Philip Hamburger on Court Packing
2021-06-21 · Guest: Philip Hamburger (Columbia Law Professor) · 52:28
The Existential Threat of Court Packing
Bob Zadek and law professor Philip Hamburger discuss the dangers of court packing, framing it as a tool for political intimidation that undermines judicial independence. They explore historical precedents from Lincoln to FDR and explain how the mere threat of packing can coerce the Supreme Court into deference toward the administrative state, ultimately threatening the constitutional protections of individual citizens.
Topics: Court Packing, Supreme Court, Judicial Independence, Administrative State, FDR, New Civil Liberties Alliance, Constitutional Law, Separation of Powers
Speakers: Bob Zadek, Philip Hamburger
The Existential Threat of Court Packing [00:00]
Announcer: You’re listening to the Bob Zadek Show, a full hour of libertarian discussion with the smartest guests on radio. Live, spontaneous, and thoughtful. It’s the show of ideas, not attitude. Now, your host, Bob Zadek.
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. The show of ideas, never once the show of attitude. Thank you so much for listening this Sunday morning.
We Americans are staring down the barrel of what I consider, and many others consider to be, a profound, severe, real existential threat really to our entire system of government that has served us so well for 230-odd years. We have been operating under the longest-running written constitution in the world, and while perhaps that Constitution will continue, the form in which we govern ourselves is threatened by profound and perhaps irreversible change.
The subject, of course, is the threat—or promise, depending upon where you sit in the political spectrum—the threat or the promise of court packing. There is great misunderstanding and lack of appreciation of how serious a threat court packing is. And it’s only if you understand court packing, its history, and its future, that you can participate fully in what is likely to happen in the next year or so in our democratic process.
Our guest this morning is Philip Hamburger. Phil is a professor of law at Columbia Law School. He has founded the Law School Center for Law and Liberty, an organization which studies threats to and legal protections of freedom. More significantly, perhaps, in the recent past, Phil is the founder and the president of the New Civil Liberties Alliance—not the ACLU, this is the New Civil Liberties Alliance, an important new organization founded to protect our civil liberties effectively. And we will spend some time towards the end of the show learning about the New Civil Liberties Alliance.
The topic this morning is court packing. Phil recently wrote an important piece in the Wall Street Journal entitled “Court Packing is a Dangerous Game,” wherein Phil explains court packing and the intimidation component—the way that the democratic branch of government, the legislature, seeks to intimidate and therefore to influence the decisions made by the Supreme Court. It’s not the first time this has been attempted; it is, of course, the most recent time. And we have to all appreciate the threat that it poses. It is not merely playing politics; it is far more serious than that.
So this morning, I’m happy to welcome back to my show, Professor Philip Hamburger. Phil, welcome to the show this morning.
Philip Hamburger: Great to be back. Thank you so much. And it’s an important topic.
Defining Court Packing and Judicial Independence [03:59]
Bob Zadek: Thank you, Phil. Now, Phil, court packing—let’s start with the basics. The words are not horribly descriptive to somebody who doesn’t follow politics and the Supreme Court. So tell us what court packing is and why the threat of court packing is such a serious threat to all Americans participating in the democratic process.
Philip Hamburger: Thank you. Yes, the whole point of having a court with independent judges who exercise their own independent judgment is that we have non-political decisions about who has violated the law and what the consequences are. So if I go to court, I want a judge who’s entirely independent and unbiased. And the danger of court packing is that Congress can create new judicial positions so a president that they like can make his appointments or her appointments, and the result is to shift the court politically. So instead of having judges who conceive of themselves as aiming to decide fairly, without bias, without political prejudice, we have candid, open politicization of the court. So it’s the will of Congress and the president that dictates results, not the judgment of the judges. It’s very dangerous.
Bob Zadek: Now, we have today nine justices in the Supreme Court, and that has been the number since after the Civil War—so for over 100 years. But nine is not some special number; it happens to be what it is today and what it has been for quite some time. But nine is not a magic number; it’s the number today. So isn’t it true that the number of Supreme Court justices has changed, I think five or six times in American history, and sometimes perhaps even for bad reasons? So put the number nine for number of justices in historical perspective.
