On December 16, 2020, The Federalist Society's Federalism and Separation of Powers Practice Group hosted a debate on "Court-Packing, Term Limits, and the Debate Over Reforming the Judiciary."
The battles over the nominations of Merrick Garland, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett suggest that the Supreme Court is now part of the same politicized cloud that envelops all of the nation’s public discourse. Politics have always played a role in judicial confirmations, but it’s a modern phenomenon for divergent legal theories to map onto partisan preferences at a time when the parties are ideologically sorted and polarized. Has the culmination of these trends led some people to think of judges and justices in partisan terms, and to question the legitimacy of our judiciary altogether—or at least its mode of selection and appointment? The threat of “court-packing” was a live issue in the 2020 campaign, as a potential Democratic response to alleged Republican violations of the norms surrounding judicial nominations. Is there anything we can do to fix this dynamic, to turn down the political heat on Supreme Court vacancies? Reform proposals abound: term limits, politically rebalancing or changing the size of the Court, setting new rules for the confirmation process, and more. President-elect Joe Biden promised to establish a bipartisan judicial reform commission and our distinguished panel will provide a preview of the sort of discussion such a commission would likely have.
- Prof. Noah Feldman, Felix Frankfurter Professor of Law and Director, Julis-Rabinowitz Program on Jewish and Israeli Law, Harvard Law School
- Prof. James T. Lindgren, Professor of Law, Northwestern University Pritzker School of Law
- Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network
- Prof. Rivka Weill, Professor of Law, Harry Radzyner Law School, Interdisciplinary Center
- Moderator: Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute
- Introduction: Nick Marr, Assistant Director, Practice Groups, The Federalist Society
- Feldman, "Don't Pack the Supreme Court, Democrats. You'd Live to Regret It." (Bloomberg)
- Feldman, The Deep Bench Podcast
- Feldman, Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices
- Lindgren & Calabresi, "Term Limits for the Supreme Court: Life Tenure Reconsidered" (Harvard Journal of Law & Public Policy)
- Lindgren, Slideshow on Term Limits
- Severino, Participant in FedSoc Panel on Judicial Life Tenure
- Weill, "Court-Packing as an Antidote" (Cardozo Law Review, forthcoming)
- Shapiro, Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court
- Shapiro, Statistical and Historical Tables on Judicial Confirmations
- Shapiro, "Term Limits Won't Fix the Court" (The Atlantic)
- Shapiro, "End confirmation hearings for Supreme Court nominees" (USA Today)
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.
Nick Marr: Welcome, everyone, to today's special Federalist Society virtual event where our distinguished panel is discussing "Court-Packing, Term Limits, and More: The Debate Over Reforming the Judiciary." This event is sponsored by our Federalism and Separation of Powers Practice Group, and it's being live-streamed on our YouTube channel. I'm Nick Marr, Assistant Director of Practice Groups at The Federalist Society. As always, please note that expressions of opinion during the event are those of our experts.
I'm just going to introduce our moderator before giving the floor to him. We're very pleased to be joined this afternoon by Mr. Ilya Shapiro, Director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and author of the recent book entitled Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court. And, if you buy the book and let him know, Ilya will send you a signed copy. He's also a --
Ilya Shapiro: -- I'll send you a signed bookplate in these days of, you know, shut-in.
Nick Marr: And, well, he's also a skilled moderator. So Mr. Shapiro will introduce the rest of our panel and direct the discussion. And we'll be looking to you, the audience, for questions later in our program.
With that, Mr. Ilya Shapiro, the floor is yours.
Ilya Shapiro: Thanks, Nick. Yeah. It wouldn't make much sense; you buy the book, and then you get a free, signed copy. That's kind of an odd deal. But anyway, if you do want to get something free, if you go to supremedisorder.com, you can download a whole statistical, historical appendix to really nerd out on all of this stuff that we're going to be discussing and make yourself really popular at your next virtual cocktail party.
But anyway, the battles over the nominations of Merrick Garland, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett suggest that the Supreme Court is now part of the same toxic cloud that envelops all of the nation's public discourse. Politics has always played a role in judicial confirmations, but it's a modern phenomenon for divergent legal theories to map onto partisan preferences at a time when the parties are so ideologically sorted and polarized. The culmination of these trends has also led people to think of judges and justices in partisan terms and to question the legitimacy of our judiciary altogether, or at least its mode of selection and appointment.
The threat of court-packing was a live issue in the 2020 campaign as a potential Democratic response to alleged Republican violations of the norms surrounding judicial nominations. Is there anything we can do to fix this dynamic, to tone down the heat on Supreme Court vacancies? Reform proposals abound: term limits, politically rebalancing or changing the size of the Court, setting new rules for the confirmation process, and more.
President-elect Joe Biden has promised to establish a bipartisan judicial reform commission. Our distinguished panel will preview the sort of discussion such a commission would likely have. And I need to thank Todd Gaziano of the Pacific Legal Foundation and Ilya Somin of George Mason University's Antonin Scalia Law School who helped organize this event.
I'll now introduce all of our panelists in the order they will speak, and then they will take it away, and then it will come back -- I will moderate a question and answer session. You will be able to type your questions into the chat box there in your Zoom, or you can raise your hand and I will call on you, and you can orally ask your question. So keep that in mind.
Anyone following along in the virtual sphere, I think it's @fedsoc. You can also go #catoSCOTUS, and we'll see what other kinds of hashtags are trending. I don't think we have any other hashtags developed -- maybe #judicialreform. I don't know. We'll see what organically, through spontaneous order, happens in the Twittersphere.
Anyway, Rivka Weill will kick it off. She's a Professor of Law at Harry Radzyner Law School, part of the Interdisciplinary Center in Tel Aviv. She focuses her scholarship on constitutional, administrative, and comparative law and has written on a host of legal topics including, most recently, a provocative article titled, "Court-Packing as an Antidote." Before joining IDC, Rivka earned her LLM and JSD at Yale, after which she clerked for Aharon Barak, then-President of the Supreme Court of Israel.
James Lindgren will go next. He's a Professor of Law at Northwestern University with a BA from Yale and a JD and a PhD in quantitative sociology from the University of Chicago. Jim has written extensively on the intersection of social science and the law, including as co-author with Federalist Society co-founder Steven Calabresi of the seminal law review article advocating for Supreme Court term limits published in the Harvard Journal of Law and Public Policy in 2006, nearly 15 years ago, and this is the article that still remains relevant. He's now working on a paper that offers strong causal evidence for politically motivated strategic retirement by federal judges.
Carrie Campbell Severino is Chief Counsel and Policy Director of the Judicial Crisis Network and co-author of the best-selling Justice on Trial: The Kavanaugh Confirmation and the Future of the Court. A graduate of Duke Law, Carrie clerked for Supreme Court Justice Clarence Thomas. Carrie has briefed senators and testified before Congress on the confirmation process and frequently files amicus briefs.
Noah Feldman is a Professor of Law at Harvard University, where he teaches constitutional law and directs the Julis-Rabinowitz Program on Jewish and Israeli Law. A graduate of Harvard and Yale and a Rhodes Scholar, Noah clerked for Supreme Court Justice David Souter before serving as a senior constitutional advisor to the Coalition Provisional Authority during the Iraq War, and he writes on a wide range of topics ranging from conflicts in the Middle East to presidential history, globalization, and, of course, the Supreme Court.
Rivka, the floor is yours.
Prof. Rivka Weill: It's a pleasure to be here, and I wanted to thank you for the invitation to be part of this distinguished panel.
There is much discussion about judicial reform of the U.S. Supreme Court, but there's not much agreement on what are the flaws of the current system and what are the needed remedies, and there is a connection between the two. We need to first identify what's wrong in order to offer a remedy. And some commentators suggest that now that it is clear that there is a conservative majority on the Court, a 6-3 majority, progressives must overtake the Court because otherwise they will not be able to promote progressive agendas, and such agendas will be overturned by the Court.
Some suggest we should adopt a wait-and-see policy. Let's see what are the decisions of the Court. If needed, we will threaten the Court, and maybe the Court will take the hint and retreat like it did in the 1930s with regard to the New Deal. And if not, we will embark on judicial reform.
