The Threat Of Court Packing Is Probed By House Judiciary Committee

[0:00] Committee will come to order. Without objection, the chair is authorized to declare recess at any [0:04] time. We welcome everyone here today on today's hearing on court packing. Without objection, [0:13] Mr. Schmidt will be able to participate in today's hearings for the purpose of questioning [0:18] the witness if a member yields him time for that purpose. I'll now recognize myself for [0:25] an opening statement. Although the title today is Packing of the Supreme Court, it is more than that. [0:34] This committee, this subcommittee's primary goal is to empower the Supreme Court to do its job [0:42] while retaining its independence. That often means that we're being asked to consider pay, benefits, [0:50] budget, and in fact, as there is a need to lobby from this body to the court, we do so with the [0:58] recognition that the United States Supreme Court, unlike any other court in history, [1:05] is in fact a court of independent decision. The Supreme Court has that critical constitutional [1:12] responsibility. Unlike branches one and two, which move back and forth with the will of the people, [1:21] the Constitution itself created a court empowered to act as a check against the other branches, [1:28] as a check against the branches that reflect the current will of the people. Throughout our history, [1:36] the United States Supreme Court has been at its best when it told the reflection of the will of the [1:43] people of the moment that they could not do what they wanted to do. It is likely been at its worst when [1:52] it succumbed to the fever of the crowd or the feeling of the moment. Whether that is Dred Scott, [1:59] as may be brought up today, or in fact questions of locking up Americans in concentration camps during [2:09] World War II, we have had a long history of being proud of the court the vast majority of the time. [2:17] That doesn't change the fact that the court must reflect that which the American people can in fact [2:23] live with. No question at all that the court moves at a slow pace as the American people come along, [2:31] sometimes behind them. The court has delivered wins and losses for both political parties, [2:38] not just throughout history, but throughout the last nearly two years. The court at our founding [2:47] was different than it is today, only in one major sense. It was viewed as the second court, [2:56] meaning the U.S. Supreme Court justices rode circuit. The U.S. Supreme Court justices were effectively [3:03] the appellate court in addition to being the single Supreme Court. As our country grew, that changed. [3:11] Whether or not the American people anticipated in the Constitution the fact that the population would [3:24] go from single-digit millions to 350 million and likely to double again in the next century, [3:32] they did create the ability under the Constitution for the high court to remain supreme while lower courts [3:40] have been created by this very committee. Democrat leaders have threatened specific justices by name, [3:49] slandered family members and justices called for all manner of laws explicit to undermine the court's power [3:58] under the Constitution. I have not been the greatest student of history, but I strongly suspect there were times [4:07] when the other party did so. Whether that party was the Republican Party or the Whigs, [4:13] politicians have been unhappy with the court for the court doing its job in a professional matter. [4:20] The witness that our Democrat minority has chosen to invite today to this very hearing demonstrates my point. [4:33] Many of the writings of Professor Bowie clearly anticipates the view of the Democrat Party, [4:38] that which tends to be more populous, more the will of the moment, the more will of the people, [4:44] that in fact democratizing the Supreme Court has been well written by our witness. [4:51] I take no exception to his words. These are his words, his studies, and he is well written. [4:59] The question is, today, in this hearing and beyond, will the United States Congress side with the idea [5:08] that we should be more democratic in our third branch, or that our third branch should remain more independent, [5:16] less, if not completely, outside the will of the people's will at the moment, [5:21] as reflected through either direct will of Americans or through their elected representatives in both Article I and Article II. [5:31] It appears the Democrats believe the Supreme Court should be prohibited from second-guessing any federal laws [5:39] unless the court is unanimous, allowing any single justice, no matter how radical, to veto the entire court. [5:49] I find that interesting, and I reject it in every possible way. [5:57] Democrats believe Congress should decide when the Supreme Court meets, delay when it hears arguments, [6:04] force justices to resume the pre-Civil War practice of riding circuit, and acting as district judges. [6:12] Democrats seem to believe that they should regulate what anyone can ask any court to do, [6:20] blocking Americans from seeking relief from Supreme Court for unconstitutional laws. [6:27] It appears Democrats believe the court should be packed with more justices who share their views. [6:41] If written testimony of these views on behalf of the Democratic colleagues aren't enough for the committee, [6:49] Professor Bowie has written extensively in support of anti-Supreme Court views. [6:55] I now ask unanimous consent to enter into the record many of these articles. [7:02] I will not go through them one by one, but I will make sure they're available to all the members. [7:08] These are, in fact, the writings of Professor Bowie, who I have, in fact, given a brief synopsis of, [7:15] and without objection, so ordered. [7:18] In contrast, Republicans understand that even the court rules against us, that is its constitutional work. [7:29] We can revise laws and even amend the Constitution if we want to. [7:34] As I told to some of the individuals in the audience today, [7:39] we have one of our original constitutional amendments still before the American people. [7:44] If the American people so chose through its states, [7:50] they could choose to go from the House of Representatives having 435 members determined by the body itself, [7:57] or we could have over 6,000 members if we simply enacted one of the original constitutional amendments, [8:05] the 12th of the 12 original. [8:07] That would, in fact, cap at 60,000 the number of people each member on the dais could represent. [8:14] At the time of our founding, it seemed like a good idea to at least some of our founders. [8:21] If anyone on the dais here today thinks that a baseball park filled with House members [8:27] pushing their thumbs up and down would give us more democracy, [8:32] or if any of the witnesses think that it is more than just a relic of the past, [8:38] I ask them all to please consider opining on it during the hearing. [8:42] And with that, I'd like to recognize the ranking member of the subcommittee, Mr. Johnson, for his opening statement. [8:48] Thank you, Mr. Chairman, and thank you, witnesses, for your appearance today. [8:56] Last summer, Kash Patel took a taxpayer-funded snorkel tour of Pearl Harbor, [9:03] one of our nation's most hallowed grounds, [9:07] while the cost of living for Americans skyrocketed. [9:10] The Trump administration just created a taxpayer-funded $1.8 billion relief fund [9:20] for January 6th insurrectionists and others [9:26] in exchange for dropping a $10 billion lawsuit, [9:35] a personal lawsuit that he filed against the IRS, which he controls. [9:40] And he's doing this while millions of Americans are losing their health insurance. [9:48] President Trump is blocking clean energy projects for his fossil fuel campaign donors, [9:56] while the rest of us pay and pay and pay at the pump more and more every day. [10:04] What do these facts have to do with this hearing? [10:08] On its face, the daily demonstrations of incompetence and corruption of the Trump administration [10:15] have little to do with the Supreme Court. [10:17] But if you look closer, these stories mirror the far right [10:23] and how far the far right has created a corrupt United States Supreme Court [10:31] that too often works for the corporations, the billionaires, and the oligarchs [10:38] at the expense of the American people. [10:41] For decades, MAGA Republicans have systematically chipped away at the impartiality of our third branch. [10:51] They have already delegitimized our judiciary, [10:55] yet they now stand before the American people pretending to be guardians of judicial integrity. [11:04] Today's blatant attempt to rewrite history would be laughable [11:09] if the consequences were not so dangerous for our democracy. [11:15] But history matters. [11:17] The American people deserve to understand how we got to this moment. [11:24] And to understand how we got here, we must follow both the money and the machinery behind the modern conservative legal movement. [11:35] The Roberts Court is the culmination of a plot that began 50 years ago in the early 70s. [11:45] Soon to be, Justice Powell wrote, [11:47] The judiciary may be the most important instrument for social, economic, and political change. [11:55] And he said that to reassert corporate power over the needs of the individual. [12:02] This Powell memo set off a decades-long crusade by Republicans to concentrate power in the hands of the few at the expense of the many. [12:16] Wealthy donors and corporate interests spent billions of dollars to reshape the judiciary in their image. [12:25] Nowhere is the success of this decades-long effort more visible than at the United States Supreme Court, [12:35] where a carefully appointed conservative supermajority, a MAGA supermajority, [12:43] now delivers the MAGA conservative outcomes this movement spent billions of dollars to achieve, and achieve they did. [12:55] In the last several years, the Roberts Court opened the floodgates to unlimited dark money in our political system, [13:04] empowering billionaires and oligarchs like Elon Musk, the Koch brothers, Leonard Leo, Harlan Crowe, [13:15] and other powerful special interests to reshape the court and drown out the voices of ordinary Americans. [13:24] This court has decimated reproductive freedoms that generations of women fought to secure, [13:34] stripping away rights that millions of Americans relied on for nearly half a century. [13:41] It has granted Trump vast immunity, placing him virtually above the law. [13:51] And now, the court has put the nail in the coffin of the Voting Rights Act, dismantling protections [14:00] that generations of Americans fought, marched, and died for. [14:06] Abraham Lincoln once said, [14:11] this government cannot endure half-slave and half-free. [14:17] Yet, that seems to be the vision for America that Chief Justice Roberts and the conservative supermajority on the Supreme Court envision. [14:28] Where some enjoy easy access to the ballot, others are forced to overcome legal barriers designed to make our voices quieter. [14:37] Our nation is now in Jim Crow 2.0. [14:42] We are a nation where the right to vote, once again, can be diluted, restricted, or simply ignored. [14:52] And where the voices of rich and powerful people carry more weight than the voices of ordinary Americans. [15:02] But particularly, Americans who look like me. [15:06] Our 250-year experiment in self-governance can only succeed if Americans decide that the clock has run out on the far right's attempt to overturn our democracy. [15:21] So, we can either sit back as our Supreme Court continues to act without any restraint or checks and balances, or we can do something about it. [15:33] The American people deserve accountability for the damage that has been done. [15:39] The American people deserve a judiciary that serves our democracy, not a narrow ideological agenda that only benefits the rich and powerful. [15:52] So, I want to thank the witnesses again for being here. [15:56] I'm looking forward to a discussion about how to ensure that our democracy serves everyone, all of us, not just the wealthy and the well-connected few. [16:07] And with that, I yield back. [16:10] The gentleman yields back. [16:11] We now recognize the chairman of the full committee, Mr. Jordan, for his opening statement. [16:14] Thank you, Mr. Chairman. [16:15] Thank you, Mr. Chairman. [16:16] I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you've released the whirlwind and you will pay the price. [16:24] You won't know what hit you if you go forward with these awful decisions. [16:29] Chuck Schumer, March 4th, 2020. [16:33] Highest-ranking Democrat in our government threatening a separate and equal branch of government. [16:39] And if you doubt it's a threat, just remember where he made that statement. [16:44] On the steps of the Supreme Court. [16:46] And that threat began the six-year assault on the court by the Democrats. [16:53] Started with that threat. [16:54] Then you had Senator Markey say the court's illegitimate. [16:57] Well, how is that? [16:59] Every justice I know in the court was actually confirmed by the United States Senate. [17:03] That's how our Constitution works. [17:05] How could it be illegitimate? [17:06] But Senator Markey thought it was. [17:08] Then we went to something that's never happened. [17:12] The Democrats leaked the Dobbs opinion in 2022. [17:17] You talk about trying to undermine a separate and equal branch of government. [17:20] Start leaking the opinions. [17:21] That's what they did, which resulted in protest at justices' homes. [17:26] Which, by the way, the Justice Department at the time under the Biden administration and Attorney General Garland refused to enforce the law. [17:34] 18 U.S.C. 1507 says you can't protest at a judge's home. [17:38] And they refused to enforce the law. [17:41] Which, of course, led to some crazy guy going to Justice Kavanaugh's house with the design to kill justice of the Supreme Court. [17:51] Then, of course, we had all the hearings by the Democrats when they were in charge attacking Justice Thomas, attacking Justice Alito. [17:59] We had a hearing where a guy come in and lied about Justice Alito and said he leaked some document. [18:04] Which is it. [18:05] Go back and watch the hearing. [18:06] Definitely a lie by this guy. [18:08] And why did they do it? [18:10] Why did they do it? [18:12] To concoct some basis for packing the court. [18:17] And now they're saying it again. [18:19] Time to pack the court. [18:20] By the way. [18:21] By the way. [18:22] They want four justices. [18:23] Four new justices on the court. [18:24] Why not one? [18:25] Why not two? [18:26] Why not three? [18:27] Why not five? [18:28] Why do they want four? [18:29] Because it's a 6-3 majority for conservatives. [18:32] A 6-3 majority for people who actually interpret what the Constitution and the law says versus making it up as you go and making some new policy. [18:40] They want four because they want a 7-6 majority. [18:42] Plain and simple. [18:43] Raw political power. [18:45] And they've been willing to do almost anything. [18:48] Threaten the Supreme Court on the steps of the Supreme Court. [18:51] Leak opinions. [18:53] Bring witnesses in who lie about justices. [18:55] That's why this hearing is important. [18:58] And frankly, I hope we move the constitutional amendment on the floor. [19:01] I hope there's a vote. [19:02] And we'll see if these guys want to keep the court at 9, which it should be. [19:06] It's been there for, what, 160 years or something? [19:10] This whole, Carville's talking about it. [19:17] Former Vice President Harris is talking about it. [19:19] They're all talking about it. [19:20] The ranking member's talking about it. [19:21] We've got to pack the court. [19:22] Why? [19:23] Why? [19:25] Because they don't like the decisions that this good court is giving this country. [19:29] So thank the chairman for this hearing. [19:30] Thank our witnesses for being here. [19:32] I look forward to hearing your testimony. [19:33] And I yield back. [19:34] The gentleman yields back. [19:35] We now recognize the ranking member of the full committee for his opening statement. [19:38] Thank you very much, Mr. Chairman. [19:43] And I suppose that court packing, like justice itself, lies in the eye of the beholder. [19:49] But there are many different kinds of court packing. [19:53] Here's one. [19:54] When Justice Scalia died in February of 2016, when Barack Obama was president, Senator Mitch McConnell announced ten and a half months before the presidential election that the Senate would not be considering any replacement. [20:07] The Judiciary Committee would not have any hearing. [20:10] There'd be no vote in committee. [20:11] And there'd be no vote on the floor. [20:13] When people asked why, that makes no sense to hold the