Packing the Court

Episode Notes

Transcript

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Tonja Jacobi: Here are a huge number of important issues that the Supreme Court is not addressing because they’re just not taking enough cases and if we put them in a position where they’re both capable of doing more and perhaps being forced to do a little bit more, they could actually be making more important law for the country and actually doing more work for the country as well.

Male: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

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Craig Williams: Welcome to Lawyer 2 Lawyer on The Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a legal blog named ‘May It Please the Court’ and have two books out titled ‘How to Get Sued’ along with the Christmas children’s book ‘The Sled.’ Well, court packing is defined as the act or practice of packing a court and especially the United States Supreme Court by increasing the number of judges or justices in an attempt to change the ideological makeup of the court. And last month, Congressional Democrats introduced legislation to expand the Supreme Court from 9 to 13 justices and President Biden announced the formation of a commission to study the court structure including the number of justices and their length of service. Of course this has led to yet another controversy of long party lines as we’ve become much too used to.

So we’re going to see 13 justices or more under the Biden administration or might we see the High Court overhauled in a different way. Today on Lawyer 2 Lawyer we’ll discuss packing the Supreme Court, the politicization of the High Court, potential reforms along with the next steps.

Today, our guest is Tonja Jacobi. She’s the Professor of Law at Northwestern Pritzker School of Law. Professor Jacobi specializes in judicial behavior and strategy in public law. Her interests include judicial politics, Supreme Court oral arguments, criminal procedure and constitutional law. Combining doctrinal, empirical and formal analysis, Professor Jacobi examines how judges respond to institutional constraints and predictions of outcomes for court cases especially on the Supreme Court. Professor Jacobi and Professor Matthew Sag recently wrote a piece for Bloomberg Law titled ‘The Supreme Court needs 15 justices.’

Welcome to the show Professor Jacobi.

Tonja Jacobi: Thank you so much for having me.

Craig Williams: Well, as we start this discussion today, let’s talk overall about perhaps the what packing the court means and a little bit about the history of packing the court, maybe the range of justices that we’ve had along so far. And I think a lot of our listeners aren’t familiar with the history that goes behind this.

Tonja Jacobi: Well, I think the first natural question is, is there a difference between court packing and court reform. So we proposed a proposal for court reform and we wanted to differentiate that from some of the proposals that that are out there for court packing. And you might say “well what’s the difference? Is it just that you pack and we reform?” And I would say that we can differentiate the two.

And the first most important element is what is the motive. Is the motive simply to change the partisan balance of the court or is it to actually make the court institutionally more effective? And then the other aspect is, well, what is the problem that you are trying to address? what are you trying to change? And are you just trying to change what the balance of partisan control on the court is? How many liberals and how many conservatives there are on the court? Or are you actually trying to make the court more effective in some way other than simply which outcomes you get? So are you trying to change, for example, how old the justices are, whether you think they’re effective because justices have an incentive to retire rather than to age out and potentially die on the court and be on the court when they’re quite ill and ineffective? We’ve had cases of that. Or another aspect is, is the court itself effective?

And what we were proposing is that the court is not doing enough. We can make the court do more work for the American people by instituting reform. And so it’s not just about how many conservatives there are and how many liberals there are. We can actually reform the court to do more for the American people and make the judiciary work better by having a more powerful Supreme Court.

And so I would differentiate between packing and court reform that is actually trying to do more than just simply affect who has the balance of power.

Craig Williams: Right. Well, let’s talk about the Article 1, Article 2 and Article 3 judges that we have. We have some, I think, 870 judgeships and 179 on the 13 Courts of Appeals I think maybe somewhere in that range only nine on the Supreme Court. There have been 10 on the Supreme Court at times and there have been six on the Supreme Court at times. One of the things that intrigues me is your proposal for 15 judges and three panels of five.

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On the ninth circuit out here in California we have 29 judges and we have panels of three. What’s your thought about having panels on the Supreme Court and the number of cases that they can handle?

