House Judiciary Hearing on Court Packing Threatening the Supreme Court's Legitimacy - 05/21/26

[5:33] The subcommittee will come to order. Without objection, the chair is authorized to declare [7:27] recess at any time. We welcome everyone here today on today's hearing on court packing. [7:34] Without objection, Mr. Schmidt will be able to participate in today's hearings for the purpose [7:41] of questioning the witness if a member yields him time for that purpose. I'll now recognize [7:47] myself for an opening statement. Although the title today is Packing of the Supreme Court, [7:55] it is more than that. This committee, the subcommittee's primary goal, is to empower the Supreme Court [8:04] to do its job while retaining its independence. That often means that we're being asked to [8:11] consider pay, benefits, budget. And in fact, as there is a need to lobby from this body [8:20] to the court, we do so with the recognition that the United States Supreme Court, unlike [8:25] any other court in history, is in fact a court of independent decision. The Supreme Court has [8:33] that critical constitutional responsibility. Unlike branches one and two, which move back [8:42] and forth with the will of the people, the Constitution itself created a court empowered to act as [8:49] a check against the other branches, as a check against the branches that reflect the current [8:56] will of the people. Throughout our history, the United States Supreme Court has been at its best [9:04] when it told the reflection of the will of the people of the moment that they could not do what [9:10] they wanted to do. It is likely been at its worst when it succumbed to the fever of the crowd or the [9:18] feeling of the moment. Whether that is Dred Scott, as may be brought up today, or in fact, questions of [9:29] locking up Americans in concentration camps during World War II, we have had a long history of being [9:36] proud of the court the vast majority of the time. That doesn't change the fact that the court must reflect [9:43] that which the American people can, in fact, live with. No question at all that the court moves at a slow [9:51] pace as the American people come along, sometimes behind them. The court has delivered wins and losses [10:00] for both political parties, not just throughout history, but throughout the last nearly two years. [10:06] The court at our founding was different than it is today, only in one major sense. It was viewed as [10:17] the second court, meaning the U.S. Supreme Court justices rode circuit. The U.S. Supreme Court justices [10:25] were effectively the appellate court, in addition to being the single Supreme Court. [10:32] As our country grew, that changed. Whether or not the American people anticipated in the Constitution [10:44] the fact that the population would go from single-digit millions to 350 million and likely to [10:53] double again in the next century, they did create the ability under the Constitution for the High Court [11:00] to remain supreme while lower courts have been created by this very committee. [11:08] Democrat leaders have threatened specific justices by name, slandered family members and justices [11:15] called for all manner of laws explicit to undermine the court's power under the Constitution. [11:23] I have not been the greatest student of history, but I strongly suspect there were times when the other [11:31] party did so. Whether that party was the Republican Party or the Whigs, politicians have been unhappy with [11:39] the court for the court doing its job in a professional matter. The witness that our Democrat minority has [11:49] chosen to invite today to this very hearing demonstrates my point. Many of the writings of Professor Bui [11:58] are clearly anticipates the view of the Democrat Party, that which tends to be more populous, [12:04] more the will of the moment, the more will of the people, that in fact democratizing the Supreme Court [12:12] has been well written by our witness. I take no exception to his words. These are his words, his studies, [12:20] and he is well written. The question is today, in this hearing and beyond, will the United States Congress [12:30] side with the idea that we should be more democratic in our third branch, or that our third branch should [12:37] remain more independent, less if not completely outside the will of the people's will at the moment, [12:45] as reflected through either direct will of Americans or through their elected representatives in both [12:53] Article I and Article II. It appears the Democrats believe the Supreme Court should be prohibited from [13:01] second-guessing any federal laws unless the court is unanimous, allowing any single justice [13:08] no matter how radical to veto the entire court. I find that interesting, and I reject it in every possible way. [13:20] Democrats believe Congress should decide when the Supreme Court meets, delay when it hears arguments, [13:27] force justices to resume the pre-Civil War practice of riding circuit, and acting as district judges. [13:35] Democrats seem to believe that they should [13:38] regulate what anyone can ask any court to do, blocking Americans from seeking relief from Supreme [13:47] Court for unconstitutional laws. It appears Democrats believe the court should be packed with more [13:55] justices who share their views. If written testimony of these views on behalf of the Democratic colleagues [14:10] are aren't enough for the committee, Professor Bowie has written extensively in support of anti-Supreme [14:17] Court views. I now ask unanimous consent to enter into the record many of these articles. I will not [14:26] go through them one by one, but I will make sure they're available to all the members. These are in fact the [14:32] writings of Professor Bowie, who I have in fact given a brief synopsis of, and without objection so ordered. [14:43] In contrast, Republicans understand that even the court rules against us, that is its constitutional work. [14:52] We can revise laws and even amend the Constitution if we want to. As I told to some of the individuals [14:59] in the audience today, we have one of our original constitutional amendments still before the American [15:07] people. If the American people so chose through its states, they could choose to go from the House [15:15] of Representatives having 435 members determined by the body itself, or we could have over 6,000 members [15:24] if we simply enacted one of the original constitutional amendments, the 12th of the 12 original. That would [15:31] in fact cap at 60,000 the number of people each member on the dais could represent. At the time of our [15:39] founding, it seemed like a good idea to at least some of our founders. If anyone on the dais here today [15:46] thinks that a baseball park filled with House members pushing their thumbs up and down would give us more [15:54] democracy, or if any of the witnesses think that it is more than just a relic of the past, I ask them [16:02] all to please consider opining on it during the hearing. And with that, I'd like to recognize the [16:07] ranking member of the subcommittee, Mr. Johnson, for his opening statement. Thank you, Mr. Chairman, [16:15] and thank you, witnesses, for your appearance today. Last summer, Kash Patel took a taxpayer-funded [16:23] snorkel tour of Pearl Harbor, one of our nation's most hollowed grounds, while the cost of living for [16:32] Americans skyrocketed. The Trump administration just created a taxpayer-funded 1.8 billion dollar [16:43] relief fund for January 6th insurrectionists and others in exchange for dropping a 10 billion dollar [16:57] lawsuit, a personal lawsuit that he filed against the IRS, which he controls. And he's doing this [17:08] while millions of Americans are losing their health insurance. President Trump is blocking clean energy [17:16] projects for his fossil fuel campaign donors, while the rest of us pay and pay and pay at the pump, [17:25] more and more every day. What do these facts have to do with this hearing? On its face, the daily [17:33] demonstrations of incompetence and corruption of the Trump administration have little to do with the [17:39] Supreme Court. But if you look closer, these stories mirror the far right and how far the far right has [17:51] created a corrupt United States Supreme Court that too often works for the corporations, the billionaires, [18:01] and the oligarchs at the expense of the American people. For decades, MAGA Republicans have [18:08] systematically chipped away at the impartiality of our third branch. They have already delegitimized [18:18] our judiciary, yet they now stand before the American people pretending to be guardians of judicial [18:26] integrity. Today's blatant attempt to rewrite history would be laughable if the consequences were [18:34] not so dangerous for our democracy. But history matters. The American people deserve to understand [18:45] how we got to this moment. And to understand how we got here, we must follow both the money and the [18:53] machinery behind the modern conservative legal movement. The Roberts Court is the culmination of a plot that [19:03] began 50 years ago in the early 70s. Soon to be Justice Powell wrote, quote, the judiciary may be the most [19:15] important instrument for social, economic and political change, in quote. And he said that to reassert corporate [19:22] power over the needs of the individual. This Powell memo set off a decades long crusade by Republicans to [19:33] concentrate power in the hands of the few at the expense of the many. Wealthy donors and corporate [19:42] interests spent billions of dollars to reshape the judiciary in their image. Nowhere is the success of [19:52] this decades long effort more visible than at the United States Supreme Court, where a carefully appointed [20:02] conservative super majority, a MAGA super majority now delivers the MAGA conservative outcomes this moment, [20:12] this movement spent billions of dollars to achieve and achieve they did. In the last several years, [20:21] the Roberts Court opened the floodgates to unlimited dark money in our political system, empowering billionaires [20:30] and oligarchs like Elon Musk, the Koch brothers, Leonard Leo, Harlan Crow, and other powerful special [20:41] interests to reshape the court and drown out the voices of ordinary Americans. This court has decimated [20:51] reproductive freedoms that generations of women fought to secure, stripping away rights that millions of [21:00] Americans relied on for nearly half a century. It has granted Trump vast immunity, placing him virtually above [21:12] the law. And now the court has put the nail in the coffin of the Voting Rights Act, dismantling protections [21:24] that generations of Americans fought, marched, and died for. Abraham Lincoln once said, [21:35] this government cannot endure half slave and half free. Yet, that seems to be the vision for America that [21:44] Chief Justice Roberts and the conservative super majority on the Supreme Court envision. Where some enjoy [21:53] easy access to the ballot, others are forced to overcome legal barriers designed to make our voices quieter. [22:02] Our nation is now in Jim Crow 2.0. We are a nation where the right to vote once again can be diluted, [22:13] restricted, or simply ignored, and where the voices of rich and powerful people carry more weight than the [22:23] voices of ordinary Americans, but particularly Americans who look like me. Our 250-year experiment in [22:34] self-governance can only succeed if Americans decide that the clock has run out on the far right's attempt to [22:43] overturn our democracy. So we can either sit back as our Supreme Court continues to act without any restraint or [22:52] checks and balances, or we can do something about it. The American people deserve accountability for the damage [23:01] that has been done. The American people deserve a judiciary that serves our democracy, not a narrow ideological [23:12] agenda that only benefits the rich and powerful. So I want to thank the witnesses again for being here. I'm [23:20] looking forward to a discussion about how to ensure that our democracy serves everyone, all of us, not just the [23:27] wealthy and the well-connected few. And with that, I yield back. [23:32] The gentleman yields back. We now recognize the chairman of the full committee, Mr. Jordan, [23:37] for his opening statement. Thank you, Mr. Chairman. Thank you, Mr. Chairman. I want to tell you, Gorsuch, [23:42] I want to tell you, Kavanaugh, you've released the whirlwind and you will pay the price. You won't know [23:48] what hit you if you go forward with these awful decisions. Chuck Schumer, March 4th, 2020. Highest-ranking [23:58] Democrat in our government, threatening a separate and equal branch of government. And if you doubt [24:04] it's a threat, just remember where he made that statement on the steps of the Supreme Court. And that [24:11] threat began the six year assault on the court by the Democrats started with that threat. Then you had [24:18] Senator Markey say the court's illegitimate. Well, how is that? Every every justice I know in the court was [24:25] actually confirmed by the United States Senate. That's how our constitution works. How could it be [24:29] illegitimate? But Senator Markey thought it was. Then we went to something that's never happened. [24:37] The Democrats leaked the Dobbs opinion in 2022. You talk about trying to undermine a separate and [24:43] equal branch of government, start leaking the opinions. That's what they did, which resulted in [24:47] protest at justices homes, which, by the way, the Justice Department at the time under the Biden [24:54] administration and Attorney General Garland refused to enforce the law. 18 USC 1507 says you can't [25:00] protest in a judge's home. And they refused to enforce the law, which of course led to some crazy [25:08] guy going to Justice Kavanaugh's house with the designed to kill justice of the Supreme Court. [25:16] Then, of course, we had all the hearings by the Democrats when they were in charge, [25:19] attacking Justice Thomas, attacking Justice Alito. We had a hearing where a guy come in and lied about [25:25] Justice Alito and said he leaked some document, which is it. Go back and watch the hearing. [25:30] Definitely a lie by this guy. And why do they do it? Why do they do it? To concoct some basis [25:39] for packing the court. And now they're saying it again. Time to pack the court. By the way, [25:44] by the way, why do they want four justices, four new justices on the court? Why not one? Why not two? [25:50] Why not three? Why not five? Why do they want four? Because it's a 6-3 majority for conservatives, [25:56] a 6-3 majority for people who actually interpret what the Constitution, the law says versus [26:00] making it up as you go and making some new policy. They want four because they want a 7-6 majority. [26:06] Plain and simple, raw political power. And they've been willing to do almost anything, [26:12] threaten the Supreme Court on the steps of the Supreme Court, leak opinions, bring witnesses in [26:18] who lie about justices. That's why this hearing is important. And frankly, I hope we move the [26:23] constitutional amendment on the floor. I hope there's a vote. And we'll see if these guys want to keep the [26:28] court at 9, which it should be. It's been there for, what, 160 years or something? [26:36] This whole car bill is talking about it. Former Vice President Harris is talking about it. They're [26:42] all talking about it. The ranking member is talking about it. We got to pack the court. [26:46] Why? Why? Because they don't like the decisions that this good court is giving this country. So thank [26:53] the chairman for this hearing. Thank our witnesses for being here. I look forward to hearing your [26:56] testimony. And I yield back. The gentleman yields back. We now recognize the ranking member of the full [27:00] committee for his opening statement. Thank you very much, Mr. Chairman. And I suppose the court [27:09] packing like justice itself lies in the eye of the beholder. But there are many different kinds of [27:15] court packing. Here's one. When Justice Scalia died in February of 2016, when Barack Obama was president, [27:23] Senator Mitch McConnell announced 10 and a half months before the presidential election that the [27:29] Senate would not be considering any replacement. The Judiciary Committee would not have any hearing. [27:33] There'd be no vote in committee and there'd be no vote on the floor. When people asked why, [27:39] that makes no sense to hold the Supreme Court seat open to hold that vacancy