Supreme Court seat open, to hold that vacancy open for nearly a year. [20:23] He said it was too close to the next presidential election and the people should decide. [20:28] Of course, the people had decided in electing Barack Obama to one of those genuine bona fide four year terms in office like every other president. [20:38] Well, we've got a controlled experiment about what would happen because that was held open. [20:44] Merrick Garland was nominated by Barack Obama and was left twisting in the wind for nearly 11 months after the death of Justice Scalia. [20:53] Then, Trump, when he got in, was able to nominate Neil Gorsuch to the seat in his first week in office, and that seat was open for 422 days. [21:09] And Mitch McConnell bragged about it, calling it the most consequential decision of his entire public career. [21:14] And, of course, it cemented the rapid movement of the Supreme Court to the right to incarnate the mega agenda on the Supreme Court. [21:25] Well, look, here's what happened when Ruth Bader Ginsburg died. [21:29] Now, she died on September 18th, 2020, so close to the next election, which was less than two months away, that early voting had started in a lot of the states. [21:41] So it wasn't even two months away. [21:44] And then the Democrats asked Mitch McConnell. [21:47] Some reporters asked Mitch McConnell, well, of course, you're not going to have hearings or a vote or anything in the next few weeks, are you? [21:53] And he laughed it off. [21:54] He laughed off the suggestion that they would maintain the same rule that they had used to block Merrick Garland and President Obama from having a seat. [22:04] And then they rammed through the nomination of Amy Coney Barrett within two months, consolidating the right wing anti-choice, anti-environmental regulation, anti-labor, anti-voting rights, anti-democracy majority on the Supreme Court. [22:20] Had the original McConnell rule been applied or even a reasonable approach taken with just a few weeks before the election, that's that Supreme Court seat would have been filled by President Biden, not by Donald Trump. [22:35] Biden won that election, by the way, by more than seven million votes. [22:39] If you're interested in what the people want, 306 to 232 in the Electoral College. [22:43] I know some people came down to overthrow the election, attack our police officers in order to accomplish a political coup to deny that. [22:52] But that's what happened. [22:53] So right there, we've got two seats officially stolen by Mitch McConnell and the Republican Senate, giving them a 6-3 mega court with a majority of the court now made up of nominees of presidents who lost the popular vote, lost the popular vote. [23:11] Roberts and Alito, Gorsuch, Kavanaugh and Amy Coney Barrett, all nominated the court by justices, by presidents who lost the popular vote. [23:21] Now, if you don't believe that this Supreme Court has received, has conceived and achieved a remarkable transformation in constitutional jurisprudence, ethics and behavior on everything from abortion to voting rights to political corruption cases, [23:41] then you don't have to believe me or you don't have to believe your own eyes. [23:45] Just listen to Donald Trump, who openly says it's really OK for them to be loyal to the person that appointed them to almost the highest position in the land. [23:54] The justice of the U.S. Supreme Court, he berates and vilifies justices and judges up and down the federal system who disagree with him or who he feels have been insufficiently robotic in their loyalty to the mega agenda. [24:08] It's true. He doesn't want a justice loyal to the people, as the good chairman of the subcommittee says, or the Constitution. [24:15] He wants a Supreme Court loyal to him and whatever is going to advance his interests, his money, his family, his corporations. [24:23] He's got a Supreme Court majority so robotically loyal that they will pluck a doctrine out of thin air, nothing to do with originalism, nothing to do with textualism, out of thin air to insulate the president from liability for felony crimes committed in office. [24:39] We went for more than two centuries without any president ever claiming the right to commit crimes under his office and not to be prosecuted for it. [24:50] But here we are today. The Supreme Court, we must acknowledge, has been a profoundly conservative reactionary institution for the vast majority of our history. [24:59] And what did the Supreme Court ever do for enslaved people between the founding of the Civil War? Nothing other than in 1857, the Dred Scott decision cement their subjugation into place, saying that the African slave and his descendants have no rights. [25:15] No rights a white man is bound to respect in any way. And then even after the Civil War, after the passage of the 13th, 14th and 15th Amendments drawn from the blood, sweat and tears of the Union and the people who fought to defend our country against the Confederacy, [25:31] the Supreme Court gutted the meaning of the Reconstruction Amendments in the civil rights cases. [25:36] And then in 1896 in Plessy versus Ferguson, constitutionalized the reign of Jim Crow, separate but equal. [25:44] So we have a couple of decades around the Warren Court, maybe the first few years of the Burger Court, where the Supreme Court acted on the side of the people. [25:53] Brown versus Board of Education striking down American apartheid, the white primary line of cases, Terry versus Ohio, Roe versus Wade. [26:03] But it didn't last long before it all sank away with the Rehnquist Court and the Roberts Court. [26:10] And now they've returned to the historic baseline of political white supremacy. [26:15] They wiped out our Voting Rights Act, first in Shelby County versus Holder in 2013 and a couple months ago in the Calais decision. [26:23] And we are about to see they're not going to be able to accomplish it all in 2026. [26:27] But by 2028, we will probably see all white congressional delegations from the Deep South, wherever the Republicans control the state legislatures. [26:36] OK, that is court packing. That's political packing by a packed Supreme Court. [26:42] The court today is a legitimacy crisis, not just because of the way it's been composed and stacked and packed and gerrymandered and divided by Mitch McConnell, who laughs about it. [26:54] He thinks it's funny what they did. Why do some people want 13 circuits, Mr. Chairman? [26:59] Very 13 members of the court. You don't need a conspiracy theory for that. [27:04] There are 13 federal circuits in America. And traditionally, the Supreme Court has been made up of the number of justices equal to the number of circuits. [27:13] And we got 13 circuits, but we only have nine justices. [27:16] So that means that under the best of circumstances, four entire federal regions, four federal circuits will be left out completely. [27:25] And it's much worse than that today because we've got five justices from New York City alone, one for each borough. [27:32] But you're telling a majority of the people who live in a majority of the states that they can't find anybody qualified to serve on the Supreme Court. [27:41] So that's the answer to that particular question. [27:44] But we've got a complete structural, ethical, jurisprudential crisis in the Supreme Court, whose name is in the gutter because of these terrible decisions that they keep issuing, like the overthrow of Roe versus Wade, [28:00] Planned Parenthood versus Casey, the complete construction out of thin air of immunity of presidents to commit felony crimes while in office and so on. [28:15] And I hope that this court will do its best to try to behave like a Supreme Court. [28:19] But there are things that we can do. And I introduced one bill yesterday called the SCOTUS Act. [28:26] And the SCOTUS Act is creating a new way for cert to be granted because this Supreme Court is obviously acting like a legislature. [28:35] I mean, they set up an agenda where they want this case about the Voting Rights Act. They want to destroy it. [28:41] Oh, now it's time for us to overthrow abortion rights. We're going to take that case. All right. [28:46] A lot of countries don't leave the agenda setting authority to the court itself. [28:52] And certainly we should not leave it in the hands of this Supreme Court. It belongs with the 13 federal circuits. [28:58] We should have a panel made up of the chief judge of each federal circuit or their designee if they want another judge to do it. [29:05] And they should decide when there is a meaningful circuit split or a federal question that should go up to the Supreme Court. [29:12] This court obviously cannot be trusted with that agenda setting authority. [29:16] Let's begin to create a real Supreme Court in the country by moving in this direction. [29:23] And I thank you, Mr. Chairman. I yield back to you. [29:25] I thank the distinguished member from Maryland. [29:30] Your length of time as a professor shows in the history dating back to 1929 when the Tenth Circuit was created. [29:39] Can I just ask one question as a point of inquiry? [29:42] Are you saying that the circuits should push involuntarily to the high court the cases they should take? [29:52] Not involuntarily. We should set up a new system where cert is granted by a cert panel that's made up of 13 judges, the lead judges of each federal circuit in the country. [30:04] And those would be the cases that go to the court instead of the court determining like a legislature what bills it wants to bring up in order to overthrow this or that particular policy or law they don't like. [30:15] Interesting. I look forward to seeing your bill for that. [30:18] We'll get it to you. We'll get your copy right now. [30:20] I thank the gentleman. [30:23] Without objection, all other statements will be included in the record. [30:27] We'd now like to introduce our panel. [30:31] Mr. Lewis Capozzi is the Solicitor General of Missouri. [30:36] He previously worked in private practice at Jones Day, growing up in Cleveland. [30:41] That's a household word I appreciate. [30:43] And has served as an adjunct professor at the University of Pennsylvania, Cary Law School. [30:50] He clerked for Justice Neil Gorsuch, Judge Wilkinson, and Judge Wilkinson on the 4th Circuit Court of Appeals. [30:59] Judge Anthony Scalia on the 3rd Circuit Court of Appeals. [31:04] Thank you and welcome. [31:07] Professor William Ross. [31:08] Mr. Ross is the Albert P. Brewer Professor of Law and Ethics at Stanford University Cumberland School of Law. [31:18] Professor Ross teaches courses on professional responsibility, civil procedure, constitutional law, and American legal history. [31:28] Mr. Gene Schauer is a partner at his own firm of Schauer Jaffe LLP, where his practice focuses on civil appellate matters. [31:41] He has argued seven cases before the U.S. Supreme Court and previously was chair of the U.S. Supreme Court and Appellate Practice Group at Winston & Strong. [31:52] He is a constituent of our ranking member in Maryland and perhaps will be able to answer the ranking members' questions in full. [32:06] Professor Nicholas Bowie. [32:08] Mr. Bowie is the Louis D. Brandeis Professor of Law at Harvard University. [32:15] Professor Bowie teaches courses on federal constitutional law, state constitutional law, and local government law. [32:23] We welcome our witnesses here today, and as is the rule of the committee, I would ask all our witnesses to rise to take the oath and raise their right hand. [32:33] Do all of you solemnly swear or affirm under penalty of perjury that the testimony you are about to give will be true and correct to the best of your knowledge, information, and belief, so help you God. [32:47] Let the record reflect that all witnesses answered in the affirmative, you may be seated. [32:53] I know all of you are learned and have certainly watched us on C-SPAN intently in the years leading up to this, but I have to say for the record that your entire statements will be placed in the record, [33:11] and that what you say in your opening statement preferably will be abbreviated portions of it or extemporaneous, but most importantly your entire written statement will be placed in the record, [33:25] so the five minutes in an opening statement can be either similar or dissimilar at your choice. [33:32] But we do ask you to stay as close as you can to those little timers that tell you your time is coming close to an end and then eventually that it has ended. [33:43] With that, I'd ask Mr. Capozzi to begin. [33:50] Okay, now this is a major test. Even members of Congress get it wrong. So we will test each of you for your ability to get the mic on and then back off again. This is your second chance, sir. [34:07] Chairman Issa, Ranking Member Johnson, Chairman Jordan, Ranking Member Raskin, thank you for the opportunity to testify today. I'll do my best to turn the mic on for the rest of the hearing. [34:19] The framers of the Constitution guaranteed the Supreme Court's independence because they understood that independent courts are essential to the rule of law. [34:28] The Supreme Court's insulation from partisan politics preserves its ability to adjudicate disputes on what the law requires, not the fleeting goals of political actors. [34:39] Nevertheless, at various points in our history, partisans have proposed reforms that would undermine the Supreme Court's independence, [34:48] with court packing being the obvious example. Today, I urge Congress to reject proposals to interfere with the court's independence. [34:55] I'd like to start by emphasizing what is at stake. The Supreme Court, as with all courts, relies on respect for its judgments. [35:04] This critical respect did not arise automatically. As Justice Breyer has explained, during the 19th century, an independent judiciary was more an aspiration than a reality. [35:16] As an illustration, Justice Breyer pointed to President Andrew Jackson's infamous refusal to respect the Supreme Court's decision in Worcester v Georgia, which led to the removal of the Cherokee from their native homeland. [35:29] Fortunately, by the 20th century, respect for the Supreme Court became firmly entrenched. [35:35] Thus, despite Southern efforts to resist desegregation, state officials eventually followed the court's orders to do so. [35:42] Today, we take it for granted that government officials will follow the Supreme Court's orders. [35:48] But that could change if politicians interfere with the Supreme Court's independence. [35:53] That is why I am alarmed by the current trend of attacking the Supreme Court's legitimacy. [35:58] But even on their own terms, the trending criticisms of the Supreme Court make little sense. [36:03] First, critics frequently claim that the Supreme Court consistently rules in favor of President Trump and Republicans. [36:11] But this is not true. During his first term, the Supreme Court ruled against President Trump in several crucial cases, including on rescinding DACA, adding a citizenship question to the 2020 census and allowing subpoenas of the president's personal financial records. [36:28] The Supreme Court has also not hesitated to rule against President Trump early in his second term. [36:33] For example, the court struck down the president's tariffs, prevented him from deploying the National Guard in major cities, and barred the removal of Lisa Cook from the Federal Reserve. [36:44] Another common attack on the Supreme Court's legitimacy is that it has been more willing to overrule precedent than in the past. [36:52] A quick look at history refutes this proposition. [36:55] During the 1930s and 1940s, the Supreme Court revolutionized constitutional law and allowed for the massive growth of the federal government. [37:04] The Warren Court also regularly overed precedent and dramatically overhauled many areas of the law. [37:10] For example, in Reynolds v. Sims, the Supreme Court restructured state legislatures across the country, finding the state's equivalence of the U.S. Senate unconstitutional. [37:20] Compared to its predecessors, the current Supreme Court overrules precedent at a slower pace. [37:27] Indeed, the Supreme Court has conspicuously declined to overrule precedent in several recent important cases, including Fulton v. City of Philadelphia. [37:36] But at the same time, the Supreme Court can and should overrule precedent when it believes a past decision was wrong, with Brown v. Board of Education being an obvious example. [37:48] The Supreme Court continues to strike a balance between preserving precedent and correcting its mistakes, just as it has always done. [37:57] As Solicitor General of Missouri and a recent Supreme Court clerk, I can attest that the Supreme Court is working exactly as it should be. [38:06] The Supreme Court derives its legitimacy from the fact that it is not a partisan institution. [38:11] No political group gets