Philip Hamburger: Right. So that’s true. We began with six because one needed three—there were three circuits: Northern, Southern, and Middle states—and one needed two justices to go on the circuit in each one of those circuits. And over the course of the 19th century, in the middle of the 19th century, the justices were increased in number precisely to nine because there was an increase in the number of circuits as the country expanded.
The closest thing we’ve had to successful court packing was actually around the time of the Civil War, when Congress increased the size of the court both under Lincoln and afterwards for fear that there were Southern sympathizers that might dominate the court. But what’s interesting is that example of court packing, which was really the only clear successful example in our history, that was in response to a civil war when it was uncertain about the loyalties of the court. And that’s an extreme example. And what we see now is an attempt to pack the court in response to mere politics. And that’s very, very worrying.
The History of Intimidation: Teddy Roosevelt and FDR [07:25]
Bob Zadek: So we did have court packing. We survived, indeed, court packing may have accomplished an important long-range nationwide goal. So we did have it, very short period of time, first in to support Lincoln and then as a slap down to Lincoln’s successor, Andrew Johnson, when Lincoln, of course, was assassinated and Congress and Andrew Johnson—Andrew Johnson was far more sympathetic to slavery, so there was stuff going on, very important, the country felt vulnerable as it should have, having just survived a Civil War.
Now you wrote about another—the next attempt. The Roosevelts, cousins, play an important role in the conversation of court packing. And I learned something from your piece, Phil, about Teddy Roosevelt, not FDR. Teddy Roosevelt dabbling in court packing. It’s a little-known story. And I say little-known, that’s a term of art which means I didn’t know about it. So that makes something little-known. No one knows about it, including me. So it’s little-known because Bob didn’t know about it. So tell us about Teddy Roosevelt’s dabbling in the device of court packing.
Philip Hamburger: Yeah. So first, it’s worth recognizing until 1912, the only court packing had been in response to a Civil War, and now we have to worry that court packing will invite civil war. So I don’t think we want to go in that direction.
Teddy Roosevelt was a big, intimidating guy. He liked to push people around. And in defense of administrative power, which is a system of power that sort of goes off-tracks, off-road, and is quite dangerous—in defense of administrative power, he threatened the courts and the judges. He said he would reconfigure the courts, he said he would deprive judicial decisions of their binding effect, and he made this a campaign promise. In other words, he campaigned on court packing. And this is what really introduced court packing as a political element in the 20th and 21st century. So since 1912, or perhaps a little bit earlier, the progressive party, whether under that name, under Roosevelt, or other Democratic Party since then, has always had court packing in the back of its mind. Not because most of them wanted court packing, but what they want to do is intimidate the judges. And that has worked. So even without court packing, we get all the bad results. And that’s still true today. The judges get intimidated by the threats.
Bob Zadek: Just to remind our audience what you said in the beginning of the show when I asked you to explain court packing: In a system of court packing, the party in power is unhappy that their agenda is not succeeding in the Supreme Court, presumably it’s fair to assume because their agenda is unconstitutional, at least in the opinion of the independent judiciary. And so the party in power, which purports or claims to represent the will of the majority of the people, finds their agenda—after all, they say they were elected to accomplish an agenda—and that will of the people who elected the party in power, the will of the people through their elected officials, is thwarted by the darn Supreme Court, who has the inconvenient finding that these efforts are unconstitutional.
So therefore, the Supreme Court is seen as an obstacle to the will of the people, manifest through the democratic process, the will of the people getting what they want, getting their will. So the way to fix it is to appoint more justices who are sympathetic to the Supreme Court, so the obstacle of the will of the people is now eliminated.
But that means that you are—and this is the most important concept that Phil has explained—if you do that, you are appointing justices to accomplish, here’s the important word, a political goal. And that makes the Supreme Court a political body, not a judicial body. And that’s the threat. The threat is that you can eliminate the annoying obstacle of constitutionality from the mix if you just have a Supreme Court who is more generous in finding bills otherwise unconstitutional, finding them constitutional. So that’s what this is all about.
And once the Supreme Court is seen by the public to be a political branch, it’s all—it’s in the eyes of most of us, certainly Phil and certainly myself—then the Supreme Court loses all of its status. It just becomes a super-legislature. And then we have no independent court system. And that’s what this is all about.
