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Philip Hamburger on Court Packing

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uring the 2020 election campaign, Joe Biden and the Democratic Party floated the idea of “court packing” — adding Justices to the Supreme Court. The call for court reform was a response to Amy Coney Barrett’s nomination following the death of Justice Ruther Bader Ginsburg.

Fast forward to April 15, 2021. Congress has introduced legislation that would add four more Justices to the Supreme Court. President Biden, meanwhile, has formed a commission to reform the Supreme Court, either via packing or term limits. The historical situation has striking parallel’s to the 1937 Roosevelt court-packing attempt, which ultimately failed but caused the court to submit to his New Deal agenda in the hope of “saving the court,” regardless of whether they thought the New Deal was constitutional or not.

Today, we seem to be in the same situation. The executive branch has taken on the role of bullying the court into adopting Biden’s agenda, whether or not that agenda is constitutional. Even if the court packing attempt fails, many Americans wonder whether the threat on the court alone is sufficient to corrupt the impartiality and independence of the Judiciary.

I was joined by Phillip Hamburger. Phillip is the creator of the Columbia Law School’s Center for Law and Liberty and is the founder of the New Civil Liberties Alliance, a civil rights organization based in Washington, D.C. He has authored two recent books on the administrative state, Is Administrative Law Unlawful, and The Administrative Threat. Phillip has recently written a Wall-Street Journal article on the dangers of court packing to the American Republic and the separation of powers, entitled, “Court Packing is a Dangerous Game.”

What does this court packing attempt mean for the American Republic? Phillip and I will sift through the frightening implications of the Democrat’s plan.


Bob Zadek 00:17

We Americans are staring down the barrel of what I and many others consider to be a profound existential threat to our entire system of government. 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 is the threat of court packing. There is a great misunderstanding and a lack of appreciation of how serious a threat court packing is. Only if you understand court packing, its history and its future, can you appreciate 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 this law school Center for Law and Liberty, an organization which studies threats to end legal protections of freedom. In the recent past, Phil founded and is the president of the New Civil Liberties Alliance, an important new organization founded to protect our civil liberties.

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 the legislature is using to influence the decisions made by the Supreme Court. It’s not the first time this has been attempted. We have to all appreciate the threat that it poses. This morning, I’m happy to welcome back to my show Professor Philip Hamburger. Phil, welcome to the show this morning.

Philip Hamburger 03:56

Great to be back. Thank you so much. It’s an important topic.

Court Packing: An Overview

Bob Zadek 03:59

Thank you, Phil. Let’s start with the basics. Tell us what court packing is and why the threat of court packing is so serious to all Americans participating in the democratic process.

Philip Hamburger 04:32

Thank you. 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. If I go to court, I want a judge who’s entirely independent and unbiased. The danger of court packing is that Congress can create new judges for positions. A president that they like can make his or her appointments. The result is to shift the court politically. Instead of having judges who decide fairly without bias without political prejudice, we have candid open politicization of the court. It’s the will of Congress and the President to dictate results, not the judgment of the judges. It’s very dangerous.

Bob Zadek 05:25

We have nine justices in the Supreme Court. That has been the number since after the Civil War for over 100 years. Nine is not some special number. Isn’t it true that the number of Supreme Court justices has changed, I think five or six times in American history? Put the number nine for the number of justices in historical perspective.

Philip Hamburger 06:16

We began with six because we needed three circuits — Northern, Southern and Middle States. We needed two justices in each one of those circuits. In the middle of the 19th century, the justices were increased to nine precisely because there was an increased number of circuits when the country expanded. The closest thing we’ve had to successful court packing was 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. What’s interesting is that example of court packing, which is really the only clear successful example in our history, was in response to a civil war when it was uncertain about the loyalties of the court. That’s an extreme example. What we see now is an attempt to pack the court in response to mere politics. That’s very worrisome.

Bob Zadek 07:25

Court packing may have accomplished an important long range goal. It was first used to support Lincoln and then to solidify Lincoln’s success. Andrew Johnson was far more sympathetic to slavery. The country felt vulnerable, as it should have, having just survived a civil war. Teddy Roosevelt’s dabbling in court packing is a little known story. I say “little known” but that is a term of art, which means I didn’t know about it. Tell us about Teddy Roosevelt’s dabbling in the device of court packing.

