Panel IV: Congress and Court Reform: Jurisdiction Stripping, Court Packing, and Beyond

Episode Transcript
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Speaker 1 (00:03):
Good afternoon everyone, Thank you for joining us today. My
name is Connor Cox and I am a panel's coordinator
for our symposium. Our final panel is titled Congress in
Court Reform. Jurisdiction, Stripping, Court packing and beyond. Reform proposals
have gained momentum in recent years, and this panel will

(00:26):
explore whether Congress can or should take such measures to
reform the courts. Panelists will examine the legal feasibility and
potential impact of reforms, weighing whether these measures would preserve
or endanger judicial independence. Our moderator, Judge Raymond M. Cathledge,

(00:47):
is a circuit judge on the US Court of Appeals
for the Sixth Circuit. Judge Cathledge has taught Federal Courts
and the Fundamentals of Appellate Advocacy at Michigan Law School
and a seminar on classical Liberalism and the Rule of
Law at Harvard Law School. He received his BA in
History from the University of Michigan and his jd from

(01:09):
Michigan Law School. He clerked for Justice Anthony Kennedy of
the U. S Supreme Court and Judge Ralph B. Guy
Junior of the Sixth Circuit He also worked in the U. S. Senate,
and later, with two partners, founded a boutique litigation firm
now known as Bush, Seyforth and Page in Troy, Michigan.

(01:31):
His practice there included a broad mix of trial court,
appellate and class action litigation. Judge Cathlige is also the
co author with Mike Irwin of Lead Yourself First, Inspiring
Leadership through Solitude. Professor Jamal Green is the Dwight Professor
of Law at Columbia Law School. He has served as

(01:53):
a Deputy Assistant Attorney General in the Office of Legal
Counsel at the Department of Justice, and as a senior
visiting scholar at the Knight First Amendment Institute. Professor Green
is a graduate of Yale University and Yale Law School.
After law school, he was a law clerk to Judge
Guido Calibraci of the Second Circuit and then to Judge

(02:15):
John Paul Stevens of the Supreme Court. He's the author
of How Rights Went Wrong, Why Our Obsession with Rights
Is Tearrying America Apart, and numerous influential law review articles,
including Rights as Trump's and The Anti Canon. He is
a member of the American Law Institute and serves on

(02:37):
the Board of Academic Advisors of the American Constitution Society.
Professor Tara Lee Grove is the Vincent and Elkins Chair
in Law at the University of Texas School of Law.
She has been published in prestigious law journals and has
received awards for both her research and teaching. Professor Grove

(02:58):
served on the president Presidential Commission on the Supreme Court
of the United States and a bipartisan commission charged with
examining proposals for Supreme Court form. Professor Grove is a
graduate of Duke University Summa cum lauree and Harvard Law
School magna cum laude. After law school, she was a

(03:19):
law clerk to Judge Emilio Garza of the Fifth Circuit.
Professor Richard Primus is the Theodore J. Saint Antoine Collegiate
Professor of Law at the University of Michigan Law School.
In two thousand and eight, he won the first ever
Guggenheim Fellowship in Constitutional Studies for his work on the

(03:40):
relationship between history and constitutional interpretation. Professor Primus is a
senior editorial advisor of the Journal of American Constitutional History
and has received the l Heart Wright Award for Outstanding
Teaching from Michigan Law Students four times. Professor is a

(04:00):
graduate of Harvard College and Yale Law School and received
a Defhill in Politics from Oxford University as a Rhodes Scholar.
Before joining the Michigan Law Faculty in two thousand one,
he practiced law at Genner and Block in Washington, d c.
He is also a founding member of the Academic Freedom
Alliance and serves on the board of Advisors of Protect Democracy.

