We Need To Talk About Court Expansion

0:00Strict Scrutiny is brought to you by Americans United for separation of church and state. It's back to school season, and this year, 5 million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Yes, you heard that right. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. Twenty-eight families in Texas, supported by Americans United for separation of church and state, are taking the fight to the Supreme Court. And they need you to amplify their voices before the Supreme Court gets its hands on this case.

0:34And we all know what the Fifth Circuit did. Obviously, they let Texas get away with all of this. They're going to go up, but we're going to fight to get them taken down. That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian. And their kids are in Texas public schools. The story they tell in this video is moving. and we hope everyone hears and shares it. Look, there is a human cost of Christian nationalist policies, like these 10 commandments laws and the decisions the Supreme Court hands down. Every child deserves access to public education where they aren't subject to state-imposed religion or religious instruction or coercion.

1:15Public education is supposed to be open and available to everyone. It's supposed to foster pluralism, not one specific religion. Visit au.org slash 10C to learn more about this case and how you can help join the fight to protect church-state separation. We talked a little bit about this case on our regular episode last week, but there's so much more to be said and to learn about the people who are fighting back. Mr. Chief Justice, may I please report? It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. she spoke not elegantly but with unmistakable clarity she said i ask no favor for my sex all i ask of our brethren is that they take their feet off our necks

2:24Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Kate Shaw, your lone host for this episode of our special bonus series, which we're calling Hot Supreme Court Reform September. And for this installment of our series, I am delighted to be joined by a friend of the show, Jamel Bowie, columnist for the New York Times, and probably the person whose columns appear more frequently than anything else in our recurring favorite things segment at the end of every show. It's like we really shout out your columns so much, Jamel. It's ridiculous.

2:55Anyway, we really do. Thank you, and welcome to Strict Scrutiny.

2:59Jamelle Bouie:It's a pleasure to be here. As I just mentioned, we are doing a series about Supreme Court reform, and our goal in doing that is to try to shift a little bit from general criticism of the court and its decisions, and listeners to this podcast know that that is not in short supply on this platform, but to try to move a little bit or to include some conversations with leading thinkers about specific potential reforms to the Supreme Court. And today I want to just ask you about one of the biggest and most controversial potential reforms to the court, and that is court expansion. Maybe we can call it court packing.

3:33We will talk about terminology. But before we get to that, I want to just stay on the court more generally for a minute. And I do think that people and maybe a growing number of people understand that something is deeply wrong with this Supreme Court. There was a Gallup poll in late July that had Supreme Court approval at 33%. Other polls have it in the mid or sometimes high 30s, but all at or near historic lows. And while I do think SCOTUS polling is quite imperfect, the change over time is still quite striking. So Jamel, I'm curious if you have any theories or thoughts on why the court is polling so badly right now.

4:09Jamelle Bouie:I think the two immediate things, right, are first that people who identify as Democrats, people who identify as liberals have gotten very down on the court for reasons I think all listeners know. One interesting wrinkle here is that there are many Republican-leaning voters who don't think the court has been favorable enough to Donald Trump. And so that kind of structures their view. It's also the case that on the right, the political right, there's just kind of almost a tradition of court-hating that stretches back half a century. It's part of the language of the political right in a way that it isn't quite yet of the political left.

4:41Jamelle Bouie:And I think that also shapes how Republican-leaning voters and conservatives think about the court. Obviously, I think that the conservative complaint here is absurd. The complaint there is the court isn't partisan enough. And I think that the complaint from Democrats, liberals, independents is much more sound, which is that the court is extremely disruptive in a way that is overturning people's sense of what constitutes sort of like the status quo of American politics in a way that they haven't voted for, the way they haven't given their assent to. Voters – it's funny. Voters don't necessarily have a firm sense of the potential consequences of who they put into office.

5:24Jamelle Bouie:And so when voters elected Donald Trump in 2016, or at least when, you know, 48.1 % of voters voted for Donald Trump in 2016, there wasn't an expectation that the consequences of that choice would be the end of Roe v. Wade, right? But it was. That was the direct consequence of that choice. And I think that for a lot of voters, they are perturbed by the idea that this institution, which is remote and opaque, you know, most people cannot name more than a handful of members of the court. Most people do not know how the court works. I spent a lot of time talking about the court in various forums, and the level of just baseline knowledge about its basic operations is not that great.

