Court Packing: A Threat to the Supreme Court’s Legitimacy

The subcommittee will come to order. Without objection, the chair is authorized to declare recess at any time. We welcome everyone here today on a h- today's hearing on court packing. Without objection, Mister Schmidt of uh will be able to participate in today's hearings for the purpose of questioning the witness if a member yields him time for that purpose. I'll now recognize myself for an opening statement. Although the title today is " Packing of the Supreme Court", it is more than that. This committee, this subcommittee's primary goal is to empower and, uh, the Supreme Court to do its job while retaining its independence. That often means that we're being asked to consider pay, benefits, budget, and in fact, as there is a need to lobby from this body to the court, we do so with the recognition that the United States Supreme Court, unlike any other court in our in history, is in fact a court of independent decision. The Supreme Court has that critical constitutional responsibility. Unlike branches one and two, which moved back and forth with the will of the people, the Constitution itself created a court empowered to act as a check against the other branches, as a check against the branches that reflect the current will of the people. Throughout our history, the United States Supreme Court has been at its best when it told the reflection of the will of the people of the moment that they could not do what they wanted to do. It is likely been at its worst when it's succumbed to the fever of the crowd, or the feeling of the moment. Whether that is, Dred Scott has maybe brought up today, or in fact, questions of locking up Americans in concentration camps during World War Two, We have had a long history of being proud of the Court the vast majority of the time. That doesn't change the fact that the Court must reflect that which the American people can in fact live with. No question at all that the Court moves at a slow pace as the American people come along sometimes behind them. The Court has delivered wins and losses for both political parties, not just throughout history, but throughout the last nearly two years. The court was f- in at our founding was different than it is today only in one major sense. It was viewed as the second court, meaning the US Supreme Court justices road circuit, the US Supreme Court justices were effectively the appellate court in addition to being the single Supreme Court. As our country grew, that changed. Whether or not the American people anticipated in the Constitution the fact that the uh population would go from single-digit millions to three hundred and fifty million and likely to double again in the next century, they did create the ability under the Constitution for the High Court to remain supreme while lower courts have been created by this very committee. Democrat leaders have threatened specific justices by name, slandered family members and justices, called for all manner of laws explicit to undermine the court's power under the Constitution. I have not ex- been the greatest student of history, but I strongly suspect there were times when the other party did so, whether that party was the Republican party or the Whigs, politicians have been unhappy with the court for the court doing its job in a professional matter. The witness the witness that our Democrat minority has chosen to invite today to this very hearing demonstrates my point. Many of the writings of Professor Bowie uh clearly anticipates the view of the Democrat party, that which tends to be more populous, more the will of the moment, the more will of the people, that in fact democratizing the Supreme Court has been well written by our witness. I take no exception to his words. These are his words, his studies, and he is well written. The question is, today, in this hearing and beyond, Will the United States Congress side with the idea that we should be more democratic in our third branch, or that our third branch should remain more independent, less, if not completely, outside the will of the people's will at the moment as reflected through either direct uh will of uh Americans or through their elected representatives in both, Article one and Article two. It appears the Democrats believe the Supreme Court sh should be prohibited from second-guessing any federal laws unless the court is unanimous, allowing any single ju- justice, no matter how radical, to veto the entire court. I find that interesting and I reject it in every possible way. Democrats believe Congress should decide when the Supreme Court meets, delay when it hears arguments, force justices to resume the pre-Civil War practice of writing circuit, and acting as district judges. Democrats seem to believe that they should regulate what anyone can ask any court to do, blocking Americans from seeking relief from Supreme Court for unconstitutional laws. It appears Democrats believe the court should be packed with more justices who share their views. If written testimony uh of these views on behalf of the democratic colleagues are aren't enough for the committee Professor Buoy has written extensively in support of anti-Supreme Court views. I now ask unanimous consent to enter into the record many of these articles. I will not go through them one by one, but I will make sure they're available to all the members. These are in fact the writings of Professor Buoy, who I have in fact uh given a brief synopsis of, and without a without objection, so ordered. In contrast, Republicans understand that even the courts rule even the court rules against us, that is its constitutional work. we can revise laws and even amend the Constitution if we want to. As I told to some of the individuals uh in the audience today, we have one of our original constitutional amendments still before the American people. If the American people so chose through its states, they could choose to go from the House of Representatives having four hundred and thirty-five members determined by the body itself, Or we could have over six thousand members if we simply enacted one of the original constitutional amendments, the twelfth of the twelve original. That would in fact cap at sixty thousand the number of people each member on the dais could represent. At the time of our founding, it seemed like a good idea to at least some of our founders. If anyone on the dais here today thinks that a baseball park filled with House members pushing their thumbs up and down would give us more democracy, or if any of the witnesses think that it is more than just a relic of the past, I ask them all to please consider opining on it during the hearing. And with that, I'd like to recognize the ranking member of the subcommittee, Mister Johnson, for his opening statement.

