How to Create a Legitimacy Crisis
2019-04-18 · Guest: Ilya Somin (Professor of Law, George Mason University) · 50:32
Court packing and Supreme Court reform
This episode of The Bob Zadek Show features a deep dive into the controversial topic of “court packing” and its implications for the American judiciary. Host Bob Zadek and guest Ilya Somin discuss the historical precedent set by FDR, the potential for a legitimacy crisis within the Supreme Court, and alternative reforms such as judicial term limits.
Topics: Court Packing, Supreme Court, Judicial Review, FDR, Term Limits, Constitutional Law, Merrick Garland, Bill of Rights, Separation of Powers
Speakers: Bob Zadek (Host), Ilya Somin (Professor of Law, George Mason University)
Introduction to Court Packing [00:16]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. The show of ideas, never the show of attitude. Thanks so much for listening this beautiful Sunday, Easter Sunday morning in the Bay Area.
This morning’s topic is court packing. Two words that perhaps are a bit foreign, haven’t been spoken much in public conversation until quite recently. An hour from now, you will learn those words should strike fear in the hearts of any American who respects the thoughtfulness by which our institutions were designed by our founders, and how important the system of checks and balances are, and you will learn about judicial review.
What has happened is, in my opinion—we will learn if I’m right or not—the very integrity and the faith in the court system, in the Supreme Court, could very well be exposed and could be called into question. And once, in my opinion, once we lose the Supreme Court, we’ve lost it all. We’ve lost the only non-small-d democratic branch of our government. They are Supreme Court justices, they are not elected. They are appointed by the President, confirmed by the Senate, so indirectly they are part of the political process, but quite indirectly.
And the Democrats, still angered over the Garland episode with Mitch McConnell—we’ll review that this morning—are looking for payback time. And the payback they threaten to use, the weapon of choice, is court packing. Court packing has a very strange and interesting history, all of which we will learn this morning. To help us understand court packing, I’m happy to welcome back to the show for his fifth or perhaps sixth visit, Ilya Somin. Ilya is a professor of law at George Mason University School of Law. He’s also a blogger whom I read every morning at the Volokh Conspiracy at Reason.com. He’s an expert on constitutional law. He’s the author of Democracy and Political Ignorance: Why Smaller Government is Smarter. Ilya, welcome to the show this morning.
Ilya Somin: Thank you very much for having me.
Defining the Concept [02:48]
Bob Zadek: Now Ilya, first let’s get the big picture out of the way, if you will. Court packing—what does that phrase mean, and why will it become so important in perhaps the upcoming 2020 Democratic primary and, of course, more importantly, in the 2020 general election for President?
Ilya Somin: Usually the phrase court packing is used to indicate expanding the size of the Supreme Court so as to change its ideological or political valence. Currently, there is a five-to-four conservative majority on the court. Many Democrats argue that if they get the chance, they should expand the court to 11 or perhaps to even more, so that it will instead have a liberal Democratic majority. They claim there are various justifications for that, the most prominent being what happened with Merrick Garland, which you just mentioned. And there’s currently a debate in the Democratic Party about whether court packing is a good idea or not, but the very fact that there is this debate and several prominent Democrats have said that they do favor court packing is itself significant.
Bob Zadek: And court packing—this is not the first time court packing has been in the news. In fact, courts have been packed, more or less, perhaps since the John Adams presidency. Some of us may recall, if you study the era, that John Adams, quite bitter at losing the election for presidency to his former friend Thomas Jefferson, set about appointing as many justices as he possibly could. In fact, his Congress enacted legislation to create new district court judges so that Adams could appoint them. So this practice of leaving behind to the incoming president a legacy of appointments which were done through the political sphere, that is a number, goes back to our very founding. There’s nothing new about it.
Now, the Supreme Court right now has nine justices. Is nine the magic number? Is that provided for in the Constitution? How come nine and not 31?
