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Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.

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Speaker 1: Here's Senator Joe Biden giving his opinion on President Roosevelt's

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Speaker 1: attempt to add justices to the Supreme Court. President Roosevelt

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Speaker 1: clearly had the right to send to the United States Senate,

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Speaker 1: the United States Congress and proposal to pack the court.

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Speaker 1: It was totally within his right to do that. He

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Speaker 1: violated no law. He was legalistically absolutely correct, But it

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Speaker 1: was a bone had idea. It was a terrible, terrible

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Speaker 1: mistake to make as a candidate. Talking to sixty Minutes,

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Speaker 1: Biden had a more measured tone. The last thing we

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Speaker 1: need to do is turn the Supreme Court intogest a

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Speaker 1: political football. Whoever has the most votes gets whatever they want.

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Speaker 1: Presidents come and go. Supreme Court justices stay for generations. Now.

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Speaker 1: President Biden has named a thirty six member bipartisan commission

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Speaker 1: to study possible changes to the Supreme Court, fulfilling a

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Speaker 1: promise he made on the campaign trail as progressives pushed

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Speaker 1: to overhaul a court they say has been unfairly stacked.

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Speaker 1: With conservatives joining me as constitutional law professor Neil Kinkoff

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Speaker 1: of the Georgia State University College of Law. So Neil

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Speaker 1: tell us about the stated purpose of a commission on paper.

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Speaker 1: The purpose of the commission is to study all of

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Speaker 1: the various Supreme Court reforms that have been proposed and

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Speaker 1: to make recommendations to the President about which reforms, if

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Speaker 1: any seemed like a good idea, which which seemed like

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Speaker 1: they shouldn't be recommended. It sounds like they're supposed to

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Speaker 1: come up with something that looks like a research paper.

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Speaker 1: Are they actually going to make specific recommendations for change? Well,

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Speaker 1: I think what they're going to do is mostly assess

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Speaker 1: recommendations that have already been made. Not having said that,

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Speaker 1: a number of the recommendations that have been made have

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Speaker 1: been made by members who are on the commission, so

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Speaker 1: they will at least be addressed in the report. I

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Speaker 1: don't know for sure whether or not the Commission will

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Speaker 1: end up making recommendations. It depends on what they think

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Speaker 1: is advisable. So they certainly could they're allowed to. But

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Speaker 1: whether they think that any reform to the Supreme Court

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Speaker 1: is needed as a body, whether they think that that

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Speaker 1: much isn't clear at all. So um, it's going to

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Speaker 1: take time to tell. But having said that, I think

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Speaker 1: part of the purpose of the commission is that I

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Speaker 1: think President Biden really doesn't want to do much about

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Speaker 1: the Supreme Court, and so you know, in politics, when

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Speaker 1: you don't want to do something, you set up a

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Speaker 1: commission to study it, exactly. That's what I was going

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Speaker 1: to say. When I hear the word commission, it sounds

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Speaker 1: to me like a classic Washington d c. Way of

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Speaker 1: dodging the issue, exactly. And there's a lot of heat

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Speaker 1: during the election, especially among the President's base, to consider

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Speaker 1: reform proposals, and especially to consider adding seats to the

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Speaker 1: Supreme Court. You know, people were mad about the treatment

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Speaker 1: of Merrick Garland and so didn't think that seats should

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Speaker 1: have gone to President Trump to fill, and thought that

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Speaker 1: there shouldn't have been the rush to fill Justice Ginsburg's

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Speaker 1: seat again by President Trump over her dying wishes. And

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Speaker 1: so there's real movement in the Democratic base for adding

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Speaker 1: seats to the Supreme Court in order to undo the

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Speaker 1: large Conservative supermajority that's that's in the body now. And

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Speaker 1: Biden had to do something to respond to all of that.

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Speaker 1: So he proposed a commission, and I think his inclination

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Speaker 1: is not to change the Supreme Court. He was on

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Speaker 1: the Judiciary Committee for decades. He knows these issues pretty well,

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Speaker 1: and his instinct has always been moderation. Looking at the

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Speaker 1: members of the Commission, it seems as if there are

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Speaker 1: a lot of academics and a lot of progressives. Do

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Speaker 1: you see an imbalance on the on the committee in

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Speaker 1: any respect? Well, actually, I think Biden did a good

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Speaker 1: job of making sure there's conservative representation on the Commission.

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Speaker 1: They're about ten identifiably conservative members of the Commission, and

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Speaker 1: they're not token representatives. They are leading conservative legal scholars

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Speaker 1: and leading scholars of originalism who are on the Commission.