open for nearly a year. [27:47] He said it was too close to the next presidential election and the people should decide. Of course, [27:53] the people had decided in electing Barack Obama to one of those genuine bona fide four year terms in [27:59] office like every other president. Well, we've got a controlled experiment about what would happen [28:05] because that was held open. Merrick Garland was nominated by Barack Obama and was left twisting in [28:12] the wind for nearly 11 months after the death of Justice Scalia. Then Trump, when he got in, [28:20] was able to nominate Neil Gorsuch to the seat in his first week in office. And that seat was open for 422 [28:32] days. And Mitch McConnell bragged about it, calling it the most consequential decision of his entire [28:37] public career. And of course, it cemented the rapid movement of the Supreme Court to the right to [28:45] incarnate the mega agenda on the Supreme Court. Well, look, here's what happened when Ruth Bader [28:52] Ginsburg died. Now, she died on September 18th, 2020, so close to the next election, which was less [28:59] than two months away, that early voting had started in a lot of the states. So it wasn't even two months [29:05] away. And then the Democrats asked Mitch McConnell, some reporters asked Mitch McConnell, well, of course, [29:12] you're not going to have hearings or vote or anything in the next few weeks, are you? And he [29:16] laughed it off. He laughed off the suggestion that they would maintain the same rule that they had [29:22] used to block Merrick Garland and President Obama from having a seat. And then they ran through the [29:30] nomination of Amy Coney Barrett within two months, consolidating the right wing, anti choice, [29:37] anti environmental regulation, anti labor, anti voting rights, anti democracy, majority on the Supreme [29:43] Court had the original McConnell rule been applied or even a reasonable approach taken with just a few [29:52] weeks before the election. That's that Supreme Court seat would have been filled by President Biden, [29:57] not by Donald Trump. Biden won that election, by the way, by more than seven million votes. If you're [30:03] interested in what the people want, 306 to 232 in Electoral College. I know some people came down to [30:09] overthrow the election, attack our police officers in order to accomplish a political coup to deny that. [30:16] But that's what happened. So right there, we've got two seats officially stolen by Mitch McConnell and [30:23] the Republican Senate, giving them a 63 mega court with a majority of the court now made up of nominees [30:30] of presidents who lost the popular votes, lost the popular vote, Roberts and Alito, Gorsuch, Kavanaugh [30:37] and Amy Coney Barrett, all nominated the court by justices, by presidents who lost the popular vote. [30:45] Now, if you don't believe that this Supreme Court has received, has conceived and achieved a remarkable [30:55] transformation in constitutional jurisprudence, ethics and behavior on everything from abortion, [31:02] to voting rights, to political corruption cases, then you don't have to believe me or you don't [31:07] have to believe your own eyes. Just listen to Donald Trump, who openly says it's really okay for them [31:13] to be loyal to the person that appointed them to almost the highest position in the land, [31:18] the justice of the U.S. Supreme Court. He berates and vilifies justices and judges up and down the [31:24] federal system who disagree with him or who he feels have been insufficiently robotic in their loyalty [31:31] to the mega agenda. It's true. He doesn't want a justice loyal to the people, as the good chairman [31:37] of the subcommittee says, or the Constitution. He wants a Supreme Court loyal to him and whatever is [31:42] going to advance his interests, his money, his family, his corporations. He's got a Supreme Court majority [31:49] so robotically loyal that they will pluck a doctrine out of thin air, nothing to do with originalism, [31:55] nothing to do with textualism, out of thin air to insulate the president from liability for felony [32:01] crimes committed in office. We went for more than two centuries without any president ever claiming [32:08] the right to commit crimes under his office and not to be prosecuted for it. But here we are [32:14] today. The Supreme Court, we must acknowledge, has been a profoundly conservative reactionary institution [32:22] for the vast majority of our history. And what did the Supreme Court ever do for enslaved people [32:27] between the founding of the Civil War? Nothing other than in 1857 and the Dred Scott decision cement [32:33] their subjugation into place, saying that the African slave and his descendants have no rights. A white man [32:40] is bound to respect in any way. And then even after the Civil War, after the passage of the 13th, 14th, [32:46] and 15th Amendments drawn from the blood, sweat, and tears of the Union and the people who fought to defend [32:53] our country against the Confederacy, the Supreme Court gutted the meaning of the Reconstruction [32:58] Amendments in the Civil Rights cases. And then in 1896, in Plessy versus Ferguson, constitutionalized [33:05] the reign of Jim Crow, separate but equal. So we have a couple decades around the Warren Court, [33:11] maybe the first few years of the Burger Court, where the Supreme Court acted on the side of the people. [33:17] Brown versus Board of Education, striking down American apartheid, the white primary line of cases, [33:24] Terry versus Ohio, Roe versus Wade. But it didn't last long before it all sank away with [33:32] the Rehnquist Court and the Roberts Court. And now they've returned to the historic baseline of [33:37] political white supremacy. They wiped out our Voting Rights Act, first in Shelby County [33:42] versus Holder in 2013, and a couple months ago in the Calais decision. And we are about to see, [33:49] they're not going to be able to accomplish it all in 2026, but by 2028, we will probably see [33:54] all white congressional delegations from the Deep South, wherever the Republicans control the state [34:00] legislatures. Okay, that is court packing. That's political packing by a packed Supreme Court. The [34:06] court today has a legitimacy crisis, not just because of the way it's been composed and stacked [34:12] and packed and gerrymandered and divided by Mitch McConnell, who laughs about it. He thinks it's funny [34:19] what they did. Why do some people want 13 circuits, Mr. Chairman, very 13 members of the court? You don't [34:27] need a conspiracy theory for that. There are 13 federal circuits in America. And traditionally, [34:32] the Supreme Court has been made up of the number of justices equal to the number of circuits. And we [34:38] got 13 circuits, but we only have nine justices. So that means that under the best of circumstances, [34:44] four entire federal regions, four federal circuits will be left out completely. And it's much worse [34:50] than that today, because we've got five justices from New York City alone, one for each borough. But [34:56] you're telling a majority of the people who live in a majority of the states that they can't find anybody [35:02] qualified to serve on the Supreme Court. So that's the answer to that particular question. But we've [35:09] got a complete structural, ethical, jurisprudential crisis in the Supreme Court, whose name is in the [35:15] gutter because of these terrible decisions that they keep issuing, like the overthrow of Roe versus Wade, [35:23] Planned Parenthood versus Casey, the complete construction out of thin air of immunity of [35:32] precedents to commit felony crimes while in office, and so on. And I hope that this court will do its [35:40] best to try to behave like a Supreme Court. But there are things that we can do. And I introduced one [35:46] bill yesterday called the SCOTUS Act and the SCOTUS Act is creating a new way for cert to be granted [35:55] because this Supreme Court is obviously acting like a legislature. I mean, they set up an agenda [36:01] where they want this case about the Voting Rights Act. They want to destroy it. Oh, now it's time for us [36:06] to overthrow abortion rights. We're going to take that case. All right. A lot of countries don't leave the [36:12] agenda setting authority to the court itself. And certainly we should not leave it in the hands [36:18] of this Supreme Court. It belongs with the 13 federal circuits. We should have a panel made up [36:24] of the chief judge of each federal circuit or their designee if they want another judge to do it. And [36:29] they should decide when there is a meaningful circuit split or a federal question that should go up to the [36:34] Supreme Court. This court obviously cannot be trusted with that agenda setting authority. Let's begin [36:41] to create a real Supreme Court in the country by moving in this direction. And I thank you, [36:47] Mr. Chairman. I yield back to you. I thank the distinguished member from Maryland. Your length [36:54] of time as a professor shows in the history dating back to 1929 when the Tenth Circuit was created. [37:02] Can I just ask one question as a point of inquiry? Are you saying that the circuits should push [37:09] involuntarily to the high court the cases they should take? [37:15] No, not involuntarily. We should set up a new system where cert is granted by a cert panel that's [37:23] made up of 13 judges, the lead judges of each federal circuit in the country. And those would be the cases [37:29] that go to the court instead of the court determining like a legislature what bills it wants to bring up in [37:35] order to overthrow this or that particular policy or law they don't like. [37:39] Interesting. I look forward to seeing your bill for that. [37:42] We'll get it to you. We'll get your copyright. [37:44] I thank the gentleman. Without objection, all other statements will be included in the record. [37:52] We'd now like to introduce our panel. Mr. Lewis Capozzi is the Solicitor General of Missouri. [37:59] He previously worked in private practice at Jones Day, growing up in Cleveland. That's a household word, [38:06] I appreciate. And has served as an adjunct professor at the University of Pennsylvania, [38:12] Cary Law School. He clerked for Justice Neil Gorsuch, Judge Wilkinson and Judge Wilkinson on the [38:21] Fourth Circuit Court of Appeals, Judge Anthony Scalia on the Third Circuit Court of Appeals. Thank you and [38:30] welcome. Professor William Ross. Mr. Ross is the Albert P. Brewer Professor of Law and Ethics at [38:39] Stanford University Cumberland School of Law. Professor Ross teaches courses on professional [38:45] responsibility, civil procedure, constitutional law, and American legal history. Mr. Gene Schauer is a [38:55] partner at his own firm of Shara Jaffe LLP, where his practice focuses on civil appellate matters. He [39:05] has argued seven cases before the U.S. Supreme Court and previously was chair of the U.S. Supreme Court [39:12] and Appellate Practice Group at Winston and Strong. He is a constituent of our ranking member in Maryland, [39:22] and perhaps will be able to answer the ranking member's questions in full. Professor Nicholas Bui. [39:32] Mr. Bui is the Louis D. Brandeis Professor of Law at Harvard University. Professor Bui teaches courses [39:41] on federal constitutional law, state constitutional law, and local government law. We welcome our [39:48] witnesses here today. And as is the rule of the committee, I would ask all our witnesses to rise [39:54] to take the oath and raise their right hand. Do all of you solemnly swear or affirm under penalty of [40:02] perjury that the testimony you're about to give will be true and correct to the best of your knowledge, [40:08] information, and belief? So help you God. Let the witness or let the record reflect that all witnesses [40:15] answered in the affirmative. You may be seated. I know all of you are learned and have certainly [40:25] watched us on C-SPAN intently in the years leading up to this, but I have to say for the record that [40:31] your entire statements will be placed in the record and that what you say in your opening statement [40:38] preferably will be abbreviated portions of it or extemporaneous, but most importantly your entire [40:46] written statement will be placed in the record. So the five minutes in an opening statement can be [40:52] either similar or dissimilar at your choice. But we do ask you to stay as close as you can to those [40:59] those little timers that tell you your time is coming close to an end and then eventually that it has [41:04] ended. With that, I'd ask Mr. Capozzi to begin. Okay, now this is a major test. Even members of Congress [41:20] get it wrong. So we will test each of you for your ability to get the mic on and then back off again. [41:27] This is your second chance, sir. Chairman Issa, Ranking Member Johnson, Chairman Jordan, [41:33] Ranking Member Raskin, thank you for the opportunity to testify today. I'll do my best to turn the mic on [41:40] for the rest of the hearing. The framers of the Constitution guaranteed the Supreme Court's independence [41:46] because they understood that independent courts are essential to the rule of law. [41:51] The Supreme Court's insulation from partisan politics preserves its ability to adjudicate [41:57] disputes on what the law requires, not the fleeting goals of political actors. [42:03] Nevertheless, at various points in our history, partisans have proposed reforms that would [42:09] undermine the Supreme Court's independence, with court packing being the obvious example. [42:15] Today, I urge Congress to reject proposals to interfere with the court's independence. [42:19] I'd like to start by emphasizing what is at stake. The Supreme Court, as with all courts, relies on [42:26] respect for its judgments. This critical respect did not arise automatically. As Justice Breyer has [42:33] explained, during the 19th century, an independent judiciary was more an aspiration than a reality. [42:40] As an illustration, Justice Breyer pointed to President Andrew Jackson's infamous refusal [42:46] to respect the Supreme Court's decision in Worcester v. Georgia, which led to the removal of the Cherokee [42:51] from their native homeland. Fortunately, by the 20th century, respect for the Supreme Court became [42:58] firmly entrenched. Thus, despite Southern efforts to resist desegregation, state officials eventually [43:04] followed the court's orders to do so. Today, we take it for granted that government officials will [43:10] follow the Supreme Court's orders. But that could change if politicians interfere with the Supreme [43:15] Court's independence. That is why I am alarmed by the current trend of attacking the Supreme Court's [43:20] legitimacy. But even on their own terms, the trending criticisms of the Supreme Court make little sense. [43:28] First, critics frequently claim that the Supreme Court consistently rules in favor of President Trump [43:33] and Republicans. But this is not true. During his first term, the Supreme Court ruled against President [43:40] Trump in several crucial cases, including on rescinding DACA, adding a citizenship question to the 2020 [43:47] census, and allowing subpoenas of the president's personal financial records. The Supreme Court has also [43:53] not hesitated to rule against President Trump early in his second term. For example, the court struck down [43:59] the president's tariffs, prevented him from deploying the National Guard in major cities, and barred the [44:05] removal of Lisa Cook from the Federal Reserve. Another common attack on the Supreme Court's legitimacy [44:11] is that it has been more willing to overrule precedent than in the past. A quick look at history refutes [44:17] this proposition. During the 1930s and 1940s, the Supreme Court revolutionized constitutional law [44:24] and allowed for the massive growth of the federal government. The Warren Court also regularly overed [44:30] precedent and dramatically overhauled many areas of the law. For example, in Reynolds v. Sims, [44:36] the Supreme Court restructured state legislatures across the country, finding the state's equivalence [44:42] of the U.S. Senate unconstitutional. Compared to its predecessors, the current Supreme Court [44:48] overrules precedent at a slower pace. Indeed, the Supreme Court has conspicuously declined to overrule [44:55] precedent in several recent important cases, including Fulton v. City of Philadelphia. [45:00] But at the same time, the Supreme Court can and should overrule precedent when it believes a past [45:07] decision was