6:08The court is this remote, distant institution that every six months they learn has suddenly overturned some right they thought they had.

6:19Jamelle Bouie:And I think that is driving a lot of the discontent among Americans broadly. They just don't like that idea. But it strikes them, even if they could not articulate it in these terms, it strikes them as inimical to how they think the American system is supposed to work. Yeah, and I think the disruptiveness is a good way to characterize it. I mean, just to back up for a second, like I think you're right. You make a good point about the polling, which is that they're strikingly low numbers, but obviously you disaggregate them. And it is a combination of, I think, really sound criticism of the court and then some pretty baseless, like they are not Trumpy enough.

6:58But regardless, like that, this is an institution that is not commanding a lot of support and confidence in the public at large. I think that's a really nice point. But the disruptiveness, I think, is also critical because I think it's such a mistake to focus on, like, how many Supreme Court opinions this Supreme Court has overruled. Like that is a metric, but it is a wildly under inclusive one for asking about just the disruptiveness of the basic operations of government. I mean, the court thankfully did not, but came very close to upending the way that a lot of states do mail in voting in the upcoming midterm elections.

7:32Like it didn't do that. But if it had done that, that would have been wildly disruptive to dozens of states that let people cast votes by mail and then have those votes counted, even if they arrive a couple of days after the election. And that's not about like overruling a prior precedent. That's just about a court being willing to invite chaos and into elections, I think, in particular. But obviously, it goes way beyond elections, destabilizing the way that federal agencies have been able to regulate, you know, pollution of the air and the water, undermining the ability of the education department and the president to give debt relief to student borrowers.

8:07I mean, obviously the list is long, but I do think that it's kind of united by this disinterest in allowing other institutional players to make important choices and the settled state of affairs in terms of how we do governance to sort of rest if the Supreme Court, and it's often very idiosyncratic conception of like the separation of powers, doesn't like the way things have been going. And I do think there's one other thing in this connected to the kind of disrupting elections and democracy piece, which is that obviously there is wild dissatisfaction for lots of different reasons in kind of how government is working for people.

8:43And I think some of it quite justified and some of it less justified. But I do wonder whether in different ways people are beginning to understand that the court actually is an important player and bears a heavy dose of responsibility in their dissatisfaction with the way government is operating. And I don't know if anecdotally in your conversations about the court, you're seeing that kind of shift in people's minds. But as remote and distant as the Supreme Court is compared to other branches of government, it feels like to a degree, the presence of the court in a lot of court choices that people are allowed to make in ways they live their lives is becoming a little bit more evident to people.

9:22Does that seem right?

9:22Jamelle Bouie:No, that seems right. And one of the things I have learned in being a journalist and just talking to people, both in my capacity as a journalist and then in the past when I would volunteer for campaigns and stuff and just talk to people, ordinary people don't necessarily have a precise language for describing things. And they will latch on to basically like signifiers that kind of are getting at what they want to express, even if they can't say it. And so I would say that the signifier for like I am upset with the court is Citizens United. It is a stand in for someone. There's this unaccountable power that is allowing bad things to happen.

10:01Jamelle Bouie:You know, legal nerds might say, you know, Citizens United don't really agree with it. But like it's hard to see how they could come to a different outcome. Like legal nerds will have their discussion about the case as a case. But for like the typical person, what Citizens United means is the Supreme Court let billionaires buy our elections. And when you hear people talk about their discontent with the Supreme Court, first words on their lips are Citizens United. And I think that kind of captures it. Sort of these people who are unaccountable, practically speaking, and also don't feel themselves to be particularly accountable to the democratic process or to ordinary people who feel themselves and who often express this outright, that like they are basically floating above the entire political system as like a guardian council to whom they have no responsibility.

10:51Jamelle Bouie:I think a lot of voters, a lot of Americans perceive them to be like this. And Citizens United, the sense that there is all this unaccountable money in politics, that's the thing that I think captures the discontent more than anything else, more than honestly, even Dobbs. It's Citizens United is on the tip of people's tongues. That's really interesting. And that's, you know, 16 years. It is really interesting to me how a decision like that has the kind of staying power that it has. And I think you're right that there are people who say like, oh, there's reasonable arguments on both sides of Citizens United.