everything it wants there. [38:14] Disagreeing with the court's decisions is no excuse to threaten judicial independence, a cornerstone of our republic that took centuries to build. [38:23] I urge Congress to continue its tradition of respecting the Supreme Court's independence. [38:29] Thank you again for your invitation to be here today. I look forward to your questions. [38:33] Thank you, sir. We now recognize Professor Ross. Okay, you get two chances, too. Yeah. Don't feel bad. [38:47] Like I say, we've had senators not be able to get it right, sir. [38:50] So, Chairman Issa, Ranking Member Johnson, Chairman Jordan, and Ranking Member Raskin, distinguished members, [39:02] thank you very much for inviting me to testify here today. [39:06] I'm here to testify in opposition to proposals to expand the number of United States Supreme Court justices [39:13] and to provide historical perspectives about so-called court packing. [39:17] Increasing the court sides for political reasons could diminish judicial independence [39:23] and interfere with separation of powers because it would permit the President and the Senate to manipulate the outcome of judicial decisions by appointing additional justices [39:34] who would be expected to conform to the political predilections of the President and his or her party. [39:40] Moreover, the prospect of court packing could intimidate justices and influence the court's decisions. [39:47] The court's independence from political pressure and intimidation has helped to ensure its ability to protect the civil liberties of Americans [39:56] in countless cases involving racial, religious, political, and ethnic minorities whose rights were ignored or impugned by Congress, the President, and state governments. [40:09] Similarly, the court generally has protected the liberties of speech, press, religion, and assembly more faithfully than have the President, the Congress, or the three branches of state government. [40:24] A politically motivated increase in the number of justices could also erode public respect for the court [40:30] since it would exacerbate the growing tendency of Americans to believe that the court's decisions are guided by political prejudices [40:38] rather than by constitutional principles. [40:42] Advocates of court packing claim that the appointment of additional justices, presumably by a Democratic president, [40:49] would restore balance to a court the conservatives have allegedly hijacked. [40:54] But how and where would court packing end once it began? [40:57] Court packing is a game that both parties can play. [41:01] If a Democratic president could obtain a liberal majority on the court by appointing additional justices, [41:08] a subsequent Republican president could restore a conservative majority by appointing still more justices. [41:15] It is therefore clear that both parties and both conservatives and liberals should have compelling reasons to fear and oppose court packing. [41:25] Tampering with the size of the court also is ill-advised because a nine-member court is deeply rooted in tradition [41:31] and is based on practical considerations. [41:34] Supreme Court justices and legal scholars have tended to agree that nine is the ideal size for the court [41:40] since that's large enough to distribute the court's heavy workload and provide a range of viewpoints [41:46] but small enough to promote collegiality and efficient deliberation. [41:51] Increasing the court size could impair the court's ability to function effectively. [41:55] In particular, an increase in justices would provide individual members with less time and opportunity [42:02] to ask questions during oral arguments and to participate in the court's conferences. [42:07] It could also dilute the clarity and force of the court's opinions by increasing the number of concurring opinions. [42:14] As Chief Justice Charles Evans Hughes explained in imposing Franklin Roosevelt's ill-fated court packing plan in 1937, [42:22] quote, [42:23] there would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide. [42:31] The present number of justices is large enough so far as the prompt, adequate and efficient conduct of the work is concerned, close quote. [42:41] Although advocates of court packing contend that the court's new conservative majority should not frustrate the programs of the other two branches of government, [42:49] it is the very role of the court to filter political agendas through a constitutional lens. [42:55] Tethering the court to the President and Congress contravenes the fundamental concept of separation of powers. [43:02] The court often has fulfilled its most important function when it has overturned unconstitutional legislation. [43:09] Although proponents of court packing also argue that the present court is out of step with public opinion, [43:14] the court throughout its history has broadly remained within the general parameters of public opinion, [43:20] even during periods when it has had a distinctly liberal or conservative tinge. [43:24] Justices are keenly aware that, as Alexander Hamilton wrote in The Federalist, [43:29] the court has neither the power of the purse nor the power of the sword, [43:33] and that its decisions are ultimately dependent upon the goodwill of the coordinate branches of government and the American people. [43:41] Since court packing proposals jeopardize the court's integrity and independence, [43:45] it is my hope and expectation that Americans today will reject such interference with the court just as they did in 1937. [43:54] Thank you. [43:55] Thank you, Professor. [43:59] Mr. Scherer. [44:00] Good morning. [44:02] Chairman Issa, Ranking Member Johnson, Chairman Jordan, Ranking Member Raskin, [44:06] and distinguished members of the subcommittee, [44:09] thank you for this opportunity to address recent proposals for packing the U.S. Supreme Court, [44:15] which is an issue of enormous importance to all who care about the rule of law, as I know each of you does. [44:20] In 1983, a well-known Democratic politician, Senator Joe Biden, pointedly referred to Franklin Roosevelt's 1937 attempt [44:32] at packing the Supreme Court as, quote, a terrible mistake and a boneheaded idea. [44:38] So let me offer five reasons why that remains true today, [44:43] in addition to those that have been mentioned by my esteemed colleagues here on the panel. [44:47] First, the current court packing proposals are really based on an incorrect factual premise, [44:54] namely that the Roberts Court is relentlessly partisan and consistently reaches conservative outcomes. [45:00] Now, we've heard already today about a handful of decisions that people on the left don't like. [45:10] We've heard about Citizens United, which recognize First Amendment limitations on the government's ability to curb [45:17] or regulate political speech. [45:19] People on the left are also concerned about Dobbs, which we've heard about, [45:23] and the recent Supreme Court decision in Louisiana versus Calais, [45:28] which some people claim gutted the Voting Rights Act. [45:31] But in fact, and I'll come back to those specific examples in a minute, [45:34] but in fact the Roberts Court, often joined by some of President Trump's nominees, [45:39] has also ruled against what most people view as Republican or conservative interest in several hotly contested cases. [45:48] Mr. Kaposi mentioned the recent tariff decision. [45:51] Another example of that phenomenon is the Obergefell decision from a few years ago, [45:56] which ruled that states are constitutionally forbidden from limiting the definition of marriage to man-woman unions. [46:03] And then there was the Bostock decision, which extended Title VII's protections against nondiscrimination to gay and lesbian and transgender people. [46:12] And don't forget the Supreme Court's earlier decision in NFIB versus Sibelius, [46:17] which upheld the individual mandate that was the heart of Obamacare. [46:22] Each of those decisions was excoriated by folks on the right, [46:27] and they were, as a political matter and a policy matter, they were big wins for progressives. [46:37] And so the claim that the Roberts Court is somehow in the pocket of conservatives or Republicans just doesn't withstand analysis of the facts. [46:47] Second, current proposals rest on an unrealistic predictive judgment about new justices' voting powers, [46:58] or likely voting patterns. [47:00] In Roe versus Wade, for example, the key votes supporting abortion rights came from justices appointed by the conservative President Nixon, [47:08] while one of the most vocal dissents in Roe versus Wade came from Justice Byron White, [47:13] who had been appointed by President Kennedy. [47:17] And we've all seen examples of where Supreme Court justices vote against the wishes of the president who appointed them. [47:24] And so even adding four more justices to the Supreme Court is by no means any guarantee that the court would shift more towards progressive priorities. [47:37] Third, as has been mentioned, court packing proposals really ignore the incentives of the other side once they regain power. [47:47] If Democrats have a trifecta in the next election and are able to expand the Supreme Court to 13, [47:54] does anybody think that Republicans are going to stand still for that and not do the same thing the next time there's a Republican trifecta? [48:01] And before long, the only venue in Washington, D.C. that will be large enough to accommodate the Supreme Court's conferences, their private conferences, will be the new White House ballroom. [48:13] And I don't think that's in anybody's interest. [48:17] You're assuming that there will be one. [48:20] I'm assuming that. I'm not advocating for it, but I'm assuming it. [48:24] Number four, court packing proposals distract from the more important work of building political and legislative coalitions. [48:33] And I think that's illustrated by some of the recent court decisions that we've discussed today. [48:38] If you look at the Calais decision, for example, that decision was premised on the court's interpretation of a federal statute, namely the Voting Rights Act. [48:47] And the court held that there was a violation of equal protection in that case because the Voting Rights Act did not establish that majority-minority districts were required. [48:59] Well, if Congress goes back and changes the Voting Rights Act to do what progressives would like and require majority-minority districts, my guess is that that decision would come out very differently. [49:12] Dobbs is another example. [49:15] Many progressives and even not-so-progressive states have already effectively neutered Dobbs within their own state boundaries by passing laws that protect abortion to an equal or greater extent than Roe once did. [49:28] Number five, other panelists have already discussed how court packing would erode public trust in the court and ultimately in the entire federal government, [49:40] because the Supreme Court has long been viewed correctly as a bit of a ballast or a counterweight to the other branches of the government. [49:47] They can correct the mistakes that the other branches occasionally make. [49:52] I think it's also instructive that court packing in other countries has become a favorite tool of tyrannies around the world, like Robert Mugabe in Zimbabwe, [50:03] Victor Orban in Hungary, and Hugo Chavez in Venezuela. [50:09] And so there are many reasons to reject the current court packing proposals. [50:13] Thank you. [50:14] I thank the gentleman. [50:15] We now go to Professor Bui for his. [50:20] I'm terribly sorry to medulate your name. [50:23] No worries, but thank you, Chairman Issa, Ranking Member Johnson, Chairman Jordan, Ranking Member Raskin. [50:30] Thank you for inviting me to testify before the distinguished members of the subcommittee. [50:34] My name is Nicholas Bui, and I am the Louis D. Brandeis Professor of Law at Harvard Law School. [50:40] For the past seven years with my colleague, Daphna Renan, I have researched a forthcoming book called Supremacy, How Ruled by the Court Replaced Government by the People. [50:51] The book shows how the Supreme Court acquired the power it now wields and what Congress can do about it. [50:58] We're here to assess whether court packing is a threat to the Supreme Court's legitimacy. [51:04] But we first need to answer a more basic question, which is what is the legitimate role for the court to play under our Constitution? [51:13] As Professor Renan and I wrote in our book, this question was a critical one for the people who founded the Republican Party. [51:22] Their mission was to fight the spread of slavery. [51:26] But in 1857, in Dred Scott v. Sanford, the Supreme Court declared that mission unconstitutional for Congress to put into practice. [51:36] That founding generation of Republicans had never before experienced an attempt by the Supreme Court to override Congress. [51:45] They called such an attempt despotic and unwarranted by the Constitution. [51:50] When Abraham Lincoln and other Republicans won in the 1860 elections, Congress enacted statutes that rejected Dred Scott and began reconstructing the South into a multiracial democracy. [52:03] That Republican-controlled Congress wanted courts to enforce their laws, but they were wary of a second Dred Scott decision. [52:13] So they changed the court's size, they stripped it of jurisdiction to review its most important laws, and they proposed further regulations to check and balance the court. [52:24] They understood that under our Constitution, the legitimate role for the court is to enforce federal law against anyone who considers themselves above it, whether that person is a corporate executive, a state official, or the president. [52:40] The court's role is not to defy federal law by placing it itself above you all, our nation's representatives, of we the people, to whom the Constitution gives primary responsibility to determine the Constitution's meaning. [52:58] The Supreme Court's assertion of power to defy federal law has a name, judicial supremacy. [53:05] The founding generation of Republicans argued that this idea undermines Republican governance. [53:11] But they failed to bury it, and it reemerged when the court declared Congress constitutionally incapable of banning lynching, of banning racial discrimination by businesses, or banning widespread disenfranchisement. [53:25] In the years since then, the court has continued to undermine federal voting laws, federal civil rights laws, and federal laws that prevented the wealthy from dominating our elections and your daily call time. [53:38] Judicial supremacy has also unleashed presidential authoritarianism, disabling the laws Congress enacted to prevent corruption, self-dealing, and attacks on the peaceful transition of power. [53:53] But like those early Republicans, we need not accept judicial supremacy any longer. [53:58] Those Republicans and their abolitionist allies advocated for an alternative tradition that Professor Renan and I called democratic constitutionalism. [54:07] This is the idea that we, the people, have the power to interpret and define the meaning of the Constitution through the process of federal lawmaking. [54:17] This was the position of the lawyers who argued Brown v. Board of Education in the 1950s. [54:23] They urged the court to stop defying Congress' civil rights laws and to start enforcing it against discrimination in the South. [54:32] One law in particular, the Ku Klux Klan Act of 1871, explicitly directed courts to prevent state officials from violating anyone's constitutional rights. [54:43] The court applied that federal law in Brown to end segregation in the South, and it has applied it in many landmark cases since. [54:53] Meanwhile, a bipartisan Congress inaugurated a second Reconstruction with the Voting Rights Act of 1965. [54:59] That law overrode Supreme Court decisions that had interpreted the Constitution to be consistent with all of the Jim Crow laws that disabled black people from voting in the South. [55:08] You have the power to continue this legacy and replace judicial supremacy with democratic constitutionalism. [55:15] The Constitution says nothing about the court's power to defy acts of Congress, but it explicitly empowers Congress to regulate the court. [55:22] Your predecessors used that power to curb the court's defiance of federal statutes and to override harmful constitutional interpretations. [55:31] And in fact, nearly everything about the court can be regulated by statute, including the number of justices, where it sits, and what it has the power to do. [55:41] If the current majority of the court is exercising an illegitimate supremacy over federal law, [55:46] one the Constitution does not grant and that is being used to make Republican governance unviable, [55:52] then regulating the court is not just legitimate, it is your