I come to this discussion from a different angle, from a procedural angle, and, hopefully, from a principled viewpoint. I argue that there was an abuse of the appointment power in recent years, and the remedy for the abuse of that appointment power is to use the appointment power in order to neutralize the partisan takeover of the Court. So I am arguing in favor of court-packing, but not to threaten judicial independence, not to affect a particular policy, but rather to restore the legitimacy of the U.S. Supreme Court that has been much compromised in recent years by the partisan takeover of the Court through the abuse of the appointment process.
So let me lay out the argument. I'm arguing that, when you look at U.S. history, you see that whenever a vacancy occurred during a presidential election year, always the President nominated a candidate to fill the vacancy. And this is true even if the President was a lame duck, even if the President lost elections. At the same time, the Senate interpreted its advice and consent role as such that it does not endorse that nomination. It does not confirm the nomination unless there is bipartisan consent to the nomination. Otherwise, let's wait for an incoming Senate with a fresh mandate for the people.
Now, I call this convention, this constitutional convention, the "SCOTUS Bipartisan Convention" because it applies only with regard to Supreme Court appointments. This is the highest Court of the land. This is the Court that issues decisions that have the markings of stare decisis. This is the Court that its power is not disbursed like in the lower levels. So this is the big game.
Now, I'm talking about a convention that was relevant in presidential election years. And I define presidential election years to include all nominations within the calendar year of the presidential elections or any appointment made within 12 months prior to the President taking office. And we know that the time, it changed over the course of history as a result of the Twentieth Amendment. At first, the President went into office in March, and now it's in January.
When you look at the history, you see that we had a constitutional convention in the following sense: We had the proxies, we had the rhetoric, and we had the rationale for the convention. So the Senate acted in conformity with this convention. There's only one case in U.S. history prior to the last few years in which there was a partisan appointment to the Supreme Court during a presidential election year, and that is the case of Peter Daniel in 1841. The political actors understood the nature of the convention; they spoke its language. And we know that once that became part of the DNA of the American republic, that Jefferson cried out against midnight appointments, that they are indecent, undemocratic, and unfair.
In terms of the rationale behind the constitutional convention, the rationale was double-fold. First of all, to protect democratic principles, it is the idea that the people should have a say on such important appointments. During a presidential election time, the mandate of the President is waning, and it is incumbent on the Senate to make sure that any appointment actually enjoys bipartisan consent when we are talking about appointments to the Supreme Court.
In addition, the idea was to prevent an agency problem. It was to prevent an abuse of the appointment power. We know that presidents want to make -- ensure that their legacy continues even after they leave power. We know that presidents may embark on outstanding and outrageous acts before they leave office. It was the Senate's duty—that's how the Senate saw it—to make sure that no partisan appointment to the Supreme Court is made unless -- that the appointment must garner bipartisan consent.
Now that we have a constitutional convention, let's look at what happened in recent years. I'm arguing that two appointments were made in a breach of the constitutional convention. The first is regard to Merrick Garland. In no other case did the Senate not hold a vote on the merits of the candidate when the nomination was made until March of the presidential election year. And we know that the Senate votes very differently on the merits of the candidate rather than on the procedural issue whether to hold the vote. So we don't really know what would have happened if Merrick Garland came to the floor.
And we have to understand that the bipartisan constitutional convention applied whether it was a united government or whether it was a divided government. So the fact that it was a divided government does not matter; if at all, the reverse. And the second breach of the convention was with regard to Justice Barrett that was appointed within days of elections on partisan lines alone.
Now, I suggest that the remedy for the breach of the constitutional convention lies -- we should use, actually, the appointment power to remedy the problem with the abuse of the appointment power. So I'm arguing for court-packing to neutralize the partisan takeover of the Court.
Now, we know that the Constitution does not dictate the number of justices on the U.S. Supreme Court. It is a matter for the statute to determine. And there's no problem to judicial independence because I'm not trying to influence a particular agenda like FDR tried to do. I am not trying to change a certain composition of the Court from one party to the other. I am arguing on principle grounds, and this should have been the position regardless of the party that enjoys this argument.
I would make one last comment that in my article, I am further arguing that court-packing is part of the checks and balances of the U.S. Constitution to begin with, so this is part of the design of the Constitution.
With that, I am stopping here, and I will turn it over to Jim. Thank you.
Prof. James Lindgren: Okay. I've prepared a bunch of slides which I can't use, but I will go through them. In looking at the age of the Court, it's actually younger than it's been in a while. Justice Breyer, as of January 1, will be 82 years old, and Clarence Thomas, as of January 1, will be 72; Alito, just under 71. Normal retirement for an American is about 62 on average. You get full Social Security benefits at 66. In academics and other kinds of fields, people tend to retire later, in their early 70s. But by 71, 72, people are pretty much retired even from most high-level, elite jobs.
The proposal that Steve Calabresi and I made was for 18-year term limits. We also have a version of it for 24-year term limits if people are concerned that there's too quick a turnover in the Court. We believe it would require a constitutional amendment. With 18-year term limits, we basically would have a slot every odd year. So the first year of a presidential administration -- Biden would get one slot this coming summer, and then he would get one slot in the summer of his third year. If it's a 24-year term limit, then one term you get two slots, and the next term the President would only get only the first slot.
Now, if 18-year term limits had been in force for a long time, right now, we would have a 5-4 Republican-appointed Court, and by next fall, we would have a 5-4 Democratic-appointed Court. Part of the issue here is empirical. So between 1789 and 1970, those leaving the Court on average served 14.9 years. If you exclude some at the very first couple of decades, it would be a bit longer. The age of leaving office was 68 years. Since 1970, the average tenure has been 26.7 years, and the age of leaving office is 79.6 years. And if you look just at the last nine justices to leave the Court, it's still going up. They've served 28.2 years, and the last nine justices were 80.9 years, so almost 81 when they left.
Life tenure is an aberration. There's only one state that has life tenure: Rhode Island. No other major developed Western democracy has life tenure for its main constitutional court. And usually, the term limits are quite short. There are very few that are more than 10. There's a concern about mental decrepitude. The classic work on this looked at and suggested that as many as 25 percent of the justices were losing it mentally by the time they retired. But certainly, there's a loss of physical stamina, and that can require more reliance on clerks.
Now, the primary advantage of this would be to eliminate strategic retirement for political reasons. We hope that it would reduce animosity in confirmation. And I have to say, there have been -- pretty much most of the academics who have looked at this have been positive, but among those who haven't, some of the arguments have been kind of specious. But the one that's not is it's not clear that it would reduce animosity in confirmation. Our idea was that if the term was 18 years rather than 30 years, 29 years, then there would be less at stake, and that would reduce animosity. Ilya, our host, has suggested that it may move the issue more to the elections than it's been even currently.
This would involve a return to traditional levels of judicial independence. People think that judicial independence is something that should be maximized, but that's not the way the system is set up. Maximized independence would be the judges choose themselves, like a self-perpetuating board. I mean, it certainly could be run that way. But then you wouldn't have the democratic check, at least at the outset of having a political appointment.
It would return, basically, tenures to more traditional levels of turnovers. Every other time that we've had a major problem with people serving too long, not enough turnover, we've done something about it. In the 1830s, we added two justices. In 1869-70, we offered pensions, and in 1937, we offered senior status.
Now, one of the things that comes up is whether there's good proof that there is strategic retirement or failed strategic retirement by dying. Many political scientists and law professors have failed to find it. We think that they haven't modeled this very well. [Ross] Stolzenberg, who is a quantitative sociologist at Chicago, and I are working on a paper right now which uses an experimental regression discontinuity design. Usually, you like experiments because they give a much stronger causal inference.
And so our experiment is, basically, to look at the turnovers when the party of the President changes—so in the 1920 election, 1932 election, the 2016 election, and so forth from 1920 to 2016—and to compare the Republican judges retiring in the year before election to retiring in the year after confirmation. We also do it for different time periods, and also the Democratic judges -- democratically appointed judges. And one of the neat things about this is that we basically have controls where we are controlling one justice -- one judge against another.
Now, this study doesn't look specifically at the Supreme Court; it looks at all federal Article Three judges. But we do find a strong effect; that is, Republicans are more likely to retire in the last year of a Republican than they are the first year of a Democratic administration and the reverse, obviously, or the same -- similar kind of pattern for Democrats.