Ilya Somin: There’s nothing magical about nine. The whole reason why court packing is even possible is that the founding fathers, mistakenly in my view, did not fix the number of justices on the Supreme Court. And therefore, you can expand the court and pack it so long as you have a majority of both houses of Congress and also the presidency. And the Supreme Court was in fact packed in that way a number of times in the 19th century, though over the last 150 years, a pretty strong political norm has arisen that you’re not supposed to expand the size of the Supreme Court and pack it. Franklin D. Roosevelt challenged that norm in 1937, but even though he was in some ways the most popular and powerful president in our history up to that time almost, his effort actually was beaten back and failed.
The FDR Precedent [06:13]
Bob Zadek: Now, to say that Franklin Delano Roosevelt failed, that can be the subject of a conversation. Because after all, Roosevelt had a very ambitious plan to federalize the economy. And his plan was, under the norms at the time and under the interpretation of the Commerce Clause, unconstitutional. And he kept on crashing into a 5-4 Supreme Court who voted down his bills. Then there was the lawsuit, the Schechter Poultry case. And Roosevelt was frustrated. He couldn’t get his bills passed even though he knew in his mind they would work, and even though they might be unconstitutional. His frustration led to a threat: he was going to pack the court. A very complex bill—I won’t get into that—basically increased the number of justices to 15. That threat, although opposed by both political parties—and that’s important, it was so politically impalatable that both parties, even the Democrats, of course, opposed it—but Roosevelt accomplished everything he wanted. The second he announced court packing, by magic, by magic, the Supreme Court started to find all of his bills to be constitutional. Now, the Constitution didn’t change overnight. All that changed was the threat of court packing. So I would argue that Roosevelt totally succeeded in his threat of court packing, because he didn’t care about the number of justices on the court, he just cared about his bills getting passed into law and surviving a test of constitutionality. So I think it was a brilliant move that he succeeded on. Whether he would have carried through on the threat, who knows? It doesn’t really matter. But the threat worked, so it did succeed.
But what was interesting is the Democrats who supported his legislation were so sensitive to jeopardizing the standing of the Supreme Court, they opposed that as being just plain too much of a threat. Now, Ilya, help us understand why is court packing—why does it represent a threat to the very standing, the respect of the Supreme Court?
Ilya Somin: Certainly it does represent a significant threat. And I would note it’s not so clear actually that FDR succeeded, in that historians in more recent years have thought that when the Supreme Court switched on some of these issues, it may not have been due to FDR’s threat. Indeed, by the time they switched, it was only after FDR’s court packing bill had failed in Congress and there was no real prospect of its passing.
But whether FDR succeeded or not, a successful court packing is a serious threat because, of course, if the Democrats can expand say to 11 and pack the court that way, the next time Republicans get control, they can go to 13 or 15 or 17 and pack the court for their side. And the end result would be largely the denaturing of judicial review as an effective check on at least the federal government and the party in power, because anytime the Supreme Court strikes down a policy that the party in power really cares about, they could just pack the court and have the decision reversed. Indeed, the threat of that happening would quite likely prevent the court from making decisions that the people in power opposed to begin with. So I think that’s the threat. The threat is not really about whether there will be 11 justices or 15 or 75; it’s about whether judicial review survives as an effective check on the party in power, particularly in cases where there’s united government where they have control of both the presidency and Congress. And it’s during those periods actually sometimes that the threat to the Constitution is the greatest, because a party which concentrates power in its own hands has the greatest ability to over-expand it and to try to violate the Constitution in various ways.
Judicial Review and the Bill of Rights [10:31]
Bob Zadek: In the background of this entire conversation is the very important concept of judicial review, which you have written about quite a bit. How does the concept of judicial review—first, what does it mean, and how does it play into all of this, and why is that concept so important in this conversation?
Ilya Somin: Certainly. So judicial review is simply the power of the court to say that a law passed by Congress or by a state legislature, or sometimes an executive order or other government policy, is unconstitutional. It violates some provision of the Constitution and therefore it’s invalid and can’t be enforced against people. And judicial review helps protect us against the power of the majority, which often can be abused, but also sometimes against the power of influential interest groups that are not majorities but nonetheless manage to influence government in their direction. And finally, against the government officials themselves when they may want to violate the Constitution to pursue interests or agendas of their own.
