Why and How to Pack the Court

Why and How to Pack the Court

On the first episode of the Contempt of Court podcast, Chris Kang and Representative Jamaal Bowman explore what court expansion actually is, and how attitudes around it are finally changing.

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Delegitimize The Supreme Court | Contempt of Court with Elie Mystal
byThe Nation Magazine

This is the eighth and final episode of Contempt of Court, our podcast series about reforming the Supreme Court. On this episode, we’re going to talk about the court’s only true form of power: legitimacy.

To discuss potential paths toward delegitimizing the Court, my first guest on this episode is Harvard Law School professor, Nikolas Bowie. He makes a compelling case that the people, through their representatives, should be the ones in charge, not the Supreme Court.

Afterward, Rhiannon Hamam, host of the fantastic Supreme Court podcast 5-4, has some thoughts on what’s happening on the ground, as people try to take back power from the Court through direct action.

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For the first episode of Contempt of Court, we start with the most powerful reform strategy available: court expansion.

As a matter of constitutional structure, Court expansion has always been the constitutionally preferred way of handling a court that has overstepped its bounds. But as a political matter: court expansion has been treated like it is a radical solution. But It’s not. It is the way a president and Congress can check the Supreme Court, and it’s the easiest and most simple method of court reform.

Chris Kang and Representative Jamaal Bowman join Contempt of Court to explore what court expansion actually is, and how attitudes around it are finally changing.

Contempt of Court is sponsored by The New Press, America’s leading independent nonprofit public-interest book publisher and publisher of Mystal’s New York Times best-selling book, Allow Me to Retort: A Black Guy’s Guide to the Constitution—out now in paperback.

This transcript was computer-generated and may contain errors.

[00:00:00] Elie Mystal: Article three of the US Constitution created the Supreme Court. Article three is incredibly short. It sets up what has become the most powerful branch of government in less than 400 words. Section one of the article sets up the structure of the court, and it’s two sentences. I can read it to you. The judicial power of the United States shall be vested in one Supreme Court.

And in such inferior courts, as Congress may from time to time, ordain and establish. The judges. Both of the supreme and inferior courts shall hold their offices during good behavior and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office.

That’s it folks. There will only be one Supreme Court. Its judges will serve for life and you can’t dock their pay. Incredible system we’ve got here. The astute listener will notice that Article three says nothing about the number of justices on the Supreme Court. Indeed, the number of justices on the court is set by an act of Congress signed by the president.

At the founding, the Supreme Court opened with six judges. Thomas Jefferson expanded it to seven. Andrew Jackson took us to nine Abraham Lincoln to 10, and then Lincoln died and Congress hated Andrew Johnson, so they reduced the number to seven. Then finally, the Judiciary Act of 1869, set the number at nine again, and we’ve been there more or less since.

But not without controversy. The most famous court expansion story in our nation’s history is not any of the times the president and Congress changed the number of justices on the court, but the one time they didn’t. In 1937, Franklin Delano Roosevelt introduce the judicial procedures reform bill. It proposed adding one justice per current justice on the court over the age of 70 who didn’t retire at the time that would’ve given Roosevelt six extra justices to appoint.

Roosevelt won the bill because the Supreme Court was busy striking down his New Deal agenda. Does that sound familiar? But the plan was inelegant. As you can see, it wasn’t just a court expansion plan, it was also a forced retirement plan F D R was trying to impose on the justices. And again, the one constitutional thing about the Supreme Court is that justices can’t be removed from office.

As the story goes, the plan failed. Fdr, possibly the most powerful president in American history, failed to expand the Supreme Court, and that failure has been used as a cautionary tale against those who seek to expand the Supreme Court today. But did FDR fail? Really, Roosevelt was losing these new deal cases, five to four.

But in 1937, justice Owen Roberts, no relation to our current chief justice switched his position on those cases. People call this the switch in time that saved nine, but there is deep legal scholar controversy over whether Roberts switched because of the court packing plan or if he just evolved as a jurist.

Either way, new Deal programs started winning at the Supreme Court instead of losing FDR started getting what he and Congress wanted. I’d love to be a failed court reformer in the mold of FDR because he seems pretty damn successful to me.

The point I take away from all of this is, Presidents and Congress change or threaten to change the number of justices on the Supreme Court whenever the court gets grossly out of step with the will of the people, and it works. It worked for Lincoln during the Civil War. It worked for Andrew Jackson during his crusade against the National Bank, and it worked for F D R after a fashion when the New deal was under threat from five justices who never had to stand in a bread line.

