branch as well. Would you agree that it would enhance the independence of the court from not just congressional presidential attacks, but special interest domination to apply a $50 gift ban to the Supreme Court justices? Professor Bowie, if you go
▶ 1:41:04Yes. And I'll just note that Congress has already passed laws that prohibit justices from taking bribes. Congress has also passed laws that require the justices to recuse from cases in which their impartiality may reasonably be
▶ 1:41:18Yes. Um, Attorney General Kaposi, do you agree that a $50 gift ban should apply to all three branches, not just two?
▶ 1:41:24I'm skeptical that such a ban is needed for the Supreme Court, but at the same time, I don't have a strong opposition to such a proposal.
▶ 1:41:31Okay, Mr. Ross,
▶ 1:41:32I I would I would agree with Solicitor
▶ 1:41:35Okay. And Mr. Sher.
▶ 1:41:38Well, I think there's a fundamental difference between members of Congress and and Supreme Court justices in this regard. I mean, when when you're when you're a member of Congress, uh just about every person in your in your district and elsewhere in the country is, you know, is a potential um supplicant for your services in your assistant.
▶ 1:42:00when assistance when you're in the Supreme Court, you're only dealing with a relatively limited number of cases with people who have direct interest in your in your work. And so it's certainly appropriate and I and I I know Justice Thomas and he's scrupulous about avoiding accepting accepting gifts from anybody who has business before the Supreme Court.
▶ 1:42:21Well, we need to have a hearing on that then. Sorry, we have a completely different point of view on that point. But don't you think just in terms of public perception, it would be much better uh not to believe that justices could be compromised by virtue of receiving gifts from people who appear before them? After all, they have no binding ethics code now. They're the only Supreme Court in America that don't have a binding ethics code. And so without a binding ethics code, we're leaving that up to them to decide.
▶ 1:42:47I don't think it would affect the reality of their independence. It might affect the public perception of their independence. It would take away. Do
▶ 1:42:55you think it's okay for a billionaire to pay for Clarence Thomas's nephew's private school tuition? That's okay.
▶ 1:43:03If the billionaire doesn't have any business before Justice Thomas, I there's nothing wrong.
▶ 1:43:07And and if he does, you would agree that's wrong. If he does have business before the court, you would agree that's
▶ 1:43:11If he has if he has concrete business before the court, then that would be a different matter. And I'm confident in that situation, Justice Thomas would recuse from cases that him.
▶ 1:43:20Okay. And what about a situation where uh somebody with potential business
▶ 1:43:25I ask unanimous consent that the gentle lady have an additional 30 seconds.
▶ 1:43:28Okay. Just to complete this point.
▶ 1:43:31Reclaiming my time. If I may say also that you you can have a pecuniary interest before the court, but many of these billionaires have philosophical points of view that uh is before the court and that's why they're paying off the justices. And I yield back to
▶ 1:43:46well and just to complete that question. So, if uh Justice Thomas or any justice were to get a free recreational vehicle from somebody who has an interest in the work of the court, do you think that that would be legitimate or do you think that they should be held to the same standard we are? A $50 gift ban. Somebody can take you out for lunch.
▶ 1:44:05If they have a concrete business interest before the court, then yeah, that would be it would be inappropriate for Justice Thomas to accept that kind of a gift and then sit on a case that involves that. What if they have a general business interest before What if they have a general business interest before the court?
▶ 1:44:20Well, I don't see we don't get into that in Congress. That is, we we basically say we're going to cut it off at the pass. None of us are going to be compromised. That's true.
▶ 1:44:28Okay. I I apologize, but uh I'm going to close this off because Mr. Gooden's next. But I will say to the gentle lady and to the gentleman that uh although I can't support the uh the full bill that was authored earlier this year on forcing a set, I would be happy to entertain discussion between our staff and individually uh the members on trying to harmonize some aspect of what is non-reimburseable
▶ 1:45:00uh before between us. As you know, the Senate, you pay for a first class seat if you want to fly on that aircraft, while the House has a prohibition. But I would be happy to work with the uh minority on trying to set a cap on how much could be received uh as a gift versus how much would have to be reimbursed. U and I believe that that is certainly middle ground that we could look into doing this, Congress.
▶ 1:45:25Yeah, I would welcome that. Thank you,
▶ 1:45:27Okay, look forward to it. With that, we go to the gentleman from Texas for his time. Mr. Ross, you were speaking earlier, I believe, with the ranking member, about the number of times that the number of Supreme Court justices has changed. When was the last time we changed the the makeup of the Supreme Court? When was that?
▶ 1:45:471869. And I believe it was 1863 that the Emancipation Proclamation came out. So, what I'm hearing is that Democrats want to go back to slavery era politics. with respect to the Supreme Court makeup. One of the arguments is, well, it's been done several times. But you just said it's been done no time since 1869.
