COURT.
>> PRESIDENT JOE BIDEN ANNOUNCED
THAT A BIPARTISAN COMMISSION
WILL SPEND SIX MONTHS STUDYING
POSSIBLE CHANGES TO THE SUPREME
COURT.
WHAT KIND OF CHANGES ARE ON THE
TABLE?
ADDING MORE SEATS TO THE COURT
AND INSTITUTING TERM LIMITS FOR
JUSTICES AMONG OTHER THINGS.
JOINING US TO TALK ABOUT HIS
RESEARCH ON THE TOPIC IS ADAM
CHILTON A PROFESSOR AND THE
WALTER MANDER RESEARCH SCHOLAR
AT THE UNIVERSITY OF CHICAGO LAW
SCHOOL.
THANK YOU FOR JOINING US.
>> THANKS FOR HAVING ME.
>> THE CONSTITUTION SAYS THAT
THE CONGRESS CAN DETERMINE THE
NUMBER OF JUSTICES AND THERE
HAVE NOT ALWAYS BEEN NINE
JUSTICES.
TELL US MORE ABOUT THAT?
>> THAT IS CORRECT.
THE CONSTITUTION DOESN'T MENTION
THE NUMBER OF JUSTICES ON THE
SUPREME COURT.
THE FIRST CONGRESS SET THE
NUMBER AT SIX JUSTICES.
AND OVER THE COURSE OF THE 17
AND 1800'S THAT NUMBER MOVED UP
AND DOWN ABOUT SEVEN TIMES N1859
THE NUMBER SETTLED ON NINE
JUSTICES AND IT'S BEEN THAT WAY
EVER SINCE.
>> NINE JUSTICES SINCE 1869.
AND WE WILL GET TO THE PROSPECT
OF INCREASING THE SIZE IN A
MINUTE.
ANOTHER OPTION ON THE TABLE IS
TERM LIMITS FOR JUSTICES AND THE
MOST FREQUENTLY MENTIONED
POTENTIAL TERM IS AN 18-YEAR
TERM.
IS THAT A GOOD IDEA?
>> YES, I THINK IT IS A GREAT
IDEA THAT WITH AN 18-YEAR TERM
IT INSURES THAT EVERY PRESIDENT
THAT IS ELECTED WOULD BE ABLE TO
APPOINT TWO JUSTICES.
SO WHEN IN THE FIRST TWO YEARS
AND ONE IN THE SECOND TWO YEARS
AND THAT WOULD HAVE A NICE
AFFECT LINKING THE COMPOSITION
OF THE SUPREME COURT TO
ELECTORAL OUTCOMES AND IT'S
DETERMINED WHEN THE JUSTICES DIE
OR RETIRE.
YOU HAVE SITUATIONS WHEN JIMMY
CARTER WAS ABLE TO APPOINT ZERO
SUPREME COURT JUSTICES DURING
HIS FOUR-YEAR TERM BUT DONALD
TRUMP WAS ABLE TO APPOINT THREE.
SO RIGHT NOW WE HAVE A SYSTEM
THAT IS DETERMINED BY LUCK AND
STRATEGIC BEHAVIOR AND THE TERM
LIMITS WOULD HELP TO EVEN THE
APPOINTMENTS ACROSS PRESIDENTIAL
TERMS.
>> AND YOU HAVE DONE RESEARCH ON
THIS YOU RAN MODELS.
WHAT DID THAT RESEARCH TELL YOU
AND YOU TOUCHED ON IT, BUT WHAT
DID THE RESEARCH TELL YOU WHAT
TERM LIMITS OF 18 YEARS WOULD DO
TO THE LIBERAL-CONSERVATIVE
BREAKDOWN ON THE COURT?
>> ONE IMPACT THAT IT WOULD BE
THE BALANCE OF THE SUPREME COURT
WOULD BE LESS LIKELY TO BE
EXTREMELY PARTISAN.
IT WOULD BE LESS LIKELY THAT YOU
WOULD HAVE YEARS WHICH THERE
WERE SEVEN OR EIGHT JUSTICES
APPOINTED BY PRESIDENTS FROM THE
SAME PARTY AND THE REASON IS OUR
PRESIDENTIAL ELECTIONS GO BACK
AND FORTH.
WE HAVE BIDEN BEFORE THAT IT WAS
TRUMP BEFORE THAT OBAMA ET
CETERA BETWEEN DEMOCRATS AND
REPUBLICANS.
AND IF YOU HAVE TERM LIMITS THAT
INSURE THAT WAS THE COURT
REFLECTS THE ELECTORAL OUTCOMES
YOU HAVE MORE YEARS WITH FIVE OR
SIX JUSTICES FROM THE SAME PARTY
COMPOSING THE MAJORITY INSTEAD
OF SEVEN OR EIGHT.