Thank you, Mister Chairman. And uh thank you witnesses for your appearance today. Last summer, Kash Patel took a taxpayer-funded snorkel tour of Pearl Harbor, one of our nation's most hallowed grounds, while the cost of living for Americans skyrocketed. The Trump administration just created a taxpayer-funded one point eight billion dollar relief fund for January sixth insurrectionists and others in exchange for uh dropping a ten billion dollar lawsuit, a personal lawsuit that he filed against the IRS, which he controls. And he's doing this while millions of Americans are losing their health insurance. President Trump is blocking clean energy projects fossil fuel campaign donors, while the rest of us pay and pay and pay at the pump more and more every day. What do these facts have to do with this hearing? On its face, the daily demonstrations of incompetence and corruption of the Trump administration have little to do with the Supreme Court. But if you look closer, these stories mirror the far right, and how far the far right has created a corrupt United States Supreme Court that too often works for the corporations, the billionaires, and the oligarchs at the expense of the American people. For decades, MAGA Republicans have systematically chipped away at the impartiality of our third branch. They have already delegitimized our judiciary, yet they now stand before the American people pretending to be guardians of judicial integrity. Today's blatant attempt to rewrite history would be laughable if the consequences were not so dangerous for our democracy. But history matters. The American people deserve to understand how we got to this moment. And to understand how we got here, we must follow both the money and the machinery behind the modern conservative legal movement. The Roberts Court is the culmination of a plot that began fifty years ago, in the early seventies, soon to be Justice Powell, wrote, quote, " the judiciary may be the most important instrument for social, economic and political change," end quote. And he said that to reassert corporate power over the needs of the individual. This power memo set off a decades-long crusade by Republicans to concentrate power in the hands of the few at the expense of the many. wealthy donors and corporate interests spent billions of dollars to reshape the judiciary in their image. Nowhere is the success of this decades-long effort more visible than at the United States Supreme Court, where a carefully appointed conservative supermajority, a MAGA supermajority, now delivers the MAGA conservative outcomes this mom- this movement spent billions of dollars to achieve. And achieve they did. In the last several years, the Roberts Court opened the floodgates to unlimited dark money in our political system, empowering billionaires and oligarchs like Elon Musk, the Koch brothers, Leonard Leo, Harlan Crow, and other powerful special interests to reshape the court and drown out the voices of ordinary Americans. This court has decimated reproductive freedoms that generations of women fought to secure, stripping away rights that millions of Americans relied on for nearly half a century. It has granted Trump It has granted him vast immunity, broad immunity, placing him virtually above the law. and it has granted him And now It has granted him so many powers. So, the court has put the nail in the coffin of the Voting Rights Act, dismantling protections that generations of Americans fought, You can take the You can take the vote from here. marched and died for. Abraham Lincoln once said, " This government cannot endure half slave and half free." Yet, that seems to be the vision for America that Chief Justice Roberts and the conservative supermajority on the Supreme Court envision. Where some enjoy easy access to the ballot, others are forced to overcome legal barriers designed to make our voices quieter. Our nation is now in Jim Crow two point O. We are a nation where the right to vote once again can be diluted, restricted, or simply ignored. And where the voices of rich and powerful people carry more weight than the voices of ordinary Americans, but particularly Americans who look like me. Our two hundred and fifty 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. 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. The American people deserve accountability for the damage that has been done. The American people deserve a judiciary that serves our democracy, not a narrow ideological agenda that only benefits the rich and powerful. So I want to thank the witnesses again for being here. 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. And with that I yield back.