(04:25):
Professor Amanda L. Tyler is the inaugural Thomas David and
Judith Swope Clark Chair and Constitutional Law at the University
of California Berkeley School of Law. She is the co
author with the Honorable Ruth Bader Ginsberg of Justice Justice
Thou Shalt Pursue a life's work in Fighting for a

(04:47):
More Perfect Union, and the author of Habeas Corpus in
Wartime From the Tower of London to Guantanamo Bay. Professor
Tyler is a graduate of Stanford University, where she played
on the Division I women's soccer team, and of Harvard
Law School, where she graduated magna cum laude. After law school,

(05:09):
she was a law clerk to Judge Guido Calabresi of
the Second Circuit and then to Judge Justice Ruth Bader
Ginsberg of the Supreme Court. She serves as the co
editor of Hart and Westlers the Federal Courts and the
Federal System, and is an elected member of the American
Law Institute and is a past chair of the Federal

(05:30):
Court Section of the American Association of Law Schools. Professor
Keith E. Whittington is the David Boys Professor of Law
at Yale Law School. He is the founding chair of
the Academic Freedom Alliance's Academic Committee, a Hoover Institute Visiting Fellow,
and served on the Presidential Commission on the Supreme Court

(05:52):
of the United States. Professor Whittington is a graduate of
Yale University and the University of Texas at Austin. Before
joining Yale, he served as the William Nelson Cromwell Professor
of Politics at Princeton University from two thousand and six
to twenty twenty four. He is the author of numerous books,

(06:15):
including You Can't Teach That Repugnant Laws Speak Freely, Constitutional Interpretation,
and the Political Foundations of Judicial Supremacy. He's a member
of the American Academy of Arts and Sciences and hosts
the Academic Freedom Podcast. Please hold your questions for the
Q and A session at the end, and with that,

(06:38):
I am delighted to pass the floor to our moderator,
Judge Cathlich.

Speaker 2 (06:46):
How long are we going to leave for Q and A?
By the way, fifteen minutes? Okay, great, Well, I'm honored
to be up here with this group today and I
welcome all of you to the to Michigan Law School.
I'm a proud graduate of this school myself, and I

(07:07):
really can't help but just make a few comments about
our venue, particularly with a group of students here. I'm
kind of getting over at the moment here the change
to this room, because I had more classes in this
room than I can remember, and it was kind of
curved tables and there was a raised dists over here,

(07:28):
and it's sort of like, you know, coming back to
your old neighborhood and your house is sort of doesn't
look like your house, but it's okay. But it just
makes me reflect a little bit on my time here
at Michigan Law School and the one class I had
in this room that just really just I'll just remember

(07:50):
for my whole life was commercial transactions with James J. White.
And so Jim White was just this iconic law professor
here at Michigan aw School back in I mean he was.
He started in the early sixties and I graduated in
ninety three. But Jim was kind of like George Patten
teaching commercial transactions. He was just a super vigorous questioner

(08:17):
with a Socratic method, highly predatory in that regard, but
you know, he he was. He was a great professor
because he was both challenged, very challenging, but also inspiring.
And so I think he just he just inspired us
to kind of dig deeper than we had planned when

(08:40):
we came into his class, and just the interaction and
to get kind of a glimmer of recognition from Jim
in respect just meant so much. You were willing to
work so hard for that, and I'm fortunate that Jim
really became a great mentor to me. We're still friends.
We had lunch a few months ago down the street here,

(09:04):
and so with a group of students here, I just
do want to say that just remember, I know there's
a lot of pressure with finals and you know, papers
and all that kind of thing, but this can be
a really rich time in your life, and just embrace it,
appreciate it, and seek out good mentors who can guide

(09:25):
you as you go forward. I had my investiture fifteen
years after I graduated. I had my investor in this
very room, and Justice Kennedy swore me and you know
right about there, and the opening speaker was Jim White.
So those relationships that you make with other students and
with your professors can be just really an important part

(09:48):
of your life. And just make sure you have time
for that. Okay, Well, getting back on topic, We're supposed
to talk about jurisdiction stripping and court packing, and I
don't have any particular insights on those two things except
I do not like them. I'll be open minded up here.

(10:08):
But we have a super distinguished panel, and so I
think we're just going to dive right into it, and
I think we're gonna Professor Green, You're gonna lead us
off the topic of your choosing.