>> MY UNDERSTAND SOMETHING THAT
TERM LIMITS HAVE A MORE SEEM TO
HAVE MORE SUPPORT AMONG BOTH
LIBERALS AND CONSERVATIVES THAN
ADDING SEATS TO THE COURT.
WHY IS THAT?
>> WELL, I THINK THAT HAVING
TERM LIMITS IS A SYSTEM WHERE IT
SEEMS STABLE LONG-TERM AND ALSO
FAIR.
IF WE ADD SEATS NOW IT WOULD
CREATE A WINDFALL FOR THE PARTY
THAT IS ABLE TO ADD THE SEATS
AND THE NATURAL RESPONSE IN THE
FUTURE WHEN THERE IS A
REPUBLICAN PRESIDENT AND SENATE
THEY WOULD BE TEMPTED TO ADD
SEATS AS WELL.
THE WORRY IS YOU HAVE TIT FOR
TAT RESPONSE.
>> MY UNDERSTAND SOMETHING THAT
YOU AND A LOT OF OTHER PEOPLE
THINK THAT THE PROSPECT OF
ADDING SEATS TO THE COURT IS
DEAD IN THE WATER.
IS THAT HOW YOU FEEL?
>> I THINK THAT'S RIGHT.
WITH THE DEMOCRATS ONLY HAVING
51 VOTES IN THE SENATE AND THE
CURRENTLY THE UNWILLINGNESS TO
GET RID OF THE FILL BURSTER THE
PROSPECT OF ADDING MORE SEATS TO
THE SUPREME COURT IS UNLIKELY IN
THE CURRENT SITUATION.
>> GOING BACK TO THE PROSPECT OF
TERM LIMITS HOW WOULD THAT WORK?
WOULD IT BE DONE BY STATUTE?
WOULD IT HAVE TO BE DONE VIA
CONSTITUTIONAL AMENDMENT?
>> THIS IS HOTLY DEBATED.
WHAT THE CONSTITUTION SAYS IS
THAT THE JUSTICES OF THE SUPREME
COURT SHALL SERVE IN A TERM OF
GOOD BEHAVIOR.
NOW, GOOD BEHAVIOR HAS BEEN
INTERPRETED TO MEAN THAT THE
JUSTICES CANNOT BE REMOVED
UNLESS THEY COMMIT AN
IMPEACHABLE OFFENSE.
ANY TERM LIMIT PLAN TO GET RID
OF THE CURRENT JUSTICES OR PUT A
HARD CAP ON THE AMOUNT OF TIME
ON 18 YEARS WOULD REQUIRE A
CONSTITUTIONAL AMENDMENT.
HOWEVER, A NUMBER PLANS INSTEAD
CALL FOR THE IDEA THAT AFTER 18
YEARS ON THE COURT, THAT THE
JUSTICES WOULD STILL BE SUPREME
COURT JUSTICES BUT THEY WOULD
TRANSITION TO SENIOR STAT WITH
US DIFFERENT RESPONSIBILITIES.
THEY MIGHT BE ABLE TO
PARTICIPATE IN INTERNAL
DELIBERATIONS OR THE MANAGE MANY
OF THE FEDERAL JUDICIARY OR SIT
ON LOWER COURT CASES BUT THEY
WOULD NOT BE DECIDING THE MERIT
CASES IN FRONT OF THE SUPREME
COURT.
IF THE TERM LIMITS TAKES THAT
APPROACH IT'S POSSIBLE IT CAN BE
DONE BY A STATUTE.
>> IF IT WERE DONE VIA STATUTE,
PRESUMABLY THAT WOULD CHALLENGE
THE STATUTE AND COULD IT BE
DECIDED BY THE SUPREME COURT
ITSELF?
>> YES, THAT IS RIGHT.
ULTIMATELY WHETHER OR NOT THE
TERM LIMITS WAS CONSISTENT WITH
THE CONSTITUTION, IS A
CONSTITUTIONAL QUESTION AND THAT
IS A QUESTION THAT THE SUPREME
COURT WOULD HAVE THE AUTHORITY
TO DETERMINE.
SO YOU NOT ONLY HAVE TO CONVINCE
THE SENATORS AND CONGRESS PEOPLE
TO PASS THE TERM LIMITS PLAN YOU
HAVE TO CONVINCE JOHN ROBERTS
AND THE OTHER MEMBERS OF THE
SUPREME AS WELL AND THAT MIGHT
BE TRICKY BECAUSE THEY WERE
SIGNING AWAY THEIR RIGHT TO A
LIFETIME APPOINT MANY OF HAVING
A POSITION OF HUGE INFLUENCE.