Gentleman yields back. We now recognize the Chairman of the Full Committee, Mister Jordan, for his opening statement.

Thank you, Mr. Chair- Thank you, Mr. Chairman. Um, I wanna tell you, Gorsuch, I wanna tell you, Kavanaugh, you've released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions. Chuck Schumer, March fourth, twenty twenty. highest ranking democrat in our government threatening

Sorry. There you go.

a separate and equal branch of government. And if you doubt it's a threat, just remember where he made that statement. On the steps of the Supreme Court. And that threat began the six year assault on the court by the democrats. Started with that threat, then you had Senator Markey say the court's illegitimate. Well, how is that? Every every justice I know in the court was actually confirmed by the United States Senate. That's how our constitution works. How could it be illegitimate? But Senator Markey thought it was. Then we went to something that's never happened. The Democrats leaked the Dobbs opinion in twenty twenty two. You talk about trying to undermine a separate and equal branch of government, start leaking the opinions. That's what they did, which resulted in protests at justices' homes, which by the way, the Justice Department at the time, under the Biden administration and Attorney General Garland refused to enforce the law. Eighteen USC fifteen O seven says you can't protest at a judge's home. And they refused to enforce the law. Which of course led to some crazy guy going to Justice Kavanaugh's house with the designed to kill Justice of the Supreme Court. Then of course we had all the hearings by the Democrats when they were in charge attacking Justice Thomas. attacking Justice Alito. We had a hearing where a guy come in and lied about Justice Alito and said he leaked some document which is a go back and watch the hearing definitely a lie by this guy. And why do they do it? Why do they do it? To concoct some basis for packing the court. And now they're saying it again. Time to pack the court. By the way, by the way, why do they want four justices, four new justices on the court? Why not one, why not two, why not three, why not five? Why do they want four? Cuz it's a six three majority for conservatives. A six three majority for people who actually interpret what the constitution the law says versus making it up as you go and making some new policy. They want four cuz they want a seven six majority. Plain and simple, raw political power, and they've been willing to do almost anything, threaten the Supreme Court on the steps of the Supreme Court, leak opinions, bring witnesses in who lie about justices that's why this hearing is important and frankly i hope we move the constitutional amendment on the floor i hope there is a vote and we'll see if these guys wanna keep the court at nine which it should be it's been there for what a hundred and sixty years or something um this is this whole carville is talking about it former vice president harris is talking they're all talking about it the ranking members talking about it we gotta pack the court Why? Why? Cuz they don't like the decisions that this good court is giving this country. Uh, so thank the chairman for this hearing. Thank our witnesses for being here. I look forward to hearing your testimony and I yield back.

The gentleman yields back. We now recognize the ranking member of the full committee for his opening statement.