Now, Phil, so tell us about—you use the word in your piece, your important piece in the Wall Street Journal in April, you introduced an important concept of intimidation. Tell us the process by which the Supreme Court might feel intimidated and therefore, even without packing, the legislature can kind of accomplish the same goal, but without the last step of packing.
Philip Hamburger: Yes. The mere fear that the political branches, that Congress will rearrange the judiciary, has led the judges to be very reticent about holding statutes unconstitutional. So a statute, as in the administrative power cases, may deprive you of a jury right, and the court will nonetheless uphold the statute for fear of provoking the ire of Congress.
So for example, in National Federation of Independent Business v. Sebelius, Chief Justice Roberts said—he acknowledged the court’s reticence to invalidate acts of the nation’s elected leaders. And that’s just not what a court should do. They should be very balanced and simply telling it straight and saying something’s constitutional or not. But instead, they’re reticent, they’re hesitant, they defer. That’s not what we need a court for. That’s not their job. They are given tenure in office, they’re guaranteed salaries, they’re honored with robes, they’re called “Your Honor,” and all we ask of them is that they follow the law, they exercise their own independent judgment. And it’s quite clear that instead, they’re bowing to pressures out of just fear. They’re not personally threatened, but the institution is threatened, and so they back away from decisions that are necessary to protect our freedoms. It’s shameful.
The Constitution in the Dustbin [14:57]
Bob Zadek: And once that happens, that means quite naturally, if you just follow the logical extension of what Phil has said, what that means is Congress is then free to enact unconstitutional legislation because the Supreme Court is sympathetic to Congress. It just becomes in effect like the British House of Lords. They are a body without power, which is though just simply there to give the Good Housekeeping seal of approval to whatever Congress wants. And in the balance, the Constitution hits the dustbin because now there is no Constitution to protect us from Congress. And after all, most of the words of the Constitution, and for sure the Bill of Rights, are written to protect us from an overreaching Congress. And that protection, in effect, the Bill of Rights in the dustbin, the Constitution itself in the dustbin. And therein is why, and that is why this is such an important issue. Because this is an issue that decides if we have constitutional protections against the overreaching Congress. That’s what this debate is all about. It’s not a political game. It is a game that upsets the balance between citizens and government. Or am I exaggerating, Phil?
Philip Hamburger: Um, sadly you’re not. And this was proved just I think today or two ago in the case of Fulton v. Philadelphia. Chief Justice Roberts, in response to the fears of court packing, has insisted that we have unanimous decisions, which of course are very watered down, which don’t actually decide any question of law. So in Fulton v. Philadelphia, an administrator denied Catholic Social Services the ability to place children into foster care. And there was no rule, there was no judicial decision, there was just an administrative decision taking away your jury rights, taking away your right to be under law. There was also a religious liberty component. And the Supreme Court did not decide any of the relevant questions. They vindicated Catholic Social Services, but without a decision actually resolving the constitutional questions. And it looks as if this was done out of fear. That’s terrible. That’s not their job. It’s not their job to play politics, and it will destroy the reputation of the court, our legal system, and return us to a sort of Hobbesian state of war. It’s the last thing we need. But they acted cowardly, and it’s just shameful.
Bob Zadek: Now, that brings us, just to cover history fully, we talked about Teddy Roosevelt. Of course, FDR plays a major role in any discussion of court packing. And just to set the stage, FDR had a very radical agenda. FDR rejiggled so much of our relationship between citizens to the governed and the governors. It rejiggled everything profoundly. At a time during at the end of the Great Depression, FDR was elected in 1936 overwhelmingly. Therefore, FDR could justifiably believe he was on the side of God. He was representing most, overwhelming majority of Americans. He truly had the will of the American public as wind in his sails. And he had every right to believe what he was doing benefited and had the support of most Americans.
So he’s going forward with a popular, favored by most Americans, agenda. But yet the Supreme Court, just as I said earlier, was an obstacle because so much of the FDR agenda, albeit popular, was based upon precedent at the time, not constitutional. So tell us how court packing came to the fore in that tension between a president and Congress who clearly had the voting public behind them doing what most Americans wanted. The Supreme Court said you can’t do it. Tell us how that played out, Phil.