Bob Zadek: So therefore, judicial review—without judicial review, without court packing, which means the decisions of the court based purely upon the Constitution become questioned, they become political judgments rather than legal judgments—without judicial review, we have no institution which is the guardian of the Constitution to protect us from the unconstitutional acts of government. Which means without somebody protecting us from the unconstitutional acts of government, we are cannon fodder. We are vulnerable and nobody is going to save us. That is why I am so fearful. The Supreme Court has got our back, if you will, and they are making sure that government, with all of its powers, do not exceed this limit set forth on governmental power in the Constitution. Now, if judicial review becomes weakened by court packing—which it will, for sure—who’s left to look after us?
Ilya Somin: I don’t think it would be true that we would have no protection at all, but we would certainly have much less than we currently do. You could say we might still be protected to some degree by the separation of powers—Congress might check the President or vice versa. Public opinion in some cases might protect us, that the public itself might not tolerate certain kinds of violations of norms or violations of the Constitution. There are even liberal democracies like New Zealand and the United Kingdom for most of its history which do not have judicial review but are still, at least by international standards, relatively free societies. That said, we know through American history that judicial review has done a lot to protect important rights and values that otherwise would have been more seriously undermined by the other branches of government. It’s protected freedom of speech and religion better than the political process has historically. It’s protected against racial and ethnic discrimination more than the political process has. And also at least at some periods, it has constrained the dangerous growth of the federal government. It’s also done some good in a number of other areas we can’t review them all. So I don’t think it’s true that without judicial review we automatically become a tyranny, you know, that we become like Vladimir Putin’s Russia or like Turkey or the like. But it is true that in all of these countries which have strayed from democracy to authoritarianism, including in recent years, one of the institutions that was undermined in the process was in fact that of judicial review. It happened in Venezuela, it happened in Turkey, and interestingly, court packing was part of the process in those countries. I’m not saying therefore that if we don’t have an effective Supreme Court or if we do get court packing, we would immediately become like Russia or like Venezuela, but we would be worse off than we are now in significant ways.
Public Opinion and Constitutional Norms [15:22]
Bob Zadek: You seem to have greater faith in the good judgment of the majority than I do. You mentioned, when I asked what would be our safeguards, you mentioned, well, the public might not stand for it—those weren’t exactly your words, but that was the sense of it. The trouble is, when there is legislation that benefits the majority at the expense of a minority, that legislation would, in my hypothetical, be unconstitutional. Who would be around to oppose it? Yes, there would be an active minority, the victims, but they’re a minority. And once we have a rule that majority wins and the Constitution becomes less relevant than simply the will of the majority, then we have majoritarian government and the Constitution doesn’t get into the game. So I just think you and I may differ on your faith in the majority having some inherent constitutional respect and they would oppose legislation which benefits the majority but is unconstitutional.
Ilya Somin: So it is very rare that I get accused of being overly optimistic about democratic majorities. I’ve even written an entire book that you mentioned called Democracy and Political Ignorance, which is all about how the political ignorance of voters leads to harmful policies in various ways. So I certainly agree that the majorities can and have historically done all kinds of horrible things. But it’s also the case that majorities are influenced by norms, by principles, and therefore there are some limits that they might observe, just not nearly as tight limits as I think is desirable. I also think that the issue often is not that the majority is narrowly self-interested and they just want to plunder the minority whenever they can. The data on this does show actually that narrow self-interest on most issues—not on all, but on most issues—is not the main motivation of people when they vote at the ballot box. So I think the real danger that we have from majorities is that they can do harmful things out of ignorance, and also sometimes there’s bias or bad values of various kinds. People can have bad values that influence their judgment even if they’re not self-interested in their decisions. In fact, historically, many of the most dangerous government policies were not enacted primarily because of narrow self-interest but because of harmful ideologies like communism, fascism, and others.
