Eight-Dimensional Chess
Josh Blackman on the future of the Supreme Court in Historical Context
I recently discussed breaking news about Trump’s nominee, Amy Coney Barrett, with analysis from Blackman — a law professor at the South Texas College of Law Houston, adjunct scholar at the Cato Institute, and prolific blogger at Reason’s Volokh Conspiracy.
I recently welcomed Professor Josh Blackman to my show for the first time to discuss his recent writings and commentary on the vacant Supreme Court seat. Democrats have entertained the idea of packing the courts should they return to power. Joe Biden himself has said this is a slippery slope, but how long can he withstand pressure from the rest of the Democratic Party? Is court packing a foregone conclusion if the Democrats take power?
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Transcript
Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show — the longest running live libertarian talk show in all of radio, and always the show of ideas, never once the show of attitude.
These are scary times we live in right now, with the passing of Ruth Bader Ginsburg and the selection by President Trump of Amy Coney Barrett to be her replacement and to fill her seat right at election time. It’s scary because there is the possibility of one party controlling all three branches of government. If the Democrats regain power, they could have all three branches of government: the executive and both houses of Congress, and a lot of mischief could follow, including the packing of the Supreme Court. I dare say you will find by the end of this hour that we could be living in a political climate in a few short months, that in my opinion, this country has never experienced in its 231-year history.
Today, all of our attention will be directed to the Supreme Court — the unelected branch of government. This morning we will try to understand why the composition of the Supreme Court is so supremely important to all Americans, and why this is a fight to the death we have never experienced before.
I’m happy to welcome the show Professor Josh Blackman. Josh is a constitutional law professor at the South Texas College of Law in Houston. He’s an adjunct scholar at Cato and is president of the Heartland Institute. Josh has written unprecedented constitutional challenges to Obamacare, unraveling its effect on religious liberty and executive power.
Most importantly, at least to me, Josh has just written with Professor Randy Barnett, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know, a book that is a must-read for lawyers and for people who care about how we got here and where we are going.
I should also mention that Josh is a frequent daily blogger at the Volokh Conspiracy, published through the Reason Foundation, and is a must read. So, Josh, with that impressive, scholarly resume, thank you so much for joining us this morning.
Josh Blackman: Thank you for such a generous introduction. I’m happy to be here.
Why ‘Nine’? The History of Court Packing
Bob Zadek:Now, let’s get into it. We have before us a highly qualified nominee for filling the vacant ninth seat on the Supreme Court, and the Democrats have threatened to pack the court. What does it mean to pack the court? How is the number of Supreme Court justices fixed, and what has been the history of the change in that number over time?
Josh Blackman: There is nothing special about the number nine. The Constitution says nothing about how many justices there should be. Throughout history, there have been as few as five, and as many as 10 during a brief period in the Civil War. At least in the last 150 years, the court has settled on nine.
There was a movement to perhaps expand or pack the court in 1937. President Franklin Roosevelt had become frustrated that a conservative Supreme Court was ruling against progressive laws at both the state and federal level, so he came up with an idea to add more justices. The idea was that for any justice over the age of 70, you would add another justice to balance them out. You couldn’t force them to retire because of life tenure, but you just make the workload a little bit easier by adding more justices.
Everyone saw through this. It was very cynical, and there was no effort to help the old justices. It was purely ideological. As a result, FDR got burned. His own party bucked, and even Democrats opposed it. As things turned out, Roosevelt would appoint five more justices to the court in a couple years, so it didn’t really matter; he had a majority of the court on his side. This first effort of court packing in 1937 thankfully failed.
Bob Zadek: If you use the phrase court-packing somewhat broadly, where court means the “federal judiciary” as opposed to just the Supreme Court, we can go back to 1801 when President John Adams did it. In his last days in office, his party – the Federalist Party — controlled the legislature. He was, of course, the second president after Washington, and he did somewhat successfully pack the court. I think that would qualify as court packing, to load up the federal judiciary with a selection of one party to protect the outgoing party’s political philosophy. Wouldn’t you say it’s fair qualify that as an attempted court packing?