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Speaker 1: You know, I've seen a number of other conservative commentators

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Speaker 1: who have actually been expressing surprise and that they're impressed

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Speaker 1: that there were so many conservatives on the committee. Because

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Speaker 1: a commission that's put together by a democratic president, you

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Speaker 1: wouldn't think is going to necessarily have the other side

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Speaker 1: well represented. They are well represented. They can't out vote

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Speaker 1: the other members on the commission. But these kinds of

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Speaker 1: commissions tend to try at least to work by consensus,

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Speaker 1: and so if they do something that the conservative members

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Speaker 1: disagree with, I'm sure there will be a sort of

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Speaker 1: minority report issued by those those members. So I do

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Speaker 1: think that the Commission is broadly speaking quite re presentative.

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Speaker 1: It's not very representative of practitioners. I think that's a

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Speaker 1: fair point. Even some of the practitioners are really academics

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Speaker 1: and thinking there of Walter Tallinger who now as a

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Speaker 1: partner and a practitioner at the Supreme Court practice of Washington,

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Speaker 1: d c. Law firm, but for thirty years or more

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Speaker 1: he was a law professor at too. Some liberals have

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Speaker 1: complained that what's missing on the Commission are some of

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Speaker 1: the liberals who have done studies and recommended so called

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Speaker 1: court packing. Because even some of the liberals on the Commission,

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Speaker 1: like Harvard professor Larry Tribe, has come out against court packing.

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Speaker 1: So is that element missing? I think that element will

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Speaker 1: be represented. Um, it could have been represented much more robustly.

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Speaker 1: But again, I think President Biden's inclination is to not

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Speaker 1: add seats to the Supreme Court, and so I think

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Speaker 1: you see that reflected in the composition of the Commission.

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Speaker 1: So one of the co chairs is Bob Bauer, who

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Speaker 1: is White House counsel to Barack Obama. Now he teaches

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Speaker 1: at n y U. But Bob Bower is also on

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Speaker 1: the record as opposing adding seats to the Supreme Court,

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Speaker 1: so the perspective is there, but I think the momentum

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Speaker 1: on the Commission will be strongly against it. The Commission

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Speaker 1: is also going to study term limits and jurisdictions stripping.

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Speaker 1: Might either of those turn out to be a less

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Speaker 1: drastic way of affecting change at the Court, so I'm

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Speaker 1: sure there will be support. A number of members of

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Speaker 1: the Commission have supported publicly those sorts of less drastic

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Speaker 1: measures in the past, so there will be at least

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Speaker 1: some support on the Commission for it. I don't expect

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Speaker 1: that the Commission is likely to adopt any of those,

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Speaker 1: and even if it does, I think it's remarkably unlikely

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Speaker 1: that any kind of meaningful court reform would get enacted

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Speaker 1: by Congress. For one thing, there is serious doubt about

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Speaker 1: the constitutionality of something like term limits, that that would

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Speaker 1: require a constitutional amendment, which is virtually impossible in this setting.

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Speaker 1: The jurisdiction stripping proposals can be done by a regular statute,

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Speaker 1: but Congress has considered jurisdiction stripping statutes frequently over the decades,

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Speaker 1: and very often with very strong political support for them,

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Speaker 1: and yet none of them has actually been enacted. So

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Speaker 1: I'm really doubtful that any of those, even if they

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Speaker 1: were to get through the Commission, could possibly be enacted

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Speaker 1: by Congress. So we don't expect that there's going to

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Speaker 1: be any kind of court packing recommendation. But if there were,

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Speaker 1: would that just require legislation or that require more So

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Speaker 1: to add seats to the Supreme Court just requires a

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Speaker 1: simple statute. It doesn't require a constitutional amendment. There's nothing

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Speaker 1: in the Constitution about how many justices there have to be.

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Speaker 1: It's left entirely to Congress. So there could be one,

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Speaker 1: there could be fifty one. It's entirely entirely up to Congress.

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Speaker 1: Having said that, you know, Congress has considered these kinds

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Speaker 1: of proposals over the years and has almost never responded

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Speaker 1: to them. There was a brief period when the Court

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Speaker 1: went to ten justices around the time of the Civil War,

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Speaker 1: but since then it's been back to its um complement

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Speaker 1: of nine justices, and it's been there pretty stably. Franklin

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Speaker 1: Roosevelt very famously proposed what was known as the court

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Speaker 1: packing plan. When the Supreme Court kept striking down his

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Speaker 1: new deal legislation, and that was voted down pretty overwhelmingly

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Speaker 1: by a Congress that was overwhelmingly democratic and supportive of

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Speaker 1: Roosevelt and the New Deal. So that's often thought of