And that brings us to the present day. In this episode, we’re gonna start with the most powerful reform available court expansion. As a matter of constitutional structure, court expansion has always been the constitutionally preferred way of handling a court that has overstepped its bounds. But as a political matter, court expansion has been treated like it is a radical solution.

But it’s not. It is the way a President and Congress can check the Supreme Court, and it is the easiest and most simple method of court reform. Let’s explore what court expansion actually is and how attitudes around it are finally changing.

I am joined today by one of the leaders in the court reform movement, one of the leaders in the court expansion movement, Christopher King, um, from Demand Justice. Uh, just to start off, Chris, why don’t you to tell people a little bit about yourself, your position, um, um, who you are and why you are, are kind of obviously the first person that I want to talk to on this show.

[00:05:41] Chris Kang: Well, thanks so much for having me. I am a reformed institutionalist. I started my career out of law school working in the Senate. I worked in the Senate for seven years on the Judiciary Committee and for Senator Durbin’s leadership office. I worked in the Obama White House for seven years, including running judicial nominations for the president for a majority of his administration.

I ran an Asian American advocacy organization, and then in 2018 started Demand Justice with Brian Fallon, and the purpose of this organization was to get progressives more educated, engaged, and activated around the courts.

[00:06:19] Elie Mystal: There is a long history in this country of changing the number of justices on the Supreme Court.

Chris, give me your best argument for court expansion.

[00:06:32] Chris Kang: So I think it depends on how you look at the courts and how you enter this conversation. You know, right now 70% of Democrats support Supreme Court expansion, and I think one of the reasons for that is rulings like Dobbs, it’s rulings like Bruin. It’s where the Supreme Court is ruling in a way.

That not only takes away our rights, but is contrary to the views of 80% of the American people, whether it’s preserving access to abortion, doing something about gun violence or climate change. You know, 80% of the American people are on one side. This hyper conservative Supreme Court is on the other, and so.

People want to expand the courts to preserve democracy and to get better rulings out of it. And I think that that is a legitimate driving concern. This Supreme Court is, is playing way too big of a role in our lives. It’s not what was ever intended. So we need to restore balance to the court, not only ideological balance among the justices, that’s important, but I think the bigger goal here is providing balance amongst the three branches of government.

And that’s why expansion is so important.

[00:07:36] Elie Mystal: I, I, I, I’m one of those guys that got to expansion on Bush v Gore. Um, I, I was, that did not surprise me. I mean, I was a first year law student when, when that, when that came down. Um, and just to watch the Supreme Court pick a justice ju pick a president, just straight up pick a president based solely on their partisan, um, um, um, um, beliefs, right?

Like I had the opportunity to learn in law school. All of this stuff that they would tell me about Anton and Scalia. While knowing that it was all hypocritical bunk because he threw all of those, uh, alleged principles out to make sure that George W. Bush was president over Al Gore. Um, um, that that was my first inkling of maybe this institution, um, could use some reform.

[00:08:21] Chris Kang: And like part of this too is like, how did I get to expansion? It’s because every time Republicans would do something, I’d watch Democrats sit back and not respond. Like they stole a seat from President Obama. Democrats didn’t actually do anything other than complain a little bit, didn’t even complain during the actual presidential campaign.

Um, they complained just a little bit and then they changed the Senate rules to confirm Neil Gorsuch’s. Democrats didn’t complain, they didn’t obstruct, they didn’t do anything. And then Brett Kavanaugh’s confirmed Democrats didn’t do anything. And like finally, when in Coney Barrett’s up, I’m like, for the love of God, do something.

Right if, if Mitch McConnell seriously thought for a moment that he could be on the wrong side of a six seven court, he would’ve let it go. He would’ve let it go and just held onto his five four court. But because he’s power hungry, but also rational, he knew Democrats would never respond. A six three court is far better than a five four court, so I’m gonna grab that extra seat because Democrats never respond.

We’re already in the downward spiral of politicization that some people fear. The challenge though is that it’s only one way. The spiral’s only more and more in the conservative direction because Democrats never intervene. To disrupt that cycle, and that is what court expansion needs to do. You need to stand up to these Republicans and the only way that they understand, which is raw power, constitutionally given power to restore and balance this court so that it absolutely, uh, is necessary.