wrong, with Brown v. Board of Education being an obvious example. The Supreme Court continues [45:14] to strike a balance between preserving precedent and correcting its mistakes, just as it has always done. [45:21] As Solicitor General of Missouri and a recent Supreme Court clerk, I can attest that the Supreme Court is [45:27] working exactly as it should be. The Supreme Court derives its legitimacy from the fact that it is not [45:33] a partisan institution. No political group gets everything it wants there. Disagreeing with the court's [45:39] decisions is no excuse to threaten judicial independence, a cornerstone of our republic that took centuries to [45:47] build. I urge Congress to continue its tradition of respecting the Supreme Court's independence. [45:53] Thank you again for your invitation to be here today. I look forward to your questions. [45:57] Thank you, sir. We now recognize Professor Ross. Okay, you get two chances, too. [46:09] Yeah. Don't feel bad. Like I say, we've had senators not be able to get it right, sir. [46:14] So, Chairman Issa, Ranking Member Johnson, Chairman Jordan, and Ranking Member Raskin, [46:24] and distinguished members. Thank you very much for inviting me to testify here today. I'm here to [46:30] testify in opposition to proposals to expand the number of United States Supreme Court justices [46:36] and to provide historical perspectives about so-called court packing. Increasing the court sides [46:43] for political reasons could diminish judicial independence and interfere with separation of powers [46:50] because it would permit the president and the Senate to manipulate the outcome of judicial decisions [46:55] by appointing additional justices who would be expected to conform to the political predilections [47:01] of the president and his or her party. Moreover, the prospect of court packing could intimidate [47:08] justices and influence the court's decisions. The court's independence from political pressure [47:13] and intimidation has helped to ensure its ability to protect the civil liberties of Americans [47:20] in countless cases involving racial, religious, political, and ethnic minorities whose rights [47:27] were ignored or impugned by Congress, the president, and state governments. Similarly, [47:34] the court generally has protected the liberties of speech, press, religion, and assembly more faithfully [47:42] than have the president, the Congress, or the three branches of state government. A politically motivated [47:48] increase in the number of justices could also erode public respect for the court since it would [47:54] exacerbate the growing tendency of Americans to believe that the court's decisions are guided by [48:00] political prejudices rather than by constitutional principles. Advocates of court packing claim that the [48:08] appointment of additional justices, presumably by a Democratic president, would restore balance to a [48:14] court court that the conservatives have allegedly hijacked. But how and where would court packing [48:19] end once it began? Court packing is a game that both parties can play. If a Democratic president could [48:27] obtain a liberal majority on the court by appointing additional justices, a subsequent Republican president [48:34] could restore a conservative majority by appointing still more justices. It is therefore clear that both [48:40] parties and both conservatives and liberals should have compelling reasons to fear and oppose court packing. [48:49] Tampering with the size of the court also is ill-advised because a nine-member court is deeply rooted in [48:54] tradition and is based on practical considerations. Supreme Court justices and legal scholars have tended to agree [49:02] that nine is the ideal size for the court since that's large enough to distribute the court's heavy workload [49:08] and provide a range of viewpoints but small enough to promote collegiality and efficient deliberation. [49:15] Increasing the court size could impair the court's ability to function effectively. In particular, [49:20] an increase in justices would provide individual members with less time and opportunity to ask [49:27] questions during oral arguments and to participate in the court's conferences. It could also dilute the [49:33] clarity and force of the court's opinions by increasing the number of concurring opinions. [49:39] As Chief Justice Charles Evans Hughes explained in opposing Franklin Roosevelt's ill-fated court packing [49:44] plan in 1937, quote, there would be more judges to hear, more judges to confer, more judges to discuss, [49:53] more judges to be convinced and to decide. The present number of justices is large enough so far as the [49:59] prompt, adequate and efficient conduct of the workers concerned, close quote. Although advocates of [50:06] court packing contend that the court's new conservative majority should not frustrate the [50:10] programs of the other two branches of government, it is the very role of the court to filter political [50:15] agendas through a constitutional lens. Tethering the court to the president and congress contravenes the [50:22] fundamental concept of separation of powers. The court often has fulfilled its most important function [50:29] when it has overturned unconstitutional legislation. Although proponents of court packing also argue [50:35] that the present court is out of step with public opinion, the court throughout its history has broadly [50:40] remained within the general parameters of public opinion, even during periods when it has had a [50:45] distinctly liberal or conservative tinge. Justices are keenly aware that, as Alexander Hamilton wrote in [50:52] the Federalist, the court has neither the power of the purse nor the power of the sword, and that its [50:57] decisions are ultimately dependent upon the goodwill of the coordinate branches of government and the [51:04] American people. Since court packing proposals jeopardize the court's integrity and independence, [51:09] it is my hope and expectation that Americans today will reject such interference with the court, [51:15] just as they did in 1937. Thank you. Thank you, Professor. Mr. Scherer. Good morning. Chairman Issa, [51:26] Ranking Member Johnson, Chairman Jordan, Ranking Member Raskin, and distinguished members of the subcommittee, [51:33] thank you for this opportunity to address recent proposals for packing the U.S. Supreme Court, which is [51:39] an issue of enormous importance to all who care about the rule of law, as I know each of you does. [51:44] In 1983, a well-known Democratic politician, Senator Joe Biden, pointedly referred to Franklin [51:54] Roosevelt's 1937 attempt at packing the Supreme Court as, quote, a terrible mistake and a boneheaded idea. [52:03] So let me offer five reasons why that remains true today, in addition to those that have been mentioned [52:08] by my esteemed colleagues here on the panel. First, the current court-packing [52:14] proposals are really based on an incorrect factual premise, namely that the Roberts Court is [52:20] relentlessly partisan and consistently reaches conservative outcomes. Now, we've heard already [52:26] today about a handful of decisions that people on the left don't like. We've heard about Citizens United, [52:36] which recognize First Amendment limitations on the government's ability to curb or regulate political [52:41] speech. People on the left are also concerned about Dobbs, which we've heard about, and the recent [52:48] Supreme Court decision in Louisiana versus Calais, which some people claim gutted the Voting Rights Act. [52:55] But in fact, and I'll come back to those specific examples in a minute, but in fact, the Roberts Court, [53:00] often joined by some of President Trump's nominees, has also ruled against what most people view as [53:06] Republican or conservative interest in several hotly contested cases. Mr. Capozzi mentioned the recent [53:13] tariff decision. Another example of that phenomenon is the Obergefell decision from a few years ago, [53:20] which ruled that states are constitutionally forbidden from limiting the definition of marriage [53:26] to man-woman unions. And then there was the Bostock decision, which extended Title VII's protections [53:32] against non-discrimination to gay and lesbian and transgender people. And don't forget the Supreme Court's [53:38] earlier decision in NFIB versus Sibelius, which upheld the individual mandate that was the heart of Obamacare. [53:46] Each of those decisions was excoriated by folks on the right, and they were, as a political matter and a policy matter, [53:56] they were big wins for progressives. And so the claim that the Roberts Court is somehow in the pocket of [54:04] conservatives or Republicans just doesn't withstand analysis of the facts. Second, current proposals [54:16] rest on an unrealistic predictive judgment about new justices voting powers or voting likely voting [54:24] patterns. In Roe versus Wade, for example, the key votes supporting abortion rights came from justices [54:29] appointed by the conservative President Nixon, while one of the most vocal dissents in Roe versus [54:35] Wade came from Justice Byron White, who had been appointed by President Kennedy. And we've all seen [54:41] examples of where Supreme Court justices vote against the wishes of the president who appointed them. [54:48] And so even adding four more justices to the Supreme Court is by no means any guarantee that [54:53] the court would shift more towards progressive priorities. Third, as has been mentioned, [55:03] court packing proposals really ignore the incentives of the other side once they regain power. [55:11] If Democrats have a trifecta in the next election and are able to expand the Supreme Court to 13, [55:18] does anybody think that Republicans are going to stand still for that and not do the same thing the [55:23] next time there's a Republican trifecta? And before long, the only venue in Washington DC that'll be large [55:30] enough to accommodate the Supreme Court's conferences, their private conferences, will be the new White [55:36] House ballroom. And I don't think that's in anybody's interest. You're assuming that there will be one. [55:44] I'm assuming that. I'm not advocating for it, but I'm assuming it. Number four, court packing proposals [55:51] distract from the more important work of building political and legislative coalitions. [55:58] And I think that's illustrated by some of the recent court decisions that we've discussed today. [56:02] If you look at the Calais decision, for example, that decision was premised on the court's interpretation [56:08] of a federal statute, namely the Voting Rights Act. And the court held that [56:13] that there was a violation of equal protection in that case because the Voting Rights Act did not [56:20] establish that majority-minority districts were required. Well, if Congress goes back and changes [56:25] the Voting Rights Act to do what progressives would like and require majority-minority districts, [56:32] my guess is that that decision would come out very differently. Dobbs is another example. Many [56:38] progressives and even not-so-progressive states have already effectively neutered Dobbs within their [56:44] own state boundaries by passing laws that protect abortion to an equal or greater extent than Roe once [56:50] did. Number five, other panelists have already discussed how court packing would erode public [56:59] trust in the court and ultimately in the entire federal government because the Supreme Court has long [57:05] been viewed correctly as a bit of ballast or a counterweight to the other branches of the government. [57:11] They can correct the mistakes that the other branches occasionally make. I think it's also instructive [57:18] that court packing in other countries has become a favorite tool of tyrannies around the world like [57:24] Robert Mugabe in Zimbabwe, Viktor Orban in Hungary, and Hugo Chavez in Venezuela. And so there are many [57:33] reasons to reject the the current court packing proposals. Thank you. I thank the gentleman. We now go to [57:38] Professor Bowyer for Bowyer Bowie for his. I'm terribly sorry to medulate your name. [57:48] No worries, but thank you Chairman Issa, Ranking Member Johnson, Chairman Jordan, Ranking Member Raskin. [57:54] Thank you for inviting me to testify before the distinguished members of the subcommittee. [57:59] My name is Nicholas Bowie and I am the Louis D Brandeis Professor of Law at Harvard Law School. [58:04] For the past seven years with my colleague, Daphna Renan, I have researched a forthcoming book [58:11] called Supremacy, How Ruled by the Court Replaced Government by the People. The book shows how the [58:17] Supreme Court acquired the power it now wields and what Congress can do about it. We're here to assess [58:24] whether court packing is a threat to the Supreme Court's legitimacy. But we first need to answer a more [58:30] basic question, which is what is the legitimate role for the court to play under our Constitution? [58:38] As Professor Renan and I wrote in our book, this question was a critical one for the people who [58:44] founded the Republican Party. Their mission was to fight the spread of slavery. But in 1857, [58:52] in Dred Scott versus Sanford, the Supreme Court declared that mission unconstitutional for Congress to [58:59] put into practice. That founding generation of Republicans had never before experienced an [59:06] attempt by the Supreme Court to override Congress. They called such an attempt despotic and unwarranted [59:13] by the Constitution. When Abraham Lincoln and other Republicans won in the 1860 elections, [59:19] Congress enacted statutes that rejected Dred Scott and began reconstructing the South into a [59:25] multiracial democracy. That Republican-controlled Congress wanted courts to enforce their laws, [59:33] but they were wary of a second Dred Scott decision. So they changed the court's size, [59:40] they stripped it of jurisdiction to review its most important laws, and they proposed further regulations [59:46] to check and balance the court. They understood that under our Constitution, the legitimate role for the [59:54] court is to enforce federal law against anyone who considers themselves above it, whether that person [1:00:00] is a corporate executive, a state official, or the president. The court's role is not to defy federal law [1:00:08] by placing it itself above you all, our nation's representatives, of we the people to whom the [1:00:15] Constitution gives primary responsibility to determine the Constitution's meaning. The Supreme Court's [1:00:22] assertion of power to defy federal law has a name, judicial supremacy. The founding generation of [1:00:29] Republicans argued that this idea undermines Republican governance, but they failed to bury it, [1:00:37] and it reemerged when the court declared Congress constitutionally incapable of banning lynching, [1:00:43] of banning racial discrimination by businesses, or banning widespread disenfranchisement. In the years [1:00:50] since then, the court has continued to undermine federal voting laws, federal civil rights laws, [1:00:55] and federal laws that prevented the wealthy from dominating our elections and your daily call [1:01:01] time. Judicial supremacy has also unleashed presidential authoritarianism, disabling the laws Congress [1:01:09] enacted to prevent corruption, self-dealing, and attacks on the peaceful transition of power. But like [1:01:17] those early Republicans, we need not accept judicial supremacy any longer. Those Republicans and their [1:01:23] abolitionist allies advocated for an alternative tradition that Professor Renan and I called democratic [1:01:30] constitutionalism. This is the idea that we, the people, have the power to interpret and define the [1:01:37] meaning of the Constitution through the process of federal lawmaking. This was the position of the lawyers [1:01:44] who argued Brown v. Board of Education in the 1950s. They urged the court to stop defying Congress's civil [1:01:51] rights laws and to start enforcing it against discrimination in the South. One law in particular, [1:01:58] the Ku Klux Klan Act of 1871, explicitly directed courts to prevent state officials from violating [1:02:05] anyone's constitutional rights. The court applied that federal law in Brown to end segregation in the [1:02:12] South, and it has applied it in many landmark cases since. Meanwhile, a bipartisan Congress inaugurated a [1:02:19] second Reconstruction with the Voting Rights Act of 1965. That law overrode Supreme Court decisions that [1:02:26] had interpreted the