▶ 1:46:126 years after the Emancipation Proclamation is when Congress stopped playing games with the makeup of the Supreme Court. And now Democrats are defending this idea. Fortunately, some are are well, some are not living, but some were not quite as outrageous.
▶ 1:46:30In 2019, Justice Ruth Better Ginsburg stated, "I think it was a bad idea when President Franklin Roosevelt tried and failed to pack the court, and if anything, it would make the court look partisan." In 2021, Justice Steven Brier remarked during a Harvard Law School speech that packing the court would be a structural alteration that would result in eroding trust in the judiciary. More recently, in September 2021, Justice Brier again criticized packing the court.
▶ 1:46:56President Joe Biden expressed skepticism about court packing proposals during his Senate tenure in 1983 when speaking about FDR's proposal. He called it a bonehead idea. Former President Biden's own presidential commission on the Supreme Court expressed hesitation in 2021 that commissioners noted that court expansion is likely to undermine rather than enhance the Supreme Court's legitim legitimacy and its role in the constitutional system.
▶ 1:47:23So, I really appreciate my Republican com colleagues for not pushing this slavery era idea uh that was last successful during the slavery days that I think we're trying to move past. And I uh yield balance of my time to the ranking member, Mr.
▶ 1:47:42Thank you. Uh Mr. Caposi, if you don't like what the court's doing and you'd like a change, how do you do it? Well, you can ask the Supreme Court to reconsider its decisions. Um, that's something the Supreme Court has done from time to time.
▶ 1:47:59In a in a more broad way, how do you do
▶ 1:48:02Well, you could take your case to the public. You can build up a record of opposition. You can advocate for change. You know, the conservative legal movement did that after Roie Wade, for
▶ 1:48:13Yeah. You go make the argument and you win elections, right? You win the White House, you have a majority of the Senate. That's how the courts figured out straight from the Constitution. But no, no, they don't want that. They don't want that because oh, Republicans in the White House and he got to nominate people and you had Republicans in the Senate who controlled the Senate and they got to confirm them. That's how the process Well, we don't like that. So, one point they're saying, oh, we're not going to be it's too political. But there's a political process to it as well. That's how it works. You got to go win elections.
▶ 1:48:42Do you believe leaking the DOS decision was designed to undermine and change the court's decision? Mr. Sher,
▶ 1:48:52it certainly appears to have had to have been done with that intent. It was an it was an attempt to try to get uh one or two of the justices who ended up in the majority on dos to back away.
▶ 1:49:03It didn't work.
▶ 1:49:05Thank goodness it didn't work.
▶ 1:49:06Thank heavens.
▶ 1:49:06It was I think it was an effort to intimidate the court.
▶ 1:49:09You think so, Mr. Ross? Professor Ross, do you think that was the case?
▶ 1:49:12I I would agree with that.
▶ 1:49:14Yeah. And it was wrong. It was bad, right? I We don't want that to happen again. Wish it never happened before. You agree, Mr. Caposi?
▶ 1:49:22I was a clerk when the leak happened, so I'm not going to discuss details of the leak, but I will say that it was a cowardly act and I hope it never happens
▶ 1:49:30Yeah. Do you agree with that, Mr. Buoie?
▶ 1:49:34Um, I don't really have a strong opinion about the leak. I was not a clerk on the
▶ 1:49:38Good thing or bad thing? I think that more publicity for what the court does would be good, but I think that sacrificing one's ethics is not good. No.
▶ 1:49:46Whoa, whoa, whoa. But just yes or no. Is it a good thing to leak a decision before it's final, before the courts actually weigh in? Is that a good thing or bad thing?
▶ 1:49:55I don't think it's good for anyone to sacrifice their ethical
▶ 1:49:58Okay. By the way, why don't we know who leaked the DO's opinion? Mr. Caposi, you were there. Why don't we know that?
▶ 1:50:05I'm going to respectfully decline to answer that question. I'm not I'm not asking if you do know it. I'm just saying why don't we know it? Seemed like that's Mr. Sher, why don't we know that?
▶ 1:50:13I believe there was an investigation done by the
▶ 1:50:15No, I know there was investigation done by the court.
▶ 1:50:17It was inconclusive. Amazing. They couldn't figure out. Mr. Ross, any any thoughts on that?
▶ 1:50:23I I really don't know.
▶ 1:50:24Okay. All right. I yield back.
▶ 1:50:27Gentleman yields back. We we now go to the gentle lady from Florida, Miss Lee.
▶ 1:50:32Thank you, Mr. Chairman. As a former judge, I understand that the legitimacy of the judiciary does not depend on whether people agree with every decision. It depends on whether judges interpret and apply the law without political intimidation, threats to their safety, or pressure to deliver preferred opinions. Today we are seeing increasing efforts.
