• Show Notes
  • Transcript

Elie Honig discusses the ascendant conservative majority on the Supreme Court, the Biden administration’s commission to explore court expansion, and possible reforms to the federal judiciary. 

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  • Amy Howe, “In Harvard speech, Breyer speaks out against ‘court packing,’” SCOTUSBlog, 4/7/2021
  • “President Biden to Sign Executive Order Creating the Presidential Commission on the Supreme Court of the United States,” The White House, 4/9/2021 
  • Michael Shear, “Biden Creating Commission to Study Expanding the Supreme Court,” New York Times, 4/9/2021
  • Evan Osnos, “Biden Inherits F.D.R.’s Supreme Court Problem,” New Yorker, 4/18/2021

Published May 5th, 2021

Elie Honig:

Hi, everyone. Every Friday on Third Degree, I talk with a rotating cast of some of the nation’s top law students about breaking legal news, compelling cases, and what it means to lead a life in the law. Those Friday conversations are part of the CAFE Insider membership. The Monday and Wednesday episodes are available for free in this feed. CAFE Insiders enjoy access to exclusive content, including the CAFE Insider podcast, co-hosted by Preet Bharara and Joyce Vance, audio essays from CAFE’s slate of contributors, including me, bonus content from Stay Tuned and Doing Justice, live events, and plenty more that we have planned for you. You can try out the membership free for two weeks, and for a limited time, get 50% off the usual price for an annual membership. Just head to CAFE.com/Insider. That’s CAFE.com/Insider. And use the code DEGREE. And now onto the show.

Elie Honig:

From CAFE and the Vox Media Podcast Network, this is Third Degree. I’m Elie Honig.

When I was a kid back in the ’80s, every once in a while, I’d get to stay home from school sick. And one of the secret joys of doing that, especially back in the ’80s, was that you’d get to watch terrible game shows on TV, even better while your friends were stuck at school. Those losers. And one of those terrible game shows was a show called Let’s Make a Deal. And the basic premise was they had three doors, doors A, B, and C. There was, I guess, some dealing as the title suggests, but basically, it boiled down to guessing which door you’d get. And two of the three doors would be great prizes, a trip to The Bahamas or a set of jet-skis. But the third door would always be, I guess, the consolation prize. And they would make sad music, and there would be like a goat back there or something. I always wondered, by the way, did they get to actually keep the goat? I mean, what if the contestant was a farmer? Or it’s got to have some resale value.

For anyone who was hoping that the election of Joe Biden as president would be their grand prize when it came to the U.S. Supreme Court, to anyone holding out hope for a set of judicial jet-skis, so to speak, prepare yourself. You’re getting the goat. It’s going to be the consolation prize at best. I don’t see any point in fostering false hope here. It’s just not going to happen. The Court is not going to expand to 13 or 15 or even 10 members. Let’s be real.

This movement to expand the Supreme Court picked up steam in earnest in late 2020 after Justice Ruth Bader Ginsburg passed away. President Trump and Republicans in the Senate then jammed through the nomination and confirmation of Amy Coney Barrett just one week before the 2020 election. The hypocrisy was startling, even for Congress. Of course, Republicans had, in 2011, the final year of the Obama presidency, refused to even hold a floor vote on the nomination of Merrick Garland to fill the seat that opened up with the passing of Justice Antonin Scalia. Garland, of course, is now attorney general. Not a bad fallback gig. But Republicans said, “You can’t nominate a Supreme Court justice in the final year of the presidency.” “Of course, we can!” Democrats responded.

Well, fast forward to late 2020. Same situation, mostly, even later in the term, and both sides flip. Now it was Democrats saying, “You can’t nominate someone in the last year.” And it was Republicans saying, “Of course, we can!” It was later in the year, but same principle. The only real difference was the math, the Senate math, the power. Republicans controlled the Senate both times. They blocked Obama’s pick, and they ran their own pick through. It’s not principled, but it’s politics. Elections have consequences, as Barack Obama himself said.

For the record, here’s my rule. How about if whoever’s in office gets to do their job? That’s really the only practicable rule. And by the way, when you elect someone as president, it’s for four years. It’s not for three years and two months, three years and six months. These arbitrary rules are just that.

Now President Biden has announced that he’s formed a commission to examine the issue and to examine court reform issues in general. That’s your consolation prize, folks. If you were hoping for the grand prize of court expansion, you’re going to get a commission. Let’s break down how we got here and where we’re likely to go.

First of all, the law and the Constitution. Here’s the good news for anyone hoping for court expansion. It is possible and I think more so than many people may imagine. The Constitution actually does not specify a set number of seats on the Supreme Court. We all learn it as nine, and we come to just accept it the way you know that there are 18 holes on the golf course or nine innings in a baseball game. There’s just nine justices on the Supreme Court. But actually, it doesn’t have to be nine. It’s up to Congress to set that number through legislation. And over our history, we’ve actually had as few as five justices and as many as 10. How they landed on having an even number, I’m not quite sure. But the current law setting the number at nine was actually passed over 150 years ago in 1869, so while we’ve grown accustomed to nine justices, it does not have to be that way. The number can be changed.