Constitution to be consistent with all of the Jim Crow laws that disabled black people [1:02:31] from voting in the South. You have the power to continue this legacy and replace judicial supremacy [1:02:37] with democratic constitutionalism. The Constitution says nothing about the court's power to defy acts [1:02:42] of Congress, but it explicitly empowers Congress to regulate the court. Your predecessors use that [1:02:49] power to curb the court's defiance of federal statutes and to override harmful constitutional [1:02:54] interpretations. In fact, nearly everything about the court can be regulated by statute, including the [1:03:00] the number of justices, where it sits, and what it has the power to do. If the current majority of [1:03:06] the court is exercising an illegitimate supremacy over federal law, one the Constitution does not grant [1:03:12] and that is being used to make Republican governance unviable, then regulating the court is not just [1:03:18] legitimate, it is your duty. Thank you very much. Thank you. We'll now proceed to the five-minute rule, [1:03:28] but I'll ask unanimous consent at this time to place into the record [1:03:33] the Judges Act H.R. 1702, a bill to expand the district courts over a phased-in period. Additionally, [1:03:45] I'll put in H.R. 3422, the Judiciary Act of 2023 to expand the court, and I'll put in a news story from [1:04:06] 2026, just a few days ago. Democrats renewed call for U.S. Supreme Court overall after the Voting Rights [1:04:15] Act decision. Without objection so ordered, we now proceed to the gentleman from Wisconsin, [1:04:21] Mr. Fitzgerald, for five minutes. Thank you, Chairman. Mr. Ross, [1:04:24] for the first 80 years of our nation's history, the size of the Supreme Court changed with some [1:04:30] regularity. Why was that? Microphone. Microphone. Pardon. The expansion of population, [1:04:41] originally the Justices were chosen largely on geographical grounds, and of course, [1:04:48] the Justices rode circuits. The Justices wore two hats until 1891. They served as Circuit Court [1:04:55] Judges, and they also served as U.S. Supreme Court Justices. In a smaller nation, [1:05:01] there were only four million people in the 1790 census. There was less need for a larger court. As [1:05:07] the country expanded, as the number of circuits expanded, the number increased, but only to nine, [1:05:14] from five to nine, maximum of 10, and then only for six years, from 1863 to 1869, there were 10, [1:05:24] and since 1869, we've had nine. That's a long history, a century and a half, with nine members. [1:05:32] It's worked very well so far, and in my opinion, that ought to be the number. [1:05:37] Well, let me follow up then. So in 1869, when Congress did pass that Judiciary Act, [1:05:44] why did they set it at nine Justices at that point, do you feel? [1:05:48] Well, if the court divided, then that would be five to four. If you have 10, then the courts could be [1:05:54] split. If the court splits, the lower court decision stands. But it's generally better to have a [1:06:01] decisive decision of the court. So nine permits the court to divide one way or the other. [1:06:09] And as Ben alluded to a couple times, when President Roosevelt tried to unsuccessfully [1:06:16] in 1937 to expand the court to 15 justices, was there any sound logic to this expansion that the [1:06:24] president was using or making? Or was it merely an overreaction to a Supreme Court that had [1:06:31] repeatedly struck down the new deal? Historians are unanimous in or virtually unanimous. Historians [1:06:40] are never unanimous in anything, but about as unanimous as they can be that the court packing [1:06:46] plan in 1937 was politically motivated. You know, the Supreme Court had struck down a number of significant [1:06:53] New Deal statutes in the previous two years. And the Social Security Acts and the National Labor [1:06:59] Relations Act were coming up for adjudication before the court. You know, these were the signature [1:07:05] legislation of the New Deal. And Roosevelt was understandably worried that the court would strike [1:07:12] those down. And so his remedy, you know, was to increase, you know, the number of justices to, [1:07:17] you know, pack the court, you know, so that the Social Security Acts, you know, both the old age [1:07:22] pension and the unemployment compensation laws and the National Labor Relations Act, which was hugely [1:07:28] important at a time of industrial unrest, would be secure. And so, you know, Franklin Roosevelt [1:07:35] originally claimed that he was doing this because the Supreme Court was overworked and the justices [1:07:41] were geriatric. You know, there were six of them who were over the age of 70. That's why he chose [1:07:46] six. You know, one new justice for every justice who was over the age of 70. But the older justices were, [1:07:53] for the most part, quite vigorous, including Louis Brandeis. And, you know, Chief Justice Hughes was in, [1:07:59] you know, peak of health, you know, despite his age, over 70. And so it was so disingenuous that, [1:08:07] you know, it was almost laughed at. And so Roosevelt, about a month after he introduced [1:08:13] the plan, admitted that his motives were, frankly, you know, political. Now, by the way, [1:08:19] the then chair of the House Judiciary Committee, Hatton Sumners, a Democrat, opposed Roosevelt's plan [1:08:27] from the very first day. You know, that's why Roosevelt introduced it in the Senate rather than [1:08:31] in the House. Very good. Thank you. So there's already this morning, there's been some attacks [1:08:38] on the Supreme Court by some of my colleagues on the other side over, well, just as former clerk, [1:08:47] as a former clerk, Mr. Capozzi, you state your testimony that if too many come to view the Supreme [1:08:53] Court as a partisan actor, rather than a neutral arbitrator of law, the losing parties will be [1:08:59] tempted to disregard court orders. What would that mean for our government as a whole? I know [1:09:04] that's a big question. It would mean the end of the rule of law, plain and simple. [1:09:09] Do you think that there are certain are there certain parameters to criticizing the court or is [1:09:17] that unacceptable beyond the first amount? I think it's perfectly acceptable to criticize [1:09:23] the Supreme Court. People always have presidents from the beginning of our country have lost major [1:09:28] cases before the Supreme Court. President Jefferson frequently criticized decisions from the Supreme [1:09:34] Court. I think there's a line between criticizing decisions, criticizing their reasoning, and [1:09:41] attacking the legitimacy and the independence of the Supreme Court itself. Very good. I yield back. [1:09:46] The gentleman yields back. We now go to the ranking member of the subcommittee, [1:09:49] the gentleman from Georgia for five minutes. Thank you, Mr. Chairman. Professor Bowie, [1:09:56] the Supreme Court's recent decision in Louisiana versus Calais represents the culmination of a [1:10:02] decades-long campaign led in part by Chief Justice Roberts to dismantle the Voting Rights Act from [1:10:10] Shelby County to Brunovich and now Calais. There has been a systemic and systematic effort to substitute [1:10:19] judicial skepticism for Congress's explicit constitutional authority to protect the right to vote. Professor [1:10:27] Bowie, how does the Calais decision compare to the Supreme Court's treatment of Reconstruction-era [1:10:33] protections in the initial passage of the Voting Rights Act? It's directly related because for the [1:10:43] first century after Congress proposed the 15th Amendment to protect the right of people to vote [1:10:49] and to prohibit states from violating that right on account of race, the Supreme Court interpreted the [1:10:55] 15th Amendment to prohibit only laws that it thought had the intent of discriminating on the basis of race. [1:11:02] And applying that test, the court allowed literacy tests, poll taxes, and all sorts of other state laws [1:11:09] to effectively disenfranchise all black people or nearly all in the South. When Congress passed the [1:11:16] Voting Rights Act in 1965, its goal was to overcome those decisions and instead apply an effects test or [1:11:23] something that said when a state law has the effect of making it more difficult for people of color or [1:11:29] any other group to vote on account of their race, then that is illegal. When the Supreme Court interpreted [1:11:36] that law in the 1980s, it said that actually what Congress did was apply the same sort of intent test. [1:11:43] You have to prove that a state legislature intended to discriminate against black people. And Congress again [1:11:50] said, no, you're getting this wrong. We think the problem is all of these laws that have the effect [1:11:55] of making it more difficult for people to vote. And what happened in the recent decision just a few [1:12:00] weeks ago is the court said, no, we think what we think what Congress actually did is apply the same [1:12:07] test that we've applied for generations that's had the effect of making it far more difficult for people [1:12:12] of color to vote. And we're seeing the consequences right now as every Southern state considers laws to [1:12:18] take away representation in Congress that's currently occupied by black or Hispanic representatives. [1:12:25] Many Americans increasingly view the court as acting less like a neutral judicial body and more like [1:12:32] a political institution advancing a particular ideological agenda. When the court repeatedly invalidates laws [1:12:42] enacted through the democratic process to expand voting rights and representation, [1:12:48] does that contribute to a crisis of legitimacy of the institution itself? [1:12:57] I think it does in the sense that what people expect from the Supreme Court is what Congress has [1:13:03] asked the court to take an oath to do before anyone can become a justice, which is to apply the law [1:13:09] without fear or favor to rich and poor alike. And when people look at the kinds of rulings coming out of the court [1:13:17] that seem to systematically favor one party or the wealthy or corporations or any number of people [1:13:24] on a pretty predictable basis, just knowing kind of what is going on in the case before the court even [1:13:29] issues a decision, I think it does have an effect on what people think the court is in effect doing. [1:13:35] I agree with my colleagues on this panel that to the extent what people think the court is doing [1:13:42] is simply issuing truth social posts, then no one will take it seriously. The court's power comes [1:13:51] from the idea that what the justices are doing is different from what you are all doing as politicians. [1:13:58] But when all of the evidence and all of the public information about the court suggests that actually [1:14:04] the same kinds of policy decisions are happening on the bench that are happening in Congress, [1:14:10] it becomes very difficult to treat the court as a different kind of institution than your esteemed body. [1:14:16] Thank you. If the court continues to narrow Congress's ability to protect voting rights under the [1:14:22] Reconstruction Amendments, what does that mean for the balance of powers as envisioned by our Constitution [1:14:28] and for the future of multiracial democracy in this country? [1:14:34] The Constitution is ours to interpret as Americans. It is a document for all of us and people have [1:14:42] marched and protested and died in order for the Constitution to reflect that we are a democracy, [1:14:48] we should protect the ability of all of us who can vote to do so, and that we should not tolerate [1:14:53] laws that make it more difficult for people for people to access the ballot. When the Supreme Court [1:14:59] interprets the Constitution to say that that kind of rule is not constitutional, [1:15:04] that the 15th Amendment, when it specifically empowers Congress to adopt appropriate legislation, [1:15:09] but that a law as fundamental as the Voting Rights Act is not appropriate, that is a misreading of the [1:15:15] document that we do not have to accept, because if we do, the consequence is going to be the end of [1:15:22] our ability to govern ourselves and the end of our ability to enact voting protections. [1:15:28] Thank you. With that, I yield back. The gentleman yields back. With that, [1:15:31] we recognize the chairman of the full committee, Chairman Jordan. [1:15:34] So their argument is, the court's too political, so let's let the political body add four new seats. [1:15:39] That's one of the dumbest things I've ever heard. But that's the argument the Democrats are making, [1:15:43] their witness just articulated. It makes no sense. That's why we need to keep the court at nine. [1:15:49] I will yield to the former Attorney General from the great state of Kansas. The remainder of my time. [1:15:54] Thank you, Mr. Chairman. I appreciate the chairman and the chairman convening this hearing. I'm sitting here, [1:16:01] listening to this today. I was musing about something I often think about when there's no [1:16:05] point in debating it, and that is what things in Independence Hall would have been like all those [1:16:10] years ago if we had all had cameras and cell phones and social media where every statement [1:16:16] is calibrated for consumption by a particular audience somewhere not in this room. This is one [1:16:22] of those heavy issues that is not solely about the issues of the day. This is one of those questions that [1:16:29] is about professors, to paraphrase the professor, how we choose to govern ourselves. And the discussions [1:16:36] we're having here aren't materially different in nature than the ones they had in Independence Hall [1:16:41] about how you balance out the decision making and who does what. The difference is we have come to focus [1:16:48] on looking at this through a lens of the issues of the day, not a lens of how we should structure our [1:16:54] self-determination. And our history is one that when we have attempted to do that before, when we have [1:17:01] erred in looking at these important structural questions for the issue of the day, we have so far [1:17:06] rejected that notion. I'd like to, on that point, go back to what we've referenced many times but not [1:17:12] talked a lot about today, which is the failed effort to pack the court by expanding its numbers in the [1:17:17] Roosevelt administration in 1937, I believe it was. You know, remember the context of that time. It's [1:17:24] been mentioned by Professor Ross and others about the court overturning a number of modifying and [1:17:30] reversing its view in some cases on the appropriate limitations on the constitutional powers of Congress [1:17:36] to act in the economic space in particular. But remember what was happening politically. Less than a [1:17:41] year before there had been a presidential election in this country and Franklin Roosevelt was reelected. [1:17:46] And these issues were central in that election. I wasn't alive then, but it's a little personal to [1:17:50] me. The Republican nominee for president that year was Alf Landon. He's from my little hometown of about [1:17:55] 9,000 people. He was the only Republican governor reelected in the country in 1934, which is why he became [1:18:00] our nominee in 36. And he lost in a landslide. In fact, he only carried Maine and Vermont, didn't even [1:18:06] carry Kansas. Roosevelt had a mandate, we might say, and yet he overreached. And it took a bipartisan [1:18:15] majority to say, not withstanding that clear message from the people and not withstanding [1:18:20] the power of the presidency, we are going to defend the structure of this democracy and of this court. [1:18:27] And as has been mentioned, the chairman of the House Judiciary Committee at the time, a Democrat, [1:18:31] didn't favor packing the court. And ultimately, when it came to a vote in the Senate, the Democrat-led [1:18:37] Senate Judiciary Committee said they don't favor the packing of the court. And the U.S. Senate, [1:18:44] which was a majority Democrat at the time, voted overwhelming, like it was 70 to something, [1:18:48] not to adopt a court packing plan. So what's happening in this room today and in our politics [1:18:54] today is different. It's different because for some reason we seem incapable of having what I would [1:19:00] believe to be a more reasoned bipartisan or a partisan nonpartisan discussion about how we want [1:19:06] our Supreme Court to function and what its appropriate role is. I won't read all the