Josh Blackman: You are speaking of the famous election of 1800. This was the first major contested presidential election, and during this election, President Jefferson won the Electoral College. President Adams lost reelection, but on his way out, Adams made several lame duck appointments. He filled both the lower courts and the US Supreme Court with justices. This proved very controversial. Perhaps Adams’ most famous appointment was a guy named John Marshall, the great Chief Justice. He was confirmed shortly before Jefferson took office. Marshall served more than 30 years in the court and it was a stunning tenure.
From the very beginning of the Republic, presidents recognize the importance of federal judges. They tried to put as many of their people on the court as possible, either before or after the election. So, in some regards, nothing’s new under the sun, everything seems to repeat itself over and over again.
Bob Zadek: It is simply human nature to imagine that this is the first time this is happening — that politicians can be so cynical to play with the number of the Supreme Court, and pervert the purposes of the founders, undoing the very fragile structure that the founders gave us. Yet, here we have one of the lions of the founding era, John Adams, who had no difficulty whatsoever in packing the Supreme Court. So, while there’s lots of rage directed at the threat of packing the Supreme Court, it does have a history. We have had changes in the number of Justices on the Supreme Court.
Now, Josh, as you have explained to us, over time, the number of justices has varied from five up until 10, and now it is nine. Let’s distinguish where the number of justices on the Supreme Court was changed for more benign administrative reasons like workload, new states, and new federal judicial districts, versus where it has changed for political reasons.
You pointed out the New Deal when President Roosevelt had his version of economic life in America and had to get us out of the Great Depression, and it required a change in the application of the Commerce Clause, and of federal power in general. The Supreme Court was protective of economic rights in that era (it almost seems quaint today but they were), and court packing was the only way for the President to get his economic way. He had the support of the people he put into office, with great majorities in the Democratic Party.
Give us other examples of the environment, and the result of changing the number of justices for political versus administrative reasons, because they have very different motivations.
Josh Blackman: There’s only one example where the court size was adjusted for what we might call political reasons. During the Civil War, the Congress actually added a 10th seat for a very brief period to give the Republicans in Congress more of a boost because there were a number of democratic Supreme Court justices.
“The Supreme Court simply wasn’t very important until the 20th century … it didn’t have the central place in our Republic that [it] has today.”
Historically, however, the court was increased or decreased for fairly benign reasons. There were times when vacancies were open for some time. Bob, we can take a step back and recognize that the Supreme Court simply wasn’t very important until the 20th century. I don’t want to say it was unimportant, but it didn’t have the central place in our Republic that the Supreme Court has today. It was just a court that decided cases that weren’t that central.
Only in the 20th century did the court become this critical component or governance. The reason why these nominations are so contentious is precisely because the court has assumed so much power for itself that it really should not be exercising.
How the Supreme Court Became So Important
Bob Zadek: How did the Supreme Court become so important? You have observed the truism that most of the work the Supreme Court does is kind of dreary; it’s hyper technical. Not many people other than the litigants are affected by it and the issues are very technical. In the founding year, of course, the Supreme Court had nothing to do; it was not a draw people especially wanted. Certainly, it wasn’t an especially interesting job.
All of a sudden, a job that was kind of wonky and hyper technical, and which only affected the litigants, has become so important as one of the three co-qual branches of government.
What do you think accounts for the incredibly increased importance of the Supreme Court?
Josh Blackman: It’s a fascinating history. Here I would commend to your listeners the book I wrote with professor Randy Barnett, called An Introduction to Constitutional Law. 100 Supreme Court Cases Everyone Should Know.
In it, we try to sketch the history of the Supreme Court from the founding to the present. What you’ll find is that in much of the 1800s, the courts generally deferred to the federal government. The early 1900s were called the Progressive Era, and the courts became more skeptical of progressive legislation that regulated businesses. This was the so-called Lochner era, where the courts would declare regulations on wages and labor as unconstitutional.
But then we get the New Deal. After ‘36 and ‘37, the court once again became very deferential, with the courts going along with what the government wanted to do. During this time, you have cases like Korematsu where they let President Roosevelt have his Japanese exclusion program.
“The early 1900s were called the Progressive Era, and the courts became more skeptical of progressive legislation that regulated businesses.”