duty. [55:57] Thank you very much. [55:58] Thank you. [56:00] We'll now proceed to the five-minute rule, but I'll ask unanimous consent at this time to place into the record [56:09] the Judges Act, H.R. 1702, a bill to expand the district courts over a phased-in period. [56:19] Additionally, I'll put in H.R. 3422, the Judiciary Act of 2023, to expand the court. [56:30] And I'll put in a news story from 2026, just a few days ago, Democrats' renewed call for U.S. Supreme Court overall after the Voting Rights Act decision. [56:53] Without objection so ordered, we now proceed to the gentleman from Wisconsin, Mr. Fitzgerald, for five minutes. [56:59] Thank you, Chairman. [57:00] Mr. Ross, for the first 80 years of our nation's history, the size of the Supreme Court changed with some regularity. [57:07] Why was that? [57:08] Microphone. [57:12] Microphone. [57:13] Pardon. [57:15] The expansion of population. [57:17] Originally, the justices were chosen largely on geographical grounds. [57:22] Of course, the justices rode circuits. [57:26] The justices wore two hats until 1891. [57:29] They served as circuit court judges, and they also served as U.S. Supreme Court justices. [57:35] In a smaller nation, there were only four million people in the 1790 census. [57:40] You know, there was less need, you know, for a larger court. [57:43] As the country expanded, you know, as the number of circuits expanded, you know, the number increased. [57:49] But only to nine. [57:50] You know, from five to nine. [57:52] Maximum of ten. [57:53] And then only for, you know, six years, from 1863 to 1869, there were ten. [57:59] And since 1869, we've had nine. [58:02] And so, you know, that's a long history, a century and a half, with nine members. [58:07] And it's worked very well so far. [58:10] And, you know, in my opinion, you know, that ought to be the number. [58:13] Well, let me follow up then. [58:15] So, in 1869, when Congress did pass that Judiciary Act, why did they set it at nine justices at that point, do you feel? [58:24] Well, if the court divided, then that would be, you know, five to four. [58:29] If you have ten, then, you know, the courts could be split. [58:31] You know, if the court splits and, you know, the lower court decision stands. [58:34] But it's generally better to have a decisive, you know, decision of the court. [58:41] So, you know, nine, you know, permits the court to divide, you know, one way or the other. [58:46] And as Ben alluded to a couple times, when President Roosevelt tried to unsuccessfully in 37 to expand the court to 15 justices, was there any sound logic to this expansion that the president was using or making? [59:03] Or was it merely an overreaction to a Supreme Court that had repeatedly struck down the New Deal? [59:10] Historians are unanimous in, or virtually unanimous. [59:15] Historians are never unanimous in anything, but, you know, about as unanimous as they can be. [59:20] That the court packing plan in 1937 was politically motivated. [59:24] You know, the Supreme Court had struck down a number of significant New Deal statutes in the previous two years. [59:31] And the Social Security Acts and the National Labor Relations Act were coming up for adjudication before the court. [59:38] You know, these were the signature legislation of the New Deal. [59:43] And Roosevelt was understandably worried that the court would strike those down. [59:48] And so his remedy, you know, was to increase, you know, the number of justices to, you know, pack the court, you know, so that the Social Security Acts, you know, both the old age pension and the unemployment compensation laws and the National Labor Relations Act, which was hugely important at a time of industrial unrest, you know, would be secure. [1:00:08] And so, you know, Franklin Roosevelt originally claimed that he was doing this because the Supreme Court was overworked and the justices were geriatric. [1:00:18] You know, there were six of them who were over the age of 70. [1:00:21] That's why he chose six. [1:00:22] And one new justice for every justice who was over the age of 70. [1:00:26] But the older justices were, for the most part, quite vigorous, including Louis Brandeis. [1:00:32] And, you know, Chief Justice Hughes was in, you know, peak of health, you know, despite his age, over 70. [1:00:39] And so it was so disingenuous that, you know, it was almost laughed at. [1:00:46] And so Roosevelt, about a month after he introduced the plan, admitted that his motives were, frankly, political. [1:00:54] By the way, the then chair of the House Judiciary Committee, Hatton Sumners, Democrat, opposed Roosevelt's plan from the very first day. [1:01:04] You know, that's why Roosevelt introduced it in the Senate rather than in the House. [1:01:08] Very good. Thank you. [1:01:10] So there's already this morning, there's been some attacks on the Supreme Court by some of my colleagues on the other side over. [1:01:20] Well, just as former clerk, as a former clerk, Mr. Capozzi, you state your testimony that if too many come to view the Supreme Court as a partisan actor, [1:01:31] rather than a neutral arbitrator of law, the losing parties will be tempted to disregard court orders. [1:01:38] What would that mean for our government as a whole? I know that's a big question. [1:01:42] It would mean the end of the rule of law, plain and simple. [1:01:45] Do you think that there are certain are there certain parameters to criticizing the court or is that unacceptable beyond the first amount? [1:01:56] I think it's perfectly acceptable to criticize the Supreme Court. People always have. [1:02:02] Presidents from the beginning of our country have lost major cases before the Supreme Court. [1:02:06] President Jefferson frequently criticized decisions from the Supreme Court. [1:02:11] I think there's a line between criticizing decisions, criticizing their reasoning and attacking the legitimacy and the independence of the Supreme Court itself. [1:02:20] Very good. I yield back. [1:02:23] The gentleman yields back. We now go to the ranking member of the subcommittee, the gentleman from Georgia, for five minutes. [1:02:28] Thank you, Mr. Chairman. Professor Bowie, the Supreme Court's recent decision in Louisiana versus Calais represents the culmination of a decades long campaign led in part by Chief Justice Roberts to dismantle the Voting Rights Act. [1:02:45] From Shelby County to Brunovitz and now Calais, there has been a systemic and systematic effort to substitute judicial skepticism for Congress's explicit constitutional authority to protect the right to vote. [1:03:02] Professor Bowie, how does the Calais decision compare to the Supreme Court's treatment of Reconstruction Era protections in the initial passage of the Voting Rights Act? [1:03:13] And it's directly related because for the first century after Congress proposed the 15th Amendment to protect the right of people to vote and to prohibit states from violating that right on account of race, [1:03:29] the Supreme Court interpreted the 15th Amendment to prohibit only laws that it thought had the intent of discriminating on the basis of race. [1:03:38] And applying that test, the court allowed literacy tests, poll taxes and all sorts of other state laws to effectively disenfranchise all black people or nearly all in the South. [1:03:50] When Congress passed the Voting Rights Act in 1965, its goal was to overcome those decisions and instead apply an effects test or something that said when a state law has the effect of making it more difficult for people of color or any other group to vote on account of their race, then that is illegal. [1:04:09] When the Supreme Court interpreted that law in the 1980s, it said that actually what Congress did was apply the same sort of intent test. [1:04:20] You have to prove that a state legislature intended to discriminate against black people. [1:04:25] And Congress again said, no, you're getting this wrong. [1:04:28] We think the problem is all of these laws that have the effect of making it more difficult for people to vote. [1:04:34] And what happened in a recent decision just a few weeks ago is the court said, no, we think what we think what Congress actually did is apply the same test that we've applied for generations. [1:04:45] That's had the effect of making it far more difficult for people of color to vote. [1:04:49] And we're seeing the consequences right now as every southern state considers laws to take away representation in Congress that's currently occupied by black or Hispanic representatives. [1:05:01] Many Americans increasingly view the court as acting less like a neutral judicial body and more like a political institution advancing a particular ideological agenda. [1:05:15] When the court repeatedly invalidates laws enacted through the democratic process to expand voting rights and representation, does that contribute to a crisis of legitimacy of the institution itself? [1:05:30] I think it does in the sense that what people expect from the Supreme Court is what Congress has asked the court to take an oath to do before anyone can become a justice, [1:05:44] which is to apply the law without fear or favor to rich and poor alike. [1:05:50] And when people look at the kinds of rulings coming out of the court that seem to systematically favor one party or the wealthy or corporations or any number of people on a pretty predictable basis, [1:06:02] just knowing kind of what is going on in the case before the court even issues a decision, I think it does have an effect on what people think the court is in effect doing. [1:06:11] I agree with my colleagues on this panel that to the extent what people think the court is doing is simply issuing truth social posts, then no one will take it seriously. [1:06:24] The court's power comes from the idea that what the justices are doing is different from what you are all doing as politicians. [1:06:34] But when all of the evidence and all of the public information about the court suggests that actually the same kinds of policy decisions are happening on the bench that are happening in Congress, [1:06:46] it becomes very difficult to treat the court as a different kind of institution than your esteemed body. [1:06:53] Thank you. If the court continues to narrow Congress's ability to protect voting rights under the Reconstruction Amendments, [1:07:00] what does that mean for the balance of powers as envisioned by our Constitution and for the future of multiracial democracy in this country? [1:07:09] The Constitution is ours to interpret as Americans. It is a document for all of us. [1:07:17] And people have marched and protested and died in order for the Constitution to reflect that we are a democracy, [1:07:25] we should protect the ability of all of us who can vote to do so, and that we should not tolerate laws that make it more difficult for people to access the ballot. [1:07:34] When the Supreme Court interprets the Constitution to say that that kind of rule is not constitutional, [1:07:40] that the 15th Amendment, when it specifically empowers Congress to adopt appropriate legislation, [1:07:46] but that a law as fundamental as the Voting Rights Act is not appropriate, [1:07:50] that is a misreading of the document that we do not have to accept. [1:07:54] Because if we do, the consequence is going to be the end of our ability to govern ourselves [1:08:00] and the end of our ability to enact voting protections. [1:08:05] Thank you. With that, I yield back. [1:08:07] The gentleman yields back. With that, we recognize the chairman of the full committee, Chairman Jordan. [1:08:11] So their argument is the court's too political, so let's let the political body add four new seats. [1:08:16] That's one of the dumbest things I've ever heard. [1:08:18] But that's the argument the Democrats are making. Their witness just articulated. [1:08:21] It makes no sense. That's why we need to keep the court at nine. [1:08:25] I will yield to the former Attorney General from the great state of Kansas. The remainder of my time. [1:08:31] Thank you, Mr. Chairman. I appreciate the chairman and the chairman convening this hearing. [1:08:37] I'm sitting here listening to this today. I was musing about something I often think about when there's no point in debating it, [1:08:43] and that is what things in Independence Hall would have been like all those years ago [1:08:47] if we had all had cameras and cell phones and social media [1:08:51] where every statement is calibrated for consumption by a particular audience somewhere not in this room. [1:08:57] This is one of those heavy issues that is not solely about the issues of the day. [1:09:03] This is one of those questions that is about, to paraphrase the professor, how we choose to govern ourselves. [1:09:11] And the discussions we're having here aren't materially different in nature than the ones they had in Independence Hall [1:09:17] about how you balance out the decision-making and who does what. [1:09:21] The difference is we have come to focus on looking at this through a lens of the issues of the day, [1:09:28] not a lens of how we should structure our self-determination. [1:09:32] And our history is one that when we have attempted to do that before, [1:09:36] when we have erred in looking at these important structural questions for the issue of the day, [1:09:41] we have so far rejected that notion. [1:09:44] I'd like to, on that point, go back to what we've referenced many times but not talked a lot about today, [1:09:50] which is the failed effort to pack the court by expanding its numbers in the Roosevelt Administration in 1937, I believe it was. [1:09:58] You know, remember the context of that time. [1:10:01] It's been mentioned by Professor Ross and others about the court overturning a number, [1:10:05] modifying and reversing its view in some cases on the appropriate limitations on the constitutional powers of Congress [1:10:12] to act in the economic space in particular. [1:10:15] But remember what was happening politically. [1:10:17] Less than a year before, there had been a presidential election in this country, [1:10:20] and Franklin Roosevelt was re-elected. [1:10:22] And these issues were central in that election. [1:10:25] I wasn't alive then, but it's a little personal to me. [1:10:27] The Republican nominee for president that year was Alf Landon. [1:10:29] He's from my little hometown of about 9,000 people. [1:10:32] He was the only Republican governor re-elected in the country in 1934, [1:10:35] which is why he became our nominee in 1936. [1:10:38] And he lost in a landslide. [1:10:39] In fact, he only carried Maine and Vermont. [1:10:42] Didn't even carry Kansas. [1:10:43] Roosevelt had a mandate, we might say, and yet he overreached. [1:10:48] And it took a bipartisan majority to say notwithstanding that clear message from the people [1:10:56] and notwithstanding the power of the presidency, [1:10:58] we are going to defend the structure of this democracy and of this court. [1:11:03] And as has been mentioned, the chairman of the House Judiciary Committee at the time, [1:11:07] a Democrat, didn't favor packing the court. [1:11:10] And ultimately, when it came to a vote in the Senate, [1:11:12] the Democrat-led Senate Judiciary Committee said they don't favor the packing of the court. [1:11:18] And the U.S. Senate, which was a majority Democrat at the time, voted overwhelmingly, [1:11:23] like it was 70 to something, not to adopt a court packing plan. [1:11:27] So what's happening in this room today and in our politics today is different. [1:11:31] It's different because for some reason we seem incapable of having what I would believe [1:11:37] to be a more reasoned bipartisan or a-partisan, non-partisan discussion about how we want our Supreme Court to function [1:11:44] and what its appropriate role is. [1:11:47] I won't read all the statements, they've been entered into the record, [1:11:50] but right now at this moment in our history, [1:11:52] it is my friends on the other side who seem intent, [1:11:56] because they don't like the direction the court is headed, [1:11:58] to pack it with new members. [1:12:00] I suppose those of us on the more conservative side could have made the same argument [1:12:03] for many years after the Roosevelt Court, [1:12:06] because we didn't like a lot of those decisions. [1:12:08] We, for the most part, didn't as vociferously argue about just fundamentally changing the structure. [1:12:13] So I want to return to just a couple of questions here that have been touched on before. [1:12:19] Can any of you tell me, let me start, Professor Ross, you've addressed this. [1:12:22] Mr. Kaposi, let me ask you, Mr. Sharon, then Mr. Bowie. [1:12:25] Let's assume that a court expansion plan is adopted in some form. [1:12:29] What is the limiting principle that would limit its further expansion in the future [1:12:34] if we succumb again to the political passions of the