11:27Like I am definitely not in that camp. Like I think it was an outrage. And I do think that it's striking and encouraging, actually, that the public has stayed as mad as it has about that opinion, which has a lot to do with the state of our politics today. So, okay, so I've been asking about people's perception of the Supreme Court, and I want to slightly tweak the question now and to ask you kind of how you would characterize if it's different from what we've been talking about, what is so wrong with the Supreme Court today? Because I do think that That seems important to identifying what any effort at reform should be trying to address.

12:01So what are the key kind of pathologies or problems with a court that any court reform should be targeting?

12:07Jamelle Bouie:There's a piece from about four years ago, nearly four years ago, by Mark Lemley called the Imperial Supreme Court, which has really been my touchstone for thinking about this. I remember reading this and being like, yeah, this captures the dynamic that I think is most problematic. And the argument of the piece basically is that the aim of the Roberts Court, like what the Roberts Court has been doing primarily is accumulating power for itself, accumulating the power basically to make exceptions and to decide. And so when you begin to look at various rulings, and Trump v. U.S. comes after this, but Trump v.

12:45Jamelle Bouie:U.S. is a very good example, the headline of Trump v. U.S. is the Supreme Court has created this criminal immunity for the presidency as it relates to the president's core duties. But the thing about that, right, is that Roberts never quite says what that constitutes. What constitutes an official act? What constitutes an unofficial act? What are the exact limits of the core duties of the presidency? He provides an outline, but it's not specific. It's not exact. It has a lot of room for discretion. And that room for discretion is room for the court, right? It's room for the Supreme Court to decide what it thinks.

13:23Jamelle Bouie:much more explicit than that is even the major questions doctrine, which to my mind just really seems like a vibes-based, I don't know, seems like that you shouldn't be able to do that kind of doctrine. And you see this again and again, the court not actually laying down clear standards for lower courts to follow, that if the clear standards were there, lower courts could make their decisions without intervention from the Supreme Court. What you see is the court laying out vague doctrines that it can then intervene on a case-by-case basis when it decides that a lower court does not behave in exactly the way it wants it to.

14:00Jamelle Bouie:The use of the shadow docket is, again, part of this, this accumulation of authority within the court. And so that really structures my sense of what is to be done. And it goes back to a point I made earlier about the basic lack of democratic accountability the court has. Obviously, the Supreme Court is one of the principal countermajoritarian institutions of the American system. But the extent to which it remains responsive to the political process, responsive to sort of like democratic need, waxes and wanes throughout history. And there are times when the court is actually quite responsive to what's happening on the ground and times when it's very remote and unresponsive to what's happening on the ground.

14:38Jamelle Bouie:And I think that part of the reform agenda has to be done with an eye towards kind of how do you democratize the court or how do you just make the court more democratically responsive? How do you how do you break up its own authority relative to the rest of the federal judiciary and as well rest of the political system to kind of bring it back down from 30 ,000 feet and as a live player within the political system? Some of that is discretionary choices, right? If I were advising a president about – here's my ambition, not if I were president. If I were advising a president about who to put on the court, I would look for a longtime legislator.

15:23Jamelle Bouie:I would look for a former governor, someone with previous high-level legislative or executive experience whose decisions on the court might then defer more to the political process in a way that this court full of elite lawyers just does not instinctually – elite lawyers and executive branch lawyers just instinctively does not do. I would be – I think we should have court expansion. That's, if I'm being honest, a very narrowly political thing. I just think the process by which the Republican majority was assembled is rife with illegitimacy. A minoritarian president appointing three justices, one of those justices being appointed in the process that basically sort of broke the confirmation process for a year.

16:10Jamelle Bouie:The fact that the Republican majority in the Senate set down a rule, no confirmations in an election year, then promptly dropped that rule when they had a chance to do a confirmation election rule. All those things, it's just like not fair play, right? And another way to put it, it's hardball. And I do think that hardball is appropriate in response. But if I'm thinking big picture about just rejiggering the court's relationship to the political system and the court's relationship to the larger federal judiciary, my reforms would look like first a much larger expansion over a longer time horizon.

16:50Jamelle Bouie:with term limits and staggered additions. So it's not like, let's say you're doubling or tripling the size of the court, 27. It wouldn't be 18 new members immediately, right? It would be four new members immediately. And then every president after that gets a set number of, per term, a set number of appointments. And so it's still responsive to the political process. And with term limits, none of these appointments are permanent. So you can try to game the system. And as a parenthetical, I think part of the thing that perturbs me the most about the current structure of the court is that it can be gamed, right?