So that's kind of a neat design because normally you just have controls and treatment people, and you hope your controls are similar to your treatment. Here, you have a control that's the same person. They got the same grades in law school. They have the same spouse. They have the same publishing record. And the only difference is they're a year older and there's a different President. But one of the neat things about the design is the Democrats are a year older and the Republicans, where they'd be incentivized, would be a year younger. So it actually is a nice design.
Now, an earlier study we did found that there was a strong pattern of retirement when the President is of the same party and you're in the first or second year of a presidential administration. We also found that dying in office actually was affected by who was President. You're more likely to die under a President of the opposing party. The main reason, though, is to solve the sort of accidents of history that, in this case, Republicans have been able to appoint more people than Democrats. And unlike earlier eras, the Republicans are not moving as strongly to the liberal side as they did in earlier eras.
So next is Carrie Severino.
Carrie Severino: Thanks so much, Professor. I want to first point out that I think Professor Rivka hit the nail on the head -- or Professor Rivka Weill hit the nail on the head. We need to figure out if we're looking at what these proposals are, what is the problem we're trying to solve? And I think Jim did a good job of talking about the -- are there realities of problems with strategic retirement? I think if we look at the general criticisms of the current system, there are about three categories.
First of all, that judges are being appointed too young or with too much focus on their philosophical purity instead of to try to lock in justices of a particular philosophy for as long as possible. So some would say they're not looking at the more qualified judges or older candidates, or they're looking for people that are more rigid in their thought. Some people think that the current system with life tenure drives up the stakes for contentious judicial confirmation processes. Others would say judges are acting too politically in terms of the retirement process, as Jim was pointing out, in order to ensure having philosophically compatible successors, which might lead to judges staying past their prime either physically or mentally.
I think, on one hand, we have to figure out what of these are -- are these real issues? And Jim makes the argument that there is political retirement. I don't have necessarily a dog in this fight in terms of I'm advocating for one particular system. But I'm concerned that sometimes these proposals get thrown out without fully analyzing what the balancing concerns are because we have to, first of all, be sure that the problem we're addressing is clearly understood and is even a true problem. Is it true that we are having judges overstaying their mental ability, for example? I would argue that's less of an issue now than maybe it was in the Douglas era, but we can look at that.
Also, we want to make sure that we are then not in the process of losing the benefits of the current system. When our framers designed the Constitution, they envisioned this system of life-tenured judges chiefly as an insurance of judicial independence, independence both from the other branches of government, so they're not going to be influenced by the Legislative or Executive branches, and also for judges who might be following the lead of demagogues and want -- trying to change the laws from the bench, effectively, to suit passing trends rather than looking at what the law actually -- how the laws were actually written. So they assumed that if you really needed to remove a judge for misconduct, you could do it through the impeachment process, and that judges wouldn't remain on the bench past their ability to fully fulfil the duties of their office.
Historically, there have been different phases where that has maybe been true or not true. In the early years, people often rejected Supreme Court seats or retired early because of the physical difficulties of the office, of riding circuit. Today, we don't have to do that. We have a much easier system. We have clerks to help us. We have the technology to be able to help us. It may be an easier job today than it ever has been historically.
But there are, I think, real concerns that perhaps the life tenure system hasn't done as much as the founders hoped to ensure this judicial independence. Certainly, our judges don't have to be concerned about their next job down the line. Very rarely do you see a judge retiring mid-career and then making a shift. Normally, they figure they're there for life, and so they're not looking for their next job.
But there are concerns that things like has been written about the Greenhouse Effect—of Linda Greenhouse at the New York Times—the effect of the approval of the broader society, the media, legal academia, may, in fact, affect how a judge rules. So one point I might make is that perhaps there are reasons to believe that our judicial life tenure system isn't doing everything it could in terms of protecting against problems with judicial independence as long as judges are still looking for validation to anything outside their own ability to interpret the law faithfully.
When we -- concerns about youthful appointments, I think, we have to be aware that having an 18-year term or having, as some people have proposed, limits, an age limit, as many states have on their judges, that may not actually address all of those concerns, particularly with mandatory retirement agencies. It doesn't address the concern of appointing young justices. From my perspective, at least on the conservative judicial vetting side, I think the best insurance against appointing people too young is the countervailing concern about vetting a judge thoroughly enough that we understand his or her judicial philosophy.
So in some sense, the system is its own check because, if a President is very concerned about having a justice who has a clear judicial philosophy—a textualist or originalist approach, for example, to the Constitution—you can't take someone who's in their thirties because they simply don't have the record there in the same way that someone in their forties. So I think you might see the system naturally converging on an age that you would -- a minimum age beyond which you would not go.
In terms of the idea of political timing of retirement, I think one question to ask is—again, I'm sort of not taking a full position on this—but what is the problem in our system if there is a politically motivated retirement? We certainly know that happens at all the other levels of government. I think the biggest concern in terms of the function of the system is if people are delaying their retirement. If someone is retiring early because they want to throw the seat to a President of a like mind, we may find that distasteful, but I don't think we have the same level of concern that there's a problem with the carrying out of justice that you would if you have a situation where someone is overstaying their mental capacity to carry on the job.
One of the ways that that has been addressed, historically, was with the creation of better and more robust abilities of judges to take senior status and to have good pension plans. But I definitely can see that that might cannot address that issue completely. I'll point out that, even with -- and I'm completely open to 18-year term limits. I think that could create some regularity in the system.
But even with that system, there still is an opening for politically timed retirements where you could have a judge say, "You know, I want to stay 14 years. I don't want to stay the full 18 years. I'm getting older. My health is declined." But they might choose to do so out of timing. They might choose to retire in a position where a President of their like mind would be able to fill out the remainder of their term. I don't think that's something that we need to be particularly concerned about, especially, again, if it requires that they are -- if they're retiring early rather than late.
My biggest concern would be how any of these systems is implemented. The idea of implementing a system in a way that has a clear partisan effect on the Court, I think, would be a problem. And that's one of the reasons I'm concerned about the idea of court-packing proposals in particular. Life tenure, I think if we had a constitutional amendment to do that, my assumption is that would be something that you would want to have come into effect far enough out that neither party could game out who wins and who loses politically because if this is something that's truly for the structural benefit of the Court as a whole, we want to make sure that it's not being used for political ends.
But I think the challenge with court-packing is—and this is something that is fairly blatantly political—would clearly have an advantage to one party over the other. Just as a counter to some of Professor Weill's comments, I think historically the pattern we actually see is if the President and the White House -- or the President and the Senate are controlled by the same party, in election year vacancies, you overwhelmingly see that nominee confirmed. If they're controlled by different parties, you overwhelmingly see those nominees not confirmed.
That should be no surprise. That is a natural result of the political process that we have where there's two political elected entities who are making this process. I think that's a feature, not a bug. That shows the system is responding to electoral realities, even if some of us might not be happy with how that plays out in one particular nomination or the other.
But I would be cautious about packing the Court for one party because I think it would simply result in a ratchet effect of a one-way ratchet where each party would then continue packing the Court, and that would do nothing but further politicize the process. The best way to depoliticize it would be to get the judges away from making political decisions themselves and as tight as possible to the actual text of the Constitution.
And I'll hand it over to Nick.
Ilya Shapiro: Noah, go ahead.
Prof. Noah Feldman: Thanks, Ilya. It's a pleasure to be here with all of you, and I really benefitted a lot from listening to the other panelists.
I just want to address three issues, all of which have been touched on. First, the question of term limits; second, what I would call the "incredible shrinking Supreme Court," or the possibility thereof; and, third, the court-packing question.
So let me start with the term limits question. I think it's important to clarify—and I think Carrie alluded to this—what problem we would be solving with a constitutional amendment for term limits. To me, the improvement would be meaningful but mild. And what it would improve is actually something we haven't mentioned, which is the moral repugnance of a world in which people who care about the Supreme Court have to spend our time worrying about the physical well-being, or lack thereof, of our justices.
There is really something -- I think it's not too strong a term to call it morally improper about a world in which people who care about the Constitution, regardless of what political view they might have of it, and who care about the Supreme Court as an institution spend a non-trivial amount of our time speculating about the physical well-being, frailty, physiologically and potentially intellectually, of justices, and in which the justices themselves also are tempted into remaining in office, in some instances longer than they ought to—again, possibly, for reasons of physical infirmity, in other cases, by reasons of their mental deterioration—under circumstances where they really ought not to do it.