Tonja Jacobi: Well, there’s no magic number that they have to be panels of five. 15 was the proposal that we put forward because five is a pretty manageable number to have on a panel and three panels make sense and you could more than triple the workload of the court because by having five judges on a panel rather than nine on a panel, more could get done. If you’ve listened to oral argument at the Supreme Court with nine justices all trying to get a word in edgewise, well usually eight because Justice Thomas doesn’t normally speak except under the strange rules of the pandemic.

You can get more done if there are less justices on a panel so we proposed having three panels of five. But you could have different numbers. The point is that the justices could be doing more rather than having just, you know, one panel of nine where every justice hears every case but there aren’t many cases. The justices are only hearing about 70-75 cases a term. That’s not a lot whereas if you look at the circuit cases and then certainly look at other courts like state courts. judges are hearing a lot more and they’re doing a lot more work. There’s no reason that the Supreme Court justices couldn’t be doing a lot more work and overseeing the federal judiciary much more effectively.

There are a huge number of important issues that the Supreme Court is not addressing because they’re just not taking enough cases. And if we put them in a position where they’re both capable of doing more and perhaps being forced to do a little bit more, they could actually be making more important law for the country and actually doing more work for the country as well. And so this is an opportunity not simply to change the partisan balance but actually institute reform and make the court actually decide more issues.

There are many important issues that are going unaddressed by the Supreme Court at the moment that really need to be addressed and I am happy to share some examples with you but the important point is, I mean, 70 cases among nine justices. Each judge is only writing about seven or eight majority opinions a year and they each have four clerks to essentially ghostwrite those seven or eight opinions. I mean it’s a very cushy job, shall we say.

Craig Williams: It is quite a cushy job. And let’s talk about one of the words you use, you know, whether you can force the judges to do things or not is an interesting question. As you’ve pointed out, we have problems in the criminal area, we’ve got problems in patent law, we’ve got conflicts between the circuits that remain unresolved. There’s a host of things that the Supreme Court is simply failing to do. Is there a way that there — is there any kind of congressional authority or any type of supervision of the Supreme Court itself that can say to the judges “You need to be working more. You need to handle these other cases and solve these problems.” how do we get the court to address these issues?

Tonja Jacobi: I mean there would obviously need to be a new judiciary act that spelt out certain conditions under which the court would need to take cases. So at the moment the court just has total discretion over which cases it has. It gets about 8000 petitions a year and it takes 70 cases a year on average in most recent years. It used to take about 150 just a few decades ago. So it’s decreased its own workload by more than half just in the last few decades.

Now, we’d want to study the issue because you don’t want to have unforeseen negative consequences of rules that you devised that have less than ideal incentives but, you know, something that you could do for example is say if there is a circuit split then the Supreme Court shall take the case. Now that is an example where you could create a perverse incentive where you might have a circuit. You give a circuit a court power to force Supreme Court to take the issue by saying “oh well all the other circuits have gone this way. I could I could push the issue by deciding the issue the other way.” for instance. So you’d want to commission or something to look into whether that’s a good idea but that’s an example that’s well within congressional power to say “here’s an instance where you could force the court to take an issue if there’s a significant circuit split.”

And that’s just one example that comes to my mind of an objective criteria that could be used to say to the court “look, if there’s a circuit split that means that there are different laws essentially being developed in different parts of the country.” And that can lead to major variance that’s really not satisfactory and the Supreme Court should be addressing those issues like that’s part of its job is to resolve those sorts of differences between circuits.

And that’s just one example but that’s something that could be fit in rather than just the Supreme Court saying “Well, we consider circuit splits.” But quite often they don’t take cases even when there are circuit splits.

Craig Williams: Kind of reminds me of the milk truck cases and the Interstate Commerce Commission issues where there was one law in one state that required round mud flaps and another law in another state that required flat mud flaps.

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And the Supreme Court took issue with that. It seems like they’re not paying attention to their own criticisms here and there.

Tonja Jacobi: Why would you not want more mud mud flap cases, I ask you.

Craig Williams: Why not? Well, we talked about court packing and court reform. Let’s talk about the opposite side of this case. I mean one of the criticisms of the nomination of the judiciary act of 2021 and even your article suggesting 15 justices is that one president gets to stack these many and then the next president comes along and there’s this many number on justices on the court, what’s to prevent the next Republican, as you pointed out in your article in Bloomberg. Inevitably when the Republicans win again, what’s to prevent them from changing it to six?