Philip Hamburger 08:57

First, it’s worth recognizing that until 1912, the only court packing was in response to a civil war. Now we have to worry the court packing will invite Civil War. I don’t think we want to go in that direction. Teddy Roosevelt was a big intimidating guy. He liked to push people around. In defense of administrative power, a system of power that goes off-tracks off-road and is quite dangerous, he threatened the courts and the judges. He said he would reconfigure the courts. He said he would deprive the court’s decisions of their binding effect. He made this campaign promise. In other words, he campaigned on court packing. This is what really introduces court packing as a political element to the 20th and 21st century. Since 1912, or even perhaps a little bit earlier, the Progressive Party has always had court packing in the back of its mind, not because most of them wanted court packing, but because they wanted to intimidate the judges. Even without court packing, we get all the bad results. That’s still true today, the judges are intimidated by the threats.

Bob Zadek 10:15

In a system of court packing, the party in power is unhappy that their agenda is not succeeding in the Supreme Court. Presumably, it is fair to assume that it is because their agenda is unconstitutional, at least in the opinion of the independent judiciary. The Supreme Court is seen as an obstacle to the will of the people manifest through the democratic process, and the way to fix it is to appoint more justices who are sympathetic to the Supreme Court. The obstacle of the will of the people is now eliminated. This means you are appointing justices to accomplish a political goal. That makes the Supreme Court a political body, not a judicial body. That’s the threat. The threat is that you can eliminate the annoying obstacle of constitutionality if you just have a Supreme Court who is more generous in finding bills that otherwise be unconstitutional than finding them constitutional.

Threat of Court Packing: An Intimidation Tactic?

Bob Zadek 12:39

Once the Supreme Court is seen by the public to be a political branch in the eyes of most of us, then the Supreme Court loses all of its status, it just becomes a super legislature. We have no independent court system. That’s what this is all about. Now, Phil. You introduce that important concept of “intimidation.” Tell us the process by which the Supreme Court might feel intimidated.

Philip Hamburger 13:41

The fear that Congress will rearrange the judiciary has led the judges being reticent about holding statutes unconstitutional. Administrative power cases may deprive you of jury rights, but the court will nonetheless uphold the statute for fear of provoking the ire of Congress. For example, in National Federation of Independent Businesses v. Sebelius, Chief Justice Roberts said he acknowledged the court’s reticence to invalidate acts of the nation’s elected leaders. This is not what courts should do. Courts should be very balanced and simply tell it straight. Is something constitutional or not? But instead they defer. That’s not what we need the court for. That’s not their job. They’re given tenure in office. They’re guaranteed salaries. They’re honored with robes and called “your honor.” All we ask of them is they follow the law and exercise their own independent judgment. It is quite clear that instead, they’re bowing to pressures out of just fear. The institution is threatened, and so they back away from decisions. It’s shameful.

Bob Zadek 14:57

Once that happens, that means Congress is then free to enact unconstitutional legislation. The Supreme Court becomes like the British House of Lords. They are a body without power, which is just simply there to give the good housekeeping seal of approval to whatever Congress wants. In the balance, the Constitution hits the dustbin because now there is no constitution to protect us from Congress. After all, most of the words of the Constitution and the bill of rights are written to protect us from an overreaching Congress. That is why this is such an important issue. It is a game that upsets the balance between citizens and government.

Philip Hamburger 16:36

This was proved just a day or two ago in the case of Fulton vs. Philadelphia. Chief Justice Roberts, in response to the fears of court packing, has insisted that we have unanimous decisions which are very watered down and which don’t actually decide a question of law. In Fulton vs. Philadelphia, an administrator denied Catholic social services the ability to place children into foster care. There was no rule, there was no judicial decision. It was just an administrative decision taking away your jury rights. There was also a religious liberty component. The Supreme Court did not answer any of the relevant questions. They vindicated Catholic social services but without a decision actually resolving constitutional questions. It looks as if this was done out of fear. That is terrible. That is 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 state of war. They acted cowardly, and it’s just shameful.