▶ 1:51:00We're hearing them today to delegitimize the court through court packing proposals, spurious personal attacks on justices, and criticisms of judicial philosophies like originalism simply because some disagree with outcomes in particular cases.
▶ 1:51:16An independent judiciary cannot function if judges are treated like politicians whenever they issue an unpopular opinion and baseless unfounded allegations impugning the ethics of judges and justices.
▶ 1:51:33incoherent attacks on principled application of judicial philosophy and failure to appreciate that a disciplined adherence to the laws and the constitution as written is actually the hallmark of a good and successful judge. And on that note, Mr. share.
▶ 1:51:52I would like to discuss one thing that concerns me about modern discourse surrounding the judiciary is the growing expectation that judges should reach politically preferred outcomes rather than faithfully apply the law. And critics sometimes today portray originalism as if it is some sort of political project to achieve conservative outcomes.
▶ 1:52:18But at its core, isn't originalism actually about judicial restraint, requiring judges to interpret the Constitution as written as opposed to applying their personal
▶ 1:52:31Yes. Um and uh you I I was a law clerk to uh to Justice Scalia and I had several experiences with him where he felt like the Constitution or a given statute required a result that he didn't like as a policy matter. The very first opinion uh that I helped him write as a as a new justice was an opinion sustaining a fourth amendment objection to the admission of certain evidence in a trial.
▶ 1:53:00and he sided with the liberal justices on that issue because he felt that's what the the the Constitution required. The morning after that opinion came out, there was a an editorial in the Wall Street Journal that said, "We wonder whether President Reagan has made a mistake in putting Justice Justice Scalia on the court." And we saw that in several in several different areas.
▶ 1:53:20So to me, that's the hallmark of a good judge is he or she is willing to follow the the law as written even if it even if it leads to places that the judge disagrees with as a policy matter. That's judging in my view.
▶ 1:53:35That is exactly right. And I can tell you I shared that very same experience on the bench that at times personally as a jurist you don't want the outcome that the law tells you you must reach. And that is actually something that tell me about that distinction between being a judge uh and essentially policym reaching that decision which maybe you as a person would like.
▶ 1:54:02Tell me why it's so important that our judges are able to make that distinction and apply the law as it is written. And is that part of our very system, as we would learn in eighth grade American history, of checks and balances?
▶ 1:54:19Yeah, I I agree. That's an essential part of our system. And I and I go back to the chief justice's decision in in the Obamacare case that was, you know, and he was he was excoriated for that decision by conservatives, but but he believed and and persuasively explained is in his opinion that the uh that that the individual mandate that was kind of at the heart of Obamacare could properly be considered as a tax.
▶ 1:54:47Um and and for that reason he decided well we then should defer to Congress's judgment even though even though we hate the policy outcome uh he decided we should defer to Congress's judgment about on this matter because what they did is with is within their authority and to me that is also the hallmark of a of a good judge to be able to to be willing to defer to this body u even when you disagree as a matter of policy because
▶ 1:55:16and one final Fin question because I think this is important as we sit and we listen to our justices and their ethics being impuged with baseless spurious allegations. Isn't it also correct that they cannot respond that judges cannot call a press conference that they cannot speak publicly? That they have no opportunity to come out and say to the American people actually this is blatantly false. I did none of these things. These allegations that are being made are completely untrue.
▶ 1:55:43Isn't it correct that judges and justices cannot do that for themselves? It
▶ 1:55:47it's very difficult for them to be able to respond to those kinds of personal
▶ 1:55:51Thank you, Mr. Chairman. I yield back.
▶ 1:55:53Gentle lady yields back. I now ask unanimous consent to place in the records the ruling of Judge John Bates uh a appointee of President George W. Bush who ruled against George W. Bush in the Harriet Meyers case and the uh outcome of the and ruling of Amy Burman Jackson, a Obama appointee who ruled against Obama in that in that case without objection. So order.
▶ 1:56:20And Mr. Chair, can I have one too?
▶ 1:56:22Absolutely. It's tit for tat. What do you have?
▶ 1:56:24It's a unanimous consent just answering the last point about how justices cannot speak out. Uh this is an oped by Justice Samuel Alto in the Wall Street Journal. ProPublica misleads its readers. June 20th, 2023.
▶ 1:56:38Without objection, so ordered. And with that, we go to the gentleman from South Carolina, Mr. Fry. Uh, thank you, Mr. Chairman. Ruth uh Justice Ruth Bader Ginsburg stated, "I think it would be it was a bad idea when President Franklin Roosevelt tried to pack the court and that if anything would make the court look partisan, it would be that uh Justice Brier uh said that it would be a structural alteration and it would erode public trust if we packed the court.