I also, at the end of the day, I don’t know what’s so bad if our Supreme Court ends up having 15, 17, 21 justices. Like there’s so many reasons why we can have a bigger court that is more responsive to the number of cases going through that looks and represents the people in our democracy. Like there are a lot of other reasons why a bigger court generally, I think the United States is one of the smallest courts in the world, is not necessarily a bad thing at all either.

[00:10:23] Elie Mystal: Look, I, I agree with all of those arguments somewhat, obviously. I, I, I, I think that goes to our, our general point that the court should be less powerful. One way you make it less powerful is to have lots more people on it, because it becomes much harder for them to make extremist decisions when they have to get not four or five, six of their buddies to agree.

But when they have to get 15, 16, 17 vote majorities, that’s going to necessarily make the court’s decisions much more narrow. Which will realign the court with its constitutional prerogatives. But I also, uh, I like the argument that simply, uh, uh, that the, the argument that you’re, that you’ve make, that I don’t hear enough of, that I particularly like is that Mitch McConnell’s greatest skill.

The thing that he is better at than anybody else is his ability to smell weakness. Right. McConnell is like a cougar, and he smells the blood He sees when you’re lame or limp or weak, and then he attacks, and it’s Mitch McConnell’s understanding of just how weak the Democratic party is when it comes to the judiciary that.

Inspired him to make some of the most extremist moves in American history. There is simply, you will never convince me that a Mitch McConnell, who honestly thought that the Democrats will respond with court expansion, would have stolen the seat from Barack Obama. There’s just no way you can convince me that Mitch McConnell would have done that if he thought there would be an actual political response from the Democratic Party.

And then it gets to all your other points as well in terms of what he did with Gorsuch in terms of what he did with Barrett in terms of what he did with Kavanaugh. There’s simply no way he does that. If he thinks the Democrats are going to do something,

[00:12:13] Chris Kang: but actually the progress on this has moved far more quickly than I could.

Like two years ago, I was super excited to have a bill introduced in Congress and it had the support of Hank Johnson, chair of the court subcommittee. Jerry Nadler, I think chair of the Judiciary Committee is very important. And Mon Dear Jones, like those three members and Ed Markel, like that was a big step.

And now look where we are. We have 60 co-sponsors, 15 new co-sponsors. This Congress, including folks like Jamie Raskin. You cannot ask for, you know, a better spokesperson than the constitutional law professor and defender of democracy saying, you know what? This is the moment where fundamental reform is necessary.

So we’re on, we’re on a pretty good trajectory, all things considered, and I think that that is just as important to to internalize as it is the urgency of the moment. Like we’re moving really fast, but still not fast enough. And I think sometimes, As activists and advocates, we focus on the not fast enough part without taking a beat to realize just how far we’ve come and how important that progress has been.

[00:13:18] Elie Mystal: Christopher Kang, co-Founder of Demand Justice, thank you so much for your time today. Um, obviously I think this is, uh, uh, a critical issue and, and, and I really appreciate you kind of putting it in the context of what people themselves can do. Um, this is a, this is a problem and an issue. Where activism can move the needle, and we see it already has in many ways.

Thank you so much for your time.

[00:13:42] Chris Kang: Thanks again for having me.

[00:13:43] Elie Mystal: All of this sounds well and good on paper. Again, court expansion is simple and constitutional, but just because there’s an obviously right thing to do doesn’t mean Congress is gonna, you know, do it. Let’s talk to a person fighting this battle in the place.

It must be won.

Congressman Jamal Bowman, the man from the New York 16th District, which is where I live. I’ve had the opportunity to vote for this man four times, twice in primaries, twice in general elections. My, I, uh, my family’s voted for this man four times. Um, um, I am very excited to be on with Congressman Bowman, how are you?

[00:14:30] Jamaal Bowman: I am. Well, sir, how are you? Thank you so much for those votes. Thank your family for those votes. Uh, you just put a lot of pressure on me, so I gotta make sure I deliver. So I’ll do my best.

[00:14:40] Elie Mystal: Congressman Bowman, we have been talking on this episode a lot about court expansion. You are one of the co co-sponsors on the bell.

Adding four Supreme Court justices, can you explain a little bit about what Congress is actually trying to do to move this particular court reform forward?

[00:15:00] Jamaal Bowman: I mean, for me it just makes sense from a common sense standpoint, from a population standpoint and from a historical standpoint. You know, the nine members Supreme Court came to be when the nation was much smaller.