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Speaker 1: as kind of a precedent for the proposals to add

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Speaker 1: seats today and as sort of a harbinger of just

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Speaker 1: how unlikely they are to be enacted. But having said that,

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Speaker 1: I think it's also important to remember that simply by

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Speaker 1: proposal in the Court Packing Plan FDR had a real

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Speaker 1: impact on the Court itself that the Court shortly thereafter

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Speaker 1: changed its its view on the scope of federal power

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Speaker 1: to regulate commerce and started upholding New Deal statutes. And

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Speaker 1: I think it is fair to imagine that the current

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Speaker 1: climate and the current discussion of adding seats to the

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Speaker 1: Supreme Court has a kind of moderating influence on the

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Speaker 1: Supreme Court. That is, justices like Justice Roberts, who carell

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Speaker 1: out about the legitimacy and integrity of the institution, I

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Speaker 1: think fear those kinds of proposals, and I think it

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Speaker 1: tends to make them moderate their positions on issues. So

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Speaker 1: it's not surprising that, for example, over this past weekend,

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Speaker 1: we've seen headlines talking about how the Supreme Court is

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Speaker 1: dodging a lot of the hot button issues that you

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Speaker 1: might have expected them to be taking up. Issues on guns,

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Speaker 1: on abortion, on a bit of action, they're pretty well

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Speaker 1: staying away from. And I think these court packing proposals

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Speaker 1: may maybe playing a role now. On Thursday, a group

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Speaker 1: of Democrats unveiled legislation in both the House and the

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Speaker 1: Senate that would expand the number of justices on the

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Speaker 1: Court from the current nine to thirteen. Here's one of

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Speaker 1: the sponsors. House Judiciary Committee Chairman Jerry Nadler. Some people

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Speaker 1: will say we're packing the court. We're not packing, we're

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Speaker 1: unpacking it. Why I introduced this bill before the Commission

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Speaker 1: has a chance to make its recommendations. I think it's

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Speaker 1: just a response to some of the interest groups that

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Speaker 1: have been demanding that the Court be expanded and to

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Speaker 1: show sort of a commitment to that. I imagine it's

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Speaker 1: also aimed at putting some pressure on the Commission, because,

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Speaker 1: as we were discussing earlier, the personnel on the Commission

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Speaker 1: I think are largely opposed to court packing, and so

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Speaker 1: I think the people who want to pursue court packing

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Speaker 1: want instead of being in the position of responding to

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Speaker 1: the Commission to actually put pressure on the Commission and

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Speaker 1: to say this has been their position even before the

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Speaker 1: Commission issued any kind of report. Congressman Nadler said that

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Speaker 1: in light of the fact that there were thirteen federal

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Speaker 1: appeals courts, it makes sense to have thirteen justices to

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Speaker 1: oversee them, as was the previous tradition. Does that make

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Speaker 1: sense to you, Well, I don't for a minute believe

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Speaker 1: that's actually the reason. And when FDR proposed his court

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Speaker 1: expansion plan, the proposal was to add one seat for

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Speaker 1: every justice over the age of seventies, and the reason

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Speaker 1: he gave was because judges at that advanced age needed help.

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Speaker 1: No one believed that was his reason, and I don't

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Speaker 1: think anyone's going to believe that the reason is to

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Speaker 1: have one justice for every circuit. It is true that

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Speaker 1: there are some justices who are sort of the circuit

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Speaker 1: justice for two circuits and others who are circuit justice

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Speaker 1: for only one, but I don't think there's any real

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Speaker 1: concern that they're overburdened by having to oversee two circuits.

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Speaker 1: So I really don't for a minute believe that that's

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Speaker 1: the actual reason for making it thirteen Justices. I think

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Speaker 1: the reason is the six to three conservative majority on

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Speaker 1: the Court, and adding four seats gives a democratic president

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Speaker 1: an opportunity to realign that balance. How Speaker Nancy Pelosi

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Speaker 1: says she won't even be bringing the bill to the

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Speaker 1: floor for a vote, so's it's just dead as it's introduced, right,

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Speaker 1: It's dead anyway as a as a practical matter, um,

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Speaker 1: the Senate wouldn't pass it because unless the Senate goes

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Speaker 1: to the nuclear option, there wouldn't be enough votes to

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Speaker 1: defeat a filibuster um. And even if you went to

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Speaker 1: the nuclear option, there are enough moderate Democrats in the

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Speaker 1: Senate that the bill couldn't pass anyway. Even on a

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Speaker 1: bare majority vote, um, the bill wouldn't pass. I think

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Speaker 1: it's probably better to understand this as an attempt to