statements, [1:19:12] they've been entered into the record, but right now at this moment in our history, it is my friends [1:19:17] on the other side who seem intent, because they don't like the direction the court is headed, [1:19:22] to pack it with new members. I suppose those of us on the more conservative side could have made the [1:19:27] same argument for many years after the Roosevelt Courts, because we didn't like a lot of those [1:19:32] decisions. We, for the most part, didn't as vociferously argue about just fundamentally changing the [1:19:37] structure. So I want to return to just a couple of questions here that have been touched on but before. [1:19:42] Can any of you tell me, let me start, Professor Ross, you've addressed this, Mr. Capozzi, [1:19:46] let me ask you, Mr. Scheer, and then Mr. Bowie. Let's assume that a court expansion plan is adopted [1:19:51] in some form. What is the limiting principle that would limit its further expansion in the future if [1:19:58] we succumb again to the political passions of the moment? Mr. Capozzi? I don't think there is any limit. [1:20:05] That's one of the fatal flaws of the proposal, that if one president packed the court, then the next [1:20:11] president could pack the court and, you know, it would just be a never-ending cyclical process and [1:20:15] end up with potentially hundreds of Supreme Court justices. Thank you, Mr. Ross. Mr. Capozzi? [1:20:21] The only limit will be what each side can get away with. Mr. Scheer? Professor, what's the limiting [1:20:28] principle? So the role of the court is an important question, as you've laid out, and the role is not to be [1:20:37] this undemocratic super weapon in the middle of our democracy. The role is not to try to put as many of our... [1:20:44] Is there a limiting principle on if we expand it today because one side's mad, do we expand it [1:20:50] tomorrow because somebody else is? What's the limiting principle? The limiting... putting justices [1:20:55] on the court for their own sake is not a good idea, nor is changing the size of the court simply because [1:21:01] nine is a better number than eight or ten is a better number than nine. Thank you, [1:21:05] Professor. I yield back. I'm out of time. I appreciate that. The gentleman yields back. We now go to the [1:21:10] ranking member of the full committee, the gentleman from Maryland, for his questions. Thank you, Mr. [1:21:14] Chairman, and thank you, Mr. Schmidt, for those thoughtful comments. One of the things you say is [1:21:17] we should be talking about how the Supreme Court should function, and is it consistent with the [1:21:22] Constitution and the rule of law? So let's talk about the the shadow docket and what's actually [1:21:26] going on in the Supreme Court today. When Trump's policies, whether it's an attempt to directly [1:21:32] nullify the first sentence of the 14th Amendment, which establishes birthright citizenship, or his attempt [1:21:38] to usurp the spending powers of Congress, are challenged, he is losing 60 percent of the time [1:21:45] in the district courts. He's lost 57 percent of the time in the federal circuit courts. Then it gets [1:21:52] up to the Supreme Court and its shadow docket, and there he has won 84 percent of the time. So he goes from [1:22:00] losing 40 percent of the time to winning more than 80 percent of the time when it gets up in the Supreme [1:22:06] Court. Now, obviously, we would disagree about substance. Those who want to go with Trump and [1:22:11] say that he can nullify birthright citizenship in the country are just going to disagree about that. [1:22:16] Fine. But what about the shadow docket and how it operates? Nobody's uttered a word about what that [1:22:23] does to undermine the legitimacy of the court. We have 100 page opinions, authoritative, magisterial [1:22:30] opinions being written by district court judges or panels, circuit court judges, that are being [1:22:36] overturned with one sentence or one paragraph in the shadow docket. Is that legitimate or is that [1:22:42] illegitimate? Maybe we can just go down the line. Mr. Sher? In general, it's legitimate. Every appellate [1:22:48] court has the authority to stay a decision of a lower court. Okay. Mr. Ross, do you think it's legitimate, [1:22:54] what's taking place in the shadow docket? I share your concern about the shadow docket. I'm troubled by it, [1:23:01] too, but I don't think that offers any justification. I don't think criticism of the shadow docket [1:23:06] provides any justification. Is it legitimate or illegitimate? I'm just asking whether it's [1:23:09] legitimate or illegitimate. I don't think it's illegitimate. Okay. Mr. Capozzi? It's legitimate. [1:23:15] It's been around for a long time. I mean, you look at the stay of execution. Okay. Going back. [1:23:19] Thank you. And Mr. Bowie, what about you? I don't think it's legitimate in part because of the damage [1:23:25] it's doing to the court's credibility as well as to our country. I mean, we have a court right now that is [1:23:29] issuing decisions without the benefit of argument. I mean, that really is truth social. Meet the [1:23:36] Supreme Court. We'll send you one sentence and overturn an entire analysis. The legitimacy of [1:23:41] the rule of law depends upon the character of the analysis that's given to the legal question. Nobody [1:23:48] has taken me up on my invitation to discuss the legitimacy or the illegitimacy of the court based [1:23:54] on what Senator McConnell did. Is there anybody who would argue that what he did was legitimate in [1:24:02] saying, we will not even have a hearing on President Obama's nominee, Merrick Garland, [1:24:07] and we will not have any votes 11 months before the election, but we will rush through the nominee [1:24:14] to take Justice Ginsburg's seat? Anybody want to argue that that's legitimate? [1:24:20] Well, I'll certainly take you up on the on the first part of that. I mean, when when McConnell did [1:24:25] that, he he announced that he was applying the the preexisting Biden rule, which is that we don't [1:24:30] consider new Supreme Court nominees during an election year. I agree that the Amy Coney Barrett [1:24:36] hearing was an exception to that. But OK, anybody else want to defend the legitimacy of what Senator [1:24:43] McConnell did? And anybody would anybody agree with me that that's a form of court packing, [1:24:48] just as much as the mythical court packing that we're denouncing today, since I'm not aware of any [1:24:53] proposal on the table. I think it's fundamentally different. It plays a role in our separation of [1:24:59] powers. It has to check and balance the president. The people that are in the Senate matter if they [1:25:04] don't want to confirm a justice to the Supreme Court. So if the Senate does it, it's OK. It's just [1:25:08] you don't want a president nominating. But of course, if a president nominated under new law, [1:25:13] then that would be legitimate, wouldn't it? I think it's a different thing when the Senate [1:25:17] plays. It's constitutional. You know how many times we've changed the number of people in the Supreme [1:25:21] Court? It's been almost 160 years since it's happened. No, it's it's happened six different [1:25:30] times and eight times ending in 1869 as the last time. Yeah, right. So, well, in any event, it's [1:25:39] changed numerous times throughout our history. There's nothing remotely illegitimate about it. It's not [1:25:44] frozen in the Constitution. Would you agree? I agree it's not frozen in the Constitution, [1:25:49] but we have a tradition date. All right. But in any event, I don't know why we went off on this [1:25:53] numerical thing, because that's not what this is really about. The question is about the legitimacy [1:25:57] of a court that is demolishing the voting rights of the people, essentially overruling democracy [1:26:03] at every turn. And I wonder, Professor Bowie, in the time remaining, if you could discuss what it [1:26:07] means for the Supreme Court to intervene in elections like in Bush versus Gore or like with the Voting Rights [1:26:12] Act in a way that undermines the people's ability to govern. Well, one thing to speak about in terms [1:26:20] of the 1869 precedent that keeps coming up is in 1866, Congress passed a Civil Rights Act in order to [1:26:27] guarantee citizenship to all people born in this country. They feared that President Johnson was [1:26:33] going to appoint justices to the court that were going to try to overrule that law, which has become [1:26:38] foundational for our democracy. So Congress changed the number of justices. It reduced the size of the [1:26:43] court to prevent the president from appointing new justices. Thank you. I yield back, Mr. Chairman. [1:26:50] Thank you. For the ranking member, apparently Congressman Greene did put in a court expansion [1:26:57] in this Congress, and there were ones in the last Congress. Would you join with me in a discharge [1:27:02] petition to do that immediately? But the fact that I've not heard of it tells you exactly how much [1:27:07] political traction it has. But look, there are a lot of things that we should do in terms of Supreme Court [1:27:12] ethics. The question is, do you support that? I've never seen it. If I drop one today, will you [1:27:17] co-sponsor it for this Congress? Co-sponsor what? An expansion of the court pursuant to what you had [1:27:22] in the last Congress. We haven't had a single hearing about it. I mean, if you have a hearing about it, [1:27:27] then we can analyze it. I mean, we've got to take this seriously, right? I honestly don't even know [1:27:32] what his proposal is. Well, why don't I just take the one that you had when you were in a majority [1:27:36] and present it? Well, I'm interested in term limits of 18 years. I think the vast majority of the [1:27:42] American people support term limits for justices, and if they want to stay on the court as a district [1:27:46] judge or an appeals court judge, that's consistent with life tenure. It's a constitutional change, [1:27:49] you'd agree. No, it's not. If they stay on the court as a district judge or a circuit court judge, [1:27:54] that's consistent with the command of life tenure. So I'm interested in term limits for members of [1:28:00] Congress. We can look at the question of whether every federal circuit should be represented on [1:28:04] the Supreme Court, which is the whole original idea behind it. That's what circuit writing is all [1:28:09] about. Do you really mean to say for members of Congress? For the Supreme Court. Oh, okay, [1:28:14] just checking. I'm actually for that. I'm actually for that. Just checking after you and I have been [1:28:19] here past the six years. It was a Freudian slip. I'm actually, I'm not opposed to term limits. [1:28:24] The longer I stay, the more in favor of that I am, including in this term. But I thank the [1:28:29] gentleman for the colloquy. And with that, we go to the gentleman from Virginia, Mr. Klein. [1:28:34] Thank you, Mr. Chairman. I think this hearing is very important, especially when, [1:28:39] and I appreciate the consistency of the ranking member, the attempt thereof, [1:28:44] the importance of consistency when talking about judicial decisions, when you have judicial decisions [1:28:49] that may not comport with your understanding of the Constitution, that somehow democracy is being [1:28:55] overturned. And that was the rhetoric that was just used by the ranking member. And it's offensive to [1:29:00] me. But when- Will the gentleman yield for just a second? I will not. Well, yes, for a second. [1:29:05] I actually wrote a book with that title, which I will give to you, called Overruling Democracy, [1:29:09] the Supreme Court versus the American people about Bush versus Gore. [1:29:12] I appreciate that the gentleman is being consistent with the book that he wrote. But [1:29:16] it is equally frustrating to see that in not all cases do you have, especially in the shadow docket, [1:29:29] you have examples where they did not rule in favor of a conservative philosophy. If you look at just the [1:29:40] Mifepristone ruling last week, or this week. If you yield for one sec, there have been 27 cases in the [1:29:49] shadow docket, and Donald Trump has won 25 of them. So you may have identified one of the two that he [1:29:54] didn't. I understand that. And one of the things I want to talk about is just because you agree with [1:30:01] the decision a court makes shouldn't determine whether or not democracy is being upheld or overturned. [1:30:05] It's going down a road that is very destructive. And I want to talk about what's happening in [1:30:12] Virginia, because in Virginia right now, we have a destructive path that is being pursued by [1:30:17] the majority in our legislature. Now we're one of two states where the legislature actually [1:30:21] appoints the judiciary. So you have a somewhat convoluted process that actually doesn't work [1:30:29] as efficiently as some other states. But Mr. Capozzi, you may be aware that Virginia Democrats [1:30:34] passed a redistricting amendment through a procedurally flawed process. [1:30:38] The Virginia Supreme Court struck that process down as a violation of the Virginia Constitution. [1:30:43] Undeterred by their state court laws, Democratic Attorney General Jay Jones appealed to the U.S. [1:30:49] Supreme Court, although I think in his filing it indicated he was appealing to the Supreme Court [1:30:54] of Virginia again. But and it was Virginia and it was Supreme. Oh, it was sentator. But there [1:31:01] were a lot of misspellings. He appealed to the U.S. Supreme Court despite raising no federal claims [1:31:07] and was denied. Rather than accept that, Senate Majority Leader Scott Cervell took to X to spin the [1:31:12] ruling, claiming that only one justice had weighed in. But in fact, the denial itself stated, quote, [1:31:17] the application for stay presented to the chief justice and by him referred to the court is denied. [1:31:22] No noted dissents, not even from the three Democrat appointed justices. [1:31:26] Yet Democrats immediately attacked, quote, far right extremists on the Supreme Court [1:31:31] and quickly used the unanimous rejection to continue their campaign against the court's conservative [1:31:35] justices. Mr. Capazzi, how damaging is it to the rule of law when political actors use a legally correct [1:31:41] unanimous court ruling as a pretext for attacking judicial legitimacy? [1:31:47] Yeah, just to clarify, a decision like that would have been referred to the full Supreme Court. So [1:31:53] it wasn't just a single justice. All nine justices agreed that that appeal [1:31:57] lacks merit. And, you know, I think most intelligent observers in the Supreme Court [1:32:03] are agreed that that was a borderline frivolous appeal. It presented only a question of state law. [1:32:09] And so at minimum, I would encourage people not to attack the Supreme Court when they unanimously reject [1:32:14] a frivolous appeal. Mr. Sure, court packing isn't just a federal ambition. After the Virginia Supreme [1:32:21] Court struck down the state's redistricting map, Democrats floated the idea, encouraged by, well, [1:32:27] encouraged by, um, alleged phone conversations with the, with federal Democrats, slashing the mandatory [1:32:34] retirement age for its justices from 75 to 54 to purge the entire bench. Virginia Delegate Dan Helmer [1:32:42] went further publicly vowing to remove Justice Kelsey, who wrote the opinion from the bench when he is up for [1:32:49] reappointment this coming year. For a party that has made, uh, no kings its rallying cry isn't [1:32:55] threatening a justice by name and purging an entire bench, a rather dictatorial definition of democracy. [1:33:01] Absolutely, Mr. Klein. And it's a move reminiscent of the author of the authoritarians that we discussed [1:33:07] earlier, like Robert Mugabe in Zimbabwe and Hugo Chavez in Venezuela. That's the kind of stuff they did [1:33:13] to their judiciaries to try to get them in line with their programs, um, agreed. And I appreciate the [1:33:20] comments of the gentleman and I yield back. The gentleman yields back. We now go to the gentlelady from [1:33:25] California, Ms. Lofgren. Uh, Mr. Chairman, uh, with all due respect, I keep hearing about how court packing is the [1:33:33] greatest threat facing the judiciary and the rule of law, but I don't think that's the, uh, crisis facing the court right now. [1:33:40] Real crisis is a growing ethics and corruption problem at the Supreme Court and it is one that Congress can [1:33:48] actually do something