We now have over 330 million people, and we are a nation of laws, and the Supreme Court has to have the capacity to receive all of the arguments and all of the presentations, uh, to the court. Right now, it doesn’t have capacity. You know, many people seek the Supreme Court’s, uh, you know, judgment in a variety of cases across the country.

The Supreme Court turns down many of those. Uh, cases because it doesn’t have capacity. So for me, expanding to that number makes perfect sense because it allows it to have more capacity to meet the needs of the, the American people. Period. I mean, for me, that’s what, that’s what makes sense. We have to reimagine, redesign, and restructure so many aspects of our democracy.

I mean, we are 10 times larger than we were in 1869. In 1869, we had just, uh, come off a civil war. Uh, we just, uh, freed the enslaved Africans. And, uh, there was still, uh, you know, segregation, separation, racism, lynchings. It was a different country. Um, and white men had all the power. And that is the problem with many aspects of this institution.

Uh, it was built on white male patriarchy. It continues to run on white male patriarchy and all of the things we are pushing back against people like me, people like Cory Bush and so many others, we’re pushing

[00:16:40] Elie Mystal: back against. I wanna lean a bit into your educational background. Um, Currently on the Supreme Court, three law schools are represented, uh, Harvard, Yale, and Amy Coney Barrett who went to Notre Dame.

Historically, you’re talking about five, six law schools, uh, uh, that, that are on that court over the past 30, 40, 50 years. Do you think as a former principal, as a former principal, um, do you think that there’s anything wrong with having a ruling class of elites that only come from. A certain, you know, kind of law school, um, making decisions for that the rest of us are forced to live under.

[00:17:22] Jamaal Bowman: Yes, I do. Um, and that speaks to. The social, political and economic caste system that exists throughout all aspects of America, American life. And so elites, if you will, run the country and run Western civilization. And a lot of that elite power was built on capitalism, but also militarism and racism. And so what the Supreme Court is doing is perpetuating that through, uh, the concentration of.

Uh, it’s justices representing certain universities. Now, one would argue, uh, on the other side that, well, you know, we do have diverse representation, right? We have women, we have African-Americans. Uh, they are a diverse representation of, of America. However, when you are forced to go through the elite colonial education infrastructure to get to that point, Uh, you might be, uh, African American, uh, by, by race or background, but you are, uh, a white patriarch, uh, from a cognitive perspective.

Um, and I would argue that Clarence Thomas represents that in, in many ways, uh, outside of the corruption involved with him taking gifts from, from GOP billionaire.

[00:18:42] Elie Mystal: What do, what do you see on the floor in Congress, um, when the maggots aren’t fighting each other and calling each other’s names? Like what do you see on the ground in terms of this movement for real reform, port expansion, spec specifically growing?

[00:18:58] Jamaal Bowman: Right now it’s just beginning. Um, the conversations are just beginning and the legislation that you mentioned before.

Uh, is a part of that conversation, but it’s also part of a, of a larger organizing tool towards overall democracy reform. You know, I don’t expect Biden to be a champion of this because Biden has spent his entire life pretty much as part of this institution and as someone who has benefited from the institution as it is, and it takes a special historical type of leadership to provide a visionary.

A place for America to go and then to take action today to get us there. Um, you know, we’re talking about Teddy Roosevelt and others historically who have done that. And, and Biden has not, you know, shown that kind of leadership as of yet. We passed some important legislation during his first two years.

Absolutely. He should be celebrated for that. But again, You know, we need ethics reform on the Supreme Court. We need to expand the Supreme Court. I also support age limits on the Supreme Court.

[00:20:02] Elie Mystal: I can’t help but notice that a lot of the voices, most, most loud for ethics, for, for, for court reform, generally ethics reform specifically, um, happen to be coming from.

Uh, non-white members of Congress. It’s people like you, it’s people like Hank Johnson. It’s people like, as you said, uh, Mon Jones, uh, um, back when he had, um, his seat. It’s not coming from, uh, it, it, it’s, it’s those people is there. Why do we think that is? I have my theory.

I have a theory that, you know, maybe black people just don’t have. The millionaire friends that makes us understand the, you know, what it, what it’s like to be, uh, uh, uh, invited on on a yacht. But like, why do you think that the, the, the loudest voices, um, for serious reform and especially ethics reform, um, are, are, are coming from people who represent majority minority districts?