Thank you very much, uh, mister chairman. Uh, and I I suppose that court packing, like justice itself, lies in the eye of the beholder. Um, but there are many different kinds of Um, when Justice Scalia died in February of two thousand sixteen, 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. The Judiciary Committee would not have any hearing, there'd be no voting committee, and there'd be no vote on the floor. Uh, when people asked why, that makes no sense to hold the Supreme Court seat open. to b- hold that vacancy open for nearly a year, he said it was too close to the next presidential election and the people should decide. 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. Well, uh, we've got a controlled experiment about what would happen, because that was held open, Merrick Garland was nominated by Barack Obama and was left twisting in the wind for nearly eleven months after the death of Justice Scalia. Then, uh, Trump, when he got in, um, was able to nominate Neil Gorsuch to the seat in his first week in office. Um, and that seat was open for four hundred and twenty-two days. And Mitch McConnell bragged about it, calling it the most consequential decision of his entire public career. And of course it cemented the rapid movement of the Supreme Court to the right, to incarnate the mega-agenda on the Supreme Court. Well, look, here's what happened, uh, when Ruth Bader Ginsburg died. Now, she died on September eighteenth, twenty twenty, so close to the next election, which was less than two months away, that early voting had started in a lot of the states. So it wasn't even two months away, And then the Democrats asked Mitch McConnell, some reporters asked Mitch McConnell, well of course you're not gonna have hearings or a vote or anything in the next few weeks, are you? And he laughed it off. 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. And then they rammed through the nomination of Amy Coney Barrett uh within two months, consolidating the right-wing, anti-choice, anti-environmental regulation, anti-labor, anti-voting rights, anti-democracy majority on the Supreme Court. 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. Biden won that election, by the way, by more than seven million votes, if you're interested in what the people want, three O six to two thirty to an electoral college. I know some people came down to overthrow the election, attack our police officers in order to accomplish a political coup to deny that, but that's what happened. So, right there we've got two seats officially stolen by Mitch McConnell and the Republican Senate giving them a six three mega court with a majority of the court now made up of nominees of presidents who lost the popular vote. Lost the popular vote. Roberts and Alito, Gorsuch, Kavanaugh and Amy Coney Barrett, all nominated to the court by uh justices uh by presidents who lost the popular vote. Now, if you don't believe that this Supreme Court has received, has uh uh conceived and achieved a remarkable transformation in constitutional jurisprudence, ethics and behavior on everything from abortion to voting rights to political corruption, cases, then you don't have to believe me or you don't have to believe your own eyes. Just listen to Donald Trump, who openly says it's really okay for them to be loyal to the person that appointed them to almost the highest position in the land, the Justice of the US 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. It's true, he doesn't want a justice loyal to the people, as the good chairman of the subcommittee says, or the Constitution. He wants the Supreme Court loyal to him and whatever is gonna advance his interests, his money, his family, his corporations. 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. 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, 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. And what did the Supreme Court ever do for enslaved people between the founding, the Civil War, nothing other than in eighteen fifty-seven the Dred Scott decision cement their subjugation into play, saying that the African slave and his descendants have no rights, a white man is bound to respect in any way. And then even after the Civil War, after the passage of the thirteenth, fourteenth and fifteenth amendments, drawn from the blood, sweat and tears of the Union and the people who fought to defend our country against the Confederacy the Supreme Court gutted the meaning of the Reconstruction amendments in the civil rights cases. And then in eighteen ninety-six in Plessy versus Ferguson, constitutionalized the the reign of Jim Crow, separate but equal. So we have a couple 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. Brown versus Board of Education, striking down American apartheid, the white primary line of cases, Terry versus Ohio, Roe versus Wade, but it didn't last long. before, it all sank away with uh the Rehnquist court and the Roberts court, and now they've returned to the historic baseline of political white supremacy. They wiped out our Voting Rights Act, first in Shelby County versus Holder in two thousand thirteen, and a couple uh months ago in the Calais decision. And we are about to see, they're not gonna be able to accomplish it all in twenty twenty six, but by twenty twenty eight we will probably see all white congressional delegations from the Deep South, wherever the Republicans control the state legislatures. Okay, that is court packing. That's political packing by a packed Supreme Court. The court today has a legitimacy crisis, not just because of the way it's been composed and stacked and packed and gerrymandered and divided by uh, uh, Mitch McConnell, who laughs about it. He thinks it's funny what they did. Why do some people want thirteen circuits, Mister Chairman? very uh thirteen members of uh the court uh you don't need a conspiracy theory for that there are thirteen federal circuits in america and traditionally the supreme court has been made up of the number of justices equal to the number of circuits and we got thirteen circuits but we only have nine justices so that means that under the best of circumstances four entire federal regions four federal circuits will be left out completely and it's much worse than that today because we've got five justices from New York City alone, one for each borough, but you're telling a majority of the people who live in a majority of the States that they they can't find anybody qualified to serve on the Supreme Court. So, uh, that's the answer to that particular question. 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, uh, that they keep uh, issuing, like the overthrow of Roe versus Wade, Plan versus Plan, uh, Parenthood versus Casey, uh, the complete construction out of thin air of, uh, immunity of precedents, uh, to commit felony crimes while in office, uh, and so on. And I, I hope that this court will do its best to try to behave like a Supreme Court. But there are things that we can do, and I, uh, introduced one bill yesterday called uh the SCOTUS Act. And the SCOTUS Act um is creating a new way for cert to be granted because this Supreme Court is obviously acting like a legislature. I mean they set up an agenda where they want this case, about the Voting Rights Act, they wanna destroy it. Oh now it's time for us to overthrow abortion rights, we're gonna take that case. All right. A lot of countries uh don't leave the agenda setting authority to the court itself, and certainly we should not leave it in the hands of this Supreme Court. It belongs with the thirteen federal circuits. 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, and they should decide when there is a meaningful circuit split or a federal question that should go up to the Supreme Court. This court obviously cannot be trusted with that, uh, agenda setting authority. Let's begin to create a real Supreme Court. in the country uh by moving in this direction and I thank you Mister Chairman I yield back to you.