about. Unfortunately, my time does not allow me to list every undisclosed luxury trip, [1:33:56] uh, private jet flight, billionaire funded vacation, yacht excursion, and lavish gift uncovered so far, [1:34:05] but the scale is staggering. According to Fix the Court, Justice Clarence Thomas alone reportedly received [1:34:12] more than 100 gifts worth over 2.4 million dollars, while all of his fellow justices combined received [1:34:21] gifts worth only 248 thousand dollars over the same, uh, period, a 20-year period. Here are just a few [1:34:29] examples, uh, Justice Thomas reportedly accepted. Luxury vacations on a billionaire's superyacht in [1:34:37] Indonesia that ProPublica estimated likely exceeded half a million dollars. More than two decades of [1:34:44] repeated private jet flights on billionaire-owned aircraft, including trips on a Bombardier Global 5000, [1:34:51] and even a private Boeing 737, with some individual flights estimated in the tens of thousands to over [1:34:59] a hundred thousand dollars. At least 26 private jet flights and eight helicopter trips identified by [1:35:06] investigators. Annual stays and an exclusive private Adirondacks resort, where nearby rooms can [1:35:14] cost more than $2,000 a night, luxury resort stays in Florida and Jamaica, VIP skybox access and luxury suite [1:35:25] tickets to major sporting events, trips to Bohemian Grove, private school tuition payments for a child he [1:35:33] was raising, and real estate transactions involving property tied to his family. According to Fix the Court, [1:35:40] Justice Alito accepted approximately $170,000 in gifts over the same period, including private jet [1:35:48] transportation to a luxury Alaska fishing lodge, expensive lodging and fishing accommodations tied to [1:35:55] billionaire Paul Singer, and gifts that the Senate Judiciary Committee concluded should have been [1:36:01] disclosed under federal law. Now Americans watching at home understand that this is wrong. Billionaires [1:36:08] should not be getting the kind of undisclosed access and luxury relationship with Supreme Court Justices. [1:36:14] So let me ask you this, Professor Bowie, yes or no? Do you believe these kinds of gifts and luxury travel [1:36:21] arrangements undermine confidence in the court? Yes. Thank you. Mr. Chairman, I would ask a unanimous [1:36:31] consent to put into the record a CNBC article on Justice Thomas's acceptance of gifts, a ProPublica [1:36:39] article on the same, two ProPublica articles on the same topic, a Senate Judiciary Committee, a press [1:36:46] release, and an additional article from ProPublica. Without objection, so ordered. And I would yield the [1:36:53] balance of my time to the ranking member. Thank you kindly, Ms. Lofgren. Just picking up on that point, [1:36:58] there's a $50 gift ban, a $50 gift ban that applies to all of us in Congress and to the executive [1:37:05] branch as well. Would you agree that it would enhance the independence of the court from not just [1:37:14] congressional presidential attacks, but special interest domination to apply a $50 gift ban to the [1:37:21] Supreme Court Justices? Professor Bowie, if you go first. Yes. And just note that Congress has already [1:37:28] passed laws that prohibit justices from taking bribes. Congress has also passed laws that require the [1:37:33] justices to recuse from cases in which their impartiality may reasonably be questioned. Yes. [1:37:38] Um, Attorney General Cabozzi, do you agree that a $50 gift ban should apply to all three branches, [1:37:44] not just two? I'm skeptical that such a ban is needed for the Supreme Court, but at the same time, [1:37:48] I don't have a strong opposition to such a proposal. Okay. Mr. Ross? I would agree with the [1:37:54] Solicitor General. Okay. And Mr. Sher. Well, I think there's a fundamental difference between [1:38:01] members of Congress and Supreme Court justices in this regard. I mean, when you're a member of Congress, [1:38:10] just about every person in your district and elsewhere in the country is a potential [1:38:18] supplicant for your services and your assistants. When you're in the Supreme Court, you're only dealing [1:38:24] with a relatively limited number of cases with people who have direct interest in your work. And so it's [1:38:31] certainly appropriate, and I know Justice Thomas, and he's scrupulous about avoiding accepting gifts [1:38:39] from anybody who has business before the Supreme Court. Really? Well, we need to have a hearing on [1:38:43] that then. Sorry. We have a completely different point of view on that point. But don't you think [1:38:48] just in terms of public perception, it would be much better not to believe that justices could be [1:38:53] compromised by virtue of receiving gifts from people who appear before them? After all, they have no [1:38:59] binding ethics code now. They're the only Supreme Court in America that don't have a binding ethics [1:39:03] code. And so without a binding ethics code, we're leaving it up to them to decide. I don't think it [1:39:08] would affect the reality of their independence. It might affect the public perception of their [1:39:14] independence. It would take away a talking point. So you think it's okay for a billionaire to pay for [1:39:18] Clarence Thomas's nephew's private school tuition? That's okay? If the billionaire doesn't have any [1:39:25] business before Justice Thomas, there's nothing wrong with that. And if he does, you would agree [1:39:29] that's wrong? If he does have business before the court, you would agree that's wrong? If he has [1:39:33] concrete business before the court, then that would be a different matter. And I'm confident in that [1:39:36] situation, Justice Thomas would recuse from cases that involved him. You are? Okay. And what about a [1:39:42] situation where somebody with potential business before the court- I'd ask unanimous consent that the [1:39:47] gentlelady have an additional 30 seconds? Okay. Just to complete this point- Reclaiming my time, if I may [1:39:52] say also that you can have a pecuniary interest before the court, but many of these billionaires [1:39:59] have philosophical points of view that is before the court, and that's why they're paying off the [1:40:05] justices. And I yield back to you. And just to complete that question, so if Justice Thomas or any [1:40:11] Justice were to get a free recreational vehicle from somebody who has an interest in the work of [1:40:17] the court, do you think that that would be legitimate, or do you think that they should [1:40:20] be held to the same standard? We are a $50 gift ban. Somebody can take you out for lunch. [1:40:26] If they have a concrete business interest before the court, then yeah, that would be- it would be [1:40:29] inappropriate for Justice Thomas to accept that kind of a gift and then sit on a case that involves- [1:40:34] What if they have a general business interest before- I'm sorry? [1:40:36] What if they have a general business interest before the court? [1:40:40] Well, I don't- See, we don't get into that in Congress. That is, we basically say we're going [1:40:46] to cut it off at the pass. None of us are going to be compromising- [1:40:48] But that's true of Judge- Okay, I apologize, but I'm going to close this off, [1:40:53] because Mr. Gooden's next. But I will say to the gentlelady and to the gentleman that, [1:40:59] although I can't support the full bill that was authored earlier this year on forcing a set, [1:41:08] I would be happy to entertain discussion between our staff and individually the members on trying [1:41:15] to harmonize some aspect of what is non-reimbursable between us. As you know, the Senate, [1:41:24] you pay for a first-class seat if you want to fly on that aircraft. Well, the House has a prohibition, [1:41:30] but I would be happy to work with the minority on trying to set a cap on how much could be received [1:41:37] as a gift versus how much would have to be reimbursed. And I believe that that is certainly [1:41:43] middle ground that we could look into doing this Congress. [1:41:46] Yeah, I would welcome that. Thank you, Mr. Chair. [1:41:48] Okay, look forward to it. With that, we go to the gentleman from Texas for his time. [1:41:51] Mr. Ross, you were speaking earlier, I believe with the ranking member, about the number of times [1:41:57] that the number of Supreme Court justices has changed. When was the last time we changed the [1:42:05] makeup of the Supreme Court? When was that? 1869. And I believe it was 1863 that the Emancipation [1:42:13] Proclamation came out. So what I'm hearing is that Democrats want to go back to slavery era politics [1:42:21] with respect to the Supreme Court makeup. One of the arguments is, well, it's been done several [1:42:27] times. But you just said it's been done no time since 1869. So six years after the Emancipation [1:42:36] Proclamation is when Congress stopped playing games with the makeup of the Supreme Court. And now [1:42:42] Democrats are defending this idea. Fortunately, some are, well, some are not living, but some were not [1:42:49] quite as outrageous. In 2019, Justice Ruth Bader Ginsburg stated, I think it was a bad idea when [1:42:56] President Franklin Roosevelt tried and failed to pack the court. And if anything, it would make the [1:43:01] court look partisan. In 2021, Justice Stephen Breyer remarked during a Harvard Law School speech that [1:43:06] packing the court would be a structural alteration that result in eroding trust in the judiciary. [1:43:12] More recently, in September 2021, Justice Breyer again criticized packing the court. President Joe Biden [1:43:18] expressed skepticism about court packing proposals during his Senate tenure in 1983. When speaking [1:43:23] about FDR's proposal, he called it a bonehead idea. Former President Biden's own presidential [1:43:31] commission on the Supreme Court expressed hesitation in 2021. The commissioners noted that court expansion [1:43:36] is likely to undermine rather than enhance the Supreme Court's legitimacy and its role in the [1:43:42] constitutional system. So I really appreciate my Republican colleagues for not pushing this slavery era [1:43:51] idea that was last successful during the slavery days that I think we're trying to move past. And I yield [1:43:59] the balance of my time to the ranking member. Mr. Jordan. Thank you. Mr. Capozzi, if you don't like what [1:44:06] the court's doing and you'd like to change, how do you do it? Well, you can ask the Supreme Court to [1:44:15] reconsider its decisions. That's something the Supreme Court has done from time to time in a [1:44:20] more broad way. How do you do it? Well, you could take your case to the public. You can build up a record [1:44:26] of opposition. You can advocate for change. You know, the conservative legal movement did that after Roe v. [1:44:31] Wade, for example. Yeah, you go make the argument and you win elections, right? You win the White House. You have [1:44:39] a majority of the Senate. That's how the courts figured out straight from the Constitution. But no, no, they don't want [1:44:44] that. They don't want that because, oh, Republicans in the White House and you got to nominate people [1:44:48] and you had Republicans in the Senate who controlled the Senate and they got to confirm them. That's how [1:44:52] the process. Well, we don't like that. So one point they're saying, oh, we're not going to be. It's [1:44:56] too political, but there's a political process to it as well. That's how it works. You got to go win [1:45:02] elections. Do you believe leaking the Dobbs decision was designed to undermine and change the court's [1:45:10] decision? Mr. Sher. It certainly appears to have had to have been done with that intent. It was an [1:45:17] it was an attempt to try to get one or two of the justices who ended up in the majority on Dobbs to [1:45:23] back away. Yeah, it didn't work. Thank goodness it didn't work. Thank heavens. It was I think it was [1:45:28] an effort to intimidate the court. You think so, Mr. Ross? Professor Ross, do you think that was the case? [1:45:33] I would agree with that. Yeah. And it was wrong. It was bad, right? We don't want that to happen again. [1:45:38] We should never happen before. You agree, Mr. Capozzi? I was a clerk when the leak happened, [1:45:44] so I'm not going to discuss details of the leak. But I will say that it was a cowardly act, [1:45:49] and I hope it never happens again. Yeah. Do you agree with that, Mr. Bowie? [1:45:52] I don't really have a strong opinion about the leak. I was not a clerk on the court. [1:45:58] Is it a good thing or a bad thing? I think that more publicity for what the [1:46:02] court does would be good. But I think that sacrificing one's ethics is not good. No. [1:46:06] Well, but just yes or no. Is it a good thing to leak a decision before it's final, [1:46:13] before the courts actually weighed in? Is that a good thing or bad thing? [1:46:16] I don't think it's good for anyone to sacrifice their ethical responsibilities. [1:46:19] Okay. By the way, why don't we know who leaked the Dobbs opinion? Mr. Capozzi, [1:46:23] you were there. Why don't we know that? I'm going to respectfully decline to answer that. [1:46:28] Yeah. I'm not asking if you do know it. I'm just saying, why don't we know it? [1:46:31] It seems like that's Mr. Sher. Why don't we know that? [1:46:34] I believe there was an investigation done by the Chief Justice that was inconclusive. [1:46:38] Yeah. Amazing. They couldn't figure out. Mr. Ross, any thoughts on that? [1:46:43] I really don't know. Okay. All right. I yield back. [1:46:47] The gentleman yields back. We now go to the gentlelady from Florida, Ms. Lee. [1:46:51] Thank you, Mr. Chairman. As a former judge, I understand that the legitimacy of the judiciary [1:47:00] does not depend on whether people agree with every decision. It depends on whether judges [1:47:08] interpret and apply the law independently. Without political intimidation, threats to their safety, [1:47:15] or pressure to deliver preferred opinions. Today, we are seeing increasing efforts. We're hearing [1:47:21] them today to delegitimize the court through court packing proposals, spurious personal attacks on [1:47:28] justices, and criticisms of judicial philosophies like originalism simply because some disagree with [1:47:34] outcomes in particular cases. An independent judiciary cannot function if judges are treated like [1:47:41] politicians whenever they issue an unpopular opinion. And baseless, unfounded allegations impugning the ethics [1:47:51] of judges and justices, incoherent attacks on principled application of judicial philosophy, and failure [1:47:59] to appreciate that a disciplined adherence to the laws and constitution as written is actually the hallmark [1:48:08] of a good and successful judge. And on that note, Mr. Scheer, I would like to discuss one thing that concerns me [1:48:17] about modern discourse surrounding the judiciary is the growing expectation that judges should reach [1:48:23] politically preferred outcomes rather than faithfully apply the law. And critics sometimes today portray [1:48:31] originalism as if it is some sort of political project to achieve conservative outcomes. But at its core, [1:48:40] isn't originalism actually about judicial restraint requiring judges to interpret the Constitution [1:48:47] as written as opposed to applying their personal preferences? [1:48:51] Yes. And I was a law clerk to Justice Scalia, and I had several experiences with him where he felt like [1:49:02] the Constitution or a given statute required a result that he didn't like as a policy matter. The very first [1:49:09] opinion that I helped him write as a new justice was an opinion sustaining a Fourth Amendment objection to the [1:49:18] the admission of certain evidence in a trial. And he sided with the liberal justices on that issue [1:49:24] because he felt that's what the Constitution required. The morning after that opinion came out, [1:49:29] there was an editorial in the Wall Street Journal that said, we wonder whether President Reagan has made [1:49:35] a mistake in putting Justice Scalia on the court. And we saw that in several different areas. So to me, [1:49:41] that's the hallmark of a good judge is he or she is willing to follow the law as written [1:49:48] even if it even if it leads to places that the judge disagrees with as a policy matter. That's judging, [1:49:54] in my view. That is exactly right. And I can tell you, I shared that very same experience on the bench [1:50:00] that at times, personally, as a jurist, you don't want the outcome that the law tells