Tonja Jacobi: So that is part of the problem if it is just driven by pure packing motivation that there’s going to be tit for tat that they’ll be packing and then they’ll be repacking. And part of the motivation, I think the reason people are talking about packing so much at the moment is there is a feeling that there has been packing by the Republican that the last three positions filled by the Republicans were all done under fairly controversial circumstances. Even the one that gets the least attention Justice Kavanaugh was reported to have — Justice Kennedy was reported to have been heavily persuaded to retire by being told that he would have one of his clerks appointed, Justice Kavanaugh, to fill his spot which is fairly untoward and so all three positions.

We know that Justice Gorsuch got the position that was nominated to be filled by Merrick Garland by President Obama nominated him. And that was just refused to be even considered by the Republican senate even though it was 11 months before the federal election but then just a few days before the election Justice Barrett was put on the bench.

So there’s a feeling that all three of those justices were essentially pushed through under fairly dubious circumstances. So there’s a view that the court has already been packed and so this is the tit-for-tat already by the Democrats to come in and repack or unpack the court. And so sure when the Republicans get in power that what’s to stop them doing that.

And that is not great for the legitimacy of the court if it’s seen as this sort of political football that goes back and forth. And that is definitely harmful. And I think also the fact that the court is so out of line at the moment with popular views, the six conservatives on the court and particularly five of those six excluding the Chief Justice are so extremely conservative that there’s an expectation that they might overrule Roe v Wade for example. They’re taking a new second amendment case that could be quite extreme and out of line with popular opinion that there’s a feeling that packing is sort of a political response to an extremely political court.

And so the court looks political already and so that leads to a political response and so — and I think the Chief Justice is very concerned about this and rightly so. I think it’s not great for the court. The court has always had a very high level of respect. There have been times when it’s had a worse reputation for example after Bush v Gore but generally the court is held in high repute and that’s where its power comes from.

And so I think the chief is right to be concerned that the respect and the legitimacy of the court and what’s going to happen if there is this sort of back and forth political football over court packing. But I think the Republican view is that court packing is outrageous when the Democrats do it but I think the democrat view is there’s already been court packing and so there is sort of justification. And so each side thinks that they’re justified essentially.

Craig Williams: Right. So it’s essentially then the argument that not only does the Supreme Court need to be reformed but also congress because we wouldn’t be in this problem presumably if Mitch McConnell and the Republicans hadn’t rushed through, as you pointed out, preventing Garland and putting in Gorsuch and putting in Kavanaugh and putting in Barrett. If that had not happened, then there would have been more of a balance. Does congress also need to be reformed here?

Tonja Jacobi: Well, I think congress definitely has changed since 1994 Republican Revolution. There’s been massive political polarization and this can be measured empirically to show that the center has completely disappeared and there’s extremists on both sides and the middle is measurably almost extinct. And both parties, the left is much more left and the right is much more right.

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And so the room for political compromise has all but disappeared. And so I think judicial nominations are one symptom of that. And so the complete failure to come up with ability to agree on a compromised candidate when you have divided government is a product of congressional political polarization and I don’t see that changing the politicians fear being primaried more than they fear losing the general election. And we know that primary voters are more extreme and so there’s little expectation that that’s going to improve.

Craig Williams: Right. And I guess as far as we look at the Supreme Court generally the thing I learned in law school is we rely on precedent. It’s a centrist organization. It doesn’t swing from one side to the other and the partisanship in congress is played now over into the partisanship that appears on the Supreme Court. An interesting question that you raised earlier about the attack on Roe versus Wade kind of hearkens back a bit to the controversy around FDR’s attempt to pack the court and then what they called the famous and maybe perhaps you can explain it for our listeners, the switch in time that saved nine.