FDR, the New Deal, and Court Packing

Bob Zadek 17:49

We talked about Teddy Roosevelt. FDR also plays a major role in any discussion of court packing. Just to set the stage, FDR had a very radical agenda. He changed so much of our relationship between citizens and the government. Roosevelt was elected in 1936 with overwhelming popular support. He could justifiably believe he was on the side of God. He truly had the will of the American public as wind in his sails. He had every right to believe what he was doing benefited and had the support of most Americans. The Supreme Court, just as I said earlier, was an obstacle, because so much of the FDR agenda was not constitutional. 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.

Philip Hamburger 19:42

Most importantly, the Constitution said you could not do it. It’s considered the will of the people, in the Constitution, that defeats the transient will of the people in an election and statute. He attempted to pack the court when he was dissatisfied with this decision, rejecting its administrative power that he wanted. Interestingly, his plan was defeated in the Senate. His own party rejected him, which was very honorable of them. They defeated it 70 to 20 in the Senate. The Senate Judiciary Committee, which was dominated by his own party, rejected court packing. I want to read what they said because it is very important. They said, “We recommend the rejection of this bill as an utterly dangerous and abandoned 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. His own party rejected this as unconstitutional. What he failed to get politically, he nonetheless succeeded in intimidation, because the court turned around and upheld his unconstitutional legislation.

Ever since, the courts have been afraid to even seriously consider overturning administrative power. They defer to it, they bow to it. They uphold this administrative power, even though these are rules not made by the people or their elected representatives. Our rights have been fundamentally eroded and destroyed by court packing, not because the court was packed, but because of the intimidation effect. The judges were weak so they gave way.

Court Packing Today

Bob Zadek 21:29

This whole discussion shows us the tension between majority rule and the inherent rights in the minority. Even a majority cannot take away the rights of the one, if they are trying to take away certain rights that our founders felt are inviolate. Where are we now in 2021 in America on the issue of court packing?

Philip Hamburger 23:48

Biden has talked about it, but I don’t think he has fully committed himself. Everyone around him, though, is interested in court packing. He has led the way by establishing a commission to study the possibility and come up with recommendations. Now, this shows some subtlety in his part. Rather than simply threatening court packing, he is using the threat of court packing. In other words, it’s an old intimidation game. 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 backed out of fear rather than independent judgment. I mentioned, for example, the Bolton case. The judges will alter how they decide in order to stave off actual court packing. The net effect is if you just talk about it long enough, the judges will back away. 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 get to court, our right to have an independent judge decide cases. In defense of that administrative power, which is really the rule of bureaucrats, not the rule either of Congress or the president, court packing seems very important again. All that’s really necessary is intimidation. 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. The intimidation game is what wins and court packing is just the threat that lies behind it.

What Drives the Left’s Obsession with Court Packing?

Bob Zadek 25:37

In preparing for this show and in doing my background reading, I learned that you have mentioned this several times in this show that in each attempt at court packing, it was the progressives, not conservatives. It is always the progressives who are seeking to pack the court. Why is it that it is always the progressives who find it necessary to resort to this drastic, game changing agenda? Why always progressives and never the conservatives?

Philip Hamburger 27:22

I don’t think all progressives are in favor of unlawful measures. 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. However, the progressives rejected the constraints of constitutional law 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. They mocked the separation of powers, and they mocked representative government. Woodrow Wilson was quite candid. He couldn’t get progressive ideas past the people. He thought that legislative power should be shifted to an elite of bureaucrats who shared his views.

I think there has been an impatience for power that has overcome attachments to law, especially the Constitution. I think whereas many conservatives remain attached to the Constitution and its ideals, many progressives view that as rather old fashioned and fuddy duddy.

Our rights matter to us profoundly. The right of self-government, the right to go to court, to have a jury, to an unbiased judgment, are crucial. The idea that they will be swept away for some transient policy consideration is really rather sad.

Bob Zadek 29:28

I am going to take the role of the devil’s advocate. The declaration respects that when citizens find that governments no longer serve the people, it is not only the right but the duty of citizens to change the government. Jefferson felt that no laws should bind successive generations’ freedom. We should have freedom to pick the laws which govern us. Indeed, the declaration itself was declaring that the old form of government doesn’t work, and we are sending it on its way. The Declaration was the continuation of the American Revolution. We respect that.

