DISPOS IT OF MOTION OR ONE WHO
DOESN’T HAVE EQUALLY DONE A BAD
THING, RIGHT?
>> YES.
>> DOES THE CONSTITUTION SAY
ANYTHING ABOUT THE SIZE OF THE
SUPREME COURT?
>> THE CONSTITUTION DOES NOT.
THAT’S A QUESTION LEFT OPEN TO
CONGRESS.
MY UNDERSTANDING IT HAS BEEN
NINE FOR 150 YEARS.
THAT’S A MATTER OF STATUTE, NOT
CONSTITUTIONAL REQUIREMENT.
>> IT’S STATUTORY.
STATUTORY DECISION, ONE THAT
HAS STOOD FOR MORE THAN A
CENTURY AND HALF.
IT’S A DECISION, NONETHELESS,
THAT HAS SOME BEARING.
WOULD HAVE SOME BEARING ON
CONSTITUTIONAL ISSUES, CORRECT?
>> INSOFAR AS THERE WOULD BE
MORE DECISION MAKERS ON THE
COURT?
>> YES, IF WE ABANDONED THE
LONGSTANDING HISTORICAL
PRACTICE AND TRADITION OF
HAVING NINE JUSTICES, COULD
THAT HAVE AN IMPACT ON THE WAY
THE THREE BRANCHES OF
GOVERNMENT INTERACT WITH EACH
OTHER?
>> POSSIBLY, BUT IT IS
DIFFICULT FOR ME TO IMAGINE
WHAT SPECIFIC CONSTITUTIONAL
QUESTION YOU ARE ASKING.
OF COURSE, IF THERE WERE ONE I
COULD OPINE ON IT.
>> OF COURSE.
THERE ARE STRONG REASONS, I
BELIEVE, WHY OVER THE LAST MORE
THAN IS CENTURY AND HALF WE’VE
LEFT THAT NUMBER AT NINE.
AS YOU POINT OUT, THERE IS
NOTHING IN THE CONSTITUTION
THAT REQUIRES IT.
WE COULD COME UP WITH ANY
NUMBER WE WANTED.
THERE DOES HAVE TO BE A SUPREME
COURT AND SUCH INFERIOR COURTS
AS WE CHOOSE TO CREATE.
BUT IT DOESN’T SPECIFY THE
NUMBER OF SEATS THAT CAN BE ON
THERE.
THERE ARE NONETHELESS GOOD
REASONS, REASONS HAVING TO DO
WITH RESPECT FOR THE SEPARATION
OF POWERS BETWEEN THE THREE
BRANCHES OF GOVERNMENT.
REASONS THAT HAVE OVER THE LAST
150 PLUS YEARS LEFT US TO LEAVE
THAT NUMBER AT NINE.
THE LAST TIME AS FAR AS I CAN
TELL THERE WAS ANY SERIOUS
EFFORT TO MOVE THE NUMBER ABOVE
NINE WAS IN THE FALL OF 1936
WHEN PRESIDENT FRANKLIN
ROOSEVELT GOT TIRED OF THE FOUR
HORSEMEN OF THE APOCALYPSE.
MEMBERS OF THE SUPREME COURT
VOTING AGAINST HIS AGENDA.
AND SOMETIMES JOINED BY ONE OR
MORE OTHER MEMBERS OF THE
SUPREME COURT.
HE GOT PARTICULARLY TIRED OF
THIS AND SO HE PROPOSED PACKING
THE COURT.
LET ME EXPLAIN WHAT I MEAN BY
PACKING THE COURT HERE.
WHAT I MEAN WHEN I REFER TO
THIS IS INCREASING THE NUMBER
OF SEATS ON THE SUPREME COURT
AND DOING SO BY STATUTE WITH
THE INTENT OF ALTERING THE
COMPOSITION OF THE COURT FOR
SHORT-TERM POLITICAL GAIN.
THAT’S WHAT FDR WANTED TO DO.
NOTWITHSTANDING THE FACT THAT
HE HAD AN OVERWHELMING SUPER
MAJORITY IN BOTH HOUSES OF CONG
FORTUNATELY, FDR’S IDEA THAT HE
PUSHED IN THE FALL OF 1936
DIDN’T MAKE IT ANYWHERE.
IT DIDN’T GAIN PROGRESS.
IT MET ENOUGH OPPOSITION EVEN
WITH BOTH HOUSES OF CONGRESS
BEING OVERWHELMINGLY CONTROLLED
BY HIS POLITICAL PARTY, THAT IT
STALLED QUITE MERCIFULLY.
AND IT’S REMAINED, EVER SINCE
THEN AT NINE JUSTICES.
I THINK IT WOULD’VE BEEN A
COLOSSAL MISTAKE.
JOE BIDEN HIMSELF AS A U.S.
SENATOR, AS A MEMBER OF THIS
BODY IN A PROCEEDING OF THIS
COMMITTEE IN 1983 GAVE A ROUSING
SPEECH THAT I RECOMMEND TO ALL,
TALKING ABOUT THAT VERY THING.
ACKNOWLEDGING THE CONSTITUTION
DOESN’T REQUIRE BUT ARE RESPECT
FOR THE SEPARATION OF POWERS
REALLY OUGHT TO LEAD TO US
STICKING TO THE NUMBER NINE,
DON’T PACK THE COURT.