you you must reach. [1:50:09] And that is actually something that tell me about that distinction between being a judge and [1:50:16] essentially policy making reaching that decision, which maybe you as a person would like. Tell me [1:50:23] why it's so important that our judges are able to make that distinction and apply the law as it is [1:50:30] written. And is that part of our very system, as we would learn in eighth grade American history of [1:50:38] checks and balances? I agree. That's an essential part of our system. And I and I go back to the Chief [1:50:44] Justice's decision in in the Obamacare case that was, you know, and he was he was excoriated for that [1:50:51] decision by conservatives. But but he believed and and persuasively explained this in his opinion that [1:50:59] the that that the individual mandate that was kind of at the heart of Obamacare could properly be [1:51:05] considered as a tax. And and for that reason, he decided, well, we then should defer to Congress's [1:51:14] judgment, even though even though we hate the policy outcome, he decided we should defer to Congress's [1:51:21] judgment about on this matter, because what they did is with is within their authority. And to me, [1:51:27] that is also the hallmark of a good judge to be able to to be willing to defer to this body, [1:51:34] even when you disagree as a matter of policy. And one final question, because I think this is [1:51:39] important as we sit and we listen to our justices and their ethics being impugned with baseless, [1:51:44] spurious allegations. Isn't it also correct that they cannot respond, that judges cannot call a press [1:51:50] conference, that they cannot speak publicly, that they have no opportunity to come out and say to [1:51:55] the American people, actually, this is blatantly false. I did none of these things. These allegations [1:52:01] that are being made are completely untrue. Isn't it correct that judges and justices [1:52:06] cannot do that for themselves? It's very difficult for them to be able to respond [1:52:10] to those kinds of personal attacks. Thank you, Mr. Chairman, I yield back. [1:52:14] General Lady yields back. I now ask unanimous consent to place in the records the ruling [1:52:18] of Judge John Bates, an appointee of President George W. Bush, who ruled against George W. Bush in [1:52:26] the Harriet Myers case, and the outcome of the ruling of Amy Berman Jackson, an Obama appointee who ruled [1:52:36] against Obama in that in that case. Without objection, so ordered. And then, Mr. Chair, can I have one, too? [1:52:42] Absolutely. It's tit for tat. What do you have? It's a unanimous consent. Just answering the last [1:52:47] point about how justices cannot speak out. This is an op-ed by Justice Samuel Alito in the Wall Street [1:52:53] Journal. Pro publica misleads its readers June 20th, 2023. Without objection, so ordered. And with that, [1:53:01] we go to the gentleman from South Carolina, Mr. Frye. Thank you, Mr. Chairman. Ruth, Justice Ruth Bader [1:53:09] Ginsburg stated, I think it would be, it was a bad idea when President Franklin Roosevelt tried to pack [1:53:14] the court, and that if anything would make the court look partisan, it would be that. Justice Breyer said [1:53:22] that it would be a structural alteration and it would erode public trust if we packed the court. What goes [1:53:27] around comes around, and if the Democrats can do it, the Republicans can do it. Even [1:53:33] our former president, while he was in the Senate, Joe Biden, admonished FDR and said it was a boneheaded [1:53:40] idea to consider packing the court. But we now find ourselves in this curious position where political [1:53:49] thought leaders on the other side are actively engaged in this idea that packing the court would [1:53:55] solve the nation's problems. I think we've heard from James Carville, like, if we win, [1:54:01] don't talk about it. We're just going to go pack the court. Kamala Harris, in her intellectual stamina, [1:54:08] said the same thing a couple weeks ago. I think that is a dangerous move. What is the most, Mr. Ross, [1:54:15] what is the most accurate historical lesson of FDR's 1937 court packing plan? What do you think that would [1:54:22] be? I think the bipartisan opposition is perhaps the most important lesson. As has been pointed out [1:54:31] earlier, Roosevelt had recently been elected with an enormous landslide. He carried 46 out of the 48 [1:54:38] states. He had more than 60 percent of the popular vote. He had assembled one of the most powerful [1:54:43] political coalitions in the nation's history. He thought he was invincible. He thought that the [1:54:50] court packing plan would naturally have to sail through Congress, which at that point was [1:54:55] overwhelmingly Democratic. The Democrats won unprecedented majorities in the 1936 elections [1:55:02] that re-elected Roosevelt himself. Roosevelt was stunned when his plan encountered immediate and [1:55:10] significant opposition, which eventually sunk it. The reason was that Americans, of all persuasions, [1:55:17] recognized that this was an attack on the independence of the court itself. If I could give an example, [1:55:24] Gutz and Borglum, who was the Mount Rushmore sculptor, was a political progressive on everything [1:55:32] except race. He was outraged by the Supreme Court's recent decisions striking down New Deal regulatory [1:55:41] legislation. But he wrote a letter to Senator Norris of Nebraska urging him to vote against the court [1:55:49] packing plan because he said it would interfere with the independence of the of the court. And he was [1:55:57] at that time engaged in sculpting the faces on Mount Rushmore. And he said that if the court packing [1:56:03] plan passed, he'd throw down his chisel and wouldn't go back to Mount Rushmore to finish carving those faces, [1:56:10] because he would thought that the packing of the court would make a mockery of what those four [1:56:15] presidents stood for. So again, this was across the board. And I think that's- [1:56:19] Let's play an exercise. If FDR had been successful in altering the structure of the Supreme Court, [1:56:28] what do you think the ramifications would have been at the time and then moving forward? [1:56:34] Well, the immediate ramifications wouldn't have been all that great because, although Roosevelt [1:56:39] lost the battle, he won the war because of deaths and resignations of justices during the next few [1:56:44] years. So within a few years, Roosevelt had a court that was overwhelmingly supportive of his pro-regulatory [1:56:51] legislation. I think, though, if the packing itself had occurred, it wouldn't have changed the outcome of [1:56:57] the cases that much because the court shifted its positions fairly rapidly anyway. But I think the [1:57:05] long-term effect would have been the same effect that it would happen if it occurred today, which [1:57:10] would be an erosion of judicial independence and a diminution of public respect for the court. And, [1:57:17] of course, the prospect of ever-increasing numbers on the court. You know, bigger and bigger court and subsequent- [1:57:22] were contractions, right? I mean, we could have taken this, I guess, or Congress could have taken [1:57:28] the same approach as Virginia, right, that they're trying to do is, we don't agree with the opinion, [1:57:32] so we're just going to sunset you all. Yep. Right? Right. Do you think, Mr. Scheer, that expanding the [1:57:39] number of justices would heal some sort of partisan divide in this country? Not at all. We'll expand on [1:57:46] that for a minute. How would that not fix what I'm hearing on the left right now, which is that there's [1:57:51] an illegitimate court and it's dangerous and what they're doing is undemocratic, so we can fix it by [1:57:57] adding four new justices? How would that not heal the partisan divide? Well, I think actually it would [1:58:04] it would undermine what really needs to be done to heal those divides. And that is because it distracts [1:58:12] from the more important projects, as we discussed earlier, of building the political coalitions that [1:58:19] allow you to achieve your legislative objections. You know, we've talked earlier about the Voting [1:58:24] Rights Act, for example, and people are complaining about how the Supreme Court, quote, gutted the Voting [1:58:29] Rights Act. Well, they didn't do that at all. This body could amend the Voting Rights Act, and if this [1:58:37] body wants to impose majority-minority districts on the country or various places in the country, that's [1:58:43] something that that this body can do. And my guess is that the Supreme Court would would probably sustain [1:58:50] that. And, you know, for just about every one of the problems that we've discussed, there's a [1:58:56] legislative solution that requires persuading voters and then winning elections and then doing it. [1:59:03] Yeah. Thank you, Mr. Chairman. I see my time has expired. I yield back, sir. A good use of your time, [1:59:08] though. We now go to the gentleman from Washington for his time. Thank you, Mr. Chair, and thank you, [1:59:14] gentlemen, for coming for this important hearing. I'm going to ask for some concise answers to these [1:59:18] questions of a number of things I'd like to cover. Can a court be unpacked? Could the legislature vote [1:59:26] to remove members of the Supreme Court? We'll go down the line. If they can add, can they subtract? [1:59:33] They have subtracted once before. I am not sure it would be constitutional to subtract in a way that [1:59:43] would require sitting justices to resign. But you think, yes, with some caveats? Right. Mr. Ross? [1:59:51] I agree. I don't think that sitting justices could be removed. But clearly, the Constitution [1:59:56] permits the size of the court to be reduced. You know, there should be one Supreme Court, [2:00:00] and it says there's a chief justice. So theoretically, I guess you could have two or three associate [2:00:06] justices. So I don't think there's any constitutional obstacle as long as it's prospective rather than [2:00:11] retrospective. You could phase a seat out. You just couldn't force a sitting justice off the bench. [2:00:17] Okay. Well, that's right. Congress can change the number of justices. The court, the justices sit for [2:00:24] good behavior. What good behavior means is also the subject of federal law. And so if justices are doing [2:00:30] things that Congress regards as unethical or corrupt or democratic, then Congress can do something [2:00:35] about it. Okay. As a way of background, when I was in our state senate in Washington state, [2:00:42] our state had originally started with five Supreme Court justices. The court had been packed up to nine [2:00:48] for political reasons. People wanted different cases. We have elected Supreme Court justices. They [2:00:53] are politicians just as I am and this body is. And what our teachers' union discovered is that they could [2:00:59] put significant financial resources into judicial elections and then get some rulings on mandatory [2:01:07] spending on education. When that was going on in our state legislature, I thought the Supreme Court [2:01:12] was over its skis. And so I sponsored a piece of legislation to actually shrink it back from nine [2:01:18] to seven. I had the Supreme Court justices drawing straws at high noon on January 1st, which is a legal [2:01:23] remedy in our state. But it was undetermined. So actually, my bill is studied in law schools [2:01:29] in Washington state. Unfortunately, we didn't get the opportunity. A broader point I just want to [2:01:34] make on this is packing the court and really its evil twin of adding states for political purposes [2:01:45] are probably the most dangerous and destabilizing things that this body could consider for the future [2:01:52] of the republic. It really will be a recipe for potential civil war in this country. [2:01:59] By background, I spent some time doing counterinsurgency during the Iraq surge and used to [2:02:05] teach counterinsurgency to the U.S. military. And you think about our own nation, why did we rebel? [2:02:12] Why did people not feel they had a voice in the legitimate political process? And we actually look at [2:02:17] the foundation of American what we teach in counterinsurgency population centric counterinsurgency. [2:02:23] It's based on two principles that people feel they have an effective government and that they have [2:02:27] a legitimate government. You know, and what court packing will do is take a game of shoots and ladders [2:02:34] in politics where you win elections, you lose elections. But it's a game that everybody understands [2:02:40] and it will turn it midstream for political purposes into battleship. And that is something I do not [2:02:47] think in this highly polarized political environment that the American people will continent. And so it [2:02:55] is extremely risky to talk about packing the court, adding the states because you want political outcomes. [2:03:02] And each and every time somebody is disgruntled with the political process and talks about it in a way [2:03:09] that delegitimizes the Supreme Court who are not elected. It's not like at the state level. It [2:03:15] really, really is a dangerous thing for the future of the republic. I just want to make that statement. [2:03:20] I only have about a minute left. I'm going to yield to the good gentleman from Kansas, if you'd like my [2:03:24] time. Thank you, my friend from Washington. And I would just say, you know, the baseball metaphor, [2:03:29] calling balls and strikes, as Justice Roberts famously said in his confirmation hearing, [2:03:33] nobody here has actually talked about what this hearing, I believe, is supposed to be about [2:03:37] other than our witnesses. Nobody has defended the idea that we ought to expand the number of justices [2:03:43] on the Supreme Court. We've had an airing of the grievances, just as you have people complaining [2:03:47] about the umpire all the time. But nobody is defending the idea that I've heard that the remedy [2:03:53] to the grievances is you have a three-judge panel, metaphorically, of umpires behind home plate, [2:03:58] because more gets you a better outcome. There's been plenty of complaining from one party right now, [2:04:05] including the minority leader of this house, sitting members of this house, the last presidential [2:04:09] nominee of the other party, suggesting that court packing by expanding ought to be a remedy to be [2:04:15] considered. That has never been a good idea. And I would simply ask our panelists and whatever time [2:04:21] the chairman allows them to respond, what is wrong with allowing the people of this country through [2:04:28] the constitutional amendment process to decide whether that specific remedy ought to be allowed or taken [2:04:35] off the table? What is wrong with that? Briefly, any responses? I don't think anything is wrong with [2:04:42] that. That seems like a good idea to me. I don't think that the constitutional amendment process is [2:04:49] necessarily the best way to handle this issue. I would support an amendment to fix the number of seats [2:04:56] on the Supreme Court at nine. Justice Robert Jackson was asked this question, and his answer was, [2:05:02] it is the responsibility of Congress to see that the court is an instrumentality in the maintenance of a [2:05:06] just and constitutional government, and that it does not become an instrumentality for the defeat of [2:05:11] constitutional government. He testified about that in 1937 when he was asked in a hearing like this one [2:05:16] about whether court packing was an appropriate remedy. I thank all the gentlemen. We now go to the [2:05:23] gentleman from California for his questioning. Thank you, Mr. Chair. So court packing is, of course, [2:05:30] a really bad idea, mainly because it seeks to change our institutions for the purpose of short-term [2:05:39] political gain by one side or another. And then, you know, it's very short-sighted because when you [2:05:45] change the institution, that has a lot of downstream consequences that you can't predict, [2:05:51] and it makes just our overall system not really function when you don't have a stable institutional [2:05:58] foundation for our political battles to play out. But we don't just see this with proposals to pack the [2:06:04] court. We see it with this redistricting war that's going on, where, you know, in one state or another, [2:06:11] a party has control of the legislature. So rather than trying to win congressional seats by persuading [2:06:16] people that their party has the right views, they say, let's move the lines around and give ourselves [2:06:22] a structural advantage. I saw it all the time when I was in the state legislature in California. [2:06:27] If they didn't have the votes in the committee, they'd just remove people from the committee or add [2:06:30] people to the committee. We see it here when the House rules, if they aren't convenient in a given [2:06:36] circumstance, the rules just get waived or suspended. And then on the other side of the coin, as the [2:06:43] chairman mentioned, we had a bill, the Judges Act, that actually instituted some needed institutional [2:06:49] changes by giving us more district court judges to hear claims when they have this huge backlog so people [2:06:54] actually get access to justice. And it had broad bipartisan support, but then suddenly it was vetoed [2:07:00] because of the perceived short-term, you know, political consequences. So I guess my question [2:07:07] for our esteemed panel here, for anyone that would want to weigh in, is how do we [2:07:14] more assure that our institutions are insulated from the currents of short-term politics? [2:07:22] So one thing that I'll say is, I think it's helpful what the Supreme Court just did in the Calais [2:07:28] decision. I think that's been mischaracterized quite a bit during the hearing today. But the Supreme Court [2:07:33] said that it is a statutory interpretation case, but the court strongly suggested that the Constitution also [2:07:40] requires this. You can't discriminate against individuals on the basis of race during redistricting. [2:07:46] And for decades, some states were forced to intentionally sort voters on the basis of race to maximize [2:07:53] political advantage for one political party. So the fact that we don't have to do that anymore, [2:07:58] we don't have to discriminate on the basis of race and redistricting, is a good step forward. [2:08:03] Professor Bowie? [2:08:07] Yeah, I'd just like to say, you all on the panel are members of Congress. You took an oath to support [2:08:13] the Constitution, and I trust your judgment that you can determine what counts as appropriate legislation [2:08:19] for enforcing the Constitution. If you think the Voting Rights Act needs to be updated for a modern time, [2:08:25] you can amend the Voting Rights Act. You can make it better. We did not elect a Supreme Court to do that [2:08:31] job for you. We did not vote for justices to override your interpretation of what the Constitution means. [2:08:38] We have never, as a country, been asked, should the Supreme Court have this role of putting itself [2:08:46] above you all? I think it disrespects your oaths if the court takes your words that you have taken [2:08:52] responsibility to enact into legislation and say, actually, you're wrong. [2:08:57] But surely part of this, and maybe you're agreeing with me, that it's the fault of Congress for [2:09:03] relinquishing its constitutional authority. Like, if you look at, let's just take the last two [2:09:07] presidents. We had a decision in the Biden administration, the Supreme Court struck down [2:09:11] the student loan scheme. Of course, we just had the tariff decision with this president. Congress could have [2:09:17] easily reclaimed its own authority on either count before the court stepped in. It just chose not to, [2:09:23] right? So frankly, my job is not to tell you how to do yours. But that said, you do have the [2:09:29] responsibility to interpret the Constitution. And I trust that you can do justice to that responsibility. [2:09:34] When you think that the law needs to be updated, it is your job, not someone else's, and especially [2:09:40] not someone who the American people have not chosen, to decide what does the Constitution mean? [2:09:45] How do we give effect to its guarantees of freedom and equality, rather than letting someone who no [2:09:51] one has chosen take that away from us? Yeah, I mean, there's clearly a very important role for [2:09:56] the courts in our system in maintaining the Constitution, in defending the Constitution and [2:10:01] upholding its principles. I think that Congress has, over time, relinquished more and more of its [2:10:09] authority, both to administrative agencies and to the courts. And so maybe we're saying the same thing, [2:10:14] but in different words. I think that there is a responsibility for Congress to reclaim some of [2:10:21] that authority. And, you know, in particular, we're the house, we're the people's house closest to the [2:10:25] people. I think that our system works better when more policymaking happens here and can take into [2:10:31] account the views of folks all across the country. That's absolutely true. And one of the reasons why [2:10:36] Congress is feeling so disabled is because there are past Supreme Court decisions that have taken away [2:10:41] your ability to police the president, your ability to prevent corruption, your ability to ensure that [2:10:47] Americans can vote. And so long as we continue to have this system in which you are not in charge of [2:10:52] the laws that you pass, then it's difficult for the American people to, in an election, to discern for [2:10:58] ourselves what kind of country we want to live under. Thanks very much. Yield back. Professor Ross, [2:11:06] I recognize myself now. Professor Ross, Congress does have – did I miss someone? Oh, you're good. Okay. [2:11:17] Appropriately, I go last because I have the least to say, but I learn the most from these. Professor Ross, [2:11:26] briefly, isn't one of Congress's authorities the right to limit what can be considered by the court? Isn't that [2:11:33] already a power that we can use if we want, essentially, decisions of the Congress to stand? [2:11:41] Yes. And so in many statutory interpretation cases, the Supreme Court has invited – indeed, [2:11:52] almost begged – Congress to offer a contrary interpretation. So the court can often only guess [2:11:58] at what Congress intends. And so it doesn't say that it's having the last word. It's [2:12:06] statutory interpretation cases. It's saying that this is the way we interpret the Constitution. And [2:12:11] if Congress disagrees, you know, Congress is perfectly free to enact a statute that [2:12:17] reaches a different conclusion. And just to follow up, in the Chevron decision, [2:12:22] to a certain extent, the court just gave Congress back a tremendous amount of power [2:12:27] that, for years, we didn't have. Yes. Thank you. [2:12:32] Mr. Bui – Professor Bui, one quick question. I authored a bill. I put it in the record to expand [2:12:40] the court significantly – about 10 percent more district court judges. But it's phased them in [2:12:47] over more than a decade so that no one Congress and certainly no one president would do that. [2:12:55] Would you support this expansion of the court as vigorously if, in fact, there was a strong [2:13:03] possibility that it would be balanced in its expansion? I'm sorry I haven't read this bill, [2:13:10] but I will agree with the principle behind it that, yes, to make the court less partisan would be a [2:13:15] great thing to have your decisions take effect. Okay, so just for argument's sake, since none of these [2:13:21] court packing bills originating from the House did that, they all gave immediately and gave it during [2:13:28] a time in which the president of their party was in power. I would say in part of our closing that [2:13:38] very clearly, this is Congress trying to get an outcome for their president rather than trying [2:13:44] to enhance the court. Would anyone doubt that, considering they didn't give that same [2:13:51] consideration that Mr. Nadler and I did in our bipartisan bills to expand the court? Mr. Sher. [2:14:01] I don't disagree with that, but I'm not very familiar with the bills you're talking about. [2:14:04] Well, right now we're still trying to get that expansion of the court phased in over time. [2:14:10] I think you're talking about an expansion of the number of lower court judges, right? [2:14:14] District court, yeah, to meet the caseload that many have opined about here. [2:14:19] There's 179 or so appellate judges spread over 11 regular circuits and two special circuits. [2:14:28] That comes out to be about 16 to 1 if you evened out the districts, if the first circuit wasn't just 6 [2:14:40] and so on. And that's not including the two special circuits. It's 20 to 1 if you include those. [2:14:49] When you look at that ratio, my question to each of you is, as people talk about expanding the high [2:14:56] court, the court that must make a decision for it to be universally the law of the land or to fail [2:15:03] to take a case in order to make it essentially sustained or denied at a lower court. [2:15:09] Should we in the future, when we're having this debate, consider those 179 judges that did not exist [2:15:16] at the origination of our country and the earlier days of the court moving up and down? [2:15:22] My personal view is that the only federal judges that are overworked in our system are district [2:15:29] court judges. Congress should create more district court positions. Congress should also consider [2:15:34] expanding the number of staff. It doesn't make any sense to me that district court judges can hire [2:15:39] fewer law clerks than court of appeals judges. They're the ones who need them more. [2:15:43] I strongly agree with what Mr. Capozzi has said. [2:15:48] Same here, as do I. [2:15:51] Professor, have you looked at the caseload of the district versus the appellate and the role relative [2:15:59] to the Supreme Court? Because we've talked extensively about the expansion, yes or no, [2:16:03] of the court, but not about the total number of judges, the caseload and what they do. [2:16:10] No, I agree with the principle. And one of the things that Congress used to do is require Supreme Court [2:16:14] justices to ride as district court judges, as circuit judges, in order to ease the caseload of trial [2:16:19] courts. And that's one option available to Congress right now. If the Supreme Court is underworked, [2:16:24] but district courts are overworked, then you can enact legislation to require the justices to spend [2:16:28] their time as district judges. [2:16:31] Or even serving on appellate. My time is expiring, but since there's no one else seeking, [2:16:37] I'll take just another minute. I've been generous with both sides, I think. This has been a serious but [2:16:44] partisan discussion, no question at all. But it's an important issue. [2:16:47] I'm going to ask a question to each of you as scholars in your area. There was a lot of discussion [2:16:55] about the vacancy of the courts and the filling of them. Should we, in fact, have a system that allows [2:17:03] for there never to be a vacancy of the court? Meaning we certainly could create a high court, [2:17:08] but we could have a process where an appellate court, through some process, [2:17:13] became the designate to fill a temporary or permanent vacancy, or even an alternate to the [2:17:22] court that would step in when there was a vacancy. Is the idea that there should never be events like [2:17:29] the ranking member talked about, through a process that would ensure that we always have a full court? [2:17:35] And Professor Bowie, I would opine to you that that would potentially even include the idea that [2:17:42] that alternate would serve whenever a justice has to recuse themselves. [2:17:47] Yes, I believe the ranking member of the subcommittee has introduced legislation that would give [2:17:55] presidents a regular appointment schedule so that vacancies would be more predictable, less likely to [2:18:01] lead to the sort of partisan campaigns around nominations, and otherwise ensure that if the [2:18:08] court is doing its job, then we can... But I included recusals, because currently if there's a recusal, [2:18:14] the court goes from 9 to 8 or 9 to 7, whatever the recusal is. There have been very few recusals, [2:18:19] but there have been certainly plenty of cases in which there was a case for recusal, but that person [2:18:26] did not recuse, and perhaps because the court would be without that vote. Absolutely, [2:18:32] and to be honest, if anything, that's a sign that perhaps the number of concurrent justices is not [2:18:37] the number that it should be. Individual recusal will have that kind of effect, and therefore there [2:18:43] are no recusals. If anything, that's a sign that, you know, recusals need to be easier to do so that... [2:18:48] But in any lower court, a recusal simply means that a different judge steps in. There's not a lack of... [2:18:54] You know, the three-judge panel doesn't become a two-judge panel if there's a recusal. Mr. Capozzi? [2:19:00] There is a statutory process for if there's not enough justices to have a quorum on the Supreme [2:19:05] Court. You could look at the Alcoa case. I think it's from 1939, where the Second Circuit had to hear [2:19:11] a case in lieu of the Supreme Court. I think I would oppose the proposals that you suggested, [2:19:17] Mr. Chairman. The power to appoint justices is tremendously important. We need checks and [2:19:22] balances in our system, and we shouldn't weaken the Senate's role in checking the president on the [2:19:27] appointment of justices. Professor Ross? I agree with Mr. Capozzi. [2:19:33] You get the closing opine, because I'm well past my time. [2:19:37] Well, I would say there's also not a great need for that kind of a process in the Supreme Court, [2:19:43] because it's not really a disaster. If a single justice has to recuse, then the number of justices [2:19:49] who are sitting on the case is eight rather than nine. Generally, they're going to be able to decide the [2:19:54] case without splitting four to four. You know, that happens once in a while, but not enough, [2:20:01] I think, to make it the kind of problem that requires a solution. Mr. Chairman? [2:20:09] The chair recognizes the chairman of the full committee. [2:20:11] Just one quick question. I'm just curious what the panel thinks. Why don't we just add four [2:20:17] justices now? If 13 circuits, we need to go to nine to 13 as the ranking member of the full [2:20:23] committee suggested at the start of the hearing. Why wouldn't we just add them now if we're going to add [2:20:27] them? What do you think of that? We'll just go maybe go down the line. [2:20:30] The first rule of justice is what's good for the goose is good for the gander. I oppose doing that [2:20:36] now, just as I would oppose doing it under a different president. [2:20:39] No, that's where I'm at. Totally agree. But it seems to me if we're going to do it and 13 is some [2:20:46] some important number that we got to get to based on the number of circuits, then [2:20:50] we should, if we're going to do four, do it now. Mr. Bowie, would you support doing that? [2:20:53] Doing four? You said if Congress thinks it's the right thing to do, we should we should go for it. [2:20:58] So if it's the right thing to do, can we go for it now? Well, I agree with the principle. It's in [2:21:01] your prerogative. You have the prerogative to determine how the Supreme Court works. The court [2:21:06] did not descend from on high in its current form in the palace across the street. It's your job to [2:21:11] determine what kind of court you would have no problem with us doing it now. Look, I disagree with [2:21:16] many of the policies that come out of Congress right now, but I really have faith in your ability [2:21:21] to live up to your office. And I think that you have the authority to determine what kind of justice we [2:21:26] want to see in this country. That's great. I think I know what Professor Ross and Mr. Scherer's answer [2:21:31] is as well, which is where I'm at. Yeah, I would oppose any expansion of the court. Yeah, I'm there too. [2:21:38] Okay, thanks guys. I yield back to the chairman. Thank you for the hearing. I want to thank all of [2:21:44] our witnesses today. This concludes today's hearing. Pursuant to committee rules, all members will have [2:21:52] five legislative days in which to submit written questions for the witnesses and additional [2:21:57] materials for the record. And for all of you, what that means is within five days, additional [2:22:03] questions will be forwarded. Would all of you agree within a short period of time so we can close the [2:22:09] record that you would attempt to respond to them? Sure. All witnesses answered in the affirmative. [2:22:15] So without objection, that is ordered. And without objection, we stand adjourned.