moment? [1:12:37] Mr. Kaposi? [1:12:38] I don't think there is any limit. [1:12:41] That's one of the fatal flaws of the proposal. [1:12:44] That if one president packed the court, then the next president could pack the court. [1:12:48] And, you know, it would just be a never-ending cyclical process [1:12:51] and end up with, you know, potentially hundreds of Supreme Court justices. [1:12:55] Thank you, Mr. Ross. Mr. Kaposi? [1:12:56] The only limit will be what each side can get away with. [1:13:00] Mr. Sharon? [1:13:01] Professor, what's the limiting principle? [1:13:05] So the role of the court is an important question, as you've laid out. [1:13:11] And the role is not to be this undemocratic superweapon in the middle of our democracy. [1:13:16] The role is not to try to put as many of our people— [1:13:20] Is there a limiting principle on if we expand it today because one side's mad, [1:13:26] do we expand it tomorrow because somebody else is? [1:13:28] What's the limiting principle? [1:13:29] The limiting—putting justices on the court for their own sake is not a good idea, [1:13:34] nor is changing the size of the court simply because nine is a better number than eight, [1:13:39] or ten is a better number than nine. [1:13:40] Thank you, Professor. [1:13:41] I yield back. [1:13:42] I'm out of time. [1:13:44] I appreciate that. [1:13:45] The gentleman yields back. [1:13:46] We now go to the ranking member of the full committee, the gentleman from Maryland, for his questions. [1:13:50] Thank you, Mr. Chairman, and thank you, Mr. Schmidt, for those thoughtful comments. [1:13:53] One of the things you say is we should be talking about how the Supreme Court should function, [1:13:57] and is it consistent with the Constitution and the rule of law? [1:14:00] So let's talk about the shadow docket and what's actually going on in the Supreme Court today. [1:14:06] When Trump's policies, whether it's an attempt to directly nullify the first sentence of the 14th Amendment, [1:14:12] which establishes birthright citizenship, or his attempt to usurp the spending powers of Congress, [1:14:17] are challenged, he is losing 60% of the time in the district courts—he's lost— [1:14:24] 57% of the time in the federal circuit courts. [1:14:28] Then it gets up to the Supreme Court and its shadow docket, and there he has won 84% of the time. [1:14:36] So he goes from losing 40% of the time to winning more than 80% of the time when it gets up in the Supreme Court. [1:14:43] Now, obviously we would disagree about substance. [1:14:46] Those who want to go with Trump and say that he can nullify birthright citizenship in the country are just going to disagree about that. Fine. [1:14:53] But what about the shadow docket and how it operates? [1:14:58] Nobody's uttered a word about what that does to undermine the legitimacy of the court. [1:15:03] We have 100-page opinions, authoritative, magisterial opinions, [1:15:08] being written by district court judges or panels, circuit court judges, [1:15:12] that are being overturned with one sentence or one paragraph in the shadow docket. [1:15:17] Is that legitimate or is that illegitimate? [1:15:19] Maybe we can just go down the line. [1:15:21] Mr. Sher? [1:15:23] In general, it's legitimate. [1:15:24] Every appellate court has the authority to stay a decision of a lower court. [1:15:28] Okay. [1:15:29] Mr. Ross, do you think it's legitimate, what's taking place in the shadow docket? [1:15:32] I share your concern about the shadow docket. [1:15:36] I'm troubled by it too, but I don't think that offers any justification. [1:15:40] I don't think criticism of the shadow docket provides any justification. [1:15:44] Is it legitimate or illegitimate? [1:15:45] I'm just asking whether it's legitimate or illegitimate. [1:15:47] I don't think it's illegitimate. [1:15:49] Okay. [1:15:50] Mr. Capozzi? [1:15:52] It's legitimate. [1:15:53] It's been around for a long time. [1:15:54] I mean, you look at the state of execution. [1:15:55] Okay. [1:15:56] Going back decades. [1:15:57] Thank you. [1:15:58] And Mr. Bowie, what about you? [1:16:00] I don't think it's legitimate in part because of the damage it's doing to the court's credibility [1:16:03] as well as to our country. [1:16:05] I mean, we have a court right now that is issuing decisions without the benefit of argument, [1:16:10] without the benefit of argument. [1:16:11] I mean, that really is truth social, meet the Supreme Court. [1:16:13] We'll send you one sentence and overturn an entire analysis. [1:16:17] The legitimacy of the rule of law depends upon the character of the analysis that's given [1:16:23] to the legal question. [1:16:25] Nobody has taken me up on my invitation to discuss the legitimacy or the illegitimacy of [1:16:30] the court based on what Senator McConnell did. [1:16:34] Is there anybody who would argue that what he did was legitimate in saying we will not [1:16:39] even have a hearing on President Obama's nominee, Merrick Garland, and we will not have [1:16:44] any votes 11 months before the election, but we will rush through the nominee to take [1:16:51] Justice Ginsburg's seat? [1:16:53] Anybody want to argue that that's legitimate? [1:16:57] Well, I'll certainly take you up on the first part of that. [1:16:59] I mean, when McConnell did that, he announced that he was applying the preexisting Biden rule, [1:17:05] which is that we don't consider new Supreme Court nominees during an election year. [1:17:10] I agree that the Amy Coney Barrett hearing was an exception to that. [1:17:16] Okay. [1:17:17] Anybody else want to defend the legitimacy of what Senator McConnell did? [1:17:21] And would anybody agree with me that that's a form of court packing, just as much as the [1:17:26] mythical court packing that we're denouncing today, since I'm not aware of any proposal on the table? [1:17:31] I think it's fundamentally different. [1:17:34] The Senate plays a role in our separation of powers. [1:17:36] It has to check and balance the president. [1:17:38] The people that are in the Senate matter. [1:17:40] If they don't want to confirm a justice to the Supreme Court- [1:17:42] So if the Senate does it, it's okay. [1:17:44] It's just you don't want a president nominating. [1:17:46] But, of course, if a president nominated under new law, then that would be legitimate, wouldn't it? [1:17:51] I think it's a different thing. [1:17:53] When the Senate plays, it's constitutional. [1:17:55] Do you know how many times we've changed the number of people in the Supreme Court? [1:17:58] It's been almost 160 years since it's happened. [1:18:02] No. [1:18:03] It's happened six different times. [1:18:07] A total of eight times. [1:18:09] Ending in 1869 is the last time. [1:18:12] Yeah. [1:18:14] Right. [1:18:15] Well, in any event, it's changed numerous times throughout our history. [1:18:18] There's nothing remotely illegitimate about it. [1:18:20] It's not frozen in the Constitution. [1:18:22] Would you agree? [1:18:23] I agree it's not frozen in the Constitution, but we have a tradition dated back in 1869. [1:18:28] All right. [1:18:29] But in any event, I don't know why we went off on this numerical thing because that's not what this is really about. [1:18:33] The question is about the legitimacy of a court that is demolishing the voting rights of the people. [1:18:38] Essentially overruling democracy at every turn. [1:18:41] And I wonder, Professor Bowie, in the time remaining, if you could discuss what it means for the Supreme Court to intervene in elections like in Bush versus Gore or like with the Voting Rights Act in a way that undermines the people's ability to govern. [1:18:54] Well, one thing to speak about in terms of the 1869 precedent that keeps coming up is in 1866, Congress passed a Civil Rights Act in order to guarantee citizenship to all people born in this country. [1:19:06] They feared that President Johnson was going to appoint justices to the court that were going to try to overrule that law, which has become foundational for our democracy. [1:19:17] So Congress changed the number of justices. [1:19:19] It reduced the size of the court to prevent the president from appointing new justices. [1:19:25] Thank you. [1:19:26] Chairman. [1:19:27] Thank you. [1:19:28] For the ranking member, apparently Congressman Greene did put in a court expansion in this Congress and there were ones in the last Congress. [1:19:37] Would you join with me in a discharge petition to do that immediately? [1:19:41] But the fact that I've not heard of it tells you exactly how much political traction it has. [1:19:45] But look, there are a lot of things that we should do in terms of Supreme Court ethics. [1:19:49] The question is, do you support that? [1:19:51] I've never seen it. [1:19:52] If I drop one today, will you co-sponsor it for this Congress? [1:19:56] Do you co-sponsor what? [1:19:57] An expansion of the court pursuant to what you had in the last Congress? [1:19:59] We haven't had a single hearing about it. [1:20:01] I mean, if you have a hearing about it, then we can analyze it. [1:20:04] I mean, we've got to take this seriously, right? [1:20:07] I honestly don't even know what his proposal is. [1:20:09] Well, why don't I just take the one that you had when you were in a majority and present it? [1:20:14] Well, I'm interested in term limits of 18 years. [1:20:17] I think the vast majority of the American people support term limits for justices. [1:20:20] And if they want to stay on the court as a district judge or an appeals court judge, that's consistent with life tenure. [1:20:24] It's a constitutional change, you'd agree. [1:20:26] No, it's not. [1:20:27] If they stay on the court as a district judge or a circuit court judge, that's consistent with the command of life tenure. [1:20:33] So I'm interested in term limits for members of Congress. [1:20:36] We can look at the question of whether every federal circuit should be represented on the Supreme Court, which is the whole original idea behind it. [1:20:43] That's what circuit writing is all about. [1:20:45] Do you really mean to say for members of Congress? [1:20:48] For the Supreme Court. [1:20:50] Oh, okay, just checking. [1:20:51] I'm actually for that. [1:20:52] I'm actually for that. [1:20:53] Just checking after you and I have been here past the six years. [1:20:56] It was a Freudian slip. [1:20:57] I'm actually, I'm not opposed to term limits. [1:21:01] The longer I stay, the more in favor of that I am, including in this term. [1:21:05] But I thank the gentleman for the colloquy. [1:21:07] With that, we go to the gentleman from Virginia, Mr. Klein. [1:21:10] Thank you, Mr. Chairman. [1:21:11] I think this hearing is very important, especially when, and I appreciate the consistency of the ranking member, the attempt thereof, [1:21:20] the importance of consistency when talking about judicial decisions, when you have judicial decisions that may not comport with your understanding of the Constitution, [1:21:30] that somehow democracy is being overturned. [1:21:33] And that was the rhetoric that was just used by the ranking member, and it's offensive to me. [1:21:37] But when- [1:21:38] Will the gentleman yield for just a second? [1:21:39] I will not. [1:21:40] I will not. [1:21:41] Well, yes, for a second. [1:21:42] I actually wrote a book with that title, which I will give to you, called Overruling Democracy, the Supreme Court versus the American people about Bush versus Gore. [1:21:49] I appreciate that the gentleman is being consistent with the book that he wrote, but it is equally frustrating to see that in not all cases do you have, especially in the shadow docket, [1:22:06] you have examples where they did not rule in favor of a conservative philosophy. [1:22:15] If you look at just the Mifepristone ruling last week or this week. [1:22:22] If you yield for one sec, there have been 27 cases in the shadow docket and Donald Trump has won 25 of them. [1:22:28] So you may have identified one of the two that he didn't win. [1:22:30] I understand that. [1:22:31] And one of the things I want to talk about is just because you agree with the decision a court makes shouldn't determine whether or not democracy is being upheld or overturned. [1:22:42] It's going down a road that is very destructive. [1:22:46] And I want to talk about what's happening in Virginia, because in Virginia right now we have a destructive path that is being pursued by the majority in our legislature. [1:22:55] Now we're one of two states where the legislature actually appoints the judiciary. [1:22:58] So you have a somewhat convoluted process that actually doesn't work as efficiently as some other states. [1:23:06] But Mr. Capozzi, you may be aware that Virginia Democrats passed a redistricting amendment through a procedurally flawed process. [1:23:13] The Virginia Supreme Court struck that process down as a violation of the Virginia Constitution. [1:23:19] Undeterred by their state court laws, Democratic Attorney General Jay Jones appealed to the U.S. Supreme Court, [1:23:26] although I think in his filing it indicated he was appealing to the Supreme Court of Virginia again. [1:23:31] But and it was vagina and it was Supreme. [1:23:35] Oh, it was sentator. [1:23:36] But there were a lot of misspellings. [1:23:38] He appealed to the U.S. Supreme Court despite raising no federal claims and was denied. [1:23:44] Rather than accept that, Senate Majority Leader Scott Cervell took to X to spin the ruling, claiming that only one justice had weighed in. [1:23:51] But in fact, the denial itself stated, quote, the application for stay presented to the chief justice and by him referred to the court is denied. [1:23:58] No noted dissents, not even from the three Democrat appointed justices. [1:24:02] Yet Democrats immediately attacked, quote, far right extremists on the Supreme Court and quickly used the unanimous rejection to continue their campaign against the court's conservative justices. [1:24:12] Mr. Capazzi, how damaging is it to the rule of law when political actors use a legally correct unanimous court ruling as a pretext for attacking judicial legitimacy? [1:24:21] Yeah, just to clarify, a decision like that would have been referred to the full Supreme Court. [1:24:29] So it wasn't just a single justice. [1:24:31] All nine justices agreed that that appeal lacks merit. [1:24:34] And, you know, I think most intelligent observers in the Supreme Court are agreed that that was a borderline frivolous appeal. [1:24:43] It presented only a question of state law. [1:24:45] And so at minimum, I would encourage people not to attack the Supreme Court when they unanimously reject a frivolous appeal. [1:24:52] Mr. Sure. Court packing isn't just a federal ambition. [1:24:56] After the Virginia Supreme Court struck down the state's redistricting map, Democrats floated the idea, encouraged by, well, encouraged by alleged phone conversations with federal Democrats, [1:25:09] slashing the mandatory retirement age for its justices from 75 to 54 to purge the entire bench. [1:25:16] Virginia Delegate Dan Helmer went further publicly vowing to remove Justice Kelsey, who wrote the opinion, from the bench when he is up for reappointment this coming year. [1:25:27] For a party that has made no kings its rallying cry isn't threatening a justice by name and purging an entire bench a rather dictatorial definition of democracy? [1:25:37] Absolutely, Mr. Klein. [1:25:39] And it's a move reminiscent of the authoritarians that we discussed earlier, like Robert Mugabe in Zimbabwe and Hugo Chavez in Venezuela. [1:25:48] That's the kind of stuff they did to their judiciaries to try to get them in line with their programs. [1:25:55] Agreed. [1:25:56] And I appreciate the comments of the gentleman, and I yield back. [1:26:00] The gentleman yields back. [1:26:01] We now go to the gentlelady from California, Ms. Lofgren. [1:26:04] Mr. Chairman, with all due respect, I keep hearing about how court packing is the greatest threat facing the judiciary and the rule of law, [1:26:13] but I don't think that's the crisis facing the court right now. [1:26:18] A real crisis is a growing ethics and corruption problem at the Supreme Court, and it is one that Congress can actually do something about. [1:26:26] Unfortunately, my time does not allow me to list every undisclosed luxury trip, private jet flight, billionaire funded vacation, yacht excursion, and lavish gift uncovered so far. [1:26:41] But the scale is staggering. [1:26:43] According to Fix the Court, Justice Clarence Thomas alone reportedly received more than 100 gifts worth over $2.4 million, [1:26:53] while all of his fellow justices combined received gifts worth only $248,000 over the same period, a 20-year period. [1:27:04] Here are just a few examples of Justice Thomas reportedly accepted. [1:27:09] Luxury vacations on a billionaire's superyacht in Indonesia that ProPublica estimated likely exceeded half a million