That's unfortunate, and I think a term-limit model would do a lot to help us solve this. There would still have to be some tweaking. What it would not solve would be the politicization problem. That would not go away. And as was just mentioned, justices could still selectively retire in order to facilitate selection of a new justice by a President of their preferred party. So I don't think we would have a perfect solution to that problem in this model either. But that said, I think the term limits plan is, for the reasons I mentioned, a desirable one provided the constitutional amendment can be gotten. Whether it can be gotten is a separate issue. I'm skeptical, but I would not be opposed to it.
Second, and this is something we haven't spoken about directly enough, and it's what I call the "incredible shrinking Supreme Court." It is possible now that we are entering a moment where we cannot appoint -- neither party could appoint a Supreme Court nominee and get that person confirmed absent the Senate being controlled by the same party as the President. We don't know this empirically for sure, but the realities of Judge Merrick Garland's nomination and there not being a vote followed by Justice Barrett's confirmation strongly suggest that there is a real possibility that we're entering into a new era in the history of Supreme Court confirmations.
I find it difficult to imagine that if the Republicans controlled the Senate in the next Senate that Joe Biden would be permitted to get any nominee through whom he would be willing to nominate. And I also think that it would go the other way. If Donald Trump had been reelected President and if the Democrats had controlled the Senate, I don't believe that the Democrats in the Senate would have allowed any nominee that President Trump would have been prepared to nominate to be confirmed. So to be clear, I want to avoid the game of whose fault this is and just try to identify the realities that I think we may already have entered. We don't know it for sure, but we may have already entered it.
In that scenario, we could actually have a world where the Supreme Court gets substantially smaller when there is a longish period of time where justices retire or die and where the President and the Senate are not from the same political party. There's nothing in the Constitution that prohibits this.
I suppose the Constitution requires there to be at least one justice of the Supreme Court. There's a quirky question of how many justices must there be under the Constitution. We all know the Constitution doesn't say how many. It does mention, however, a Court and a Chief Justice, so presumably there has to at least be a Chief Justice. But potentially, you could have a Supreme Court that was down to one member. What would happen if you had zero members of the Supreme Court? I don't really know. There would be no justices there to rule, that more justices had to be appointed.
I'm joking about that, but I'm not really joking. I think it may really herald a significant inflection point, one that would be really different than the historical moments when the size of the Court has gone up or down in what may -- Professor Weill characterizes as packing; others might characterize it other ways. But this is a very different sort of a thing. And it creates a kind of winner-take-all structure where the moment the President and the Senate do come from the same party, there will be lots of appointments to fill at least all of the remaining slots and potentially—I'll come to this in just a moment—potentially more slots than that through the phenomenon of court-packing.
So I hope that we'll at least touch on this situation. I will just say, for the record, I don't think this is a good development. For all of the pathologies of our existing system, the depth of polarization that we've reached is, to my mind, disastrous for the legitimacy of the Supreme Court. It has lots of other big political aspects of our polarization that I also think are bad, but with respect to the Supreme Court, this polarization, to my mind, deeply undercuts the legitimacy of the Court, the reason being that it sends a consistent message to the public that all justices are idealogues, that all justices are tools of partisanship.
And that kind of delegitimization is bad no matter what jurisprudential theory you have. It's bad if you have a Federalist Society jurisprudential theory and believe that justices ought to stick closely to the original intent of the Constitution and/or the text of the statute and/or judicial restraint. I know that those three things don't always fit together these days. But it's also bad if you have a view that the Constitution is a living document rather than a dead one and that the justices have the constitutional duty to interpret the Constitution, as Oliver Wendell Holmes, Jr., believed, in such a way as to keep the organism of our republic alive. If you believe that, you also think that it's bad for the Court to be delegitimated.
Okay. Let me turn to court-packing, now. In a way, it's an outgrowth. The probabilities of court-packing are, in part, an outgrowth of this incredible shrinking Supreme Court structure. I loved Professor Weill's paper. I have only one substantive criticism of it, which is that there is a genuine question of whether there can be a, quote, unquote, "constitutional convention" if no one has ever identified, noted, or found that convention before. So there may be a set of practices which we could then characterize as a convention, but it's not quite the same thing as it being a convention.
That said, court-packing de facto functions as a constraint on a Court when there might be a President and Senate of the other party and that Court might be tempted to reach conclusions in cases that would be so unpopular that they would force the other party into court-packing. Joe Biden, we all know, doesn't want to pack the Court. He's effectively said so on multiple occasions. But the Democratic base could force him into it under certain circumstances. That's a de facto reality. Actual court-packing would have devastating effects on the legitimacy of the Court in the long run because it would create a rotating game in which both parties would have the tendency to want to do it.
Last on this, Ilya, and then I'll be quiet, is that the effect might or might not be asymmetric depending on—this goes to Carrie's last point—depending on whether we assessed that one political party was more likely than the other to have both the presidency and both houses of Congress. If we thought that over time one party was much more likely to have that, then court-packing might not be symmetrical. It might be asymmetrical. If we thought, however, that the parties are equally likely to have that control, as has been true in recent years, then the threat would be symmetrical. Either way, it would be devastating to the effect and legitimacy of the Court, and in my mind, that would actually be bad, again, no matter what one's jurisprudence is.
Ilya Shapiro: Thanks very much for that, Noah, and the preceding three panelists, as well. I'm going to give the earlier panelists an opportunity to respond to what they've heard before throwing it open to questions.
I'll just let attendees know that you can press the "Raise Hand" button in your Zoom and I can call on you orally, or you can type your question into chat and I will then try to weave those questions into our discussion.
I'm going to move to Rivka next to respond because she went first, so you can respond to what the others said. But one correction of what Noah said. There is no federal --
Prof. James Lindgren: Ilya, we can't hear you. You've frozen.
Prof. Noah Feldman: The only drawback is that if he's frozen, he may not be able to hear us, either.
If what Ilya was going to say is that there is no official Federalist Society commitment to textualism, originalism, and judicial restraint, I do agree with that. I recognize that the only Federalist commitment is to interpreting the law according to what it -- as it is written rather than what it ought to be. I think to paraphrase, that it's emphatically the province of the judiciary to say what the law is and not what it should be. I think that is part of the official credo of the Federalists. So thank you, Ilya.
Prof. James Lindgren: I should say that one of the things I did many years ago was I actually surveyed Federalist students attending a couple of events of Federalist speakers and then members of the board and founders of The Federalist Society on liberal/conservative issues and found that the board was basically slightly conservative on a liberal/conservative scale while the liberal commentators came out as being quite liberal. And that's just because, I think partly in both cases, because they're elites, and so some of the issues on which conservative elites don't share as many issues with rank and file. But it actually was quite a wide range of views. Some were in favor of affirmative action; some were not. Some were in favor of abortion; some were not. Talking about Federalist Society founders, there really was quite a range.
Ilya Shapiro: Okay. Sorry, I was kicked off briefly. But I was about to turn it over to Rivka to respond to what she had previously heard.
Prof. Rivka Weill: Okay. So this was very interesting. I will start with responding to comments about my thesis. I read the history differently. If we look at the first crisis of transition of power from federalist to anti-federalist, we see that, on the one hand, there was no problem with the appointment of Chief Justice Marshall. It was by a voice vote. It was agreed. It was biparty. It was with bipartisan consent. And on the other hand, the words of Jefferson still echoes that the federalists are trying to put their people into the judicial branch and retire into the judicial branch, and that was unacceptable.
So you see already in the first crisis that there is a distinguishing criteria. Do we agree with the appointment or we do not agree with the appointment? When you look even at the appointments of Washington, you see a very different behavior. If it had bipartisan consent, it went to voice vote. At the same time, the first President, sometimes, they needed to go to a roll call because there wasn’t consent, and you needed to garner bipartisan consent and to show it.
So I see it from the very beginning of the republic, or if you look at the great crisis over the appointment of Peter Daniel in 1841. So the frustration was so big that those against actually boycotted the event in protest, just like the Democrats just did in the judicial committee with regard to the appointment of Barrett, actually protesting, boycotting the fact that you do it at lame duck time.
By the way, American history is such that usually court-packing and midnight appointments go together in condemn. They belong to the same toolkit. The same presidents that engage in midnight actions also engage in some kind of changing the size of the Court. So I read the history differently.