But really, the tide began to turn in the 1950s with what’s known as the Civil Rights Movement, where the court asserted for itself a prominent role in trying to end Jim Crow and segregation. It’s during this time that the court flexes its muscles and starts telling states what to do and how to manage their schools and restaurants, and other institutions. Things really got kicked off in the late 1960s with the sexual revolution, where the court began to write about contraception, abortion, and the death penalty. Once you get to the 1970s, the court becomes a second legislative branch deciding on all these major issues, which has continued in the ‘80s and ‘90s, where the courts start refining that certain liberal laws were unconstitutional.
Now we’re at the point where both conservatives and liberals on the court are not shy about exerting their judicial power to declare laws unconstitutional. It’s gotten to the point where every vacancy on the Supreme Court is another opportunity for the President to sort of cement his vision for decades to come.
I think it’s ultimately somewhat unfortunate that the courts have become so important. To be frank, court packing is just nibbling around the edges. It’s a peripheral remedy. The actual remedy is to stop the court from being so important. If the Supreme Court is not that important, people don’t care about the nominees.
Bob Zadek: There are two different interpretations to what you have told us. One interpretation is it’s just an ambitious branch of government being able to assume quasi-legislative powers without being elected; they just did that because they can, or that they are simply reacting to what they perceive to be the needs and requirements of the country, and the inability of the Democratic branches to fill those needs to perform their function.
It wasn’t an accident that in the ‘50s the Supreme Court began to flex its muscle. Why did the Supreme Court suddenly assume more power? Which of the two dynamics do you think is the more applicable one? Or is there a third or a fourth reason why the Supreme Court has suddenly become so powerful, and therefore getting so much attention?
Josh Blackman: I think in large part, the Supreme Court stood by idly for decades. As segregation and Jim Crow spread, the Warren Court (that is the court under the leadership of chief justice Earl Warren) said, ‘enough is enough. We need to assert ourselves.’
Power is an intoxicating drug. Once you get a little taste of it, you want more. I think that you get a very short glide path from desegregating schools to prohibiting bans on abortion. Once you take yourself out of the mentality of deference, then why shouldn’t the courts substitute their wisdom for those of the other branches? These were decisions that didn’t have much pretense according to the text and original meaning of the Constitution, but we’re living here in the 1950s, and 1960s, we’re in a contemporary society, and we can’t have these things anymore. Once you accept that frame, all bets are off; you can achieve anything you want with five votes.
“Once you take yourself out of the mentality of deference, then why shouldn’t the courts substitute their wisdom for those of the other branches?”
Bob Zadek: Just flesh out a little bit more when you say deference; tell us in constitutional law terms, what difference exactly means, and how does it fit into the behavior of a justice sitting on the Supreme Court? What do you mean by deference?
Josh Blackman: We see that the elected branches are accountable. When Congress votes on a bill, if people don’t like it, they can be thrown out of office. If the president vetoes a bill or signs a bill and people don’t like it, they can vote him out of office.
The Justices of the Supreme Court, however, do not have accountability. They are not elected; they serve for life. They have life tenure. When we’re discussing decisions that are made, the elected branches make tough decisions and not the unelected branches. So historically, the way this was accomplished was by the courts deferring — that is by letting the elected branches make the decisions, unless Congress, the president, or the states really screwed up. That model of deference was very popular during the New Deal, but by the 50’s and 60’s, courts are creating exceptions to this rule where deference should not be warranted, and the courts would second-guess the legislature. This move away from deference really paved the way for the courts to have broad power over all manner of social legislation. I think that’s really where things started taking a turn when you move away from deference towards the other doctrines.
Bob Zadek: Now, when you said the courts would only step in when the legislature or the president “screwed up,” in scholarly terms, you mean they enacted legislation that violates the Constitution. Ever since Marbury vs. Madison, the Supreme Court has assumed the responsibility of judicial review. Therefore, it is the guardian of the Constitution, and its role is to step in and protect the country from unconstitutional extension of acts of power by the legislature or the executive. Is that pretty much what you meant when you said screw up? Or is there more to it?