I I thank the distinguished member from Maryland uh your uh your length of time as a professor shows in in the history dating back to nineteen twenty nine when the tenth circuit was created um could I just ask one question as a point of inquiry are you saying that the circuits should push involuntarily to the high court the uh uh the s- the cases they should take.

No, not involuntarily, we should set up a new system where uh cert is granted by a cert panel that's made up of thirteen judges the lead judges of each federal circuit in the country, 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.

Interesting.

Yep. I will get it to you, we'll get you a copy right now.

I thank I thank the gentleman. Without objection, uh, all other statements will be included in the record. We'd now like to introduce our our panel. Mister Louis Capozzi is the Solicitor General of Missouri. He previously worked in private practice at Jones Day, growing up in Cleveland, that's a household word, I appreciate, and has served as an adjunct professor at the University of Pennsylvania, Carey Law School. He clerked for Justice Neil Gorsuch, Judge Wilkinson, uh and Judge Wilkinson on the hi- on the Fourth Circuit Court of Appeals, Judge Anthony Scalia, and the Third Circuit Court of Appeals. Thank you and welcome. Professor William Ross. Mr. Ross is the Albert P. Brewer, Professor of Law and Ethics at Stanford University, Cumberland School of Law. Professor Ross teaches courses on professional responsibility, civil procedure, constitutional law, and American legal history. Mister Gene Shire is a partner at his own firm of Shire Jaffe LL P, where he practice his practice focuses on civil appellate matters He has argued seven cases before the US Supreme Court and previously was chair of the US Supreme Court and appellate practice group at Winston and Strawn. He is a uh a constituent of our ranking member in Maryland and perhaps will be able to uh answer the uh ranking members' questions in full. Professor Nicholas Bowie, Mr. Bowie is the Louis D. Brandeis Professor of Law at Harvard University, Professor Buoy teaches courses on federal constitutional law, state constitutional law, and local government law. 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. Do all of you solemnly swear or affirm under penalty of perjury that the testimony you're about to give will be true and correct to the best of your knowledge, information and belief, so help you God. Let the witness or let the record reflect that all witnesses answered in the affirmative you may be seated. I know all of you were learned and have certainly watched us on C-SPAN intently in the years uh leading up to this, but I have to say for the record that your entire statements will be placed in the record, 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, so the five minutes in an opening statement can be either similar or dissimilar at your choice but we do ask you to stay as close as you can to those those little timers that tell you your time is coming close to an end, and then eventually that it has ended. With that, I'd ask uh Mister Capozzi uh uh to begin. Okay, now, this is a major test. Even members of Congress get it wrong. So we we will test each of you for your ability to get the mike on and then back off again, This is your second chance, sir.