Philip Hamburger: Right. And most importantly, the Constitution said you could not do it. It’s the considered will of the people in the Constitution that defeats the transient will of the people in an election and a statute. He attempted to pack the court when he was dissatisfied with judicial decisions rejecting administrative power that he wanted.
But interestingly, his plan was defeated in the Senate in a Democrat-controlled Senate. His own party rejected him, which was very honorable of them. They defeated it 70 to 20 in the Senate. And the Senate Judiciary Committee, which was dominated by his own party, rejected court packing. And I want to read what they said because it is very important. They said, “We recommend the rejection of this bill as utterly dangerous abandonment of constitutional principle.” And they said it would subjugate the courts to the will of Congress and the president and thereby destroy the independence of the judiciary. So his own party rejected this as unconstitutional.
But what he failed to get politically—he lost the bill—he nonetheless succeeded through intimidation, because the court turned around and upheld his unconstitutional legislation. And ever since, the courts have been afraid to even seriously consider overturning administrative power. They defer to it, they bow to it, they uphold administrative power even though these are rules not made by the people or their elected representatives, and even though you don’t get a jury or due process of law. So our rights have been fundamentally eroded, indeed destroyed, by court packing. Not because the court was packed, but because of the intimidation effect. The judges were weak and they feared, and so they gave way. It’s a 20th-century disaster we still live with.
Majority Rule vs. Constitutional Rights [21:28]
Bob Zadek: And what’s interesting in this whole discussion, it shows us the tension, the tension between majority rule, which to everybody learns from grade school on—let’s have a vote, majority wins. It is part of our American DNA that we majority wins. Everything from choosing up sides in a baseball game in the schoolyard, we are all taught majority wins, let’s have a vote. And yet the very structure of our government rejects that rule in many instances. No, the majority rules sometimes, but if the founders demonstrated anything, it was the fact that the majority cannot take away certain inherent rights in the minority. Even a majority unanimously but one cannot take away the rights of the one. Even if it’s the whole country versus one person, if they are trying to take away certain rights that our founders felt are inviolate.
And this tension we are talking about, remember 1936 and 1937, majority was on the one hand, there was the majority clearly, and there was the Constitution on the other. And in that round, the Constitution won. So the question that Joe Biden—and we’ll get to the Biden bill in a moment, Phil—but the question that Biden has forced in front of us again is: Who wins, the majority or the Constitution?
So tell us, Phil, of course obviously your piece in the Wall Street Journal was not written in a vacuum. There was a context, there was the Biden proposal. So tell us what Biden has proposed and where are we now in 2021 in America on the issue of court packing.
Philip Hamburger: Right. So Biden has talked about—I don’t think he’s fully committed himself, but everyone around him is interested in court packing. And he has led the way by establishing a commission to study the possibility and come up with recommendations.
Now, this shows some subtlety on his part. Rather than simply threaten court packing, what he’s using is the threat of court packing. In other words, it’s the old intimidation game. And the intimidation game is all you really need to win. That’s how FDR won, how Teddy Roosevelt before him won. You just have to threaten court packing and you can corrupt the judges’ decisions by getting them to act out of fear rather than independent judgment. And that’s already begun to happen, as I mentioned, for example, in the Fulton case. The judges will alter how they decide in order to stave off actual court packing. But the net effect is, if you just talk about it long enough, the judges will back away.
And this matters today because there is a challenge currently underway to the administrative state. It deprives us of our right of self-governance, it deprives us of our jury rights, our right to go to a court, our right to have an independent judge decide cases. And in defense of that administrative power, which is really the rule of bureaucrats, not the rule either of Congress or the president—in defense of that administrative power, court packing is seen as very important again. And all that’s really necessary is intimidation. So I don’t think Biden will actually pack the court. In a sense, he’s already won. He’s already got the Supreme Court to back away. So the intimidation game is what wins, and court packing is just the threat that lies behind it. So we’re already in deep trouble.