Josh Blackman: You’re right; I was trying to be a little glib. When I say “screw up,” unless there’s a clear violation of the Constitution, the courts will simply step out. Now, the Constitution doesn’t always give you clear guidance. Sometimes judges have to make judgments using their own discretion. I think that’s an important thing for your listeners to understand. Some things are clear, some things aren’t. When we talk about deference, very often, that will just mean we don’t know the answer or we’re not sure, which means that the elected branches can decide.
“There are instances where the court should be a little bit more muscular. But once courts start shedding that deference, they become something of a super legislature.”
I’m not a fan of deference in all contexts. There are instances where the court should be a little bit more muscular. But once courts start shedding that deference, they become something of a super legislature. Once they do that, it’s unsurprising that we’re in this position where the nominations are so contentious.
The Court as Political Tool
Bob Zadek: Is it fair to say that the nominations (and politics in general) become contentious due to the extent that the stakes are high? If stakes are not high, nominations are less contentious because people naturally care less if the stakes are lower. Once the Supreme Court started to become more muscular in the ‘50s, then it started to affect more people more frequently with its decisions, and therefore the stakes became higher. Would you say, looking at constitutional history and Supreme Court history, that the Supreme Court was less activist?
Starting with perhaps the Warren Court, the Supreme Court starts to become active and invites itself to the party on sexual behavior and on economic rights and people aren’t necessarily free to contract with one another anymore. Once the Supreme Court assumes a highly more significant role in everyday life, then the stakes become higher.
Wouldn’t you think there’s pretty much a direct relationship between the power assumed by the Supreme Court either on its own or because of the application of other branches, and the stakes going up? Is that the role today that the Supreme Court has in our lives? Do you think that was the role envisioned by the founders?
Josh Blackman: We’re a long way from 1787 when the Constitution was written. What might be helpful for your listeners is to talk about the phrase judicial activism. Judicial activism can really mean anything. It’s sort of this attack on a decision you don’t like. There are some cases where courts should be active and some cases where they shouldn’t. The challenge is citing which is which. And as it stands down in our Republic, some judges are active in certain cases, and other judges are active in other cases; perhaps a more liberal judge would be very eager to rule an abortion case against the state. Other judges might be very eager to roll a gun case against the state. I think what matters is judicial philosophy, right?
“We’re a long way from 1787 when the Constitution was written.”
How do you decide which sorts of rights are worth protecting and which rights are not? With philosophy you can look to the original meaning of the Constitution, or you can look to some sort of evolving standards of decency, like at what other countries in the world are doing. I think the biggest distinction between the sort of liberal or conservative judges is what sort of principles they look to when deciding these sorts of difficult questions.
Originalism vs. a Living Constitution: Left and Right Legal Philosophies
Bob Zadek: I often say on my show, and in conversations with my friends when we discuss these issues, that I care much less about what you think, and infinitely more about why you think that way, because I will not learn anything from your opinion, but I will learn from how you got there.
Josh, when you talk about judicial philosophy, it’s kind of binary, although there are subsets. We have heard the phrase ‘living constitution,’ and the audience, I daresay, doesn’t really understand what exactly that means. We’ve also heard the term “originalism” and original intent. Help us understand these contrasting judicial philosophies, because that tells you a lot about how the Supreme Court operates.
Josh Blackman: We always start with the text of the Constitution. The text of the Constitution will answer some questions and it may not answer others. So, what do we do as judges when the meaning runs out, right? What do we look to? What are our boundaries and constraints? I think all the justices will say they start as a textualist or an originalist, but they can quickly deviate from those rules.
There are a couple different ways of approaching it.
One might be the model of judicial restraint, and perhaps the most eloquent modern advocate of this disposition was Robert Bork, who was nominated to the Supreme Court but wasn’t able to get a seat. Robert Bork argued that in wide fields of life, the elected branches should do whatever they want, and he was quite candid about that. The more modern approach, though, is not so much about simply deferring reflexively, but trying to decide whether the government’s stated rationale is indeed the reason why they’re acting. Maybe the government gives one reason, but they’re acting based on another reason. I think that both conservatives and liberals have seized upon this.