What do you say to progressives who say court packing does make a mess of the Constitution and throws away constitutional protections? After all, the progressives say, it is the will of the people. We represent a majority. Roosevelt says, “It is the will of the people and the right of the people to re-adjust government if it doesn’t work for most of them. I represent an overwhelming majority of people. The Constitution is an inconvenience right now, and interferes with the role of the people.” The declaration says, “People can toss aside a government that doesn’t look after a majority.” Why don’t court packing progressives have the high ground on this conversation?

Philip Hamburger 31:56

When one sits down for a game of cards, if you don’t like the game, or if you find yourself losing, or you think it’s a silly game, you can always just walk away. What we should not do is cheat. I think that’s the distinction here. We have a Constitution that has an avenue for change. It’s called amendments. If you want to change the Constitution, by all means, propose an amendment. Let’s have a discussion about it and vote. You 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. We vote perhaps on a statute differently than we would for state senators deciding constitutional amendments. We need to recognize that a transient will of the people is not the same as a considered will of the people. The will of the people that matter is constitutional changes and constitutional amendment. The danger of the system of judicial alterations or judicial fear of protecting our rights is that it alters the constitution without giving us notice.

Instead it’s done quietly, the desperate fears of judges who worry for their bench. What is the point of protecting the court at the cost of the law? I think we are actually already in dire straits. We don’t have to wait for court packing to have a disaster. We have reached it. It will destroy the reputation of the court. In the meantime, all the fearfulness of the judges, deliberately inculcated by one party, has the effect of depriving us of our rights. What is the point of a judicial system if you cannot have an unbiased judge, if you have to go before an administrative judge, or if you don’t have a right of confrontation, witnesses and you don’t have the burden of proof from the government? Or, if the government can demand documents without going to a judicial warrant, a subpoena, and can deny you a jury and laugh at you?

The Politicization of the Court

Bob Zadek 34:25

It seems to me that the Supreme Court selection confirmation process has become political. In most of our history, it wasn’t. Even justices who were nominated and who seemed to have clear views, would breeze through the confirmation process with overwhelming majorities from both parties. It was relatively pure and relatively unpolitical. In your opinion, what happened in recent times to make the selection of supreme court justices so political?

Philip Hamburger 35:46

That’s an interesting question, isn’t it? It gets to the problem of what’s happening generally to our politics, which is that it has become warfare. I think there are multiple answers. One, I think, is that judicial lawlessness and initial modification of the Constitution was used to affect economic policy. Frankly, since 1960, judicial lawmaking and rewriting of the constitution affected us in our personal lives. If 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 about equality. We are now personally affected by this in ways that were not so obvious beforehand. I think the other reason is that the administrative state has concentrated power in administrative agencies, which can either be held back or unleashed by the President. Essentially, we have more of a monarchical government. The presidential election matters more than ever before.

It used to be that elections to Congress really mattered. Now what matters is who the president is and who is the judge. Between the Supreme Court and the president, that determines our fate.

Bob Zadek 37:37

I would like to remind our listeners that when Hamilton wrote his Federalist Papers, he observed that the Supreme Court was the least dangerous branch of government because it had no army to enforce its laws and no power of the purse to run the judicial system. 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. Once the Supreme Court becomes politicized, it’ll lose popular support.

Look at the low level of popularity that Congress is at, at about 13%, I believe something like that of the American public approves of the behavior of Congress. That’s because Congress is a political branch. A much higher percentage approves of the behavior of the Supreme Court. The Supreme Court is in danger once it becomes politicized.

Philip Hamburger 39:43

I’m afraid that’s true. John Locke wrote in his great treatise in the late 17th century, “When we cannot find an indifferent judge on Earth, people will in 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. I know that they’re all affected to some degree by who they are, and by some past political commitments, but they need to do their best to follow the law.

Court Packing: Is it Legal?