Why Always Progressives? [25:38]
Bob Zadek: Phil, in preparing for this show and in doing my background reading, it was—I learned, and you have mentioned this several times in this show, that in each attempt at court packing, it was the progressives, not conservatives, if that’s the fair description of the warring parties, progressives versus conservatives. It’s always the progressives who are seeking to pack the court.
Now, both parties are ambitious, they seek to have their agenda carried, both parties represent their constituencies. I don’t know that there’s an overwhelming majority right now, the country is pretty balanced, progressives and conservatives, although it’s hard to tell. My question is this, Phil, and I’m asking you for sort of political speculation or political insight: Why is it that it is always the progressives who find it necessary to resort to this drastic, this game-changing but lawful—and we’ll discuss lawfulness in a moment—what is there about a progressive agenda that requires court packing to prevail that doesn’t apply for a conservative agenda? After all, conservatives are as ambitious in having their agenda prevail and be the governing rule. So why always the progressives and never the conservatives?
Philip Hamburger: Right. So I should at the outset say, I don’t think all progressives are in favor of unlawful measures, and I don’t think all conservatives will defend lawful measures. I don’t think there’s any virtue left or right; we’re all failed human beings who tend to make mistakes.
But the progressives rejected the constraints of constitutional law already in the 19th century. They imbibed German ideas about the will of the people and the needs of the state that rise above constitutional law. So they mocked the separation of powers and they mocked representative government. And Woodrow Wilson was quite candid that he couldn’t get progressive ideas past the people, so he thought that legislative power should be shifted to an elite of bureaucrats who shared his sort of views.
So I think there’s been a sort of impatience for power that has overcome attachments to law, and especially the Constitution. And again, that’s not true of all progressives, but there is certainly a long line of progressive thought in this direction. And so I think whereas many conservatives remain attached to the Constitution and its ideals, many progressives view that as rather old-fashioned and fuddy-duddy.
But I confess, left or right, it doesn’t really matter, and I don’t like being political on these things. Our rights matter to us. They matter to us profoundly. That’s the right of self-governance, the right to go to a court, to have a jury, unbiased judgment. These are crucial. And the idea that they would be swept away for some transient policy consideration is really rather sad. So it’s important for all of us, regardless of politics, to stand up for these things. And if you don’t like it, get a constitutional amendment. Let’s have an open discussion about it. But let’s not try to accomplish our ends through subtle and bullying methods like intimidation. Let’s have candid conversation, have an amendment if you don’t like our rights. But if you love our rights, they’re worth standing up for.
The Fragility of Judicial Power [29:28]
Bob Zadek: I am going to take the role of the devil’s advocate, and in doing so, I’m going to underline “devil” because that’s what I think of the position I’m going to advocate only to pose a question to you. The Declaration respects that when citizens find that the government—I’m going to paraphrase, of course—that when governments no longer serve the people, it is not only the right but the duty of citizens to change government. That’s respected. Jefferson felt that no law should bind successive generations; we should have freedom to pick the laws which govern us. And indeed, the Declaration itself was declaring that the old form of government doesn’t work and we are sending it on its way. And that was the Declaration was the continuation of the American Revolution. So we respect that.
Now, what do you say to progressives who say, “Yes, court packing does make a mess of the Constitution, it throws away a lot of the constitutional protections, but after all,” the progressives say, “it is the will of the people and we represent a majority now.” They don’t, putting aside the fact that Biden has like in the whole country a one-person majority, putting that aside, and I’m being snide. But he certainly doesn’t have the same majority that Roosevelt had in 1936. So looking at Roosevelt, Roosevelt says, “Look, it is the will of the people and the right of the people to readjust government if it doesn’t work for most of them. And I represent an overwhelming majority of the people. The Constitution is an inconvenience right now, it interferes with the role of the people. The Declaration says people can toss aside a government that doesn’t look after a majority.” So why don’t court-packing progressives have the high ground on this conversation?
Philip Hamburger: Right. Well, you know, when one sits down for a game of cards, if you don’t like the game, if you find yourself losing or you think it’s a silly game, you always can just walk away. But what you shouldn’t do is cheat. And I think that’s the distinction here. We have a Constitution that has an avenue for change; it’s called amendments. And if you want to change the Constitution, by all means propose an amendment, let’s have a discussion about it and a vote.