For example, the city of Philadelphia told a Catholic adoption agency that they have to let gay parents adopt children, and the agency said they were not going to. Now, the city said they need to enforce their non-discrimination policy, but there’s some evidence that the city was actually hostile to Catholicism. They said, “Why can’t you be like Pope Francis, who welcomes gays?”
There’s this sensation that this is not really about policy, but about hostility towards religion. I think even conservatives can get behind this. So, this sort of peeling behind the surface and looking at the government’s true motivations are in all modern Supreme Court jurisprudence. I don’t think you have this sort of a method of restraint that you might have had 30 years ago. I think both parties are willing to flex their muscles. Now that there’s going to be a six-member conservative majority, you may see a lot more flexing.
Bob Zadek: The media always refers to the court in terms of conservative and progressive. But of course, as you explained judicial philosophy, originalism, which is interpreting the Constitution according to the common meaning of the words at the time it was passed, requires virtually to get out your Samuel Johnson dictionary written in 1723 and see what these words meant then.
Help us understand a living constitution versus originalism. If we can divide it up that way, how does that result in a very different judicial approach at the Supreme Court, and what is there about the progressive point of view, where they seem to favor a living constitution? What is there about the originalist conservative that causes them to favor originalism? Is there something inherent about the political philosophy of progressivism that draws them to the living to the concept of a living constitution versus originalism?
Josh Blackman: I aim to be a little bit crass. Historically, liberals said that we can’t get what we want from history so let’s ignore it. They say that if you look at the history of the Constitution, it doesn’t support progressive goals, so they ignored it. I think there is a modern trend among progressives to try to ground their arguments, because they recognize that there’s a majority of the court who’s inclined to look to text in history. They’re trying to say that the framers were not so conservative, and that there actually may be arguments based on founding history that support the right to federal power and that supports the right to an administrative state. They haven’t tried that for abortion or gay rights yet, but for a lot of power issues.
It said that the Federal Constitution isn’t so restrictive. It’s sort of this strange world where liberals and conservatives are now fighting over a text in history.
Perhaps the greatest example of this dynamic is in the context of the Second Amendment. We had a case in 2008 called District of Columbia v. Heller, where there was a majority opinion by Justice Scalia that found that the Second Amendment protects an individual’s right to keep and bear arms. And yet, it also had a dissenting opinion by Justice Stevens that was thoroughly based on history. He looked at the founding year statements, the drafting history of the Second Amendment, and other statutes passed in the 1800s, and tried to figure out that the second member was not at that division right. So, you actually have liberals and conservatives fighting in the same battlefield. I think that was significant. I think it’s a victory for Scalia and a victory for originalism.
How Court Packing Could Affect the Future of the Supreme Court
Bob Zadek: You have written and I have spoken with great looks about the future, the immediate future of Democrats getting control of both the Senate and the House and the presidency, and then caught packing. It frightened you, as it frightened me a great deal. What is there about the real possibility of packing the court that frightens you, because it sure frightens me. What is there about the abstraction of packing the Supreme Court that scares you? You said, “nine is not magic. 12 is as magic as nine.”
So, why is it so frightening to you? And tell us about the concept of court legitimacy?
Josh Blackman: Well, I don’t think nine is a magical number, but once you move beyond our current settlement that we’ve had for over 150 years, it’s a race to the bottom. Why not 11? Why not 13? Why not 15? Why not 17?
At that point, the decisions of the court are not going to be viewed in the same way. I think at that point, the court will be weakened. I don’t know if that’s a bad thing. Maybe the court is exercising too much power? Maybe the only way to save the court is to destroy it. That sounds awful, but I think at some point when the court starts having such an oversized role in our polity, is it worth preserving what we have?
“Maybe the only way to save the court is to destroy it.”
In other words, are we trying to cling to this sort of sanitized image of the court? Are we just delaying the inevitable? I oppose court packing and it’s a terrible idea, but when it happens, I think we’ll just accelerate the end of the court as we know it. Maybe that’s the byproduct of the court’s own conduct, and maybe this is a process that did not begin with John Roberts or William Rehnquist, but with Earl Warren in the 1950s and 60s. Maybe, as the saying goes, the chickens will finally come home to roost. Hope it doesn’t happen. Hope it takes a while. But I think this is in the court’s future. I wrote a piece for Politico saying that this was the last new Roberts Court. I think it’s the last time we have nice justice.