With regard to the divided government situation, actually, the record is a little bit more complicated. When you look at the four votes that were had, the roll call votes -- divided government behave differently in the sense that you don’t have a voice vote. You do have only a roll call. People wanted to see the names of the people voting, but at the same time, in three out of four cases, which is a very substantial number, there was a confirmation.
Now, in the cases that there was no vote at all, the same applied whether it was united or divided, and it had to do with nominations that occurred after June, or mid-June, over presidential election year. So I don’t see a difference in terms of a divided government or united government when we’re talking about Supreme Court appointments.
And just to remind you, Kennedy was appointed -- Justice Kennedy was appointed during Reagan’s time and when the control over the Senate was in the hands of the Democrats, and he was voted unanimously just most recently. And so, again, this is not the issue.
Regarding the other issues that came up, the fact that we are concerned about maybe a shrinking Supreme Court, that suggests that we cannot ignore the fact that there is a major legitimacy crisis over the U.S. Supreme Court. We cannot not identify what are the causes for the legitimacy crisis. And I suggest that the crisis is as a result of the fact that there was an abuse of their appointed power, and people should get together on a bipartisan level and offer a solution.
So maybe the court-packing should not totally address the mischief, but partly address the mischief, but in a way that is acceptable to both sides. But we should, at least, identify what went on. Why are facing the situation we are currently facing? So I will stop with that.
Prof. James Lindgren: Okay. So I disagree, and part of it is empirical. And unfortunately, because we don’t have slides, I can’t show you the slides here. I want to say one thing. I wasn’t sure whether I caught it right, what Noah was saying about something, that there would still be strategic retirement, and you may not have said that. I just want to be clear. If someone has an 18-year term limit, if justices within an 18 years decide that they want to retire, the President can only fill the rest of that slot, so there’s no advantage to early retirement to select.
Another issue is Steve Calabresi has actually proposed that you require that the slots be filled, which would require a constitutional amendment, obviously. But basically, what it would say is that if you have unfilled slots after a certain number of months, you don’t get paid, and then after another period of time, there’s no other business that can be in order in the Senate if you haven’t filled the slot. That would solve the problem. I don’t know if it’s a good idea or not.
But, on the empirical issue, part of the problem is that people talking about election year are not distinguishing between the January appointments and the later appointments. The January appointments are treated somewhat differently. But February to October of election year, when you have a hostile or opposing party Senate -- there have been seven instances, including Garland. Six of them were unsuccessful, and all six of them did not get an up or down vote.
So if Garland was treated the same as people generally are in that situation, no different -- there’s no up or down vote in most. But then for the same party Senate—the people nominated between February and October—eight of the ten times, that nomination has been successful. And then inauguration used to be after -- it used to be on March 4. There’s a number of appointments that are done after the election until inauguration—and it hasn’t been done this century or even last century—but seven out of eight of those, when you have the same party, are put through.
So I guess what I would say is that I think the Senate should have voted on Garland. I think they should’ve done their job and filled the slot, but they treated him just the same as they treated mostly everyone else in this situation. As for Barrett, the only real big differences in the Senate treatment, at least, was that she was voted before the election. There’s never been a person voted to the Court that close to an election. But the typical thing would be to be voted after the election. And that seems to me to be more outrageous than making the decision and subjecting it.
Ilya Shapiro: Okay. We’re going to turn to audience questions now. I will just note one thing. Rivka, you mentioned the bipartisan consensus in presidential election years. Your paper stands for what it stands for, but I’ll just note that in presidential election years to vacancies arising during those years—so Kennedy doesn’t count because that was the Bork vacancy that arose the year before—but arising presidential election years when it’s united government, we have 18 of 20 were confirmed and divided 2 of 10.
Now, the last time we had divided before Garland when there was a confirmation was 1888. It just doesn’t happen that much. But I’m not sure how much of a bipartisan consensus there is in presidential election years or more broadly.
But let’s go to audience questions. Ilya Somin. I see Ilya Somin there.
Prof. Ilya Somin: Okay. Can you hear me? I think my question would actually enable Rivka to answer the other Ilya as well if she so wishes. So I have a quick question for Rivka and a possible quick question for Jim.
The quick question for Rivka is, simply, let’s assume that your historical analysis of the norm is correct. Still, how would you avoid this issue of the spiral that others have raised that if the Democrats act as you suggest when they get the chance and Republicans respond in kind? Maybe the answer is the Republicans will read your article, and agree with it, and say, “Yes, she’s right. We’re just getting what we deserve.” But I suspect the Republicans won’t feel that way, not because of any problem in your article, necessarily, because that’s just the way that partisan politics is.
My question for the group about term limits is, what about the possibility, as a lot of scientists think life expectancy will continue to increase, people might be able to routinely live to 100, or 110, or even longer, and therefore a justice who was appointed at the age of 50 might serve for 50 or 60 years? I wonder if that possibility strengthens the case for some sort of term limits in that we might have justices appointed 50, 60 years ago still on the Court.
So those are the two things, and perhaps if the other Ilya agrees, we can go to Rivka first so she can answer my point but also answer his point if that’s what she wants to do.
Ilya Shapiro: Yeah. Sure. Go, please.
Prof. Rivka Weill: Thank you. Ilya, first of all, Ilya Somin, it’s great to hear you, and thank you for inviting me to this panel. It’s a pleasure. I want to address first the numbers. So I’ve looked at 42 nominations since the beginning of the Republic. Every nomination that occurred within the calendar year of the presidential election, all the appointment was done within 12 months of the President taking office.
Now, in the case of Kennedy, the appointment was done within 12 months of the President taking office. It was done in February. And the reason why I’m looking both at the nomination and the appointment is that in order to have an appointment, you need the final act. So we need to look at both of them together. So I try to give a definition that is expansive yet that is not too bold. And that’s why Kennedy definitely is within that game.
Now, my numbers are different. That’s why I would be happy, Jim, to see later your numbers, but my numbers as far as the 42 nominations that do not include ballot goals, the only people who did not get a vote, up and down vote, were people nominated on June 15 or later within the presidential election year and before elections.
Now, I agree with you that after elections is a different game than before election, but only in the sense that the picture is clearer. Nonetheless, also after election, you need bipartisan consent, and if you don’t have bipartisan consent, you wait for the incoming Senate. Now, bipartisan consent from my perspective is that you have at least some senators from the opposite party that agree to the confirmation.
Now, in terms of the spiral, the question of Ilya, the tit for tat, how doesn't it get out of control? First of all, the proposal is very different than other proposals so far in the sense that it is principled, in the sense that it doesn’t try to change an ideology. I would argue the same thing if the Democrats would’ve behaved the same way in the last four years. And I think that everyone, regardless of a partisan position, should agree that we need to bring back a bipartisanship to the process of appointment.
Now, what happens in the years before the last year of the presidential election year is that you don’t transfer the appointment power, but if you behave the way that the Republicans behaved in the last year with regard to Merrick Garland, you actually transfer the appointed power to the next President. This is what’s so problematic here.
Now, I don’t think it should get out of hand because I’m not trying to affect ideology of the court, and I’m hopeful that maybe there can be some kind of a bipartisan agreement in the sense that how many justices do we add. Do we fully counter the mischief, or do we partially counter the mischief, and then from then on establish again bipartisan norms? This is something you can play with. So I stop here.
Ilya Shapiro: Great. Let’s --
Prof. James Lindgren: -- Very briefly, so just the ones where there’s an opposing senate: Walworth, twice; King, once; Spencer, once; Bradford, once; and then Thornberry and Fortas were all not after June and did not have a vote up or down.
Prof. Rivka Weill: Okay. My numbers are different, but we can continue afterwards.
Ilya Shapiro: Yes. We’ll try to post relevant materials on the website for this event afterwards. And for that matter, my statistical appendix to my book—again, supremedisorder.com—we’ll try to put that there, which doesn’t have any interpretive analysis in that, but you can just go through every nomination, the dates, and whether the Senate’s controlled by the opposite party and all of that.
Okay. Let’s go to a question from the President of The Federalist Society, Gene Meyer. Gene, go ahead.
Eugene Meyer: Yeah. Thanks. I wanted to ask -- by the way, I would say on the partisanship, we used to see these "Impeach Earl Warren" signs all over the place, so there’s definitely been partisanship before directed at the Court at a fairly high level.
First of all, I wanted to ask Professor Feldman a question. Also, I will point out, he has quite an interesting podcast. One part of it, he did a whole series of podcasts on The Federalist Society, which I agreed with a lot of. Some things I might have questions about, but I thought it was very well done and appreciated that.