dollars. [1:27:18] More than two decades of repeated private jet flights on billionaire-owned aircraft, including trips on a Bombardier Global 5000 and even a private Boeing 737, [1:27:30] with some individual flights estimated in the tens of thousands to over $100,000. [1:27:36] At least 26 private jet flights and eight helicopter trips identified by investigators. [1:27:44] Annual stays and an exclusive private Adirondacks resort where nearby rooms can cost more than $2,000 a night. [1:27:54] Luxury resort stays in Florida and Jamaica, VIP skybox access and luxury suite tickets to major sporting events, trips to Bohemian Grove, [1:28:07] private school tuition payments for a child he was raising, and real estate transactions involving property tied to his family. [1:28:15] According to Fix the Court, Justice Alito accepted approximately $170,000 in gifts over the same period, including private jet transportation to a luxury Alaska fishing lodge, [1:28:29] expensive lodging and fishing accommodations tied to billionaire Paul Singer, [1:28:34] and gifts that the Senate Judiciary Committee concluded should have been disclosed under federal law. [1:28:40] Now, Americans watching at home understand that this is wrong. [1:28:43] Billionaires should not be getting the kind of undisclosed access and luxury relationship with Supreme Court justices. [1:28:51] So let me ask you this, Professor Bowie, yes or no? [1:28:54] Do you believe these kinds of gifts and luxury travel arrangements undermine confidence in the court? [1:29:00] Yes. [1:29:04] Thank you. [1:29:05] Mr. Chairman, I would ask a unanimous consent to put into the record a CNBC article on Justice Thomas' [1:29:12] acceptance of gifts, a ProPublica article on the same, two ProPublica articles on the same topic, [1:29:20] a Senate Judiciary Committee press release, and an additional article from ProPublica. [1:29:27] Without objection, so ordered. [1:29:28] And I would yield the balance of my time to the ranking member. [1:29:31] Thank you kindly, Ms. Lofgren. [1:29:33] Just picking up on that point, there's a $50 gift ban, a $50 gift ban that applies to all of us in Congress and to the executive branch as well. [1:29:43] Would you agree that it would enhance the independence of the court from not just congressional presidential attacks, [1:29:52] but special interest domination to apply a $50 gift ban to the Supreme Court justices? [1:29:59] Professor Bowie, if you go first. [1:30:00] Yes. [1:30:02] And just note that Congress has already passed laws that prohibit justices from taking bribes. [1:30:07] Congress has also passed laws that require the justices to recuse from cases in which their impartiality may reasonably be questioned. [1:30:14] Yes. [1:30:15] Attorney General Cabozzi, do you agree that a $50 gift ban should apply to all three branches, not just two? [1:30:21] I'm skeptical that such a ban is needed for the Supreme Court, but at the same time, I don't have a strong opposition to such a proposal. [1:30:28] Okay. [1:30:29] Mr. Ross? [1:30:30] I would agree with the Solicitor General. [1:30:32] Okay. [1:30:33] And Mr. Chair? [1:30:35] Well, I think there's a fundamental difference between members of Congress and Supreme Court justices in this regard. [1:30:42] I mean, when you're a member of Congress, just about every person in your district and elsewhere in the country is a potential supplicant for your services and your assistants. [1:30:58] When you're in the Supreme Court, you're only dealing with a relatively limited number of cases with people who have direct interest in your work. [1:31:07] And so it's certainly appropriate, and I know Justice Thomas, and he's scrupulous about avoiding accepting gifts from anybody who has business before the Supreme Court. [1:31:18] Really? [1:31:19] Well, we need to have a hearing on that then. [1:31:20] Sorry? [1:31:21] We have a completely different point of view on that point. [1:31:24] But don't you think just in terms of public perception, it would be much better not to believe that justices could be compromised by virtue of receiving gifts from people who appear before them? [1:31:34] After all, they have no binding ethics code now. [1:31:37] They're the only Supreme Court in America that don't have a binding ethics code. [1:31:40] And so without a binding ethics code, we're leaving it up to them to decide. [1:31:44] I don't think it would affect the reality of their independence. [1:31:48] It might affect the public perception of their independence. [1:31:51] It would take away a talking point. [1:31:52] So you think it's okay for a billionaire to pay for Clarence Thomas' nephew's private school tuition? [1:31:58] That's okay? [1:32:00] If the billionaire doesn't have any business before Justice Thomas, there's nothing wrong with that. [1:32:04] And if he does, you would agree that's wrong? [1:32:06] If he does have business before the court, you would agree that's wrong? [1:32:09] If he has concrete business before the court, then that would be a different matter. [1:32:12] And I'm confident in that situation, Justice Thomas would recuse from cases that involved him. [1:32:16] You are? [1:32:17] Okay. [1:32:18] And what about a situation where somebody with potential business before the court? [1:32:22] I'd ask unanimous consent that the gentlelady have an additional 30 seconds. [1:32:25] Okay, just to complete this point. [1:32:27] Yeah. [1:32:28] Reclaiming my time, if I may say also that you can have a pecuniary interest before the court, [1:32:34] but many of these billionaires have philosophical points of view that is before the court, [1:32:40] and that's why they're paying off the justices, and I yield back to you. [1:32:43] Well, and just to complete that question, so if Justice Thomas or any justice were to get a free recreational vehicle [1:32:51] from somebody who has an interest in the work of the court, do you think that that would be legitimate, [1:32:56] or do you think that they should be held to the same standard? [1:32:58] We are a $50 gift man. [1:33:00] Somebody can take you out for lunch. [1:33:02] If they have a concrete business interest before the court, then yeah, it would be inappropriate for Justice Thomas [1:33:08] to accept that kind of a gift and then sit on a case that involves that. [1:33:11] What if they have a general business interest before the court? [1:33:16] Well, I don't... [1:33:18] See, we don't get into that in Congress. [1:33:20] That is, we basically say we're going to cut it off at the pass. [1:33:23] None of us are going to be compromised in that work. [1:33:25] Okay, I apologize, but I'm going to close this off because Mr. Gooden's next. [1:33:31] But I will say to the gentlelady and to the gentleman that although I can't support the full bill [1:33:38] that was authored earlier this year on forcing a set, I would be happy to entertain discussion between our staff [1:33:47] and individually the members on trying to harmonize some aspect of what is non-reimbursable between us. [1:33:58] As you know, the Senate, you pay for a first-class seat if you want to fly on that aircraft. [1:34:04] Well, the House has a prohibition. [1:34:06] But I would be happy to work with the minority on trying to set a cap on how much could be received as a gift [1:34:14] versus how much would have to be reimbursed. [1:34:17] And I believe that that is certainly middle ground that we could look into doing this Congress. [1:34:22] Yeah, I would welcome that. Thank you, Mr. Chair. [1:34:24] Okay, look forward to it. [1:34:25] With that, we go to the gentleman from Texas for his time. [1:34:27] Mr. Ross, you were speaking earlier, I believe with the ranking member, [1:34:31] about the number of times that the number of Supreme Court justices has changed. [1:34:37] When was the last time we changed the makeup of the Supreme Court? [1:34:42] When was that? [1:34:43] 1869. [1:34:45] And I believe it was 1863 that the Emancipation Proclamation came out. [1:34:52] So what I'm hearing is that Democrats want to go back to slavery-era politics with respect to the Supreme Court makeup. [1:35:01] One of the arguments is, well, it's been done several times. [1:35:03] But you just said it's been done no time since 1869. [1:35:07] So six years after the Emancipation Proclamation is when Congress stopped playing games with the makeup of the Supreme Court. [1:35:17] And now Democrats are defending this idea. [1:35:20] Fortunately, some are, well, some are not living, but some were not quite as outrageous. [1:35:26] In 2019, Justice Ruth Bader Ginsburg stated, I think it was a bad idea when President Franklin Roosevelt tried and failed to pack the court. [1:35:35] And if anything, it would make the court look partisan. [1:35:38] In 2021, Justice Stephen Breyer remarked during a Harvard Law School speech that packing the court would be a structural alteration that would result in eroding trust in the judiciary. [1:35:48] More recently, in September 2021, Justice Breyer again criticized packing the court. [1:35:53] President Joe Biden expressed skepticism about court packing proposals during his Senate tenure in 1983. [1:35:59] When speaking about FDR's proposal, he called it a bonehead idea. [1:36:06] Former President Biden's own presidential commission on the Supreme Court expressed hesitation in 2021. [1:36:11] The commissioners noted that court expansion is likely to undermine rather than enhance the Supreme Court's legitimacy and its role in the constitutional system. [1:36:20] So I really appreciate my Republican colleagues for not pushing this slavery era idea that was last successful during the slavery days that I think we're trying to move past. [1:36:33] And I yield balance of my time to the ranking member. [1:36:38] Mr. Jordan. [1:36:39] Thank you. [1:36:41] Mr. Capozzi, if you don't like what the court's doing and you'd like a change, how do you do it? [1:36:48] Well, you can ask the Supreme Court to reconsider its decisions. [1:36:52] That's something the Supreme Court has done from time to time. [1:36:55] In a more broad way, how do you do it? [1:36:57] Well, you could take your case to the public. [1:37:00] You can build up a record of opposition. [1:37:03] You can advocate for change. [1:37:05] You know, the conservative legal movement did that after Roe v. Wade, for example. [1:37:09] Yeah, you go make the argument and you win elections, right? [1:37:13] You win the White House. [1:37:15] You have a majority of the Senate. [1:37:17] That's how the courts figured out straight from the Constitution. [1:37:20] But no, no, they don't want that. [1:37:21] They don't want that because, oh, Republicans in the White House and you got to nominate people and you had Republicans in the Senate who controlled the Senate and they got to confirm them. [1:37:28] That's how the process. [1:37:29] Well, we don't like that. [1:37:30] So one point they're saying, oh, we're not going to be it's too political, but there's a political process to it as well. [1:37:37] That's how it works. [1:37:38] You got to go win elections. [1:37:39] Do you believe leaking the Dobbs decision was designed to undermine and change the court's decision? [1:37:47] Mr. Sher. [1:37:48] It certainly appears to have had to have been done with that intent. [1:37:53] It was an it was an attempt to try to get one or two of the justices who ended up in the majority on Dobbs to back away. [1:38:00] Yeah, it didn't work. [1:38:01] Thank goodness. [1:38:02] It didn't work. [1:38:03] Thank heavens. [1:38:04] It was. [1:38:05] I think it was an effort to intimidate the court. [1:38:06] You think so, Mr. Ross? [1:38:07] Professor Ross, do you think that was the case? [1:38:09] I would agree with that. [1:38:10] Yeah. [1:38:11] And it was wrong. [1:38:12] It was bad, right? [1:38:13] I don't want that to happen again. [1:38:14] I wish it never happened before. [1:38:17] You agree, Mr. Capozzi? [1:38:18] I was a clerk when the leak happened, so I'm not going to discuss details of the leak. [1:38:24] But I will say that it was a cowardly act, and I hope it never happens again. [1:38:27] Yeah. [1:38:28] Do you agree with that, Mr. Bowie? [1:38:32] I don't really have a strong opinion about the leak. [1:38:34] I was not a clerk on the court at the time. [1:38:35] Is it a good thing or a bad thing? [1:38:36] I think that more publicity for what the court does would be good, but I think that sacrificing one's ethics is not good, no. [1:38:44] But just yes or no, is it a good thing to leak a decision before it's final, before the court's actually weighed in? [1:38:51] Is that a good thing or a bad thing? [1:38:52] I don't think it's good for anyone to sacrifice their ethical responsibilities. [1:38:55] Okay. [1:38:56] By the way, why don't we know who leaked Dobbs' opinion? [1:38:59] Mr. Capozzi, you were there. [1:39:00] Why don't we know that? [1:39:01] I'm going to respectfully decline to answer that question. [1:39:05] I'm not asking if you do know it. [1:39:06] I'm just saying, why don't we know it? [1:39:07] It seems like that's, Mr. Chair, why don't we know that? [1:39:09] I believe there was an investigation done by the Chief Justice that was inconclusive. [1:39:15] Yeah. [1:39:16] Amazing. [1:39:18] They couldn't figure it out. [1:39:19] Mr. Ross, any thoughts on that? [1:39:20] I really don't know. [1:39:21] Okay. [1:39:22] All right. [1:39:23] I yield back. [1:39:24] The gentleman yields back. [1:39:25] We now go to the gentlelady from Florida, Ms. Lee. [1:39:28] Thank you, Mr. Chairman. [1:39:31] As a former judge, I understand that the legitimacy of the judiciary does not depend on whether people agree with every decision. [1:39:41] It depends on whether judges interpret and apply the law independently without political intimidation, threats to their safety, or pressure to deliver preferred opinions. [1:39:55] Today, we are seeing increasing efforts, we're hearing them today, to delegitimize the court through court packing proposals, spurious personal attacks on justices, and criticisms of judicial philosophies like originalism simply because some disagree with outcomes in particular cases. [1:40:13] An independent judiciary cannot function if judges are treated like politicians whenever they issue an unpopular opinion. [1:40:23] And baseless, unfounded allegations impugning the ethics of judges and justices, incoherent attacks on principled application of judicial philosophy, and failure to appreciate that a disciplined adherence to the laws and the Constitution as written is actually the hallmark of a good and successful judge. [1:40:47] And on that note, Mr. Chair, I would like to discuss one thing that concerns me about modern discourse surrounding the judiciary is the growing expectation that judges should reach politically preferred outcomes rather than faithfully apply the law. [1:41:05] And critics sometimes today portray originalism as if it is some sort of political project to achieve conservative outcomes. [1:41:15] But at its core, isn't originalism actually about judicial restraint requiring judges to interpret the Constitution as written as opposed to applying their personal preferences? [1:41:28] Yes. [1:41:29] And I was a law clerk to Justice Scalia, and I had several experiences with him where he felt like the Constitution or a given statute required a result that he didn't like as a policy. [1:41:44] The very first opinion that I helped him write as a new justice was an opinion sustaining a Fourth Amendment objection to the admission of certain evidence in a trial. [1:41:57] And he sided with the liberal justices on that issue because he felt that's what the Constitution required. [1:42:04] The morning after that opinion came out, there was an editorial in the Wall Street Journal that said, we wonder whether President Reagan has made a mistake in putting Justice Scalia on the court. [1:42:15] And we saw that in several different areas. [1:42:17] So to me, that's the hallmark of a good judge is he or she is willing to follow the law as written, even if it leads to places that the judge disagrees with as a policy matter. [1:42:30] That's judging, in my view. [1:42:31] That is exactly right. [1:42:33] And I can tell you I shared that very same experience on the bench, that at times, personally, as a jurist, you don't want the outcome that the law tells you you must reach. [1:42:45] And that is actually something that tell me about that distinction between being a judge and essentially policy making reaching that decision, which maybe you as a person would like. [1:42:58] Tell me why it's so important that our judges are able to make that distinction and apply the law as it is written. [1:43:06] And is that part of our very system, as we would learn in eighth grade American history, of checks and balances? [1:43:16] I agree. [1:43:17] That's an essential part of our system. [1:43:19] And I go back to the Chief Justice's decision in the Obamacare