Bob Zadek: There just hasn’t been that much evidence that the public, with demonstrated voter ignorance that we have talked about on our show together and that you have written about in a wonderful book that is a must-read for anybody who cares about the political process—it’s a must-read. But there’s so little history where the public has taken a collective position that may be against their narrow self-interest, but they took the position because it was the correct constitutional position to take. People just aren’t informed enough about their constitutional rights, and if you really want to get depressing, they may not value them all that much in the long run. So while I sure hope you’re right and want you to be right, I’m just—I prefer the parchment with meaning, meaning the Constitution, as the safeguard, not relying upon the intelligent voters making the right decision to support the Constitution. There just hasn’t been that much evidence that people have voted pro-Constitution if that vote was against their self-interest.
Ilya Somin: I think our disagreement here is just one of degree. Absent judicial review, I think democratic majorities would do many bad things or more bad things than they do now. I just think that there are some constraints and that the history of countries like Britain and New Zealand, which for most of their history have not had judicial review, does show that the public does place some value on various important safeguards against government power, just not as much as they should. I think also that, you know, there are areas where public opinion has evolved in a beneficial direction, such as that the public is currently much less tolerant of racial discrimination and ethnic discrimination than it was say 50 or 100 years ago. But there are definitely big risks, some of them coming from political ignorance, others from other sources. So I think judicial review is absolutely a valuable safeguard, just perhaps maybe slightly less essential than you say it is. But I think we both agree that it is valuable and that court packing would be a very serious threat to it.
The Origins of Judicial Review [20:31]
Bob Zadek: Now, judicial review, as you explained earlier on the show, is the Supreme Court being the final arbiter as to whether an act of government is constitutional or not. Now, judicial review per se is nowhere provided for in the Constitution. The founders simply left open the issue as to who is the final arbiter of whether the behavior of government is constitutional. So tell us a bit about the history of judicial review. How was it created if it’s not in the Constitution? Who said the Supreme Court is the final arbiter?
Ilya Somin: So I think actually it is in the Constitution. Article 3 of the Constitution says that the courts have jurisdiction to decide cases arising under the laws and the Constitution of the United States. Obviously, you can’t decide those cases unless you actually have the right to make the final decision and have that decision followed. That’s what it means to decide a case. And I think that’s actually how the founding fathers, most of them, understood things as well. If you look in the Federalist Papers, for example, James Madison wrote there that the courts would be the arbiters of disagreements over the relative scope of powers between the states and the federal government. It wouldn’t make any sense to say the courts will decide those issues if the states and the federal government weren’t required to obey the court’s decision.
Bob Zadek: But of course, Hamilton observed—and we did a show on this a short while ago—that the Supreme Court was, in his opinion, at the moment of founding, the weakest branch of the government because, as Hamilton observed, it had no armies to enforce its rules and no purse, no control over the purse. So there wasn’t, at least in Hamilton’s mind, a lot of optimism on whether the Supreme Court would be as vigorous as it became.
Ilya Somin: I think certainly nobody could be sure in 1787 how effective the Supreme Court would be, but I think Hamilton did agree that the other branches of government had a duty to obey the court’s decisions. The issue, of course, is that it’s hard to guarantee, especially with a new government just being established, it was hard to guarantee whether that obedience actually would happen. So I think our institutions rest at least in part on political norms that say people have to obey certain decisions even if they don’t like the result.
The Threat of Escalation [23:09]
Bob Zadek: We are speaking with Ilya Somin this morning. Ilya has written a wonderful article at Volokh Conspiracy, “Dangers of Growing Support for Court Packing.” It was published just last month at Reason.com. Ilya is a professor of law at George Mason University, is a frequent blogger at the Volokh Conspiracy at Reason.com, has written a number of books including the must-read Democracy and Political Ignorance: Why Smaller Government is Smarter. He’s also co-authored A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case. We’ll be back in 30 short seconds to discuss the degree to which the threat of court packing is a threat to our core democratic norms, whether it is just something to be mentioned, discussed, and passed over as not a real threat. Ilya and I may disagree to some degree. I sure hope we do, and I hope that I am convinced that I am dead wrong in my pessimism. We’ll find out in 30 short seconds. Please stay tuned.