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Speaker 1: build momentum and to start reaching out of the public

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Speaker 1: and making the case for expanding the court, and to

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Speaker 1: do that in advance of the Commission coming out, presumably

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Speaker 1: the Commission coming out and saying that we shouldn't expand

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Speaker 1: the court. I think really the court that this plays

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Speaker 1: to is the court of public opinion, rather than being

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Speaker 1: kind of a legitimate with a chance to pass legislative

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Speaker 1: proposal that fits in with what one of the sponsors,

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Speaker 1: Senator Ed Markey said that the first stage is education

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Speaker 1: and that this is the education of the public. Right, um,

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Speaker 1: And and frankly, I imagine at this point the public

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Speaker 1: is not really attending class. I mean, I think if

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Speaker 1: you want to get the public to pay attention and

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Speaker 1: be educated, or perhaps better yet, to be engaged on

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Speaker 1: the issue, Um, the Supreme Court is going to have to,

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Speaker 1: as we discussed before, it's going to have to overstep

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Speaker 1: its mandate in a number of significant cases. So if

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Speaker 1: Congress passes important campaign finance reform and the Court strikes that, doubt,

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Speaker 1: if Congress passes common sense gun reform and the Court

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Speaker 1: strikes that. Now, if the Court keeps striking down sort

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Speaker 1: of sensible public health requirements on religious freedom ground, and

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Speaker 1: I think most significantly, if the Court overrules Row versus Way.

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Speaker 1: If those things happen, then I think the public will

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Speaker 1: really engage with this issue. But right now it just

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Speaker 1: looks like a partners an attempt to gain control of

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Speaker 1: the third branch. Coming up next, I'll continue this conversation

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Speaker 1: with Professor Neil Kinkoff and we'll talk about Justice Stephen

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Speaker 1: Bryer's comments on court packing at a Harvard Law School

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Speaker 1: event last week, just as Stephen Bryer spoke out against

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Speaker 1: liberal calls to add justices to the Supreme Court, saying

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Speaker 1: that step could undermine public trust that the Court is

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Speaker 1: guided by legal principles, not politics. I hope and expect

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Speaker 1: that the Court will retain its authority, but that authority,

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Speaker 1: like the rule of law, depends on trust. A trust

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Speaker 1: that the Court is guided by legal principle not politics.

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Speaker 1: Structural alteration motivated by the perception of political influence can

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Speaker 1: only feed that matter perception. I've been talking to Professor

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Speaker 1: Neil Kincoff of the Georgia State University College of Law.

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Speaker 1: So Neil Justice Brier painted this ominous picture of court packing.

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Speaker 1: So I think it's not at all surprising. The current

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Speaker 1: members of the Court don't love the idea. They are

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Speaker 1: very committed to the institution and the institution as it is,

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Speaker 1: and they see the potential for adding seats to politicize

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Speaker 1: the Supreme Court. For some people, you would say, well,

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Speaker 1: it's already thoroughly politicized, and so what's the problem. I

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Speaker 1: just think current members of the Court don't see it

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Speaker 1: that way. They don't see it as thoroughly politic size.

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Speaker 1: They disagree with one another, but they don't see the

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Speaker 1: Court as politicized. But if you start adding seats in

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Speaker 1: order to either gain or prevent particular outcomes, then the

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Speaker 1: legitimacy of the institution is really in jeopardy. And I

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Speaker 1: think that's what Briar is responding to. I think Justice

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Speaker 1: Ginsberg took the same position before her death. I think

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Speaker 1: Justice Roberts others in the conservative camp see that, and

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Speaker 1: so I think there would be broad opposition among members

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Speaker 1: of the current Supreme Court to adding seats. Ryan also

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Speaker 1: rejected the characterization of the Supreme Court as conservative now,

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Speaker 1: even though legal experts widely describe a six to three

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Speaker 1: conservative majority on the Court. I can see why he

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Speaker 1: says that, because even you know, just a year ago,

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Speaker 1: the Supreme Court, by a six to three vote, ruled

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Speaker 1: that Title seven protects individuals based on sexual identity and

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Speaker 1: sexual orient patian right, so transgender and and homosexual protections

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Speaker 1: that we're certainly not in the mind of the Congress

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Speaker 1: that enacted that law. So you find cases like that

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Speaker 1: where the Court doesn't come to the expected conservative conclusion

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Speaker 1: and it allows somebody like Justice Bryer to say, you know,

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Speaker 1: the Court's not conservative, or as Justice Roberts puts it,

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Speaker 1: there aren't Obama judges and Trump judges or Clinton judges

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Speaker 1: or Bush judges. They are just judges. And that's really