case. [1:43:25] And he was excoriated for that decision by conservatives. [1:43:30] But he believed and persuasively explained in his opinion that the individual mandate that was kind of at the heart of Obamacare could properly be considered as a tax. [1:43:44] And for that reason, he decided, well, we then should defer to Congress's judgment, even though we hate the policy outcome. [1:43:54] He decided we should defer to Congress's judgment about on this matter, because what they did is within their authority. [1:44:02] And to me, that is also the hallmark of a good judge to be able to be willing to defer to this body, even when you disagree as a matter of policy. [1:44:12] And one final question, because I think this is important as we sit and we listen to our justices and their ethics being impugned with baseless, spurious allegations. [1:44:21] Isn't it also correct that they cannot respond, that judges cannot call a press conference, that they cannot speak publicly, that they have no opportunity to come out and say to the American people, actually, this is blatantly false. [1:44:35] I did none of these things. [1:44:36] These allegations that are being made are completely untrue. [1:44:39] Isn't it correct that judges and justices cannot do that for themselves? [1:44:43] It's very difficult for them to be able to respond to those kinds of personal attacks. [1:44:47] Thank you. [1:44:49] Mr. Chairman, I yield back. [1:44:50] General Lady yields back. [1:44:51] I now ask unanimous consent to place in the records the ruling of Judge John Bates, an appointee of President George W. Bush, who ruled against George W. Bush in the Harriet Myers case, and the outcome and ruling of Amy Berman Jackson, an Obama appointee who ruled against Obama in that case, without objection. [1:45:16] Without objection, so ordered. [1:45:17] And Mr. Chair, can I have one too? [1:45:19] Absolutely. [1:45:20] It's tit for tat. [1:45:21] What do you have? [1:45:22] It's a unanimous consent, just answering the last point about how justices cannot speak out. [1:45:26] This is an op-ed by Justice Samuel Alito in the Wall Street Journal. [1:45:30] Pro publica misleads its readers. [1:45:33] June 20th, 2023. [1:45:34] Without objection, so ordered. [1:45:36] And with that, we go to the gentleman from South Carolina, Mr. Frye. [1:45:39] Thank you, Mr. Chairman. [1:45:43] Justice Ruth Bader Ginsburg stated, I think it was a bad idea when President Franklin Roosevelt tried to pack the court, and that if anything would make the court look partisan, it would be that. [1:45:55] Justice Breyer said that it would be a structural alteration, and it would erode public trust if we packed the court. [1:46:03] What goes around comes around, and if the Democrats can do it, the Republicans can do it. [1:46:09] Even our former president, while he was in the Senate, Joe Biden, admonished FDR and said it was a boneheaded idea to consider packing the court. [1:46:18] But we now find ourselves in this curious position where political thought leaders on the other side are actively engaged in this idea that packing the court would solve the nation's problems. [1:46:34] I think we've heard from James Carville, if we win, don't talk about it, we're just going to go pack the court. [1:46:40] Kamala Harris, in her intellectual stamina, said the same thing a couple weeks ago. [1:46:46] I think that is a dangerous move. What is the most, Mr. Ross, what is the most accurate historical lesson of FDR's 1937 court packing plan? [1:46:58] What do you think that would be? [1:46:59] I think the bipartisan opposition is perhaps the most important lesson. [1:47:06] As has been pointed out earlier, Roosevelt had recently been elected with an enormous landslide. [1:47:11] He carried 46 out of then 48 states. He had more than 60% of the popular vote. [1:47:17] He had assembled one of the most powerful political coalitions in the nation's history. [1:47:23] He thought he was invincible. He thought that the court packing plan would naturally have to sail through Congress, [1:47:29] which at that point was overwhelmingly Democratic. [1:47:32] The Democrats won unprecedented majorities in the 1936 elections that re-elected Roosevelt himself. [1:47:39] Roosevelt was stunned when his plan encountered immediate and significant opposition, which eventually sunk it. [1:47:49] The reason was that Americans of all persuasions recognized that this was an attack on the independence of the court itself. [1:47:58] And if I could give an example, Gutz and Borglum, who was the Mount Rushmore sculptor, was a political progressive on everything except race. [1:48:09] And, you know, he was outraged, you know, by the Supreme Court's recent decisions striking down New Deal regulatory legislation. [1:48:18] But he wrote a letter to Senator Norris of Nebraska urging him to vote against the court packing plan, [1:48:26] because he said it would interfere with the independence of the court. [1:48:32] And he was, at that time, engaged in sculpting the faces on Mount Rushmore. [1:48:37] And he said that if the court packing plan passed, he'd throw down his chisel and wouldn't go back to Mount Rushmore to finish carving those faces, [1:48:46] because he thought that the packing of the court would make a mockery of what those four presidents stood for. [1:48:53] So, again, this was across the board, and I think that's the most important lesson. [1:48:56] If FDR had been successful in altering the structure of the Supreme Court, what do you think the ramifications would have been at the time and then moving forward? [1:49:10] Well, the immediate ramifications wouldn't have been all that great, [1:49:13] because although Roosevelt lost the battle, he won the war because of deaths and resignations of justices during the next few years. [1:49:20] So within a few years, Roosevelt had a court that was overwhelmingly supportive of his pro-regulatory legislation. [1:49:28] I think, though, if the packing itself had occurred, it wouldn't have changed the outcome of the cases that much, [1:49:34] because the court shifted its positions fairly rapidly anyway. [1:49:39] But I think the long-term effect would have been the same effect as it would happen if it occurred today, [1:49:46] which would be an erosion of judicial independence and a diminution of public respect for the court. [1:49:53] And, of course, the prospect of ever-increasing numbers on the court, you know, bigger and bigger court, [1:49:58] and subsequent- Or contractions, right? [1:50:00] I mean, we could have taken this, I guess, or Congress could have taken the same approach as Virginia, right, [1:50:06] that they're trying to do is, we don't agree with the opinion, so we're just going to sunset you all. [1:50:10] Yeah. Right? [1:50:11] Right. [1:50:12] Do you think, Mr. Scheer, that expanding the number of justices would heal some sort of partisan divide in this country? [1:50:20] Not at all. [1:50:22] We'll expand on that for a minute. [1:50:23] How would that not fix what I'm hearing on the left right now, [1:50:27] which is that there's an illegitimate court and it's dangerous and what they're doing is undemocratic, [1:50:32] so we can fix it by adding four new justices? [1:50:36] How would that not heal the partisan divide? [1:50:38] Well, I think actually it would undermine what really needs to be done to heal those divides, [1:50:47] and that is because it distracts from the more important projects, as we discussed earlier, [1:50:52] of building the political coalitions that allow you to achieve your legislative objections. [1:50:59] You know, we've talked earlier about the Voting Rights Act, for example, [1:51:02] and people are complaining about how the Supreme Court, quote, [1:51:05] gutted the Voting Rights Act. [1:51:06] Well, they didn't do that at all. [1:51:08] This body could amend the Voting Rights Act, [1:51:12] and if this body wants to impose majority-minority districts on the country [1:51:17] or various places in the country, that's something that this body can do, [1:51:22] and my guess is that the Supreme Court would probably sustain that. [1:51:26] And, you know, for just about every one of the problems that we've discussed, [1:51:32] there's a legislative solution that requires persuading voters and then winning elections. [1:51:38] And then doing it. [1:51:39] And then doing it. [1:51:40] Yeah. [1:51:41] Thank you, Mr. Chairman. I see my time has expired. I yield back, sir. [1:51:43] A good use of your time, though. [1:51:45] We now go to the gentleman from Washington for his time. [1:51:48] Thank you, Mr. Chair, and thank you, gentlemen, for coming for this important hearing. [1:51:52] I'm going to ask for some concise answers to these questions of a number of things I'd like to cover. [1:51:58] Can a court be unpacked? [1:52:01] Could the legislature vote to remove members of the Supreme Court? [1:52:06] We'll go down the line. [1:52:08] If they can add, can they subtract? [1:52:11] They have subtracted once before. [1:52:14] I am not sure it would be constitutional to subtract in a way that would require sitting justices to resign. [1:52:23] But you think, yes, with some caveats. [1:52:25] Correct. [1:52:26] Mr. Ross? [1:52:28] I agree. [1:52:29] I don't think that sitting justices could be removed. [1:52:31] But clearly, the Constitution permits the size of the court to be reduced. [1:52:35] You know, there should be one Supreme Court. [1:52:37] And, you know, it says there's a chief justice. [1:52:39] So, theoretically, I guess you could have two or three associate justices. [1:52:43] So, I don't think there's any constitutional obstacle as long as it's prospective rather than retrospective. [1:52:49] You could phase a seat out. [1:52:50] You just couldn't force a sitting justice off the bench. [1:52:53] Okay. [1:52:56] Well, that's right. [1:52:57] Congress can change the number of justices. [1:52:59] The court, the justices sit for good behavior. [1:53:02] What good behavior means is also the subject of federal law. [1:53:05] And so, if justices are doing things that Congress regards as unethical or corrupt or unethical, then Congress can do something about it. [1:53:12] Okay. [1:53:13] As a way of background, when I was in our state senate in Washington state, our state had originally started with five Supreme Court justices. [1:53:22] The court had been packed up to nine for political reasons. [1:53:26] People wanted different cases. [1:53:27] We have elected Supreme Court justices. [1:53:29] They are politicians just as I am and this body is. [1:53:33] And what our teachers union discovered is that they could put significant financial resources into judicial elections and then get some rulings on mandatory spending on education. [1:53:46] When that was going on in our state legislature, I thought the Supreme Court was over its skis and so I sponsored a piece of legislation to actually shrink it back from nine to seven. [1:53:55] I had the Supreme Court justices drawing straws at high noon on January 1st, which is a legal remedy in our state, but it was undetermined. [1:54:03] So, actually, my bill is studied in law schools in Washington state. [1:54:07] Unfortunately, we didn't get the opportunity. [1:54:09] A broader point I just want to make on this is packing the court and really its evil twin of adding states for political purposes are probably the most dangerous and destabilizing things that this body could consider for the future of the republic. [1:54:29] It really will be a recipe for potential civil war in this country. [1:54:35] By background, I spent some time doing counterinsurgency during the Iraq surge and used to teach counterinsurgency to the U.S. military. [1:54:45] And you think about our own nation. [1:54:47] Why did we rebel? [1:54:48] Why did people not feel they had a voice in the legitimate political process? [1:54:53] And we actually look at the foundation of American what we teach in counterinsurgency population centric counterinsurgency. [1:54:59] It's based on two principles that people feel they have an effective government and that they have a legitimate government. [1:55:05] You know, and what court packing will do is take a game of chutes and ladders in politics where you win elections, you lose elections. [1:55:14] But it's a game that everybody understands. [1:55:17] And it will turn it midstream for political purposes into battleship. [1:55:22] And that is something I do not think in this highly polarized political environment that the American people will continent. [1:55:30] And so it is extremely risky to talk about packing the court, adding the states, because you want political outcomes. [1:55:38] And each and every time somebody is disgruntled with the political process and talks about it in a way that delegitimizes the Supreme Court, who are not elected. [1:55:49] It's not like at the state level. [1:55:51] It really, really is a dangerous thing for the future of the republic. [1:55:55] I just wanted to make that statement. [1:55:56] I only have about a minute left. [1:55:57] I'm going to yield to the good gentleman from Kansas, if you'd like my time. [1:56:00] Thank you to my friend from Washington. [1:56:03] And I would just say, you know, the baseball metaphor, calling balls and strikes, as Justice Roberts famously said in his confirmation hearing, nobody here has actually talked about what this hearing, I believe, is supposed to be about, other than our witnesses. [1:56:15] Nobody has defended the idea that we ought to expand the number of justices on the Supreme Court. [1:56:20] We've had an airing of the grievances, just as you have people complaining about the umpire all the time. [1:56:25] But nobody is defending the idea that I've heard that the remedy to the grievances is you have a three-judge panel, metaphorically, of umpires behind home plate, because more gets you a better outcome. [1:56:37] There's been plenty of complaining from one party right now, including the minority leader of this House, sitting members of this House. [1:56:44] The last presidential nominee of the other party, suggesting that court packing by expanding ought to be a remedy to be considered. [1:56:52] That has never been a good idea. [1:56:55] And I would simply ask our panelists, in whatever time the chairman allows them to respond, what is wrong with allowing the people of this country, through the constitutional amendment process, to decide whether that specific remedy ought to be allowed or taken off the table? [1:57:12] What is wrong with that? [1:57:13] Briefly, any responses? [1:57:17] I don't think anything is wrong with that. [1:57:19] That seems like a good idea to me. [1:57:20] I don't think that the constitutional amendment process is necessarily the best way to handle this issue. [1:57:27] I would support an amendment to fix the number of seats on the Supreme Court at nine. [1:57:33] Justice Robert Jackson was asked this question, and his answer was, it is the responsibility of Congress to see that the court is an instrumentality in the maintenance of a just and constitutional government, and that it does not become an instrumentality for the defeat of constitutional government. [1:57:49] He testified about that in 1937 when he was asked in a hearing like this one about whether court packing was an appropriate remedy. [1:57:56] I thank all the gentlemen. [1:57:57] We now go to the gentleman from California for his questioning. [1:58:02] Thank you, Mr. Chair. [1:58:04] So court packing is, of course, a really bad idea, mainly because it seeks to change our institutions for the purpose of short-term political gain by one side or another. [1:58:18] And then, you know, it's very short-sighted because when you change the institution, that has a lot of downstream consequences that you can't predict. [1:58:27] And it makes just our overall system not really function when you don't have a stable institutional foundation for our political battles to play out. [1:58:37] But we don't just see this with proposals to pack the court. [1:58:41] We see it with this redistricting war that's going on where, you know, in one state or another, a party has control of the legislature. [1:58:49] So rather than trying to win congressional seats by persuading people that their party has the right views, they say, let's move the lines around and give ourselves a structural advantage. [1:59:00] I saw it all the time when I was in the state legislature in California. [1:59:03] If they didn't have the votes in the committee, they'd just remove people from the committee or add people to the committee. [1:59:08] We see it here when the House rules, if they aren't convenient in a given circumstance, the rules just get waived or suspended. [1:59:16] And then on the other side of the coin, as the chairman mentioned, we had a bill, the Judges Act, that actually instituted some needed institutional changes by giving us more district court judges