But I wanted to take issue with the question of, well, nobody’s going to be confirmed in the Supreme Court and nobody's going to be confirmed in the Biden Administration. And obviously, time will tell on that. But it seems to me that all of this on both parties should head toward some degree of compromise. I agree on the one hand, the President’s got to appoint somebody he’s willing to appoint and wants to appoint.
But presidents can be greatly affected by, “Well, I don’t have majority of the Senate. I can’t get maybe the person I’d most like, but I can get somebody who I will be pretty satisfied with. I’ll talk with the leaders and the other party, and we’ll work something out.” And that’s how a lot of this was worked in the past, and I think it’s an illusion to think that just because we’ve had such hyper-partisanship recently that there’s not going to be a lot of pressure to do exactly that and avoid a situation where you have eight, or seven, or six justices on the Court.
Prof. Noah Feldman: Gene, thanks for the kind words about the podcast. I really appreciate it, and I would actually love to hear, offline, some of your questions or criticisms. I’d be very open to that.
My response to your question is, as my beloved grandmother, bless her memory, used to say, “From your mouth to God’s ear.” I would love it if it would turn out to be that way. I would just say I think that Merrick Garland was probably the most moderate justice that Barack Obama would’ve been prepared to nominate. And nobody really publicly attacked him as being too progressive, or too liberal, or having the wrong kind of jurisprudence.
And I would just, to say again, let’s imagine the shoe was on the other foot. Imagine that the Republicans had won the presidency, and Donald Trump was still going to be President, and that the Democrats had won the Senate. I think that I can say with a fair degree of confidence that the Democrats would not have approved any Donald Trump nominee, pretty much no matter who it was.
So I very much hope that turns out to be true. I also agree that it wouldn’t have to be a permanent equilibrium. It could just be temporary. And you might imagine -- and I think you’re also right from a game theoretic perspective. Rationally, a President who really wants someone at some point might be able to find common ground with senators who also really want somebody.
But under highly polarized political conditions, their calculus shifts. And a President who is worried that he will be perceived as too soft by his own base and senators who think that they would frustrate their own base, you have a very much reduced interest in getting nominations through. And that’s going to be especially true in a moment when the Court has a strong majority of conservatives, as indeed it does now. It would also be true, reciprocally, if there were a strong majority of liberals, which hasn’t been the case since the Warren Court. So I hope you’re right, but I worry that it may not be that way.
Ilya Shapiro: Great. Carrie had a follow-up on this.
Carrie Severino: Yeah. It may be just another – reasons beyond just your grandmother’s prayers that it might be right. I think in several situations, we’ve seen that the political check, I think, actually can function on these things. That is effectively the check that our Constitution leads us on a lot of these issues.
I think the political check even functioned in the case of the Garland nomination when McConnell said, “We’re not going to have a vote on him.” There was a political opportunity. If the American people felt like that was beyond the payout, that was just, "We can’t go there," you would’ve seen a very different result in 2016. And so I think that is the political check functioning.
I think if you had had a Senate that said, “You know what? We’re just not going to confirm any nominee of this President we’re opposed to,” you might see the American people saying, “You know what? That’s too far.” I think you probably would at a certain point. I could imagine some degree of your shrinking Court hypothesis, but I believe that once you got -- you would never get to zero. At a certain point, the American people are going to say, “You know what? This is too much. This is beyond the pale.”
I think we see this already. You saw that in the contrast between the Kavanaugh confirmation and the Barrett confirmation. In some ways, a lot of people were saying, “This should be more intense.” I expected replacing Ginsburg with a Trump nominee would be an even more intense confirmation process. What we saw for a lot of different reasons, but I think in part because of the proximity to the election and the American people watching, was a less intense confirmation process, despite the fact that it was a dramatic change and shift on the Court and that it was done in a relatively short period of time because the Democrats perceived that the Kavanaugh nomination, the intensity with which that was prosecuted, went very badly for them.
So to the extent that the American people say, “We don’t want politicization,” -- and maybe we can all agree the American people are comfortable with a lot more politicization than we might want to see, perhaps. But I think you would see that. I think we’re seeing the same thing on court-packing right now. The idea of court-packing is certainly very popular among the extreme branches of the Democratic party. But after the election, it was forecasted to be a blue wave. And then many moderate Democrats felt like some of the extreme policies like court-packing didn’t play well for them in the election. I think that, more than anything else, is the reason.
Obviously, if they’re unable to do it because they don’t control the Senate, that’s the number one reason you won’t have court-packing. But if our politicians view that court-packing itself is going to be viewed as more extreme by the American people, that’s what’s going to be the check on it. So I think the American people’s view of all of these prospects is what’s going to form an additional check that maybe will not let it all run down as dramatically as we might fear.
Ilya Shapiro: All right. Let’s go to a question from Will Stark. Go ahead, Will.
Will Stark: Thank you. I haven’t heard a lot about the anti-democratic Senate, essentially, consent to the govern, yada, yada. We live in a democratic republic, and we have to remain tethered both to the democratic and the republic part, and it seems we’ve come unmoored from the democratic part. Coastal elites --
Ilya Shapiro: Will? I guess we’ve lost Will, but I’ll --
Will Stark: -- in the northeastern states. Meanwhile, you’ve got senators from Wyoming and Idaho and these extractive states, low population, or the southern states, Mississippi, Alabama, that spent most of the 20th century rebelling against civil rights, controlling who sits on the Supreme Court. And it seems that degree of anti-democratic control is bound to break at some point. And I think I’ve found universal assessment by the panel that court-packing wouldn’t necessarily be a bad thing, but wouldn’t it just be a return, a rebalancing of the democratic versus the republic?
Ilya Shapiro: Great. Thanks, Will. And I think Rivka is actually for expanding in the Court and court-packing. In fact, her article is called “Court-packing as an Antidote.” But does anyone want to address this small state issue and senatorial representation as it relates to the legitimacy of Supreme Court structure?
Prof. Rivka Weill: Ilya, I want to weigh in on something else if I can.
Ilya Shapiro: Sure.
Prof. Rivka Weill: I want to clarify what’s wrong with the Merrick Garland situation. I would have no problem if the -- the problem with the behavior of the Senate with regard to Merrick Garland is the following one: that there was no vote, so there was no accountability. Now, if the vote was a rejection, it would’ve been a different conversation. So I’m not saying that there were no rejections in a presidential election year. There were rejections. So the problem is the fact that it was not even on the floor for a vote.
And we don’t really know if there was a reason why it wasn’t brought to the floor. We don’t really know how the senators would’ve voted on the merits of Merrick Garland. And there was a reason why Mitch McConnell did not want to bring it to a vote, and that’s all I’m saying. I’m not saying there was no rejection. And the man saying that we have heard that there were no votes actually before mid-June, I have actually numbers for them in my charts in my article.
Ilya Shapiro: We’ll post that as well. Noah, you had a brief response to that as well.
Prof. Noah Feldman: Just in response to Will’s point, and always appropriate at a Federalist Society event, to mention Madison’s view. Madison was strongly opposed to the small state equal representation in the Senate, and he left the 1787 Philadelphia Convention, at which he had gotten much of what he wanted. He was, after all, the principle draftsman of the Constitution. He left depressed over this issue. It was forced on him by the small state walkout.
And although now we may see that as a crucial feature of our constitutional structure, Madison’s objection to it was that it was undemocratic. Now, he was from a big state, so it’s maybe not so surprising that he felt that way, but that it was he thought. In contrast, I think the Supreme Court, when created at the founding, was not clearly understood to be an institution that would have the kind of power that it eventually assumed through the overturning of federal legislation. And so this is a complex issue.
But it was certainly not -- I think everyone who studies the issue from an originalist perspective would agree that it wasn’t certain that the Court would grow to the power that it did eventually grow to. And some would think it was actually counter-indicated by the framers, but there’s sort of a difference there. And to my mind, this shows you that the Constitution, as it has evolved, has different features than it had at the structural level from the way it looked right at the moment of drafting or the moment of ratification. To me, that’s okay. To others, that may be a problem.
Ilya Shapiro: Right. And, of course, the small state issue isn’t just about so-called red states. For every Wyoming, there’s a Rhode Island. For every Mississippi, there’s a Hawaii, etc.