▶ 1:57:06What goes around comes around and if the Democrats can do it, the Republicans can do it." Even our former president um while he was in the Senate, Joe Biden admonished FDR and said it was a boneheaded idea to consider packing the court. But we now find ourselves in this position where political thought leaders on the other side are actively engaged in this idea that packing the court would solve the nation's problems.
▶ 1:57:37I think we've heard from James Carville like if we win, don't talk about it. we're just going to go pack the court. Kla Harris uh in her intellectual stamina said the same thing a couple weeks ago. I think that is a dangerous What is the most uh Mr. Ross, what is the most accurate historical lesson of FDR's 1937 court packing plan? What do you think that would be? I
▶ 1:58:03think the bipartisan uh opposition is perhaps the most important lesson. uh as been pointed out earlier Roosevelt had recently been elected with an enormous landslide. He carried 46 out of the for then 48 states. He had more than 60% of the popular vote. He had assembled one of the most powerful political coalitions uh in the nation's history. He thought he was invincible.
▶ 1:58:28Uh he thought that the court backing plan would naturally have to sail through Congress, which at that point you was overwhelmingly Democratic. You know, the the Democrats won unprecedented majorities in the 1936 elections that reelected Roosevelt himself. And Roosevelt was stunned when his uh plan encountered immediate and significant opposition which eventually sunk it.
▶ 1:58:52Uh and the reason was that Americans of all persuasions you recognized uh that this was an attack on the independence of the court itself. Uh, and if I could give an example, uh, Gudson Borglham, you know, who was the, uh, Mount Rushmore sculptor, uh, you know, was a political progressive on everything except rates. Uh, and, you know, he was outraged, you know, by the Supreme Court's recent decisions striking down uh, New Deal regulatory legislation.
▶ 1:59:21Uh but he wrote a letter to Senator Norris of Nebraska urging him to vote against uh the court backing plan uh because he said it would interfere with the independence of uh the of of the court. And he was at that time engaged in sculpting the faces on Mount Rushmore.
▶ 1:59:41And he said that if the court packing plan passed, he'd throw down his chisel and wouldn't go back to Mount Rushmore to finish carving those faces because he would thought that the packing of the court would make a mockery of what those four presidents stood for. So again, this was across the board and I think that's
▶ 1:59:59Let's play an exercise. If FDR had been um in altering the structure of the Supreme Court, what do you think the ramifications would have been at the time and then moving forward?
▶ 2:00:14Well, the immediate ramifications wouldn't have been all that great because although Roosevelt lost the battle, won the war because of deaths and resignations of justices during the next few years. So within a few years, you know, Roosevelt had a court that was overwhelmingly supportive of his pro-regulatory legislation. U think though if the packing itself had occurred, it wouldn't have changed the outcome of the cases that much because the you know the court shifted its positions uh you know fairly rapidly anyway.
▶ 2:00:43uh but I think it the long-term effect would have been the same effect that if it as it would happen if it occurred today which would be an erosion of judicial independence uh and a dimmunion of public respect for the court uh and of course the prospect of everinccreasing numbers on the court you know bigger and bigger court as
▶ 2:01:02contractions right I mean we could have taken this I guess or a uh Congress could have taken the same approach as Virginia right that they're trying to do is we don't agree with the opinion so we're just going to sunset you all.
▶ 2:01:15Uh do you think uh Mr. Chair that expanding the number of justices um would heal some sort of partisan divide in this country?
▶ 2:01:24Not at all. Expand on that for a minute. How would that not fix what I I'm hearing on the left right now, which is that there's an illegitimate court and it's dangerous and what they're doing is So, we can fix it by adding four new justices. How would that not heal the partisan divide? Well, I I think actually it would it would undermine what really needs to be done uh to to heal those divides.
▶ 2:01:49Um and and that is because it it distracts from the more important projects as we discussed earlier of building of building the political coalitions that allow you to achieve your legislative objectives. Uh you know, we've talked earlier about the Voting Rights Act, for example, when people people are complaining about how the Supreme Court quote gutted the Voting Rights Act. Well, they didn't do that at all.
▶ 2:02:11Um, this body could this body could amend the Voting Rights Act and and and if this body wants to impose majority minority districts on the country or or various places in the country, that's something that that this body can do. And my guess is that the Supreme Court would uh would probably sustain that.
▶ 2:02:30Um, and uh, you know, for for just about every one of the problems that we've discussed, there's a legislative solution that requires persuading voters and then winning elections and you can and then doing it.
▶ 2:02:44Thank you, Mr. Chairman. I see my time is expired. I yield back, sir.
▶ 2:02:46A good use of your time, though. We now go to the gentleman from Washington uh, for his time.