To make this happen, one party, realistically speaking, would need to control the House. Check for the Democrats. The Senate. They’ve got that one, too. And the presidency. Well, there you go. Right? Blast away, Democrats! Expand at will! Done deal. Right? Right? Well, not so fast. Because point two, the politics. First of all, the filibuster. Now, we all learned in school that majority rules in the Senate, 51 votes or 50 plus the tie-breaking vice president, and you rule. And we learned that the filibuster was for these sort of heroic, isolated dissenters to bravely protest and speak on the Senate floor until they passed out from exhaustion. What they didn’t teach us in school was that either side could basically just say, “I think I’m going to filibuster,” and that would make it impossible to pass anything without 60 votes, and virtually nothing would have 60 votes unless one party ever got up to 60 members, which has not happened in a long time.

And Democrats have an even bigger problem internally. Justice Breyer. Obviously he doesn’t have a vote on this technically, but he has made clear he’s against Supreme Court expansion. The most senior liberal on the bench. In a speech just last month at Harvard Law School, Justice Breyer said that we ought to think long and hard about changing the number of justices on the court. And that, quote, structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust.

And there’s another person who has not been on board with court expansion, and that is Joseph Robinette Biden himself. In July of 2019, Biden told the Iowa Starting Line, quote, no, I’m not prepared to go on and try to pack the Court because we’ll rue the day. And then in October of 2019, during the Democratic primary debate, Biden said, “I would not get into court packing. We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the Court has at all.”

This isn’t ancient history, folks. This is not like some of those old Biden statements from the ’80s or ’90s, which he has tried to distance himself from. Biden said these while running for election to the office that he holds right now. Now, look. President Biden has shown he is fully willing to go with the flow and adjust his positions on the fly as the wind of the moment may dictate in some circumstances. He’s a politician. He’s a skilled politician. And we saw him backing off during the presidential campaign on this court expansion issue.

It actually became a real thorn in his side. He was constantly being asked, “Will you expand the Court?” And he dodged because he didn’t want to say yes and give ammo to the other side. He didn’t want to say no and alienate his base supporters. And where did he land? Well, we’ll have it studied by this commission, which brings us to the commission itself. I’m not the first one to say it, but if you want to kill something, send it to a commission. Send it to a bunch of really smart people who are going to study it and talk about it and write a report about it.

But for those of you hoping for reform, let me end with a bit of good news for you. The commission is not going to recommend court expansion, and even if they do, it won’t happen legislatively. But a lot of good can still come out of the commission. It can really only be a healthy exercise to stop once in a while and take a hard look at any of our institutions, especially those where we seem to abide by age-old practices and norms and expectations just because, well, you know, it’s always been that way, and that certainly applies to our courts.

Now, the commission itself has 36 members. Right there, by the way, that tells you they’re not going to get anything drastic done. It is truly a dazzling lineup of legal talent if you look at who’s on it, and it’s about equally split between conservatives and liberals, left and right leaners. And by the way, that tells you something as well because Biden didn’t have to do that. He could have, well, packed the court-packing commission or at least given the liberals an edge if he really wanted to make that happen.

But Biden didn’t do that. He made it almost 50-50 to the point where the Federalist Society, which is not going to agree with liberals or Democrats on virtually anything having to do with the courts, is openly singing Biden’s praises for who he chose for the commission. Stephen Sachs, a Duke law professor who won a prestigious Federalist Society award last year, called the commission, quote, an astonishingly well-balanced list. Look, big picture, that’s a good thing. But if you were hoping that Biden would stack this commission to get to some end point that favors liberals, that hope is misplaced. Again, I do not expect anything drastic to come out of this commission, but that’s not to say nothing at all of use can come out of this commission, however.

The executive order from Biden actually lists several areas for the commission to study, some of them potentially very important. For example, term limits. Now, as it is now, we have life tenure for federal judges. This is outdated. It goes back to the late 1700s when the Constitution was adopted, when the average life expectancy was somewhere in the mid-forties. It’s now almost double that. So is it time to take another look at this? Absolutely. Of course, we would need to amend the Constitution to get that done. That is extraordinarily difficult. It would take two-thirds of the House, two-thirds of the Senate, and three-quarters of the states. That’s a serious uphill climb, but you have to start somewhere. There’s also a potential work around to the possibility of amending the Constitution, which is adopt legislation that would rotate federal judges so they can still serve life terms, but they only serve on, say, the Supreme Court for a set number of years. Again, feels drastic, but you need to start somewhere.

My bottom line here is it can’t hurt to take a look, get a checkup once in a while, take stock of where your institutions stand, and look for better ways to do things. It can’t hurt. But if you’re really in favor of and hoping for expansion of the Supreme Court and hoping this commission will help, I’d advise you to place that hope elsewhere.

Thanks for tuning in everybody to this episode of Third Degree. I’m Elie Honig. As always, send us your thoughts, comments or questions to letters@CAFE.com.

Third Degree is presented by CAFE studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat Wiener. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Isenman, Chris Boylan, and Sean Walsh.