17:33Jamelle Bouie:It can be turned into a thing where you just permanently lock in authority for the duration. And I think that's just corrosive to democracy, which is a system predicated basically on the idea that you can always lose or rather no win is permanent, no defeat is permanent, right? And the prospect of permanent victories, if they become possible, is a really distorting thing in a political system, like a democratic system. So eliminating the chance for permanent victories, introducing more randomness into the process, into the structure, I think actually fixes a lot of problems. If you have this 27-member court built over the course of what, like five presidential terms.

18:14So first of all, no one knows who's going to be able to really construct it.

18:19Jamelle Bouie:But second, at a court that large, you can begin to do, instead of the whole court hearing cases, panels of justices hear cases, randomly selected from amongst the members. And that, again, introduces kind of this element of chance that becomes much harder to game. And I think that's important. Yeah. Wait, so let me pause for one sec. So that's, no, so that's, you're literally like speaking our love language, which is like, let's do all of the reforms and situate this a little bit. Okay. So in terms of the problem to be addressed through these reforms, I think that you kind of touched on all the key issues of it.

18:51There is both too much power, vague doctrines that reserve enormous discretion to the court, that these pro-presidency decisions are hugely consequential in what they hand to the president, but also in what they reserve for the court, both as the ultimate arbiter of the extent of congressional control over the president, But also I do feel like there's this subtle way that the pro-presidency decisions by just announcing that any government actor can stand outside the law, like also implicitly announce that the court stands outside of legal checks. Like, you know, it's both and. And that kind of the imperative here is to democratize the court to limit some of this unchecked power to break up the authority as compared to both the lower courts and the other branches of government.

19:34And that there needs to be an approach that has a lot of different components. And we sort of talked about talking about expansion, but I think you're exactly right to say the way to think about expansion is not as a one-off. We're going to put four more justices on the court right now because you need to fix the current court because it will never let anything good stand and because it's sort of illegitimate in its current constitution because maybe of the appointment of both Gorsuch at the beginning of and Barrett at the end of the first Trump term. but that that actually just has to be part of a larger reform conversation.

20:12I mean, I actually think a way – so maybe the Trump one experience is part of the story, but I also think the kind of critical reason that there needs to be expansion at the beginning of rolling in kind of a growing court with term limits is that I just don't know that the court as currently constituted would permit other kinds of reforms, both to the court itself and other kinds of pro-democracy reforms that are critical to solving some of the most pressing problems with our democracy. Like, I'm just not sure these nine justices would allow that. So I gather, so say you have four justices appointed immediately and then phased in additional appointments, whether it's two or four for each successive presidency, and then also term limits so you don't have a growing court that becomes enormous, although I'm not sure that would be so bad.

21:06Our court is kind of small in comparison to other kind of comparable democracies. And you could do panels of the sort that you were just alluding to.

21:16Strict Scrutiny is brought to you by 3-Day Blinds. Does listening to what's going on in the world make you want to live in a cave? Same. And 3-Day Blinds can help you build your own little cave in the privacy of your home or office. There's a better way to buy blinds, shades, shutters, and drapery, and it's called 3-Day Blinds. They are the leading manufacturer of high-quality custom window treatments in the United States. And right now, if you use my URL, 3dayblinds.com slash strict, they are running a buy one, get one 50 % off deal. We can shop for almost anything at home. Why not shop for blinds at home, too?

21:483 Day Blinds has local, professionally trained design consultants who have an average of more than 10 years of experience that provide expert guidance on the right blinds for you in the comfort of your home. Just set up an appointment and you'll get a free, no-obligation quote the same day. And if you're thinking, but wait, I'm not very handy. DIY projects can be fun, but measuring and installing blinds can be a big challenge. Well, the expert team at 3 Day Blinds handles all the heavy lifting. They design, measure, and install. So you can sit back, relax, and leave it to the pros. I'm a fan of 3-Day Blinds.

22:20They allow you to search for different criteria, including blackout blinds if you're looking for a cave, but also chic and modern if you're looking for a chic and modern cave. With 3-Day Blinds, you choose from thousands of options that fit any budget or style. Plus, from light filtering and blackout blinds to motorization and smart blinds that work with Alexa, 3-Day Blinds is a real upgrade to your home, not just a replacement. 3-Day Blinds has been in business for over 45 years, and they have helped over 2 million people get the window treatments of their dreams. so they are a brand you can trust.