IN RECENT DAYS HAVE SEEN SOME OF
THE MEDIA, SOME IN THIS BODY TRY
TO REDEFINE WHAT IT MEANS TO
PACK THE COURT, SOME HAVE
SUGGESTED WELCOME A COURT
PACKING TAKES VARIOUS FORMS AND
IT CAN MEAN CONFIRMING A LOT OF
PEOPLE ALL AT ONCE.
SOME HAVE DEFINED IT SO THAT IT
SUGGESTS -- THE TRUMP
ADMINISTRATION AND THE
REPUBLICAN SENATE HAVE BEEN
DOING IN THE LAST THREE AND HALF
YEARS, WHICH IS FILLING
VACANCIES AS THEY HAVE ARISEN IN
DOING SO WITH TEXTUAL LIST,
ORIGINALIST JUDGES.
IF THIS MAY NOT BE SOMETHING
THAT SOME LIKE, BUT THIS IS NOT
COURT PACKING.
COURT PACKING IS ITSELF
MANIPULATIVE.
IT’S SOMETHING THAT HAS GREAT
DANGER TO DO IMMENSE POLITICAL
AND CONSTITUTIONAL HARM, IN PART
BECAUSE IT WOULD SET UP A
ONE-WAY RATCHET.
ONCE YOU CREATE A POSITION,
DEATH AND RETIREMENT,
IMPEACHMENT AND REMOVAL, THAT
POSITION MEANS REMAINS IN PLACE.
IF, FOR EXAMPLE, A FUTURE
CONGRESS AND WHITE HOUSE WERE TO
DECIDE TO GET TOGETHER AND TO
PACK THE COURT AND INCREASE THE
NUMBER, SAY 211, AND LET’S SAY
IT’S DEMOCRATS WHO DO THAT, AND
WE’VE GOT JOE BIDEN NOW IS A
PRESIDENT OR CANDIDATE WHO IS
REFUSING SAY WHETHER HE WOULD DO
IT.
THERE’S A REASON HE’S NOT SAYING
WHETHER HE WOULD DO IT.
THERE’S ONLY ONE REASON WHY YOU
REFUSE TO ANSWER THE QUESTION.
YOU ARE WANTING TO BE ABLE TO DO
IT, BUT YOU DON’T WANT TO TAKE
THE HEAT FOR THE FACT THAT
YOU’RE THINKING ABOUT DOING IT
RIGHT NOW.
SO IF THEY DO THAT, WHERE DOES
IT LEAD?
WELL, IT INEVITABLY LEADS TO THE
POINT WHERE THE NEXT TIME
REPUBLICANS HAVE CONTROL OF BOTH
HOUSES OF CONGRESS AND THE
WHITE HOUSE, THEY WOULD INCREASE
IT AS WELL.
YOU WOULD END UP INCREASING IT
INCREMENTALLY, BEFORE LONG IT
LOOKS LIKE THE SENATE IN
"STAR WARS" WHERE YOU’VE GOT
HUNDREDS OF PEOPLE ON THERE.
I DON’T KNOW OF THE TOTAL NUMBER
WOULD BE, BUT YOU INCREASE IT AT
ALL, YOU CHANGE THE NUMBER AT
ALL, YOU DO SO FOR PARTISAN
POLITICAL PURPOSES AT ALL, YOU
DELEGITIMIZE THE COURT.
AND YOU CAN’T DELEGITIMIZE THE
COURT WITHOUT FUNDAMENTALLY
THREATENING AND ERODING AND
IMPAIRING SOME OF OUR MOST
VALUED LIBERTIES.
YOU CAN’T DO THAT WITHOUT
INEVITABLY THREATENING THINGS
LIKE RELIGIOUS FREEDOM, THINGS
LIKE FREE SPEECH.
THINGS THAT ARE THEMSELVES OFTEN
UNPOPULAR, BUT ARE PROTECTED BY
THE CONSTITUTION PRECISELY
BECAUSE THEY ARE UNPOPULAR, AND
YES, IN THAT RESPECT, THE
CONSTITUTION IS SOMETIMES
COUNTER DEMOCRATIC.
SOMETIMES IT CAN BE DESCRIBED AS
UNDEMOCRATIC.
THE WHOLE REASON TO HAVE A
CONSTITUTION IS TO PROTECT US
FROM THE IMPULSE OF A MAJORITY
THAT MIGHT BE BENT ON HARMING
THE FEW IN THE NAME OF THE MANY.
THAT’S WHY THE LAW IS SO
IMPORTANT.
THAT’S WHY THE POSITION FOR
WHICH ARE BEING CONSIDERED IS SO
ESSENTIAL, AND THAT’S WHY WE’VE
GOT TO DO OUR JOB TO MAKE SURE
THAT THE ONLY PEOPLE WHO GET THE
JOB FOR WHICH YOU’VE BEEN
NOMINATED FOR THE BILL.
YOU, JUDGE BARRETT, ARE SOMEONE
IN WHOM I HAVE IMMENSE
CONFIDENCE, IMMENSE TRUST, AND I