It is telling, isn’t it? We talked about the will of the people and majorities. If FDR really thought he had a strong enough majority, he could have proposed a constitutional amendment. But he didn’t. Because he might not have had a majority for that. We all engage in politics at different levels, right? We vote perhaps on a statute differently than we would for a state senator and the like to decide on constitutional amendments. We need to recognize that a transient will of the people is not the same as a considered will of the people. And the will of the people that matters for constitutional change is constitutional amendment.
The danger of the system of judicial alterations, or frankly judicial fear of protecting our rights, is that it alters the Constitution without giving us notice, without a conversation about it, without a vote about it. Instead, it’s done quietly through the desperate fears of judges who worry for their bench. But what’s the point of protecting the court at the cost of the law? So I think we’re actually already in dire straits. We don’t have to wait for court packing to have a disaster; we’ve reached it. And it will so destroy the reputation of the court, our legal system, that I don’t know how it will recover. And in the meantime, of course, all this fearfulness of the judges, fear of court packing, deliberately inculcated, of course, by one party, has the effect of depriving us of our rights. What’s the point of a judicial system if you cannot have an unbiased judge, if you have to go before an administrative so-called judge, if you don’t have a right of confrontation of witnesses, if you don’t have the burdens of proof on the government, if the government can demand documents without going through a judicial warrant or subpoena, if the government can deny you a jury and laugh at you and the Supreme Court goes along with it? That’s our current state of affairs. So we are already at a crisis, and it’s created by fear, fear of court packing.
”The Supreme Court is Broken” [40:30]
Bob Zadek: It seems to me it’s been so recent—and I’m using a word obviously it’s subjective, but it seems to me to be recent—that the Supreme Court selection confirmation process has become political. In most of our history, it wasn’t. Even justices who were nominated who were seen to be clearly with clear views, so you knew what you were going to get in terms of policy, they breezed through the confirmation process with overwhelming majorities from both parties. It was kind of relatively pure, relatively unpolitical. In your opinion—it’s an opinion question—what happened that made in recent times the selection of Supreme Court justices so political, when for most of our history, when there were equally pressing issues, the selection and confirmation process was kind of pure and kind of unpolitical? What changed?
Philip Hamburger: Yeah, that’s an interesting question, isn’t it? Because it gets to the problem of what’s happened generally to our politics, that it’s turned into a sort of warfare. There are multiple answers. One, I think, is that judicial lawlessness, the judicial modification of the Constitution, used to affect only economic policy. And people thought, “Oh, it only affects big corporations, it doesn’t affect me personally. It’s only economics, and what do I know about economics?” But frankly, since the 1960s, judicial lawmaking and rewriting the Constitution affects us in our personal lives. The administrative state reaches us personally, it limits what we can do in zoning and our property, it touches on sexual politics and questions of equality that sometimes seem not intuitively really about equality. So we all are now personally affected by this in ways that were not so obvious beforehand.
I think the other reason is this: the administrative state has concentrated power in administrative agencies, which can either be held back or unleashed by the president. And so presidential—essentially we have more like monarchical government. And so the presidential election matters more than ever before, and with it then the only possible limit on it: who’s judge. So whereas it used to be that elections to Congress really mattered, now it really, really matters who’s president and who’s judge. Because between the Supreme Court and the president, that determines our fate. So I think part of the problem is actually the development of the administrative state and its defense by the judges. That has made who is judge and who is president the key questions. And that, of course, undermines the independence of the judge because it gets politicized.
Bob Zadek: And also, I’d like to remind our listeners that historically, when Hamilton wrote his Federalist Papers, Hamilton—I believe it was Hamilton who observed that the Supreme Court, the courts in general, the federal courts, were the least dangerous branch of government because it had no army to enforce its laws and no power of the purse to get budgets to run the judicial system. It had no powers whatsoever, which means the only power it has is the willingness of the people to honor its decisions. Its power has to come from that, or else it has no power whatsoever.