Tonja Jacobi: Yeah. That was a very interesting historical episode and I think that nicely illustrates the respect that the Supreme Court has always had. So back in the 1930s when the Supreme Court was really interfering with the new deal and was striking down piece after piece of legislation and FDR was getting extremely frustrated. He won re-election in a landslide and he felt that he had to mandate not only to pass legislation as part of the new deal but to also overcome this resistance from the Supreme Court.

So he put forward this proposal that every Supreme Court Justice who was over, I think it was 70 years of age, would have another justice appointed to sit alongside them. And it just happened that all of the justices who were striking down his legislation were the older justices and this would bring partisan balance back towards the outcomes that the Democrats wanted and would get all of his legislation upheld. And there was huge resistance to this in the public even though there was incredible support for FDR and for the new deal platform and he just won this massive-massive majority not just for himself but in congress.

And there was this view that this was just so blatantly caught packing that even though it was dressed up as to do with the age of the justices, everybody knew what was really going on and I think to be honest the proposal put forward by the Democrats most recently to have a 13 justice court that’s based and the justification given was we have 13 circuit courts and so you need to have 13 justices. And there used to be this idea that the justices would ride circuit and that there’d be one justice for each circuit. And that sort of — it doesn’t really have much of a much of a sheen of plausibility to it because the justices don’t really ride circuit anymore. It has a similar sort of level of plausibility to it.

And the public was very opposed to this and it didn’t end up going through. And instead what happened was one of the justices, Justice Roberts, actually changed his vote and started voting to support the new deal legislation. Now, most people call this the switch in time that save nine. It saved the justices from having to face whether they really were going to have this court packing plan. There is a view out there, my PhD advisor, Barry Weingast, always said no. The Democrats had come into power. They had been out of power for a long time. They didn’t know how to write legislation and they finally learned how to write legislation properly and passed the Supreme Court a review but I think that’s the minority view.

Most people thought yeah, the Supreme Court really wanted to avoid being subject to this uh sort of institutional challenge and they did just one justice was enough to switch votes and actually allow the modern administrative state to blossom and that’s what we have today.

so I think it illustrates the respect the Supreme Court has always had and the reluctance of people to allow that level of just obvious court packing to go ahead even when there was huge support for the political branches and what they were trying to achieve. Outlawing child labor for example. But even though they didn’t like what the Supreme Court was doing and the Supreme Court was very out of whack with the public then but I think there were less polarized times perhaps but there was that the court had much more political assets in its reputation then so whether that would be the same level of outrage now I think the public is much more polarized now.

Craig Williams: Right. And you correctly point that out. We mentioned even in the beginning that it’s just been partisan politics with no center. And you also mentioned that the Supreme Court currently seemed out of touch with the popular opinion.

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There’s also a kind of a contrary view to that; the originalists, the constructionists, the ones who look at what the framers intent was. What’s your perspective on whether the Supreme Court should move with the times and adapt or whether it should stay true to what the government was expected to be when it was formed?

Tonja Jacobi: Well, I mean, if you look at what the framers thought, there was no expectation by the framers that 200 years plus later that people would be looking at what the framers thought as to how to interpret the constitution. So there’s always been a bit of a methodological problem there I think with originalism and that’s why I think we see these different views of original meaning versus original intent and so on there’s sort of this shifting notion within originalism as to which type of originalism takes the day on any case.

If you look at cases like Heller, the guns rights case where there’s prefatory language in the second amendment and that sort of gets ignored when it comes to gun rights. The actual language in the text that says essentially the purpose of the second amendment is this. It’s like “oh well, you know, that’s just emphatic.”

So there’s obviously selectivity in that. So the idea that you know that originalism is constraining in the way that it’s said to give legitimacy and therefore be the only way forward is patently false.

I think there’s a notion that part of the mechanism by which I think the Supreme Court now is quite out of line with the majority of the country is that the federalist society is extremely strong in pushing candidates of a particular ilk and originalism is one main mechanism of that and it leads to outcomes necessarily. Originalism is essentially backwards looking and therefore inherently conservative in that backwards looking sense. And so it’s necessarily going to be behind the majority of views of most Americans. But the federalist society is an incredibly powerful interest group at pushing judicial nominees and vetting, having sort of almost veto power when it comes to conservative appointments.