Chairman Issa, Ranking Member Johnson, Chairman Jordan, Ranking Member Raskin, uh, thank you for the opportunity to testify today. Uh, I'll do my best to turn the mike on for the rest of the hearing. The framers of the Constitution guaranteed the Supreme Court's independence because they understood that independent courts are essential to the rule of law. The Supreme Court's installation from partisan politics preserves its ability to adjudicate disputes on what the law requires, not the fleeting goals of political actors. Nevertheless, at various points in our history, partisans have proposed reforms that would undermine the Supreme Court's independence, with court packing being the obvious example. Today, I urge Congress to reject proposals to interfere with the Court's independence. I'd like to start by emphasizing what is at stake. The Supreme Court, as with all courts, relies on respect for its judgments. This critical respect did not arise automatically. As Justice Breyer has explained, during the nineteenth century, an independent judiciary was more an aspiration than a reality. 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. Fortunately, by the twentieth century, respect for the Supreme Court became firmly entrenched. Thus, despite Southern efforts to resist desegregation, state officials eventually followed the court's orders to do so. Today, we take it for granted that government officials will follow the Supreme Court's order. But that could change if politicians interfere with the Supreme Court's independence. That is why I am alarmed by the current trend of attacking the Supreme Court's legitimacy. But even on their own terms, the trending criticisms of the Supreme Court make little sense. First, critics frequently claim that the Supreme Court consistently rules in favor of President Trump and Republicans. 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 twenty-twenty census, and allowing subpoenas of the president's personal financial records. The Supreme Court has also not hesitated to rule against President Trump early in his second term. 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.

Mm-hmm.

Another common attack on the Supreme Court's legitimacy is that it has been more willing to overrule precedent than in the past. A quick look at history refutes this proposition. During the nineteen thirties and nineteen forties, the Supreme Court revolutionized constitutional law and allowed for the massive growth of the federal government. The Warren Court also regularly over-precedent and dramatically overhauled many areas of the law. For example, in Reynolds v. Sims, the Supreme Court restructured state legislatures across the country, finding the state's equivalence of the US Senate unconstitutional. Compared to its predecessors, current Supreme Court overrules precedent at a slower pace. Indeed, the Supreme Court has conspicuously declined to overrule precedent in several recent important cases, including Fulton v. City of Philadelphia. 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. The Supreme Court continues to strike a balance between preserving precedent and correcting its mistakes, just as it has always done. 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. The Supreme Court derives its legitimacy from the fact that it is not a partisan institution. No political group gets everything it wants there. Disagreeing with the court's decisions is no excuse to threaten judicial independence. a cornerstone of our republic that took centuries to build, I urge Congress to continue its tradition of respecting the Supreme Court's independence. Thank you again for your invitation to be here today. I look forward to your questions.

Thank you, sir. We now recognize Professor Ross. Okay, you get two chances too.

Uh

Yeah. Don't don't feel bad. Like I say, we've had senators not be able to get it right, sir.

Thank you. Um, so, Chairman Issa, Ranking Member Johnson, um, Chairman Jordan, and Ranking Member Raskin, you know, and distinguished members, you know, thank you very much for inviting me to testify here today. I'm here to testify in opposition to proposals to expand the number of United States Supreme Court justices and to provide historical perspectives about so-called court packing. Increasing the court size for political reasons could uh could diminish judicial independence 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 who would be expected to conform to the political predilections of the President and his or her party. Moreover, the prospect of court packing could intimidate justices and influence the court's decisions. The Court's independence from political pressure and intimidation has helped to ensure its ability to protect the civil liberties of Americans in countless cases involving racial religious political and ethnic minorities whose rights were ignored or impugned by Congress, the President, and state governments. Similarly, now 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. A politically motivated increase in the number of justices could also erode public respect for the court, since it would exacerbate the growing tendency of Americans to believe that the court's decisions are guided by political prejudices rather than by constitutional principles. Advocates of court packing claim, that the appointment of additional justices, presumably by a Democratic president, would restore balance to a court the conservatives have allegedly hijacked. But how and where would court packing end once it began? Court packing is a game that both parties can play. If a Democratic president could obtain a liberal majority on the court by appointing additional justices, a subsequent Republican president could restore a conservative majority by appointing still more justices. It is therefore clear that both parties, and both conservatives and liberals, should have compelling reasons to fear and oppose court packing. Tampering with the size of the court also is ill-advised, because a nine-member court is deeply rooted in tradition and is based on practical considerations. Supreme Court justices and legal scholars have tended to agree that nine is the ideal size for the court, since that's large enough to distribute the court's heavy workload and provide a range of viewpoints, but small enough to promote collegiality and efficient deliberation. Increasing the court's size could impair the court's ability to function effectively. In particular, an increase in justices uh would provide individual members with less time and opportunity to ask questions during oral arguments and to participate in the court's conferences. It could also dilute the clarity and force of the court's opinions by increasing the number of concurring opinions. As Chief Justice Charles Evans Hughes explained in imposing Franklin Roosevelt's ill-fated court packing plan in nineteen thirty-seven, quote, "there would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide." The present number of justices is large enough so far as the prompt, adequate, and efficient conduct of the work he's concerned." 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, it is the very role of the court to filter political agendas through a constitutional lens. Tethering the court to the president and Congress comprevenes the fundamental concept of separation of powers. The court often has fulfilled its most important function when it has overturned unconstitutional legislation. Although proponents of court packing also argue that the present court is out of step with public opinion, the court throughout its history has broadly remained within the general parameters of public opinion, even during periods when it has had a distinctly liberal or conservative tinge. Justices are keenly aware that, as Alexander Hamilton wrote in The Federalist, the court has neither the power of the purse nor the power of the sword. and that its decisions are ultimately uh dependent upon the goodwill of the coordinated branches of government and the American people. Since court packing proposals jeopardized the court's integrity and independence, it is my hope and expectation that Americans today will reject such interference with the court just as they did in nineteen thirty-seven. Thank you.