to hear claims when they have this huge backlog so people actually get access to justice. [1:59:32] And it had broad bipartisan support, but then suddenly it was vetoed because of the perceived short term, you know, political consequences. [1:59:41] So I guess my question for our esteemed panel here, for anyone that would want to weigh in, is how do we more assure that our institutions are insulated from the currents of short term politics? [1:59:57] So one thing that I'll say is I think it's helpful what the Supreme Court just did in the Calais decision. [2:00:04] I think that's been mischaracterized quite a bit during the hearing today. [2:00:08] But the Supreme Court said that it is a statutory interpretation case, but the court strongly suggested that the Constitution also requires this. [2:00:16] You can't discriminate against individuals on the basis of race during redistricting. [2:00:22] And for decades, some states were forced to intentionally sort voters on the basis of race to maximize political advantage for one political party. [2:00:32] So the fact that we don't have to do that anymore, we don't have to discriminate on the basis of race and redistricting, is a good step forward. [2:00:39] Professor Bowie? [2:00:42] Yeah, I'd just like to say, you all on the panel are members of Congress. [2:00:48] You took an oath to support the Constitution, and I trust your judgment that you can determine what counts as appropriate legislation for enforcing the Constitution. [2:00:57] If you think the Voting Rights Act needs to be updated for a modern time, you can amend the Voting Rights Act. [2:01:03] You can make it better. [2:01:04] We did not elect a Supreme Court to do that job for you. [2:01:08] We did not vote for justices to override your interpretation of what the Constitution means. [2:01:14] We have never, as a country, been asked, should the Supreme Court have this role of putting itself above you all? [2:01:23] I think it disrespects your oaths if the court takes your words that you have taken responsibility to enact into legislation and say, actually, you're wrong. [2:01:33] But surely part of this, and maybe you're agreeing with me, that it's the fault of Congress for relinquishing its constitutional authority. [2:01:42] Like, if you look at, let's just take the last two presidents. [2:01:44] We had a decision in the Biden administration. [2:01:46] The Supreme Court struck down the student loan scheme. [2:01:49] Of course, we just had the tariff decision with this president. [2:01:52] Congress could have easily reclaimed its own authority on either count before the court stepped in. [2:01:58] It just chose not to, right? [2:02:00] So, frankly, my job is not to tell you how to do yours. [2:02:04] But that said, you do have the responsibility to interpret the Constitution, and I trust that you can do justice to that responsibility. [2:02:11] When you think that the law needs to be updated, it is your job, not someone else's, and especially not someone who the American people have not chosen, to decide what does the Constitution mean? [2:02:21] How do we give effect to its guarantees of freedom and equality, rather than letting someone who no one has chosen take that away from us? [2:02:28] Yeah. [2:02:29] I mean, there's clearly a very important role for the courts in our system in maintaining the Constitution, in defending the Constitution and upholding its principles. [2:02:39] I think that Congress has, over time, relinquished more and more of its authority, both to administrative agencies and to the courts. [2:02:49] And so maybe we're saying the same thing, but in different words. [2:02:52] I think that there is a responsibility for Congress to reclaim some of that authority. [2:02:58] And, you know, in particular, we're the house, we're the people's house closest to the people. [2:03:02] I think that our system works better when more policymaking happens here and can take into account the views of folks all across the country. [2:03:10] That's absolutely true. And one of the reasons why Congress is feeling so disabled is because there are past Supreme Court decisions that have taken away your ability to police the president, your ability to prevent corruption, your ability to ensure that Americans can vote. [2:03:24] And so long as we continue to have this system in which you are not in charge of the laws that you pass, then it's difficult for the American people in an election to discern for ourselves what kind of country we want to live under. [2:03:36] Thanks very much. Yield back. [2:03:38] Professor Ross, I recognize myself now. [2:03:44] Professor Ross, Congress does have – did I miss someone? Oh, you're good. Okay. [2:03:54] Appropriately, I go last because I have the least to say, but I learn the most from these. [2:04:00] Professor Ross, briefly, isn't one of Congress's authorities the right to limit what can be considered by the court? [2:04:09] Isn't that already a power that we can use if we want, essentially, decisions of the Congress to stand? [2:04:18] Yes. And so the – in many statutory interpretation cases, the Supreme Court has invited, indeed almost begged Congress to offer a contrary interpretation. [2:04:32] So, you know, the court can often only guess at what Congress intends, and so it doesn't say that it's having the last word. [2:04:42] It's statutory interpretation cases. It's saying that this is the way we interpret the Constitution. [2:04:48] And if Congress disagrees, you know, Congress is perfectly free, you know, to enact a statute that, you know, reaches a different conclusion. [2:04:55] And just to follow up, in the Chevron decision, to a certain extent, the court just gave Congress back a tremendous amount of power that for years we didn't have. [2:05:06] Yes. [2:05:07] Thank you. [2:05:08] Mr. Bui – Professor Bui, one quick question. [2:05:12] I authored a bill, I put it in the record, to expand the court significantly, about 10 percent more district court judges. [2:05:22] But it's phased them in over more than a decade so that no one Congress and certainly no one president would do that. [2:05:32] Would you support this expansion of the court as vigorously if, in fact, there was a strong possibility that it would be balanced in its expansion? [2:05:43] So, I'm sorry I haven't read this bill, but I will agree with the principle behind it that, yes, to make the court less partisan would be a great thing to have your decisions take effect. [2:05:55] So, just for argument's sake, since none of these court packing bills originating from the House did that, they all gave immediately and gave it during a time in which the president of their party was in power. [2:06:10] I would say in part of our closing that very clearly this is Congress trying to get an outcome for their president rather than trying to enhance the court. [2:06:22] Would anyone doubt that, considering they didn't give that same consideration that Mr. Nadler and I did in our bipartisan bills to expand the court? [2:06:36] Mr. Scherer? [2:06:37] I don't disagree with that, but I'm not very familiar with the bills you're talking about. [2:06:42] Well, right now we're still trying to get that expansion of the court phased in over time. [2:06:47] I think you're talking about an expansion of the number of lower court judges. [2:06:51] Yeah, to meet the caseload that many have opined about here. [2:06:56] There's 179 or so appellate judges spread over 11 regular circuits and two special circuits. [2:07:06] That comes out to be about 16 to 1 if you evened out the districts. [2:07:15] The first circuit wasn't just six and so on. [2:07:19] And that's not including the two special circuits. [2:07:22] It's 20 to 1 if you include those. [2:07:25] When you look at that ratio, my question to each of you is, [2:07:30] as people talk about expanding the high court, the court that must make a decision for it to be universally the law of the land, [2:07:38] or to fail to take a case in order to make it essentially sustained or denied at a lower court. [2:07:46] Should we in the future when we're having this debate consider those 179 judges that did not exist at the origination of our country [2:07:56] and the earlier days of the court moving up and down? [2:08:00] My personal view is that the only federal judges that are overworked in our system are district court judges. [2:08:06] Congress should create more district court positions. [2:08:09] Congress should also consider expanding the number of staff. [2:08:12] It doesn't make any sense to me that district court judges can hire fewer law clerks than court of appeals judges. [2:08:18] They're the ones who need them more. [2:08:22] I strongly agree with what Mr. Capilzi has said. [2:08:25] Same here, as do I. [2:08:28] Professor, have you looked at the caseload of the district versus the appellate and the role relative to the Supreme Court? [2:08:36] Because we've talked extensively about the expansion, yes or no, of the court, [2:08:41] but not about the total number of judges, the caseload, and what they do. [2:08:45] No, I agree with the principle. [2:08:48] And one of the things that Congress used to do is require Supreme Court justices to ride as district court judges, [2:08:53] as circuit judges, in order to ease the caseload of trial courts. [2:08:56] And that's one option available to Congress right now. [2:08:58] If the Supreme Court is underworked but district courts are overworked, [2:09:01] then you can enact legislation to require the justices to spend their time as district judges. [2:09:06] Or even serving on appellate. [2:09:09] My time is expiring, but since there's no one else seeking, I'll take just another minute. [2:09:14] I've been generous with both sides, I think. [2:09:17] This has been a serious but partisan discussion, no question at all. [2:09:22] But it's an important issue. [2:09:25] I'm going to ask a question to each of you as scholars in your area. [2:09:29] There was a lot of discussion about the vacancy of the courts and the filling of them. [2:09:35] Should we, in fact, have a system that allows for there never to be a vacancy of the court? [2:09:42] Meaning we certainly could create a high court, but we could have a process where an appellate court, through some process, [2:09:50] became the designate to fill a temporary or permanent vacancy or even an alternate to the court that would step in when there was a vacancy. [2:10:01] Is the idea that there should never be events like the ranking member talked about through a process that would ensure that we always have a full court? [2:10:12] And, Professor Bowie, I would opine to you that that would potentially even include the idea that that alternate would serve whenever a justice has to recuse themselves. [2:10:24] Yes, I believe the ranking member or ranking member of the subcommittee has introduced legislation that would give presidents a regular appointment schedule so that vacancies would be more predictable, less likely to lead to the sort of partisan campaigns around nominations, [2:10:41] and otherwise ensure that if the court is doing its job, then we can... [2:10:46] But I included recusals because currently, if there's a recusal, the court goes from 9 to 8 or 9 to 7, whatever the recusal is. [2:10:54] There have been very few recusals, but there have been certainly plenty of cases in which there was a case for recusal, but that person did not recuse, and perhaps because the court would be without that vote. [2:11:07] Absolutely, and to be honest, if anything, that's a sign that perhaps the number of concurrent justices is not the number that it should be. [2:11:14] Individual recusal will have that kind of effect, and therefore there are no recusals. [2:11:20] If anything, that's a sign that recusals need to be easier to do so that... [2:11:25] But in any lower court, a recusal simply means that a different judge steps in. [2:11:29] There's not a lack of... [2:11:31] You know, the three-judge panel doesn't become a two-judge panel if there's a recusal. [2:11:35] Mr. Capozzi? [2:11:36] There is a statutory process for if there's not enough justices to have a quorum on the Supreme Court. [2:11:41] You could look at the Alcoa case. [2:11:43] I think it's from 1939, where the Second Circuit had to hear a case in lieu of the Supreme Court. [2:11:49] I think I would oppose the proposals that you suggested, Mr. Chairman. [2:11:55] The power to appoint justices is tremendously important. [2:11:58] We need checks and balances in our system, and we shouldn't weaken the Senate's role in checking the president on the appointment of justices. [2:12:05] Professor Ross. [2:12:06] I agree with Mr. Capozzi. [2:12:08] You get the closing opine, because I'm well past my time. [2:12:13] Well, I would say there's also not a great need for that kind of a process in the Supreme Court, [2:12:19] because it's not really a disaster if a single justice has to recuse, then the number of justices who are sitting on the case is eight rather than nine. [2:12:28] Generally, they're going to be able to decide the case without splitting four to four. [2:12:33] You know, that happens once in a while, but not enough, I think, to make it the kind of problem that requires a solution. [2:12:40] Mr. Chairman? [2:12:42] The chair recognizes the chairman of the full committee. [2:12:47] One quick question. [2:12:48] I'm just curious what the panel thinks. [2:12:51] Why don't we just add four justices now? [2:12:54] If 13 circuits, we need to go to nine to 13 as the ranking member of the full committee suggested at the start of the hearing. [2:13:02] Why wouldn't we just add them now if we're going to add them? [2:13:04] What do you think of that? [2:13:05] We'll just maybe go down the line. [2:13:07] The first rule of justice is what's good for the goose is good for the gander. [2:13:11] I oppose doing that now just as I would oppose doing it under a different president. [2:13:15] No, that's where I'm at. [2:13:16] I totally agree. [2:13:19] But it seems to me if we're going to do it, and 13 is some important number that we've got to get to based on the number of circuits, then we should, if we're going to do four, do it now. [2:13:29] Mr. Bowie, would you support doing that, doing four? [2:13:31] You said if Congress thinks it's the right thing to do, we should go for it. [2:13:34] So if it's the right thing to do, can we go for it now? [2:13:36] Well, I agree with the principle. [2:13:37] It's in your prerogative. [2:13:38] You have the prerogative to determine how the Supreme Court works. [2:13:41] The court did not descend from on high in its current form in the palace across the street. [2:13:46] It's your job to determine what kind of court... [2:13:48] And you would have no problem with us doing it now. [2:13:50] Look, I disagree with many of the policies that come out of Congress right now, but I really have faith in your ability to live up to your office. [2:13:59] And I think that you have the authority to determine what kind of justice we want to see in this country. [2:14:04] That's great. [2:14:05] I think I know what Professor Ross and Mr. Scherer's answer is as well, which is where I'm at. [2:14:10] Yeah, I would oppose any expansion of the court. [2:14:13] Yeah. [2:14:14] I'm there too. [2:14:15] Okay. [2:14:16] Thanks, guys. [2:14:17] I yield back to the chairman. [2:14:18] Thank you for the hearing. [2:14:20] I want to thank all of our witnesses today. [2:14:21] This concludes today's hearing. [2:14:24] Pursuant to committee rules, all members will have five legislative days in which to submit written questions for the witnesses and additional materials for the record. [2:14:36] And for all of you, what that means is within five days, additional questions will be forwarded. [2:14:41] Would all of you agree within a short period of time so we can close the record that you would attempt to respond to them? [2:14:48] Sure. [2:14:50] All witnesses answered in the affirmative. [2:14:51] So without objection, that is ordered. [2:14:53] And without objection, we stand adjourned. [2:14:55] Thank you. [2:14:56] All of you, Mr. Scherer, please wrap up your discussion and think that it is turning me around or just getting a lot of information. [2:14:57] Thank you, Mr. Scherer. [2:14:58] All of you, William. [2:14:59] Mr. Scherer, please, keep your TV on what we do and press. [2:15:00] Mr. Scherer, please, we sign. [2:15:02] What, is it also getting a chance to call us, is Minister Scherer, Meredith,äischenуль and to my TV on the radio Instagram and to speak up? [2:15:03] And so we can join us where the comments, Senator Grover does help us. [2:15:04] Thank you, well here we want to find this. [2:15:05] All of you, man. [2:15:06] Thank you, collected une minded. [2:15:07] Well, I want to discuss your process, including a bit of breath, you're making the support, [2:15:08] we do with the transport, but I hope to look at all of us.