▶ 2:02:52Uh, thank you, Mr. Chair, and thank you, gentlemen, for coming for this important hearing. And I'm going to ask for some concise answers these questions of uh number of things I' I'd like to cover. Uh can a court be unpacked? Could the uh legislature vote to remove uh members of the Supreme Court? We'll go down the If they can add, can they subtract? They have subtracted once before.
▶ 2:03:17Um I I am I am not sure it would be constitutional to to subtract in a way that would require sitting justices to to resign.
▶ 2:03:26So but you think yes with some caveats, Mr. Ross?
▶ 2:03:30Yeah, I I agree. I don't think that sitting justices could be removed, but clearly the constitution permits the size of the court to be reduced. You know, there should be one Supreme Court uh and you it says there's a chief justice. So theoretically, I guess you could have two or three associate justices. So, I don't think there's any constitutional obstacle as long as it's prospective rather than retrospective.
▶ 2:03:52You could phase a seat out. You just couldn't force a sitting justice off the
▶ 2:03:59Well, that's right. Congress can change the number of justices. The court, the justices sit for good behavior. What good behavior means is also the subject of federal law. And so, if justices are doing things that Congress regards as unethical or corrupt or then do something about it. Okay. Uh as a way of background, when I was in our in our state senate uh in Washington state, our our state had originally started with five Supreme Court justices. Uh the court had been packed up to nine uh for political reasons.
▶ 2:04:29Uh people wanted different cases. We have elected Supreme Court justices. They are politicians just as uh as I am and this body is. And uh what our teachers union discovered is that they could uh put uh significant financial resources into judicial elections and then get uh some rulings on mandatory spending on education. Uh when that was going on our state legislature, I thought the Supreme Court was uh over its skis. And so I sponsored a piece of legislation to actually shrink it back from 9 to 7.
▶ 2:04:58And I had the Supreme Court justices drawing straws at high noon on January 1st, which is a legal remedy in our state, but it was uh undetermined. So actually that my bill is studied in law schools uh in Washington state. Fortunately, we didn't get the opportunity.
▶ 2:05:12uh broader point I just want to make on this is uh packing the court and its uh and really its evil twin of adding states uh for political purposes are probably the most dangerous and destabilizing things that this uh body could consider for the future of the republic. Uh it really will be a recipe for potential civil war uh in this country.
▶ 2:05:38uh by background I spent uh some time doing counterinsurgency uh during the Iraq surge and used to teach uh to the US military and you think about our own nation uh why did we rebel why did people not feel they had a voice in the legitimate political process and we actually look at the foundation of uh American uh what we teach in counterinsurgency populationentric counterinsurgency it's based on two principles that people feel they have an effective government and that they have a legitimate government, you
▶ 2:06:09know, and what court packing will do is take a game of shoots and ladders in politics where you win elections, you lose elections, but uh it's a game that everybody understands and it will turn it mid-stream for political purposes into battleship. And that is something I do not think in this uh uh highly polarized political environment that the American people will continent.
▶ 2:06:33And so it is extremely risky uh to talk about uh packing the court, adding the states because you want political outcomes. And each and every time uh somebody is disgruntled uh with uh the political process and talks about it in a way that delegit delegitimizes the Supreme Court who are not electeds. It's not like uh at the state level. It really really is is a dangerous thing for the uh future of the republic. Uh I just wanted to make that statement. I only about a minute left.
▶ 2:07:00I'm going to yield to the good gentleman uh from Kansas if he'd like my time.
▶ 2:07:05Thank you, my friend from Washington. And I would just say, you know, the baseball metaphor, calling balls and strikes, as Justice Roberts famously said in his confirmation hearing, nobody here has actually talked about what this hearing, I believe, is supposed to be about other than our witnesses. Nobody has defended the idea that we ought to expand the number of justices on the Supreme Court. We've had an airing of the grievances just as you have people complaining about the umpire all the time.
▶ 2:07:28But nobody is defending the idea that I've heard that the remedy to the grievances is you have a three judge panel metaphorically of umpires behind home plate because more gets you a better outcome. There's been plenty of complaining from one party right now, including the minority leader of this house, sitting members of this house, the last presidential nominee of the other party, suggesting that court packing by expanding ought to be a remedy to be considered. That has never been a good idea.
▶ 2:07:58And I would simply ask uh our panelists in whatever time the chairman allows them to respond. What is wrong with allowing the people of this country through the constitutional amendment process to decide whether that specific remedy ought to be allowed or taken off the table? What is wrong with
▶ 2:08:19Briefly, any responses?
▶ 2:08:20I don't think anything is wrong with that. That seems like a good idea to me. don't think that the constitutional amendment process is necessarily the best way to handle this issue.