[Commercial Break]
Bob Zadek: Welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. We are speaking this morning with Ilya Somin. We are discussing court packing, the Democratic threat to increase the number of justices on the Supreme Court for the sole purpose of achieving certain political ends. Ilya, I think, is less concerned than I am, but Ilya is obviously able and will speak for himself. Here is my fear of court packing. We have the Supreme Court as presently constituted, 5-4 conservative more or less, and that’s the vote. And if certain bills were to come before the Supreme Court, they would be found to be unconstitutional. Now, the Democrats are in power, control both houses of Congress and the presidency. They pack the court and appoint a certain number of presumably liberal justices. Now we have 13 or 15 justices with a different political composition. The same bill is tested now for constitutionality in the Supreme Court and it’s found to be constitutional, not unconstitutional. To me, the fact that an act of Congress adding justices to the Supreme Court can change the constitutionality of legislation, that’s tantamount to amending the Constitution by statute. That’s why—now I have such profound respect for institutions that I find that—I just wince at the very thought. So Ilya, my concern is that in effect a statute changes the Constitution. That’s my fear.
Ilya Somin: In a certain sense that’s true, or at least it changes the dominant interpretation of the Constitution. But to some extent that happens anytime when the ideological valence of the Supreme Court shifts because of new appointments. For example, it shifted to some degree just now when Kavanaugh replaced Kennedy, at least if Kavanaugh performs as expected and is more conservative than Kennedy on certain issues. I think what makes court packing a special danger is that it can swiftly completely change the balance on the court in favor of whatever the party in power wants. And that’s a very different thing than gradual change over time, and which is more compatible with a situation where there’s still often a big difference between the balance on the court and the balance in Congress and the White House, such that the Supreme Court still has both the ability and the incentive to be a check on the party that holds the other two branches of government. So I think it’s hard to completely avoid ideological and political influences on the court. Our system to some degree invites that by having a politicized process for nominating and confirming Supreme Court justices. But court packing is politicization on steroids to such an extent that for the reasons we talked about earlier, the whole institution of judicial review would be seriously undermined.
Bob Zadek: The other concern I have, Ilya, is it increases the stakes of federal elections. Now, every federal election is about the Constitution, how the Constitution will be interpreted. So we’re not supposed to be voting every election about the Constitution and how it is interpreted, but that’s what happens as a result of if court packing becomes the norm. And every time there’s a change in control of both houses and the presidency, in effect, the number of justices goes up by two and the Constitution in effect gets changed. That’s what I fear. The Constitution is intended to be amended through a laborious process, takes a long time, maybe a good idea, maybe not, but that’s the way the product was built. And that will change if we have court packing has now become the norm. Also, in 20 years, we’ll have to build a bigger building because there’ll be so many justices, there won’t be room for them.
Ilya Somin: Yeah, we’ll all be Supreme Court justices by that point, perhaps. But yes, I think it is the case that court packing will increase the power of any party that manages to control both the presidency and the two houses of Congress because their actions would no longer be meaningfully constrained by the Supreme Court. They might not even be constrained by the lower courts, because of course what you can do with the Supreme Court, you can also do with the lower courts—you can expand their numbers as well. Indeed, the whole current round of debates over court packing was originally in part triggered in 2017 when a prominent conservative law professor proposed that the Republicans should pack the lower courts when they had both the White House and Congress. The Republicans didn’t ultimately do that, but it did attract more attention to the idea of court packing. And within the next year or so, Democrats took up that idea more extensively than the Republicans had in 2017, and it has entered mainstream discourse in a way that hadn’t been the case for a long time.
Term Limits for Justices [31:00]
Bob Zadek: A related topic to court packing is of course the issue also somewhat in the news but not discussed so much, which is term limits for justices. Federal judiciary is appointed for life, and that’s in the Constitution. There’s been a fair amount of conversation whether that was a good idea then and if so, is it a good idea now. And I’ll also mention in passing that remember that Social Security benefits at 65 was a great idea if everybody died when they’re 64—wouldn’t be a very expensive program. But now with different life expectancy, certain policies which were a good idea at a low life expectancy become a bad idea at a high expectancy. And is term limits for life one of those ideas that works if people die young, doesn’t work if they live a long time? So Ilya, your opinion on first the original decision to have lifetime tenure absent bad behavior and whether that should be changed and if so to what?