And the fight today is once the Supreme Court becomes politicized, it’ll lose popular support. Look at the low level of popularity that Congress has—about 13%, I believe, something like that, of the American public approves of the behavior of Congress. And that’s because Congress is a political branch. And a much higher percentage approves of the behavior of the Supreme Court. Well, the Supreme Court is in danger, once it becomes politicized, of dropping to 13% popularity as a political branch, not a judicial branch. And then it’s kind of all over, because the Supreme Court’s decisions will not be respected. And once we lose that, Phil, I’m sure you feel the same way, it’s game over for the Constitution.
Philip Hamburger: That’s right. I’m afraid that’s true. John Locke wrote in his great treatise in the late 17th century already, he said when we cannot find an indifferent judge on earth, people will turn—make an appeal to God, in other words, engage in revolution. We need to have indifferent judges, meaning judges who are indifferent between the government and ourselves, who are not biased, who are neither fearful nor ambitious to change the law, who simply follow the law. And I know that they’re all affected to some degree by who they are and by some past political commitment, but they need to do their best to follow the law and only that. Otherwise, we cannot have confidence in them, and then we’ll only have confidence in ourselves, and we’re back to Hobbes’s state of war. We can’t afford that.
Bob Zadek: Now, in a recent piece that I read, Nina Totenberg co-authored it—she’s a reporter for NPR—she quoted, I think it was a Representative Markey, who said—this is a direct quote, he’s a progressive Democrat from Massachusetts—he said, I’ll quote, “We are here today because the United States Supreme Court is broken. It is out of balance and needs to be fixed.” Out of balance and needs to be fixed. Nothing is a more scary concept than that: that the Supreme Court has to be fixed because of the nature of its decisions. In other words, that sentence—that sentence says it all: Let’s cook the books. Let’s influence the court. We have to fix it, which means change the outcome. Talk about jury tampering writ large. It’s trying to alter the outcome of the judicial process through the political process. It’s one thing to increase the number of judges because the workload is too high for some practical, sensible reason. But to adjust the outcome because you can’t win by persuading, you have to win by getting your guys or women on the court—once that happens, it’s game over. And that sentence to me, Phil, says it all. This is blatantly an attempt to alter the outcome, not by drafting legislation to accomplish the result you want, but by appointing your team members to the Supreme Court.
Now, Phil, on the subject of court packing, there’s nothing per se unlawful or unconstitutional about it. Therefore, if we say, “Well, it’s constitutional,” the founders could have somehow prevented it, but they chose not to. Was that like the founders not imagining this problem, or not caring about why judges are appointed, or who could have seen so far into the future to see how the independent judiciary got converted? In other words, is what Biden proposing—is it unconstitutional, unlawful, or just really a bad idea?
Philip Hamburger: Right. So let me give two answers, as it were. First, as to the founders: they understood that one cannot create a constitution that fends off all dangers. They did their best to anticipate dangers and deal with them, but they also understood that in the end, we have to behave responsibly with virtue, as I said. And if we cannot be virtuous enough or responsible enough to recognize that court packing is a very bad idea, then there’s a certain point at which the Constitution can’t stop us. So they did not try to stop all bad things; they tried to stop the ones that were most probable.
Now, as to whether it’s constitutional, it’s an interesting question. Undoubtedly Congress has the power to decide the number of slots on the Supreme Court. That’s easy, and in that sense, they surely have the power to do it. What’s more complicated is whether or not possibly there’s a due process limitation on this. The Fifth Amendment’s Due Process Clause was adopted after the rest of the Constitution, and it would not be entirely unreasonable for a judge to say, “Actually, this is an attempt to alter the outcome at least of existing cases, and therefore it’s unconstitutional.” But I think you’re right, Congress would get away with it probably if they tried. But only in one sense: they might get away with it in the court, but I think it would be the end of our political system. I think it would cause an upheaval more terrible than anyone wants. So I rather doubt that it’s going to happen.