Prof. Noah Feldman: Or a Delaware.
Ilya Shapiro: Or a Delaware. Yeah, yeah. Well, anyway, our panelists are not angels, so we can’t get to all of your questions or answer them perfectly, but nevertheless, we’ll now move onto Katie Exum. And please be concise with your question as we run towards the end of our program.
Katie Exum: Yes, I will. Can you hear me?
Ilya Shapiro: Yes. Please, go ahead.
Katie Exum: Great. I just have a quick question. I noticed a few days ago that dictionary.com changed the definition of court-packing, and I wanted to follow up with that because during the vice-presidential debate, you heard them refer to court-packing as the nominations of the federal judges, not necessarily the Supreme Court justice level.
And I wanted some clarification because general population of Americans may not really understand court-packing. And when it’s referred to as filling open seat judges—not necessarily Supreme Court level, but the federal judiciary system—I think that’s a little concerning for me, especially. I live in the State of Alabama, so that’s very concerning for our general population because they didn’t understand that.
Ilya Shapiro: All right. Thanks, Katie. Who wants to take just the basic definitions, which we should’ve started with, of what is court-packing? Anyone? I’ll go to Carrie.
Carrie Severino: I’m happy to jump in there. Obviously, deciding what we’re talking about -- I think most the people on this panel are talking about the same thing, but when you talk about it publicly, it’s being moved around. Historically, when we talk about court-packing, we’re talking about things like Franklin Delano Roosevelt was most famous for, which is changing the size of the Court to add seats to the court.
It’s something that is certainly within the statutory authority of President and Congress to do. It’s not constitutionally defined as a certain number. We’ve had varying numbers of justices over the history of America. But the idea that he was doing it with the goal of adding like-minded members to the Court, outweighing a Court that was opposed to him and his political agenda, that’s what earned it the term court-packing. At the time when he was trying to do it, it was very unpopular, even with his own democratically controlled Senate. And so the question then is, is that something we should employ today?
Others have tried to use a more broad term in saying, well, filling seats in an aggressive way or in a way that they don’t like qualifies as a court-packing. We can debate the merits of whether we want to fill those seats, whether we wanted to fill the Scalia vacancy, whether Garland should’ve filled it, whether Gorsuch should’ve filled it. But I think that’s a different issue than packing the courts in the FDR sense, so just to clarify that distinction.
Ilya Shapiro: Great. And Jim wanted a short sur-reply on this as well.
Prof. James Lindgren: Well, actually, I just wanted to suggest the data shows -- the Gallup polling that was done shows that court-packing was popular with the general public and only became unpopular after it was defeated. It was extremely popular at the time, and if it hadn’t been such a despicable abuse of political power, the Democratic Senate wouldn’t have opposed, and also the American Bar Association opposed.
Ilya Shapiro: Okay. I hadn’t come across that because, of course, after Roosevelt had been, in a landslide, reelected in 1936 -- this was when he won all but two states, the “As goes Maine, so goes Vermont” election. Two years later at the midterms, the Democrats lost 80 seats in the House and 8 in the Senate, which is attributed to the failed court-packing. How do you read that, Jim?
Prof. James Lindgren: The research was done by Greg—I can’t think of his name—a major political scientist at Ohio State, and he shows that it was only unpopular after it was defeated. And the Gallup polls in that era were really quite good. They were getting over a 90 percent response rate. Even though they were doing quota sampling, they still were pretty high quality.
Ilya Shapiro: That’s because they weren’t doing polling over the internet, and people were responding on their smart phones, right? Anyway.
Prof. James Lindgren: Yeah.
Ilya Shapiro: Okay. Let’s move to our next question from Tom Palmer.
Prof. James Lindgren: I’m sorry. I remembered his name: Greg Caldeira.
Ilya Shapiro: All right, all right. We can try to put that in the meeting notes as well if you send that paper to us. All right, Tom Palmer.
Tom Palmer: Yeah. I just wondered if you'd turn the chat on so we can send a comment or question by that way.
Ilya Shapiro: Oh, I’m sorry. I thought the chat was on already for attendees. Yes. You’re supposed to be able to submit your questions via chat. So tech folks, if that is at this stage, without blowing up all our computers, possible? We are enabling that now. Thank you, Tom, for that. Let’s move then to Gabe Roth, who I believe is Gabe Roth from Fix the Courts.
Gabe Roth: Yes. Thanks, Ilya, and thanks to all the panelists for being here. [Foreign language 73:48], Professor Weill. My question is about the Supreme Court Term Limits and Regular Appointments Act. It is the first time in American history that a bill was introduced that would impose prospective 18-year term limits on future Supreme Court justices.
And when we were having this conversation on Capitol Hill -- the bill was initially drafted actually back in the summer of 2019 when I was speaking with Republicans and Democrats about the bill. Obviously, constitutionality was a big question that we had, whether or not we could impose term limits on future justices via legislation. So I guess my question to you is if you don’t see the bill as constitutional, how could such a bill, if it passed, be challenged in federal court, i.e. who would have standing and how would you see such litigation proceeding?
Ilya Shapiro: Great. Thanks for that. Jim, I think that’s more directly to you.
Prof. James Lindgren: I actually don’t know enough about standing to be able to answer the question, and maybe Noah or someone else would be better on that aspect. I did want to address one issue that’s related to it. There’s an assumption this would be hard to get through the states, and I think that’s wrong. It’s hard to get through Congress.
But getting a constitutional amendment, it’d be easier to get through the states. You just give it as anti-Washington, anti-entrenchment thing, and it would go through quite quickly. Congress doesn’t want to do it because they’re afraid of term limits for Congress. So that’s the real sticky part.
Ilya Shapiro: Before I go to Noah on the technicalities of how such a lawsuit would work, just expanding on the Lindgren-Calabresi paper, they conclude that it has to be a constitutional amendment because the type of legislation that’s being proposed now, that Gabe referred to, would change the status of the office to which the judges or justices are confirmed, thereby violating the constitutional provision that they serve during good behavior. Making them senior justices is not good enough. But, Noah, I’ll let you speak in a second. And also, what about the possibility of if it’s politically unpalatable in Congress, pairing it with a constitutional amendment to keep the Supreme Court at nine justices?
Prof. Noah Feldman: That second one is more of a political consideration. Just to answer the standing issue briefly, the usual way that you challenge the constitutionality of an appointment is if you have business before the person who has been appointed. And I think in principle, there’s no reason that couldn’t work as well for someone who had litigation in front of a court where the litigant asserted that the judge was appointed unconstitutionally or illegitimately. So I think that’s probably the easiest way to get standing in a situation like that. There might be other tricks too, but that would be, I think, the least controversial.
Ilya Shapiro: Okay. Let’s see. We have a question in the chat from Tom Palmer, who previously wanted to use the chat. Okay, fine. "Given the history of the Court and who historically has pushed court-packing, I wondered if any of you could comment on this broad point of view question. If we’re trying to keep politics out, shouldn’t we acknowledge that progressives are more political than originalists? People have voted for more conservative presidents, and they are the ones who ultimately create the Court." Who wants to address that kind of political question? Okay, I'll -- Noah, again. There you go. Good.
Prof. Noah Feldman: Now, I will just say briefly, it’s interesting that you raised this. The question sounds like it’s coming from a conservative perspective, but I’ve actually heard people on the left say something similar, namely—or analogous, at least—namely that the Supreme Court on the whole, over the last century since the end of the so-called Lochner era, has been better for progressives than it has been for conservatives. And so de-legitimating the Supreme Court through court-packing would actually be a bad thing for progressives.
I think it’s very much in the eye of the beholder of which is quote, unquote, “more political,” and certainly there is a view that each side is political. This is itself a contested question, so I don’t want to solve that problem. But I do think that it’s interesting that people on both sides of this issue are trying to figure out who would win if there were court-packing. Would it be better for progressives or would it be better for conservatives? Right now, given the current configuration of the Court, any talk of court-packing would be better for progressives than it would be for conservatives. That’s not necessarily always true, though, seen in the longer historical view.
Ilya Shapiro: All right. Well, Meyer Kovach has raised his hand. And by the way, I should note that those who are calling in, if you press *9, I will see a raised hand from the phone callers and can call on you that way. But Meyer has both raised his hand and he’s typed into the chat, so I will recognize Meyer to the extent that you ask the actual question that you chatted.