Thank you, Professor. Mister uh Sherr- Sherrere.

Good morning. Uh, Chairman Issa, Ranking Member Johnson, Chairman Jordan, Ranking Member Raskin, um, and distinguished members of the subcommittee, thank you for this opportunity, uh, to address recent proposals for packing the U. S. Supreme Court, which is an issue of enormous importance to all who care about the rule of law, as I know each of you does. Uh, in nineteen eighty-three, a well-known Democratic politician, uh, Senator Joe Biden, pointedly referred to Franklin Roosevelt's nineteen thirty-seven attempt at packing the Supreme Court as quote " a terrible mistake and a bone-headed idea." Um, so let me offer five reasons uh why that remains true today, in addition to those that have been mentioned by my my esteemed colleagues here on the panel. Uh, first, the current court p- court packing proposals are really based on an incorrect factual premise, namely that the Roberts Court is relentlessly Now, uh we've heard already today about a about a a handful of decision, the decisions that people on the left don't uh don't like. We've heard about Citizens United, which recognize First Amendment limitations on the government uh government's ability to curb or regulate political speech. Uh people on the left are also concerned about jobs, which we've heard about and and uh and the recent Supreme Court decision in uh Louisiana versus Calais, which some people claim gutted the Voting Rights Act. Uh, but in fact, and I'll come back to those specific examples in a minute, but in fact the Roberts court, often joined by some of President Trump's nominees, has also ruled against what most people view as Republican or conservative interest in several hotly contested cases. Mister Capozzi mentioned the recent tariff decision. Another example of that phenomenon is the is the O'Bergle- decision from a few years ago which ruled that states are constitutionally forbidden from limiting the uh definition of marriage to man, woman unions. And then there was the Bostock decision which extended title seven's protections against nondiscrimination to gay and lesbian and transgender people. And don't forget the Supreme Court's earlier decision in NFIB versus Sibelius, which upheld the individual mandate uh that was the heart of Obamacare. Each of those decisions was uh was excoriated by by folks on the right, um uh but and and they were as a political matter and a policy matter, they were big wins for uh for progressives. Um and so the claim that the Roberts court is somehow in the pocket of conservatives or Republicans just doesn't withstand uh analysis of the facts. Um Second, Uh, current cur- uh, proposals rest on an unrealistic predictive judgment about new justices' voting powers, or - or voting - uh, likely voting patterns. In Roe versus Wade, for example, the key votes supporting abortion rights came from justices appointed by the conservative President Nixon, while one of the most vocal dissents, uh, in Roe versus Wade came from Justice Byron White, who had been appointed by, uh, uh, by President Kennedy. Um, and we've all seen examples of where Supreme Court justices, uh, vote against the wishes of the president who - who appointed them. And so, even adding four more justices to the Supreme Court is by no means any guarantee that it - that the shift would - that the court would shift more towards, uh, progressive, uh, priorities. Um, third, as has been mentioned, uh, court packing proposals really ignore the incentives of the other side once they regain gain power. Uh, if if Democrats have a trifecta in the in the next election and are able to expand the the Supreme Court to thirteen, uh, does anybody think that the the Republicans are gonna stand still for that and not do the same thing the next time there's a Republican trifecta and before long, uh, the only venue in Washington DC that'll be large enough to accommodate the Supreme Court's uh conferences, their private conferences, will be the new White House ballroom. Um, and I don't think that's in anybody's interest. Um

You you're assuming that there will be one.