And so that is going to lead necessarily to this disconnect between what the average person thinks. Even if the average person doesn’t have highly sophisticated legal views, they can have overall views about whether people should have access to certain sorts of guns for example. And that’s going to be very out of line with what a conservative appointee is to the Supreme Court is going to have because they’re going to have gone through this process that is necessarily going to lead to a very narrow pool of candidates.

Craig Williams: Let’s jump back to something you mentioned about abortion and perhaps the switch in time that save nine. The Supreme Court has just recently announced that it’s going to pick up a major abortion challenge Dobbs versus Jackson Women’s Health Organization and their conservatives are saying that their hope there will be overturning Roe versus Wade. How do you think that the Dobbs is going to play out on the Supreme Court? Do you have any predictions in terms of how the judges are going to vote on this one?

Tonja Jacobi: So if you’d asked me a year or two ago prior to the most recent appointment when the chief justice essentially had the deciding vote, my answer would have been that no I don’t think that they would have overturned Roe that what the Roberts Court approach to these issues is not to overturn cases like that that are going to get a lot of attention. The Roberts approach is to gut precedence from within. So you don’t need to overturn Roe. You can just gut it of all meaning.

And Casey was a big step on the way towards doing that. Casey basically took Roe which was said you have a fundamental right to choose and said “well, we’re going to treat your right to choose as subordinate to all other rights. We’re going to apply a different standard and come up with a substantial burden test which is different to all other fundamental rights.” And we’re going to say “Well, what’s the substantial burden?” “We’re going to add all these different conditions on your fundamental right and we’re going to add all these protections for the state to interfere with the woman’s right to choose and we’re going to slowly decrease and decrease and allow all these incursions on a woman’s right to choose.” And that has been a continuation of that for years now and that the Roberts court would have just continued to do that. And the Roberts Court wouldn’t need to take the hit, the reputational hit of actually overturning Roe and could just essentially take away much of the meaning of a woman’s right to choose.

So that’s what I would have said when the chief justice had the power because he is, as I said, very concerned with the reputational hit that the court would take of a big impact case like overturning Roe v Wade.

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But now that there are six conservative justices on the court and he is the least conservative, and I think the other five justices are much less concerned with the legitimacy of the court and much more ardent I think in their desire to make big decisions like overturning Roe, I think it’s much more likely. I can’t say certainty it’s going to happen. I think the justices are still aware of the threat of court packing or reform, both of those possibilities. So it’s possible that they could moderate their behavior out of fear of that sort of attack but I think it’s become a lot more likely. I think Justice Thomas is completely unrestrained in that regard. Justice Alito absolutely would vote to overturn Roe. Justice Barrett absolutely. And I think Justice Gorsuch extremely likely. I think Justice Kavanaugh is probably the most pragmatist justice of that conservative bloc but I think he’s probably pretty likely to vote to overturn as well.

so I think it’s become a lot more likely than when you just had five conservatives. So I think it’s distinctly possible that Roe could actually be overturned or it could be a big major blow so it could be partially overturned. They could find some mechanism to take out one of its legs and then in a future case take out another leg. That’s another thing that the Roberts Court does.

We wrote another op-ed recently about election reform and the mechanisms by which they’ll take out, you know, in election law there’s the technique of sort of taking out one leg of the voting rights act and then in future they’re going to take out another leg of the voting rights act and we’re predicting how that was going to happen. So that’s a common mechanism as well.

So I think there’s actually good chance what we’ll see is Roe overturned in stages.

Craig Williams: Death by a thousand cuts. Kind of like what happened with Miranda.

Tonja Jacobi: Yeah. But possibly even a little bit more dramatically than Miranda. Miranda was a much slower demise. We could see it a little bit more dramatic like I think the conservative base is looking for a bit more spectacular win than some of the — Miranda decisions sort of took decades.

Craig Williams: Let’s follow through with that logic. Let’s assume that the Supreme Court just slam dunks Roe versus Wade and the first line is overturned. At that point, what role can congress play?