Unfortunately, we’re already there because the intimidation has already begun even without the court packing. And that’s very dangerous. Harry Reid, when he was the Senate Majority Leader and started to undo certain safeguards protecting the minority, discovered—perhaps maybe he didn’t care, but to his dismay—that when the Republicans got in control of the Senate, they continued the process of weakening the rights of the minority, only then the Democrats found themselves suffering as a result of a process that perhaps Harry Reid started, who knows where it started, but it certainly continued. And the one of the concerns is once one—Biden, the Democrats—politicize the court if they succeed, and most observers believe it’s not likely to succeed, but we will see, then for sure there will be a time that the conservatives, the Republicans, have the majority in all three branches of government, and they will then increase the number of justices by six, whatever is needed. And then we start the endless increase in number of justices just to get one’s way, and then the Supreme Court becomes an utter irrelevancy. And imagine a country with no Supreme Court. Because it’s fair to assume that once one politicizes the court, it becomes simply irrelevant. It becomes like the House of Lords. Who cares what they think? We’ll get rid of them or we’ll further diminish their power. So isn’t that the ultimate risk? That it just becomes a game. Get in power, increase the number of judges, and then they become “who cares what they think” because it doesn’t matter anymore. Therefore, we end up writing the Supreme Court out of the Constitution. An exaggeration, Phil?
Philip Hamburger: Um, I think that’s a very real danger, and it describes very nicely what could happen if we went in this direction. Fortunately, I think most Americans understand this intuitively, and they want to play cards honestly, not cheating. But unfortunately, the parties are sometimes controlled by people who like playing games—not just playing the game, but playing with the game. And so one has to hope that the good sense of Americans restrains the politicians in this regard. But yes, if we go down that road, it’s never-ending and it’s a disaster. It would be very sad.
The New Civil Liberties Alliance [48:12]
Bob Zadek: Major League Baseball routinely jiggles the rules to make it first better for batters, then too many home runs, it’s boring, let’s make it better for pitchers, and they jiggle the rules. And then there’s no games, it’s just strikeouts and walks. Let’s rejiggle the rules, trying to adjust the outcome of the game by changing the rules. Is that what we want our country to become? We rejiggle the Constitution in order to achieve a political outcome to make most of the fans happy. Are we really going to trivialize our Constitution to that level? I sure as heck hope not. But that, I think, is an apt parallel.
Philip Hamburger: Yes. I mean, sadly, I think we’ve done this in a sense because through intimidation, the court has legitimized administrative power taking away most of our procedural rights like juries and the like, and our right to govern ourselves through Congress. And what’s interesting is the progressives who sought the administrative state and this deprivation of rights now want still more power on the Supreme Court. Whereas conservatives actually are not seeking a reconfiguration of the judiciary just to get their way; conservatives are trying to argue through logic for defense of rights. They’re not trying to make a power move.
Bob Zadek: Tell us about—Phil, tell us about—I’m sorry, Phil, we’re running out of time. I just want to be sure we cover this. Tell us about the New Civil Liberties Alliance. What is it? Are you trying to just do what the ACLU has been doing for so long? Tell us about your organization. We have about a minute and a half left, Phil.
Philip Hamburger: Right. So the New Civil Liberties Alliance was founded about three or four years ago to be an alternative to the ACLU. What the ACLU should have been doing but has not been doing, that’s what we do. And we defend people’s procedural rights, like jury rights and due process. We defend people’s speech rights, and we defend our right to govern ourselves through legislation rather than through administrative rules. And we do this through litigation. We have a team of about 20 in Washington, D.C., and we’ve had already only in just a few years some really great successes. We’ve got the Supreme Court to reconsider its non-delegation doctrine, and we’ve got the Supreme Court to reconsider its deference doctrines in which they defer to administrative agencies. And so just in a matter of a few years, I think we’ve made enormous strides, and we hope soon to take big chunks out of the administrative state and its unlawful power. Our goal is to defend the Constitution and our constitutional rights in a strategic manner that’s very effective. So far so good, and wish us luck because we’re fighting a big power.
Bob Zadek: We’ve been speaking to Philip Hamburger. Phil is the director of the Columbia Law School Center for Law and Liberty and president and founder of the New Civil Liberties Alliance. Please support the organization if you have enjoyed my show or if you haven’t. Please let me know by—if you’re listening on the podcast, let us know how we’re doing and ideas you might have to improve our show. And I know one of your ideas is going to be: have Philip Hamburger back more often. And I’ll be sure to do that. So Phil, thank you so much for your time this Sunday morning. Good luck with the New Civil Liberties Alliance. Thank you so much, Phil. Have a good Sunday. And to my friends out there, Happy Father’s Day and enjoy the spring.