▶ 2:08:33I would support an amendment to fix the number of seats on the Supreme Court at
▶ 2:08:38Justice Robert Jackson was asked this question and his answer was it is the responsibility of Congress to see that the court is an instrumentality in the maintenance of a just and constitutional government and that it does not become an instrumentality for the defeat of constitutional government. He testified about that in 1937 when he was asked in a hearing like this one about whether court packing was an appropriate remedy.
▶ 2:09:00I thank the all the gentlemen. We now go to the gentleman from California for his
▶ 2:09:06Thank you, Mr. Chair. Uh so court packing is is of course a really bad idea. Um uh mainly because it seeks to change our institutions uh for the purpose of short-term political gain uh by one side or another.
▶ 2:09:21And then you know it's very short-sighted because when you change the institution that has a lot of downstream consequences uh that you can't predict uh and it makes just our overall system uh not really function when uh you don't have a stable institutional foundation for our political battles to play out. Um but we don't just see this with proposals to pack the court. We see it with uh with this redistricting war that's going on uh where you know in one state or another a party has control of the legislature.
▶ 2:09:52So rather than trying to win congressional seats by persuading people of their uh that their party has the right views they say let's move the lines around and give ourselves a structural advantage. Uh I saw it all the time when I was in the state legislature in California. If they didn't have the votes in the committee they just remove people from the committee or add people to the committee. uh we see it here when uh the house rules if they aren't convenient in a given circumstance the rules just get waved uh or suspended.
▶ 2:10:19Uh and then on the other side of the coin uh as the uh chairman mentioned we had a bill uh the judges act that actually instituted some needed institutional changes by giving us more district court judges to hear claims when they have this huge backlog so people actually get access to justice. uh and had broad bipartisan support, but then suddenly uh it was vetoed because of the perceived short-term uh you know uh political consequences.
▶ 2:10:44So uh I guess my question for our uh our esteemed panel here for anyone that would want to weigh in um is is how do we more assure that uh that our institutions are are insulated from the currents of short-term politics? So, one thing that I'll say is I think it's helpful what the Supreme Court just did in the Cala decision.
▶ 2:11:08I think that's been mischaracterized quite a bit during the hearing today, but the Supreme Court said that it is a statutory interpretation case, but the court strongly suggested that the Constitution also requires this. You can't discriminate against individuals on the basis of race during redistricting. And for decades, some states were forced to intentionally sort voters on the basis of race to maximize political advantage for one political party.
▶ 2:11:35So the fact that we don't have to do that anymore, we don't have to discriminate on the basis of race and redistricting is a good step forward. I just like to say you you all on the panel are members of Congress. You took an oath to support the Constitution and I trust your judgment that you can determine what counts as appropriate legislation for enforcing the Constitution.
▶ 2:12:00If you think the Voting Rights Act needs to be updated to our modern time, you can amend the Voting Rights Act. You can make it better. We did not elect a Supreme Court to do that job for you. We did not vote for justices to override your interpretation of what the Constitution means. We have never as a as a country been asked should the Supreme Court have this role of putting itself above you all.
▶ 2:12:26I think it disrespects your oaths if the court takes your words that you have taken responsibility to enact into legislation and say actually you're wrong.
▶ 2:12:37But surely part of this and maybe you're agreeing with me that it's the fault of Congress for uh relinquishing its its constitutional authority. Like if you look at let's just take the last two presidents. We had a decision in the Biden administration. The Supreme Court struck down uh the student loan scheme. Of course, we just had the tariff decision uh with this president. Uh Congress could have easily reclaimed its own authority uh on either count before the court stepped in. It just chose not to. Right.
▶ 2:13:04So, frankly, my job is not to tell you how to do yours. Um, but that said, you do have the responsibility to interpret the Constitution. And I trust that you can do justice to that responsibility. When you think that the law needs to be updated, it is your job, not someone else's, and especially not someone who the American people have not chosen to decide what does the Constitution mean. How do we give effect to its guarantees of freedom and equality rather than letting someone who no one has chosen take that away from us?
▶ 2:13:33Yeah. I mean uh there's clearly a very important role for the courts in our system in maintaining the constitution uh in in defending the constitution and upholding its its principles. Um I I think that uh congress has over time relinquish more and more of its authority uh both to administrative agencies uh and to the courts. And so maybe we're saying the same thing but in different words.
▶ 2:13:55Uh I think that there is a responsibility for Congress to reclaim some of that authority and uh you know in particular we're the house we're the people's house closest to the people. Uh I think that our system works better when more policym happens here and can take into account the views of folks all across the country. That's absolutely true.
▶ 2:14:14And one of the reason why Congress is feeling so disabled is because there are past Supreme Court decisions that have taken away your ability to police the president, your ability to prevent corruption, your ability to ensure that Americans can vote. And so long as we continue to have this system in which you are not in charge of the laws that you pass, then it's difficult for the American people to in an election to determine for ourselves what kind of country we want to live under.