[00:21:01] Jamaal Bowman: You know, because I think white supremacy is real and, and the white patriarchy is real. And white people, whether they’re racist or not, benefit from that structure, they benefit from the institution as it currently exists. And radical change that is too fast or too abrupt or too quick, leaves them in the place of, of, of suspended, uh, purgatory, if you will.

Like, they’re, they’re just floating out there. With no foundation to stand on because this foundation that I lived my entire life on and my kids live on, all that is, is now being changed before me. So where do I go now? The, the other insidious nature of the disease of white supremacy is, is, is this scarcity mindset.

Mm. Is this idea that there are not enough resources for, for all of us. So I gotta get my resources and shit if I have to. Build a nuclear bomb and drop it on another country, I’ll do that to keep my resources. It’s a self-destructive, uh, seg segregative mindset that literally when you look at climate and everything else, killing humanity.

And, and so we really gotta lean into who we are as humans to take this to the next level. And, and, and, and so that’s what I’m here to help facilitate.

[00:22:26] Elie Mystal: I love that point, man. There, there is. There is enough to go around, right? There are, there are enough vacations for everybody. We just gotta distribute it around a little bit more fairly, I love, I love that point.

[00:22:39] Jamaal Bowman: And some of it is just, and just one quick thing. Some of it is just, it’s not even about resources, it’s just about humanity. It’s just about how you treat other human beings, right? And so respect doesn’t cost anything. Dignity doesn’t cost anything. Kindness doesn’t cost anything, man. And, and the thing about our, our policy and what the Supreme Court is doing now and, and has done before is it, it’s violent because it hurts people.

And, and, and we should almost have an Hippocratic oath when we, when we take our oath, like do no harm and, and we allow policy to pass, that does harm to millions of people, and that’s unacceptable.

[00:23:19] Elie Mystal: Yeah, I mean, look, I, one of the points that I made after the Dobbs ruling, which overturned Roe v. Wade, is that this is the first time in American history that the Supreme Court has taken away a right, just taken it away.

Like who does that? Um, um, the arc is supposed to bend towards rights, not against them. Right. Well, justice, yeah. Right.

[00:23:36] Jamaal Bowman: The last thing I’ll say is elections matter y’all. We need the right people in Congress right now. We don’t have all the right people in Congress, in the House and the Senate, and that’s why this stuff persists.

So we all need to move heaven and earth to make sure we get the right people in Congress next year. It’s not just about the presidency who got 33 Senate seats up for grabs, and obviously a bunch of house seats. You want Supreme Court reform. You wanna codify Roe v. Wade. You wanna ban legacy admissions.

You wanna do the right thing, you want to. You want a government that works from the perspective of justice and humanity. We gotta vote and get the right people in.

[00:24:14] Elie Mystal: Congressman Bowman, thank you so much for your time today.

[00:24:17] Jamaal Bowman: Thank you, brother. Appreciate you, man.

[00:24:21] Elie Mystal: People make all kinds of arguments to me against court expansion. It’s too political or it’s too radical, or it goes against our traditions. I’ve had people tell me that the court will get unwieldy if we add too many justices. Forgetting of course, that the ninth Circuit court of appeals out in California operates with 29 judges and works just fine.

And of course there’s the ubiquitous argument. If Democrats expand the court, Republicans will expand it right back as if an endless tit for a tat will put too much stress on the chair making industry to keep up with all the new justices. What nobody can tell me is why nine justices is the right number.

Nobody can tell me why the Judiciary Act of 1869, A law passed by an all white, all male Congress in the aftermath of the Civil War back when women didn’t even have the right to vote is sacrosanct. The US population in 1869 was around 38 million people. Now we’re at over 330 million people. Congress has added seats.

Lower courts have added seats. The country has added whole entire states, but there are still people running around saying that nine Supreme Court Justices is the right number for all time. Are we talking about the fundamental structure of the Supreme Judicial power of the United States, or are we talking about a fucking baseball game?

If we are concerned with the proper operation of government, the number nine holds no special power or virtue. It’s an arbitrary number picked out of a hat based on the political considerations of people who have long been dead. We could have 13 justices as some in Congress propose. Personally, I think we should have 29.

We should have however many justices are necessary to make the Supreme Court stop hurting us and start respecting democratic self-government.

The court expansion plans we talked about today are the ones supported by some in Congress. Next week I want to share with you my court expansion plan. It’s a little extra.

Contempt of Court is an original series from The Nation, with support from The New Press. The show was produced by Babette Thomas, and executive produced by Ludwig Hurtado. Our original music was made by Ellington Peet.

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