Ilya Somin: The original decision may have made sense back in 1787 when as you say life expectancies were much lower, and also the power of the federal government was much less and therefore being a Supreme Court justice was not as big a deal as it is today. In the 1790s, there were even a couple cases when people resigned from the Supreme Court, I think in at least one case to become state Supreme Court justices, which would never happen today because the Supreme Court is so vastly more important than was the case back then. Today by contrast, we have people living longer and longer and staying on the court for 25, 30 or more years. So there is more of a risk that people will be on the court for a long time even when age or even senility has diminished their abilities, and also when they become increasingly out of touch with technological and social developments. In the future, if life expectancy is radically increased as some scientists think it might be, say people start living to 110 or 120 on a regular basis, you could even imagine Supreme Court justices being on the court for 50, 60, 70 years. And certainly at that point, I think lifetime tenure would become indefensible. But even before then, I think there is a decent case for imposing term limits, but having them be relatively long-term so that you wouldn’t have a situation where somebody’s on the Supreme Court say for just a few years but using that as a basis for a later political career or something like that.
Bob Zadek: So what would—what seems about right to you for term limits, and do you, as a black and white matter, would you prefer that the federal judiciary were all subject to term limits?
Ilya Somin: At the very least, I think Supreme Court justices should be subject to them for the reasons I mentioned earlier. How long they should be, I think, you know, there could be reasonable disagreement about that. A standard proposal is a term limit of 18 years, which if you keep the number of Supreme Court justices at nine, would mean that a new seat would come open every two years. But I can imagine term limits of 20 or 22 or 24 years, something like that, I think would be reasonable. Long enough that the justices would be on the court for a long time and also that this would clearly be the terminal job of the person’s career, and therefore that they wouldn’t be in a position to try to use the Supreme Court as a base for a later political ambitions or the like. So I think there can be disagreement over exactly how long the terms should be, but it does seem to me that some kind of term limit is desirable.
Bob Zadek: Should a Supreme Court justice whose term’s out be allowed to be renominated?
Ilya Somin: That’s an interesting question. I think it could be argued either way. My temptation is to say no, because if they can be renominated, then they would be tempted to tailor their decisions at least in their last few years to the preferences of whatever president might renominate them. But one possible proposal is that a Supreme Court justice who is term-limited out, that they be allowed to go and become court of appeals judges. So that would enable them to have to continue their career in the judiciary but not on the Supreme Court.
Bob Zadek: So you would not—you wouldn’t want a justice to be pandering and altering their decisions, although a justice who altered her decisions in the last two years to cater to the president who’s likely to renominate him or her, since that justice has just has obviously changed her decision-making standard, the president who appointed her and would want to renominate her would know that, that this is her joining the program if you were, was done a couple of years ago simply to curry favor to be renominated. I’m not so sure that would be persuasive to a president.
Ilya Somin: It’s hard to know for sure, but we do know historically that sometimes justices have genuine shifts in their views. So if the justice was sufficiently subtle about it, maybe they could successfully send the signal. In addition, you know, if norms developed over time that judges in some sense are campaigned for renomination if you will, then maybe there would also be a norm that the justice has to keep his or her side of the implicit bargain. So it’s hard to know for certain how this would play out, but I wouldn’t want to even take the risk of the justices in effect sort of pandering for renomination and therefore I would want to preclude that.
The Bill of Rights and Judicial Review [37:06]
Bob Zadek: Do you not share my fear that judicial review that we both cherish as a cornerstone of our system of government would, under a norm of court packing—so it’s kind of standard that if necessary every incoming administration, if they controlled all three branches, they would as a matter of norm just increase the number of justices by two—if that would happen, why do you feel that judicial review would not be weakened to the standpoint of non-existence? Because that’s what I fear the most. And if you could allay that fear, I’d feel a lot better for the rest of this Easter Sunday.