I'm assuming that. I'm not advocating for it, but I'm assuming it. Uh, number four, court packing proposals distract from the more important work of building political and legislative coalitions. Um, and and I think that's illustrated by some of the recent court decisions that we've discussed today. 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, and the court held that uh uh 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 well if Congress goes back and changes the Voting Rights Act uh to do what progressives would like and require ma- majority minority districts, Uh, my guess is that that decision would come out very differently. Um, Dobbs is another example. Uh, 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. Um, number five, uh, we other panelists have already discussed how court packing would erode public trust in the court and ultimately in the entire federal government, because the Supreme Court has long been viewed correctly as a bit of a ballast, or a counterweight to - to the other branches of the government. They can correct the, uh, the mistakes that the other branches occasionally make. I think it's also instructive that court packing, uh, in other countries has become a favorite tool of tyrannies around the world, like Robert Mugabe in Zimbabwe, um, Victor Orban in, uh, in in hungary and hugo chavez in uh venezuela and so there are many reasons to reject the the current court packing proposals thank you

i thank the gentleman we now go to professor uh buir for buir bow bow bowie for his i'm terribly sorry to men medulate your name

uh no worries but thank you chairman isa ranking member johnson chairman jordan ranking member raskin thank you for inviting me to testify before the distinguished members of the subcommittee My name is Nicholas Buying, and I am the Louis D. Brandeis Professor of Law at Harvard Law School. For the past seven years with my colleague, Daphne Daphne Renan, um I have researched a forthcoming book called Supremacy, How Ruled by the Court, Replaced Government by the People. The book shows how the Supreme Court acquired the power it now wields, and what Congress can do about it. We're here to assess whether court packing is a threat to the Supreme Court's legitimacy. 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? As Professor Rinnan and I wrote in our book, this question was a critical one for the people who founded the Republican Party. Their mission was to fight the spread of slavery. But in eighteen fifty-seven, in Dred Scott versus Sanford, the Supreme Court declared that mission unconstitutional for Congress to put into practice. That founding generation of Republicans had never before experienced an attempt by the Supreme Court to override Congress. They called such an attempt despotic and unwarranted by the Constitution. When Abraham Lincoln and other Republicans won in the eighteen sixty elections, Congress enacted statutes that rejected Dred Scott and began reconstructing the South into a multiracial democracy. That Republican-controlled Congress wanted courts to enforce their laws, but they were wary of a second Dred Scott decision. 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. 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. 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. The Supreme Court's assertion of power to defy federal law has a name. judicial supremacy. The founding generation of Republicans argued that this idea undermines Republican governance. 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. 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. 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. But like those early Republicans, we need not accept judicial supremacy any longer. Those Republicans and their abolitionist allies advocated for an alternative tradition that Professor Renan and I called democratic constitutionalism. 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. This was the position of the lawyers who argued Brown versus Board of Education in the nineteen fifties. They urged the court to stop defying Congress's civil rights laws and to start enforcing it against discrimination in the South. One law in particular, the Ku Klux Klan Act of eighteen seventy-one explicitly directed courts to prevent state officials from violating anyone's constitutional rights. The court applied that federal law in Brown to end segregation in the South and it has applied it in many landmark cases since. Meanwhile, a bipartisan Congress inaugurated a second reconstruction with the Voting Rights 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. You have the power to continue this legacy and replace judicial supremacy with democratic constitutionalism. The Constitution says nothing about the Court's power to defy acts of Congress, but it explicitly empowers Congress to regulate the Court. Your predecessors used that power to curb the Court's defiance federal statutes and to override harmful constitutional interpretations. 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. If the current majority of the court is exercising an illegitimate supremacy over federal law, when the Constitution does not grant and that is being used to make Republican governance unviable, then regulating the court is not just legitimate, it is your duty. Thank you very much.