▶ 2:14:40Thanks very much. Yield back. Uh, Professor Ross, I'm recognizing myself now. Uh, Professor Ross,
▶ 2:14:50Congress does have Did I miss someone?
▶ 2:14:54Oh, you're good. Okay. Uh, appropriately, I go last because I have the least to say, but I learn the most from these. Professor Ross, uh, briefly, uh, isn't Cong one of Congress's authorities the right to limit what can be considered by the court? Isn't that already a power that we can use if, uh, if we want essentially decisions of the of the Congress to stand?
▶ 2:15:22Yes. And uh so the in in many statutory interpretation cases the Supreme Court has invited indeed almost begged you know Congress to offer a contrary interpretation. So you know you know the court can often only guess at what Congress intends and uh so it doesn't say that it's it's having the last word. Uh it's it's in statute interpretation cases.
▶ 2:15:48It's saying you know that this is the way we interpret the constitution and if congress disagrees you know congress is perfectly free you know to uh enact a statute that you know reaches a different conclusion
▶ 2:15:58and just to follow up in the Chevron decision to a certain extent the court just gave Congress back a tremendous amount of power that for years we didn't
▶ 2:16:10Thank you. Um Mr. Buouie uh qu Professor Buouie one quick question. Um, I authored a bill, I put it in the record, to expand the court significantly, about 10% more district court judges. Uh, but it it's phased them in over uh more than a decade so that no one Congress and certainly no one president would uh would do that.
▶ 2:16:34Would you support this uh expansion of the court as vigorously if in fact there was a a strong possibility that it would be balanced in his
▶ 2:16:47Um so I sorry I haven't read this bill but I will agree with the principle behind it that yes to make the court less partisan would be a great thing to have your decisions take effect.
▶ 2:16:58Okay. So just for argument sake since uh none of these court packing bills originating from the house did that they all gave immediately and gave it during a time in which the president of their party uh was in power. Um I would I would say in in part of our closing that very clearly um this is Congress trying to get an outcome for their president rather than trying to enhance the court.
▶ 2:17:25Uh would anyone doubt that uh considering they didn't give that same consideration that Mr. Nadler and I did in our bipartisan bills to expand the
▶ 2:17:38Mr. Sher,
▶ 2:17:40I don't disagree with that, but I'm not very familiar with the bills you're talking about.
▶ 2:17:44Uh well, it right now we're still trying to get that expansion of the court phased in over time, but
▶ 2:17:50I think you're talking about the an expansion of the number of lower court
▶ 2:17:53district court. Yeah. to to meet the case load that many have opined about here. Um there's 179 or so uh appellet judges uh spread over 11 regular circuits and two special circuits. Um that comes out to be about 16 to1 if uh if you uh uh if you evened out the districts if the first circuit wasn't just six and so on.
▶ 2:18:21Um and if and that's not including the two special circuits. It's 20 to1 if you include uh those. When when you look at that ratio, my question to each of you is as people talk about ext expanding the high court, the court that must make a decision for it to be universally the law of the land or to fail to take a case in order to make it essentially sustained or denied at a lower court.
▶ 2:18:48Uh should we in the future when we're having this debate consider those 179 judges that did not exist at the uh origination of our country and the earlier days of the court moving up and down. That's true.
▶ 2:19:03My personal view is that the only federal judges that are overworked in our system are district court judges. Um Congress should create more district court positions. The Congress should also consider expanding the number of staff. It doesn't make any sense to me that district court judges can hire fewer law clerks than court of appeals judges. They're the ones who need them
▶ 2:19:24I strongly agree with what Mr. Caposi has said.
▶ 2:19:29Same here. As do I.
▶ 2:19:31Professor, uh, have you looked at the case load of the district versus the appellet and the the role relative to the Supreme Court? because we've talked extensively about the expansion, yes or no, of the court, but not about the total number of judges, the case load, and what they do. Um, no, I agree with the principle. And one of the things that Congress used to do is require Supreme Court justices to ride as district court judges, as as circuit judges in order to ease the case load of trial courts.
▶ 2:19:59And that's one option available to Congress right now. If the Supreme Court is underworked but district courts are overworked, then you can enact legislation to require the justices to spend their time as district
▶ 2:20:10or or even serving on appellet. Um my time is expiring, but since there's no one else seeking, I'll take just another minute. I've been generous with both sides. I think this has been a serious but partisan discussion. No question at all. But it's an important issue. Um, I'm going to ask a question to each of you as scholars in your area. There was a lot of discussion about the vacancy of the courts and the filling of them.