Ilya Somin: It might not be to the point of non-existence, but it would certainly be much weaker than it currently is. Because if they can pack the court whenever they want to, subject to controlling both houses of Congress and the President, they would certainly ensure that there would be no effective judicial review of policies that that political coalition supports and considers important. There might still be some effective judicial review of minor policies that people don’t care as much about, and there also may be still some effective judicial review of some state laws, in that the people who control the federal government might not care about that as much. But even though judicial review might not disappear completely, it would certainly be far weaker. Indeed, in some cases, there wouldn’t even need to be actual packing of the court to prevent decisions that the people in power don’t like; the mere threat of it could keep the current justices from rocking the boat, so to speak.
Bob Zadek: And who would be the guardian of the Bill of Rights if we lose or it’s diminished to have judicial review? Since the Bill of Rights is basically our protections against the overreaches of government, and the absence of judicial review weakens the protections given to us by the Bill of Rights, isn’t there a direct cause and effect that the Bill of Rights, which to government it is an inconvenience and often an inconvenience, then doesn’t that inconvenience of government disappear or become diminished once there is a weakening of judicial review? Which means isn’t there a direct line, not a dotted line, between court packing and diminished effectiveness of the Bill of Rights?
Ilya Somin: It would certainly be diminished in that we know historically some of the rights there have been protected more effectively through judicial review than political majorities would protect them on their own. There might still be some other safeguards—public opinion might be a safeguard, the political norms of the political elite might be a safeguard. But those norms we know can be eroded. Donald Trump should remind us of that if nothing else, that he has certainly succeeded in Congress with others in eroding norms. There is some irony that when you look on the left, there’s great concern and often justified I think that Trump has undermined political norms, but at the same time some of the same people who rightly worry about that also support court packing, even though a situation where political leaders can effectively undermine norms is also one where in the absence of judicial review, they could undermine norms protecting various rights if norms are the only thing standing between them and violations of those rights.
Bob Zadek: Is there anything good to be said for court packing?
Ilya Somin: I think nothing sufficient to outweigh the evil. But I think obviously some people just oppose judicial review in general. They think it’s undemocratic and harmful. People like that should welcome court packing. Also, some of the Democrats say that in general they don’t like court packing as a general rule, but they think our current situation is a special case because they believe the Republicans have gotten away with something improper by blocking the nomination of Garland in 2016 and therefore enabling Trump when he became president to nominate Neil Gorsuch for that seat. So among those Democrats who support court packing, they say it’s not that we like court packing in general, it’s that we have a special case here and we want to limit the breach of this political norm to this one instance, but after that we’ll go back to business as usual after we have offset what they regard the Republicans’ own norm-breaking of sitting on the Garland nomination. My own view is that the Democrats’ evaluation, or at least those Democrats who argue this way, is at the very least naive because certainly if they pack the court in response to Garland, the Republicans are unlikely to say, “Yep, you’re right, this was a totally justified response to our own bad behavior.” No, the Republicans will say that if you pack the court now, we’re going to do it later because obviously the Republicans don’t agree that they did anything wrong in the Garland episode. So whatever you think about the Garland episode—and I think there’s plenty of room for reasonable disagreement about that—whatever you think about it, it’s naive to imagine that responding to it with court packing is something that will, you know, stop right there with just one episode of court packing. To the contrary, escalation by one side is likely to generate further escalation by the other.
The Garland Episode [43:15]
Bob Zadek: Since Americans tend to have a very short political memory, remind us in just a summary fashion what was the Judge Garland episode all about and why are the Democrats so still, years later, so enraged about it?