Bob Zadek 40:32

Nina Totenberg quoted representative Ed Markey, a progressive Democrat from Massachusetts. He said, “We are here today, because the United States Supreme Court is broken. It is out of balance and needs to be fixed.” There is nothing more scary of a concept than that the Supreme Court has to be fixed because of the nature of its decisions. That sentence says it all. Let’s cook the books. Let’s influence the court. Talk about jury tampering writ large. It’s one thing to increase the number of judges because the workload is too high or for some practical, sensible reason. But to adjust the outcome because you can’t win by persuasion and you have to win by fear, once that happens, it’s game over. This is blatantly an attempt to alter the result you want but by appointing your team members to the Supreme Court.

Is what Biden proposing unconstitutional, unlawful, or just a really bad idea?

Philip Hamburger 43:21

Let me give two answers. First is that the founders understood that one cannot create a constitution that fends off all danger. They did their best to anticipate dangers and deal with them. They also understood that in the end, we have to behave responsibly with virtue, as I said. If we cannot be virtuous enough or responsible enough to recognize that court packing is a very bad idea, then there is a certain point at which the Constitution can’t stop us. They did not try to stop all bad things. They tried to stop the ones that were most probable.

Now as to whether it is constitutional, it is an interesting question. Undoubtedly, Congress has the power to decide the number of slots in the Supreme Court. That’s easy. In that sense, they surely have the power to do it. What’s more complicated is whether or not possibly there is a due process limitation on this. The Fifth Amendment’s due process clause is adopted after the rest of the Constitution. It would not be entirely unreasonable for a judge to say, “Actually, this is an attempt to alter the outcome,” at least in existing cases, and therefore it’s unconstitutional.

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 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. I rather doubt that it is going to happen, and whether it is constitutional may not even matter at that stage.

Unfortunately, we’re already there because the intimidation that’s already begun, even without the court packing. That’s very dangerous.

Bob Zadek 45:19

When Harry Reid was the senate majority leader he started to undo certain safeguards protecting the minority. To his dismay, when the republicans got in control of the Senate, they continued the process of weakening the rights of the majority, only then the democrats found themselves weakening the rights of the minority. The democrats found themselves suffering as a result of a process that Harry Reid started. Who knows where it started, but it certainly continued.

One of the concerns is that once Biden and the Democrats politicize the court, there will be a time that the conservatives and the republicans have the majority in all three branches of government and they will then increase the number of justices by six, or whatever is needed. We start the endless increase in the number of justices. The Supreme Court becomes an utter irrelevancy. Imagine a country with no Supreme Court. It is fair to assume that once one politicizes the court, it becomes simply irrelevant. We end up writing the Supreme Court out of the Constitution. Is this an exaggeration?

Philip Hamburger 47:32

I think that’s a very real danger. It describes very nicely what could happen if we went in this direction. Unfortunately, I think most Americans understand this intuitively. They want to play cards honestly. Unfortunately, the party is sometimes controlled by people who like playing games, not just playing the game, but playing with the game. So we have to hope that the good sense of Americans restrains the politicians in this regard. Yes, if we go down that road, it’s never ending, and it’s a disaster. It’d be very sad.

Bob Zadek 48:13

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.

Philip Hamburger 49:05

We’ve done this in a sense, because to intimidation, the court has legitimized administrative power, taking away most of our procedural rights like juries and our right to govern ourselves to Congress. What is interesting is that the progressives who sought the administrative state and deprivation of rights, now want more power in the Supreme Court. Conservatives are trying to argue the logic for defense of rights. They’re not trying to make a power move.

The New Civil Liberties Alliance

Bob Zadek 49:50

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.

Philip Hamburger 50:11

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 is what we do. We defend people’s procedural rights, like jury rights. We defend people’s speech rights. We defend our rights to govern ourselves through legislation rather than through administrative rules. We do this through litigation. We have a team of about 20 in Washington, DC. We’ve had only just a few years and some really great successes. We’ve got the Supreme Court to reconsider its non-delegation doctrine. We’ve got the Supreme Court to reconsider its deference doctrines, which they defer to administrative agencies. Just in a matter of a few years, I think we’ve made enormous strides. 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.




-- • host of The Bob Zadek Show on 860AM – The Answer.

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