Tonja Jacobi: Yeah. I mean other than court reform, I think congress could write legislation trying to provide greater protection for women’s rights, providing a legislative solution. But this court has written a lot to talk about you know the rights of states to protect the fetus and I think it’s sort of been laying the groundwork to defy that kind of congressional action as well. So I think that could be — I certainly would think that that would be worth trying but I think there might be some roadblocks there as well but I definitely think that’s something that would be worth attempting and that might be able to set out a minimum. Yeah, it’s a little bleep for those who care about women’s equality.

Craig Williams: Right. There are huge constitutional and political issues at play here. Is this one of the more significant turning points for the Supreme Court in its lifetime?

Tonja Jacobi: Yeah. I think it is. I mean I think this is one of the issues that gets the most attention. I actually think that as much as I think the issue of women’s access to abortion rights is fundamentally important. I think that the election reform decisions that the court’s been making are actually some of the more harmful decisions has been making because if you don’t get elections right then the whole system fails like we could be not in a true democratic system if you — the Supreme Court said you can gerrymander as much as you want and the Supreme Court will never step in. That’s what they said last year in Rucho. At the same time, they’re allowing states to write laws that are massively interfering with voter’s rights through allowing voter suppression.

And so if we don’t have protection for the most fundamental right of voting then we’re completely dependent on the Supreme Court for our rules because the democratic process doesn’t work and I actually think that’s more fundamental than the abortion question because at least half the states will protect abortion rights anyway whereas if we don’t have election rules then the system can’t even correct itself.

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I subscribed to the John Hart Ely view that the most fundamental thing the Supreme Court has to do is get the rules of the playing field right and that’s more important than anything else. And so I actually think that’s the most important issue and the Supreme Court’s been really tilting that playing field for some time. And I think Roe v Wade as important as it is. It is in some ways sort of distracting us from some of the worst decisions like Shelby County where it started striking down aspects of the voting rights act. That’s actually more harmful and it doesn’t get as much attention because we haven’t been hearing about it for the last five decades.

Craig Williams: Well, professor Jacobi it looks like we’ve reached the end of our program. So I’d like to take this opportunity to invite you to share your final thoughts and provide your contact information.

One of the questions that I’d like you to kind of follow up with as you wrap up is addressing this constitutional crisis, this constitutional crossroads that we’re at. Where do we go? what do we do?

Tonja Jacobi: So, I mean, I think we have to take seriously the role of the judiciary in all of these questions and not just think about who has short-term control like what is the role of the court. When I wrote my article sort of saying we need court reform, people were saying “oh you just want court packing.” And I point people to a couple of years ago I wrote an article saying in my area criminal procedure. I wrote a very-very long 35,000-word article called “supreme relevance that just shows how the Supreme Court’s just not doing enough to address all of the areas in criminal procedure.”

And that’s why we have a mass incarceration problem etc. because the Supreme Court is just not doing its job. And that trickles down to so many different issues. And so part of writing our ship of democracy is getting the Supreme Court right and getting the judiciary right and then once the judiciary is right then we can have the rules of democracy being corrected as well. And I think part of — everything about the constitutional crisis that we’re facing, it doesn’t necessarily fix election interference from Russia but I think an important part of it is making sure that the judiciary is doing its job and the judiciary doing its job can then make sure that congress is doing its job.

And so I do really believe that court reform is a fundamental aspect of fixing the constitutional crisis that we’re in and restoring Americans faith in the working of government and part of the working government is the proper working of the Supreme Court and the judiciary generally. So it’s not just who has partisan control of the court. It’s just it’s getting the judiciary to work properly. So I do hope this this issue is taken seriously and looked at beyond just the short-term sort of partisan control.

So I hope that it does get the attention that it deserves.

Craig Williams: Wonderful. Thank you. Well, as we wrap up, I’d like to thank Professor Tonja Jacobi. It was a pleasure having you on the show. Thank you.

Tonja Jacobi: Thank you so much. It was a pleasure to be here.

Craig Williams: And for our listeners, if you like what you heard today please rate us on Apple Podcasts, your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening.

Please join us next time for another great legal topic. Remember, when you want legal think Lawyer 2 Lawyer.

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Podcast transcription by Tech-Synergy.com

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