Ilya Somin: Certainly. In 2016, Justice Antonin Scalia, a very prominent conservative on the court, suddenly passed away. This was only a few months before the presidential election. And obviously for President Obama to nominate a replacement, if that replacement were confirmed, it would have shifted the ideological balance on the court. So the Republicans who controlled the Senate, they said that they would not agree to take a vote or hold hearings on any Obama nomination to the Supreme Court until after the presidential election. President Obama nominated Merrick Garland, a well-respected liberal judge, to the Supreme Court, but the Republicans sat on the nomination until the November election. Donald Trump won the election, and then after the election in 2017, he was able to appoint a conservative judge, Neil Gorsuch, to take that seat. Democrats are extremely angry about this for several reasons. The big one obviously is that it did shift the balance on the court, but also they feel that this was illegitimate because they believe that there’s a norm that the Senate has to at least hold hearings and take a vote on a nominee. And in their view, there’s a big difference between voting down a nominee and refusing to even consider him at all. They believe that it was illegitimate and wrong for the Republicans to act in the way that they did, and therefore they think that they themselves would be justified in violating the norm against court packing in response. Or at least, I should say, some Democrats think that court packing is a justifiable response to what they regard as the Republicans’ own norm-breaking.
Bob Zadek: You mentioned the unfortunate death of Justice Scalia. And of course, I should mention your law school is now named after Justice Scalia—the name has changed. But when Scalia died that morning, I had this very strange epiphany, and I wonder if you could comment on it. And the thought that I had when Scalia died—there was of course a lot of written, a lot of commentary written, including all of the decisions pending before the Supreme Court, decisions where oral argument was heard but not yet decided, all of which would now not be decided or might be decided differently. And I read that list, Ilya, and I just calculated in my brain how many Americans would be profoundly affected by these decisions. And I said, Justice Scalia, his death and therefore his vote if he had been alive, affected so many Americans so directly. How could the founders have given us a system where so much power is vested in one unelected official? It struck me the concentration of power in that balance of power judge was overwhelming.
Ilya Somin: So you could argue that individual Supreme Court justices have too much power, and maybe therefore it would be desirable to have a court which instead of having nine had 11 or 15 or 17. I think that’s debatable. As I said at the top of the hour, it is not my view that nine is a sacrosanct number that should never be changed. I just worry about creating a cycle of court packing. I would add, however, that the issue was not just that Scalia by himself was enormously powerful, but that the other eight justices were closely divided four-to-four over many issues, which certainly hasn’t always been true in the past. And I would add that while they were divided and still are divided on a number of important issues, there are also important issues where there’s a lot of agreement between liberal and conservative justices which are important checks on government power. For example, both the liberal justices and the conservative ones are much more protective of freedom of speech than the political process would be on its own. So it’s important to recognize the ideological divisions on the court—they’re significant—but it’s also important to recognize the ways in which judicial review protects us in situations where actually there’s considerable agreement between liberal and conservative justices on those questions even though they obviously differ on others.
Bob Zadek: And we might include criminal rights as well, which has got some optimistic trends where it’s not going to be 5-4 decisions on anything from civil asset forfeiture—Timbs—eminent domain, not a criminal issue per se, but on property rights issues there seem to be not divisions along pure political lines, which is after all encouraging and would diminish the effect of court packing.
Ilya Somin: Yes, there are still some property rights issues which do split along ideological lines, but there are others like asset forfeiture which do not. For example, both Justice Thomas and Sonia Sotomayor, arguably the most conservative and most liberal justice on the court, both have been pretty strong in trying to curb asset forfeiture abuse, which is something we should care about because it greatly affects many thousands of Americans, particularly the poor and disadvantaged.
Bob Zadek: What’s your next project and how could our friends out there follow your writings, please?
Ilya Somin: I’m currently working on a book on voting with your feet called Free to Move, which I hope will be out next year at some point. People can also follow my writing at the Volokh Conspiracy blog, V-O-L-O-K-H, which is located on the Reason magazine website. I write about numerous political issues just about every week and also legal issues as well.
Bob Zadek: Ilya, thank you for giving us an hour of your time on this Sunday morning. We sure appreciate your insights and you have succeeded. I do not believe all is lost or may be lost after all. You have put a spring in my step this Sunday morning, for which I am as always eternally grateful. Thank you so much, thanks for your wisdom, thanks for your friendship, and thanks for being on the show this morning.
Ilya Somin: Thank you very much for having me.
Bob Zadek: Bob Zadek saying so long to now. Enjoy your Sunday morning. I’ll be back again next Sunday with more insights into political and economic life in America. Have a good Sunday.