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Speaker 1: vital to the legitimacy of the institution. Having said that,

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Speaker 1: I mean, I think it really kind of blinkers reality

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Speaker 1: to not recognize the very conservative tenor of the overwhelming

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Speaker 1: number of cases that the Supreme Court decides. And I

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Speaker 1: think it's unrealistic not to expect that conservative bent to

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Speaker 1: deepen with the addition of Justice Barrett, which is a

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Speaker 1: new phenomenon and one that really hasn't liquidated in actual rulings,

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Speaker 1: but I think that's coming, and we see the harbinger

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Speaker 1: of it with the Court continuing to strike down California's

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Speaker 1: response to COVID on religious freedom grounds. When Justice Ginsburg died,

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Speaker 1: Briar became the leader of the minority on the Court.

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Speaker 1: So how can he not acknowledge that there's some sort

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Speaker 1: of split. Yeah, I think it's vital to his position

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Speaker 1: and for him to be effective that he hold to

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Speaker 1: that position, because in order for him to be able

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Speaker 1: to write majority opinions. I think he's not interested in

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Speaker 1: writing dissents. He's interested in writing majority opinions. He needs

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Speaker 1: to be able to appeal to at least two conservative justices,

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Speaker 1: and he's had some success doing that, mostly in cases

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Speaker 1: that people don't pay attention to, personal jurisdiction cases and

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Speaker 1: the like. But in order for him to be able

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Speaker 1: to do that, he needs to be on record that

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Speaker 1: he doesn't regard the Court as conservative, but rather as

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Speaker 1: sort of doing its best to figure out what the

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Speaker 1: law requires. And as long as that's the position that

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Speaker 1: he's taking, he can appeal to justices like Corsuch or

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Speaker 1: Aledo or Kavanaugh to see things differently than their colleagues

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Speaker 1: in a particular case and most of the issues that

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Speaker 1: people really care about. I don't think there's very much

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Speaker 1: hope of doing that, but in if you look at

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Speaker 1: the mind run of the courts cases, UM, he's had

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Speaker 1: some successes. He also called for more compromise and fewer dissents.

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Speaker 1: Is he sending a message to his colleagues on the bench. Yeah,

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Speaker 1: So that used to be the way the court operated, um,

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Speaker 1: and things changed, particularly with Justice Scalia, who was rather

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Speaker 1: adamant about the way he saw things. So I think

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Speaker 1: the way he would put it is he stuck by

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Speaker 1: his principles and he wouldn't agree to anything in an

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Speaker 1: opinion that he disagreed with. Whereas I think through most

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Speaker 1: of the Court's history, justices may not agree really with

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Speaker 1: every word of the opinion, but if it comes to

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Speaker 1: the conclusion that you know, they think is the right one,

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Speaker 1: they're willing to go along and compromise about the language

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Speaker 1: that goes into the opinion. And so during Justice Scaliah's

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Speaker 1: time on the Court, there was a real flourishing of

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Speaker 1: separate opinions that either concurred with the majority but were

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Speaker 1: written in order to point out some fine point of

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Speaker 1: disagreement or dissenting opinions right. And so I think what

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Speaker 1: Justice Brier is calling for is compromise and collegiality um.

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Speaker 1: And those were not the hallmarks of the Court during

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Speaker 1: the years Justice Scalia was on there. The reaction of

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Speaker 1: some liberals to his speech was Riyer retired billboards. He's

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Speaker 1: eighty two, the oldest justice on the court. Do you

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Speaker 1: think he's likely to retire soon? So, I think it's

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Speaker 1: always unlikely that they will retire. We've seen it with

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Speaker 1: Justice Ginsburg. We saw it with Justice Renquest. They think

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Speaker 1: they can continue, even when they're in terrible health. They

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Speaker 1: think they can continue, and so justices do not lightly

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Speaker 1: give up that position. You know, I think a lot

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Speaker 1: of the calls for Justice Brior to retire were being

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Speaker 1: made before he gave the speech, just based on his age,

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Speaker 1: and based on the recent experience with Justice Ginsburg, and

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Speaker 1: based on just how thin the majority and the Senate is,

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Speaker 1: and how any vacancy and vacancies do happen in the

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Speaker 1: Senate could flip control of the Senate. And so it's

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Speaker 1: such a precarious position in the Senate that a lot

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Speaker 1: of people would like Justice Bryor to retire now while

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Speaker 1: a successor could be confirmed, instead of waiting to a

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Speaker 1: later date. Thanks Neil. That'th Neil Kinkoff of the Georgia

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Speaker 1: State University College of Law. I am June Lso, and

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Speaker 1: you're listening to Bloomberg.