▶ 2:20:38Should we in fact have a system that allows for there never to be a vacancy in the court? Meaning we certainly could create a high court, but we could have a process where a an appellet court through some process became the designate to fill a temporary or permanent vacancy.
▶ 2:20:58uh uh or even an alternate to the court that would step in when there was a vacancy is the idea that there should never be events like the ranking member talked about through a process that would ensure that we always have a full court. And uh Professor Buouie, I would opine to you that that would potentially even inu include the idea that that alternate would serve whenever a justice has to recuse themselves.
▶ 2:21:28Yes, I I believe the ranking me or ranking member of the subcommittee has introduced legislation that would give presidents a regular appointment schedule so that vacancies would be uh more predictable, less likely to lead to the sort of partisan campaigns around nominations and otherwise ensure that if the court is doing its job then we can
▶ 2:21:50but I included recusals because currently if there's a recusal the court goes from 9 to 8 or 9 to 7 whatever the recusal is there have been very few recusals but there have been certainly plenty of cases in which there was a case for recusal uh but that person did not recuse and perhaps because the court would be without that vote.
▶ 2:22:11Absolutely. And to be honest if anything that's a sign that perhaps the number of concurrent justices is not uh the number that it should be.
▶ 2:22:19An individual recusal will have that kind of effect and therefore there are no recusals. If anything, that's a sign that, you know, recusals need to be easier to do so that
▶ 2:22:28But in any in any lower court, a recusal simply means that a different judge steps in. There's not a lack of Yeah. The three judge panel doesn't become a two judge panel if there's a recusal. Mr. Caposi,
▶ 2:22:40there is a statutory process for if there's not enough justices to have a quorum on the Supreme Court. You could look at the Alcoa case. I think it's from 1939 where the second circuit had to hear a case in lie of the Supreme Court. I think I would oppose uh the proposals that you suggested, Mr. Chairman. The power to appoint justices is tremendously important. We need checks and balances in our system and we shouldn't weaken the Senate's role in checking the president on the appointment of justices.
▶ 2:23:08Professor Ross,
▶ 2:23:09I I agree with Mr. Caposi.
▶ 2:23:13You get the closing opine because I'm well past my time. Well, I I would say there's also not a great need for that kind of a process in the Supreme Court because it's not really a disaster. If if if a single justice has to recuse, then the number of justices who are sitting on the case is eight rather than nine. Uh generally, they're going to be able to decide the case without splitting four to four.
▶ 2:23:36Um you know, that happens once in a while, but but not enough, I think, to make it the kind of problem that requires a solution.
▶ 2:23:44Mr. Chairman, The chair recognizes the chairman of
▶ 2:23:50One quick question. I'm just curious what what the panel thinks. Um why why don't we just add four justices now? If 13 circuits, we need to go to nine to 13 as the ranking member the full committee suggested at the start of the hearing. Why wh why why wouldn't we just add them now if we're going to add them? What do you think of that? Uh we just go maybe go down the line.
▶ 2:24:10The first rule of justice is what's good for the goose is good for the gander. Uh, I oppose doing that now just as I would oppose doing it under a different
▶ 2:24:18No, that that's where I'm at. Totally agree. Uh, but it seems to me if we're going to do it and 13 is some some important number that we got to get to based on the number of circuits, then uh we should if we're going to do four, do it now. Mr. Buy, would you support doing that? Doing four.
▶ 2:24:34You said if Congress thinks it's the right thing to do, we should we should go for it. So, if it's the right thing to do, can we go for it now?
▶ 2:24:40Well, I agree with the principle. It's in your prerog. You have the prerogative to determine how the Supreme Court works. The court did not descend from on high in its current form in a palace across the street. It's your job to determine what kind of court
▶ 2:24:52and you would have no problem with us doing it. Now,
▶ 2:24:54look, I disagree with many of the policies that come out of Congress right now, but I really have faith in your ability to live up to your office, and I think that you have the authority to determine what kind of justice we want to see in this country.
▶ 2:25:07That's great. I think I know what Professor Ross and Mr. Sharer's answer is as well, which is where I'm at. But
▶ 2:25:12yeah, I would oppose any expansion of the court.
▶ 2:25:16Yeah, I'm I'm there, too. Okay. Thanks, guys. I yield back to the chairman. Thank you for the hearing.
▶ 2:25:22I want to thank all of our witnesses today. This concludes today's hearing. Um, pursuant to committee rules, all members will have five leg five legislative days in which to submit written questions for the witnesses and additional materials for the record. And for all of you, what that means is within five days, additional questions will be forwarded. Would all of you agree within a a short period of time so we can close the record that you would attempt to respond to them?
▶ 2:25:52Uh, sure. All witnesses answered in the affirmative. So without objection that is ordered and without objection we stand adjourned.