Bob Zadek: You mitigated my fear a bit. My fear is that once we lose the Supreme Court, we bring in an era that cherished rights will be endangered, such as the free speech rights in the First Amendment and the right to bear arms in the Second Amendment and others (we can just go down the list).
The popular will, according to polling, is that 62% of college students favor some limitations on free speech. That scares the heck out of me, because they will vote to elect those who want to compromise our freedom of speech. Then I say to myself, thank heaven for the Supreme Court.
You say that court packing will start an arms race that will result in diminished importance of the Supreme Court. But who’s going to protect my natural rights? Who’s going to protect my rights in the Bill of Rights, if the popular will wishes there to be no protection. Suddenly, I jumped to a real fear of a kind of anarchy — the mob, the majority, the 51% treading on the rights of the 49.
On the one hand, you say that perhaps the diminished prestige and legitimacy of the Supreme Court is a good thing. But you also say it’s an inevitable result of court packing? Well, then, who’s going to look after our rights?
Josh Blackman: We’ve reached an important point in this discussion. I say this with complete candor. If our society gets to the point where rights are being ignored, the courts are not there to stop it. If you think of a train, then the court is not the locomotive pulling it, but is the caboose, rounding it back. By the time we get to the point where the court stops protecting rights, that means our society doesn’t want to cherish these rights anymore. It’s too late; the court will not be upset with society, whether it’s in its current form or at a million members. The way to protect rights is to persuade the people protecting them. I’m not confident that that can be done if the people stop respecting it.
Free speech has been on the wane for the longest time. I think we had a consensus on the court that free speech was important, but that is starting to fragment. Harassment, hate speech, and all these other doctrines are just designed to shut people up for unpopular thoughts. I think they’re well motivated, but they have clear censorship behind them.
At some point, the court will shift if it goes to the left. It’s perverse that libertarians have to look to President Trump to appoint judges who can cherish rights. I know that it’s a very unsettling feeling, but the types of people Joe Biden would appoint are going to be much less protective of free speech. They’ll be more amenable to hate speech laws, and to these sorts of cancellations we’re seeing as part of the purging of our sins. There’s a perverse aspect in our polity, that the party that’s closer to protecting natural rights is out of the conservatives, which never has been before. It’s just this bizarre reversal.
Bob Zadek: I’d like you to speak for a few moments, if you will, on the importance or unimportance of The Supreme Court having legitimacy right now. Polling indicates that the Supreme Court is the most respected. In your opinion, is there a danger that the Supreme Court loses its legitimacy as it gets packed? What is the adverse effect upon society?
Josh Blackman: I think legitimacy is meaningless. The Supreme Court is popular in the headlines, to the extent that if they do anything that people dislike, they sort of fall out. Most people can’t name a justice. They don’t know who anyone is now that Justice Ginsburg is gone. I doubt anyone can name any justice. So, I think for the most part, anytime the court issues decisions that are unpopular, they’ll become more unpopular, and then legitimacy is just going to be in the eye of the beholder.
Related Shows:
- Will Clarence Thomas Have To Recuse Himself in a Supreme Court Election Decision? Interview with Craig Roberts, Sep, 22 2020
- COURT PACKING with Ilya Somin, April 19, 2019
- Demystifying the Supreme Court, April 7, 2019 with David Kaplan
- Gail Heriot on the Significance of Justice Scalia’s Passing , Feb. 21, 2016
- Sotomayor’s nomination for Supreme Court Justice
Links:
- Josh Blackman — Reason.com
- The Volokh Conspiracy — Reason.com
- A Resignation in Time, that Saved Nine — Reason.com, by Josh Blackman, 9/23/20
- Regardless of what Trump and Mitch do, the Democrats will (1) Eliminate the Filibuster, (2) Grant Statehood to D.C. and maybe P.R., (3) Expand the Lower Courts, and (4) Expand the Supreme Court [Updated] — Reason.com by Josh Blackman, 9/19/20
Originally published at http://www.bobzadek.com on September 24, 2020.