Meyer Kovach: Thank you very much. I appreciate everyone for participating. And Professor Feldman, I love your book The Scorpion, so please -- the question’s based on that, so you can read it from there.
Ilya Shapiro: Oh, you want me to read it?
Meyer Kovach: If you want.
Ilya Shapiro: Okay. "As we know, some of the most progressive Supreme Court justices, Warren, Stevens, Souter, etc., were nominated by Republicans, so why can’t we just sit tight and let things play out as they are? And, relatedly, do you see a way that one or two of the current justices could pull a modern-day Owen Roberts 'switch in time to save nine'?" Now, there’s some dispute about whether Roberts did that out of political pressure just because he was changing his jurisprudence and whatnot. But, anyway, Noah.
Prof. Noah Feldman: Yeah. I actually think this is a very insightful point, this question. I think Justice Gorsuch’s votes last summer, in both the Title VII case and in the Creek Nation case, came as surprises to many Court observers, myself included, and suggest the complexity of presuming that we know exactly how a justice will come down on various questions by virtue of the party of appointment. I think lots remains to be seen.
And with respect to the second point, if there were the kind of pressure on the Court in the presence of a Democratic House and Senate and President, I do think that would probably have some effect on at least some of the current justices. There’s little point in engaging in a game-changing conservative decision if you think that the direct consequence of that will be the packing of the Court and the reversal of that decision by a new liberal majority. So all the justices try to act in good conscience, but they also all have some room for the exercise of prudence in relationship to their conscience. So that’s my answer.
Ilya Shapiro: Carrie, you wanted to say something on this?
Carrie Severino: Yeah. Notwithstanding Ilya’s, I think, correct judgment, it seems that now that we see some of the internal back and forth in some of these cases, maybe Roberts didn’t, in fact, switch in time intentionally to save nine. He may have actually voted to switch on those cases before the court-packing issue was brought up.
But I do have a real concern that some of the discussion of court-packing is less about actually packing the Court but about influencing the Court to do that kind of a switch in time. It’s really is a method of intimidation of the Court. If you look, for example, at the amicus brief that Senators Whitehouse and several other colleagues submitted in the New York Rifle and Pistol case last year where they as much as said, “If the Court doesn’t rule the way we want in this case,” which in that case was to declare the case moot, “we may be forced to take proposals for Court reform.” I think everyone pretty clearly read that as a veiled reference to packing the Court.
And people, particularly because of the perception that Chief Justice Roberts is very sensitive to issues of the legitimacy of the Court, the institution of the Court, I think have targeted him in particular as someone to make these threats that, as we’ve discussed several times, a lot of people on this call, maybe even everyone, agrees that there would be some negative consequences to court-packing, whether it’s necessary or not, in Professor Weill’s case. But this could be something that could cause damage to the institution, and yet they’re willing to do it effectively as a threat to encourage justices to change their vote.
I think that is a real concern to see this being held out as an intimidation tactic. And to the extent that justices are changing their votes, not because they think there’s a legal conclusion that is warranted or mandated by the language they’re interpreting, but because they are concerned about other political effects of their decision, that, to me, would be a clear violation of their oath to uphold the Constitution. That would be an abdication of their judicial role and, in fact, flies in the face of the whole purpose of creating a Court that has life tenure, that is independent of the other branches because our founders were trying to avoid the ability for other branches to intimidate the Court. So I think that’s something we should be very concerned about, seeing that kind of rhetoric.
Ilya Shapiro: Great. And, Rivka, you had something.
Prof. Rivka Weill: Yeah. So I agree with Carrie that one should not threaten the Court in order to wage particular decisions. I think this goes against independence of the judiciary. This is dangerous. So I would caution against any kind of court-packing as an argument in order to influence particular decisions. And in this sense, I’m different again from the proposal of FDR in the 1930s. At the same time, I think that we need to realize that the way we appoint justices to the Supreme Court is connected to the electoral cycle, is connected to a democratic rationale.
And then one has to ask oneself a real question. Can you live with the way that appointments were made over the last few years? And what I’ve suggested is that there is a problem with two of the appointments. So in that sense, anyone who thinks that there is a problem with the current composition as a result of an abuse of that, the appointed power would want redress for such an abuse.
Now, there was a question in the chat on how many justices are we talking about? And yeah, I think we can see a compromise because, on the hand, one can think about two justices because of the problem with Merrick Garland not getting a vote and with Barrett being appointed as elections were underway. Now, if it’s two justices, then you don’t get a Democratic majority and it’s still Republican majority. Nonetheless, it’s a very different composition of the Court in terms that Democrats may be able to live with.
A more drastic measure would be four justices to the U.S. Supreme Court because assuming that Merrick Garland would’ve been confirmed if he got the vote, and assuming that Barrett should not have been appointed, then in order to have a Democratic majority, you would need four justices. Now, I think that would be a much more radical proposal and would definitely not garner bipartisan consent, I assume. So if the Democrats and the Republicans can reach some kind of an agreement on enlargement of the Court in a way that restores eventually bipartisan norms, I think that would be important.
Ilya Shapiro: Well, Bernie Sanders, during the primary, said that when he asked about court-packing, he said, “Well, if we add two, and then they’ll add two, and in 50 --” —I’m not going to do the accent—but he said, “In 50 years, we’re going to have 87 justices. That’s ridiculous,” so perhaps the only thing I agree with Bernie Sanders on. But that would be an interesting debate to have between Bernie and Rivka, I guess. But, Jim, we have just a few minutes. Jim, you had something on this.
Prof. James Lindgren: No.
Ilya Shapiro: No. Okay. Okay. Well, the last question -- well, the last question with his hand up in the Zoom is Joshua Freundel. So let’s take that question, and then we’ll wrap up.
Joshua Freundel: Hi. Thank you to all the speakers. I was just curious -- and maybe this is a good wrap-up question. Everyone has discussed substantive changes that may help to decrease the political heat, term limits, issues with court-packing. I was wondering if there was anything procedural that might help as well. And so I think the easiest one that come to mind for me was raising the threshold for confirming a justice to a supermajority, and if that would help bring it back to center, or if that might lead to even worse, or Professor Feldman’s Court shrinking phenomena.
Ilya Shapiro: Sure. And I’ll add into that. So changing the Senate rules to require certain kinds of procedures, or a hearing within a certain number of days after nomination, and a vote after a certain number of days, these sorts of questions, or just have counsel questioning rather than senators—I don't know—all these sorts of process confirmation process reforms. Who would like to speak on that? Noah, go ahead.
Prof. Noah Feldman: Just very briefly, that that in principle would drive the Court to the center. That kind of supermajority requirement would mean fewer people who were deeply ideologically committed on either side. So if you like that, then it’s good. If you don’t like that, that would be bad.
Ilya Shapiro: Carrie, go ahead.
Carrie Severino: Yeah. I’ll just say I would be concerned, though, that you would have fewer confirmations. This is why I was happy to get rid of the filibuster because it puts us back in a situation which is more like historically where most nominees are confirmed as a matter of course, and except for the extreme nominees, you don’t have people who are not getting confirmed.
I’ll say one thing that might be -- I don't know how much it will smooth the process, but it’s almost gotten to the point where the judicial hearing itself is become so much kabuki theatre that we could probably do away with that and just stop wasting everyone’s time and C-SPAN’s dollars of broadcasting them. I don’t know if it’s going to help depoliticize, but at least it doesn’t seem to be functioning very well anymore.
Ilya Shapiro: It doesn’t seem to be functioning very well. That’s a good last note to end on. I think we’re at the end of our time. The materials, as we promised, are going to -- or I think already are posted on the event website. You might have to refresh your browser. There are a lot of questions that we couldn’t get to on a whole host of issues. I cover some of them, a lot of them, in my book Supreme Disorder. Other writings that you will come across -- the Lindgren-Calabresi term limits article addresses a lot of the mechanics and nuts and bolts of how this would work. That article in the Harvard Journal Law and Public Policy is in our materials as well.
Anyway, I would like to thank The Federalist Society, and especially the Federalism & Separation of Powers Practice Group, for organizing this wonderful event. Hopefully, this does indeed parallel some of the discussion that will be had if President-elect Biden appoints this bipartisan commission. Hopefully, there are some transition team members watching this or that will get this to discuss it.
And I think with that, we are adjourned. Thanks very much for this large group of intelligent attendees.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.