Speaker 3 (10:21):
Okay, So this is so I'm going to I'm going
to try to do a little bit of a table
setting here, but I'm gonna maybe do it in a
particular way. I think gatherings of this sort are most
productive if we can sort of start with a shared
point of departure or shared set of premises that don't

(10:43):
necessarily depend on one's particular ideology or particular views about
judicial power. So I want to start the conversation by
trying to take a step back from the particular conflicts
that might be of interest to people and describe what
I think of as a problem, and that I want

(11:03):
to persuade all of you that you should think of
as a problem as well as many of you are aware.
John Adams, in writing the Massachusetts Constitution of seventeen eighty,
famously described a republic as a government of laws and
not of men. This, I think should mean that it

(11:27):
should not be the case in a republic that a
tiny cadre of unelected elite lawyers decide many of the
most important political questions within the society, serve in office
however long they please, and routinely time their retirements to
ensure that someone who shares their ideology ends up replacing them,

(11:50):
to then themselves serve under similar conditions. I think it
should especially not be the case in a republic that
an even tiny er cadre of that already tiny cadre
of life. Tenured, unaccountable lawyers in effect decide a large
number of the cases based on their own idiosyncratic views

(12:13):
of the law. Just because they happen to be the
so called a swing justices on the court. This power
can enable them to decide the shape of constitutional law
for decades at a time. As law students, and some
of you, as lawyers or law professors, you are of

(12:33):
course familiar with the phenomenon of important nationwide historic questions
of constitutional law boiling down to, well, what does Justice
Kennedy think, What does Justice O'Connor think, What does Justice
Powell think? What does Justice Kavanaugh think? And this can
go on for generations at a time. In fact, in
the term that I clerked at the Supreme Court, there

(12:56):
were twenty two five to four decisions on really important
issues ranging school integration, capital punishment, abortion. Anthony Kennedy was
in the majority in every one of those twenty two
five to four decisions, meaning that in every one of
those five to four cases, this one person changing his

(13:17):
mind would chart the country on a dramatically different course
on extremely controversial political and legal topics. In a democracy,
in a republic, if you prefer no one person should
hold that much unaccountable power for life period. So the
question I think should not be whether this kind of

(13:41):
state of affairs is good in a constitutional republic. It's
not good for this to be the state of affairs,
but rather whether there's anything constructive and constitutionally permissible that
one should do about it or can do about it.

Speaker 4 (13:55):
Now.

Speaker 2 (13:55):
I think that there is.

Speaker 3 (13:57):
And I'm going to kind of go through three quickly
and try to persuade you that you should all settle
on the third. So, one way of solving the problem
of a very small number of people exercising too much
power over political questions for too long would be to
limit their terms, to limit their terms of office so

(14:18):
they're not doing this for their whole lives, and then
giving it to someone else who shared their ideology to
do it for their whole lives. I think term limits
are a good idea. I think some form of term
limits are constitutionally permissible. But I do recognize, of course,
that that's not the view of everyone. It certainly I
assume not the view of everyone in this room, and

(14:40):
we'll have some doubts about constitutionality. So let's put that
to one side for the moment, although we can return
to it. I'm sure we will at some point in
this panel. Second possibility of tackling the kind of problem
of having a small cadre of lawyers deciding political questions
forever is to try to deep politici their approach to

(15:01):
solving those questions, so they're not solving political questions, they're
solving purely legal questions. And this is what I take
to be a main part of the pitch for originalism. Now,
I don't think that the originalism movement has succeeded at
depoliticizing the Court. I don't think it can succeed at
depoliticizing the Court because I think that the text and

(15:25):
history and structure of the Constitution just lack the resources
to be able to resolve the kinds of political conflicts
that divide us and to turn them into purely legal conflicts.
I think that that's not very realistic. So what's the
third possibility of the problem of too few people exercising
too much power for too long is to make more

(15:47):
of them so that it's not so few people. I
think the third option, which is expanding the number of
Supreme Court justices, has gotten much less attention across the
political spectrum than it deserves. And part of the reason
it's gotten much less attention across the political spectrum than
I think it deserves is because it has been described

(16:08):
as court packing and has been defended as a means
of restoring ideological balance.

Speaker 2 (16:16):
To the court.

Speaker 3 (16:17):
But expanding the number of justices on the court is
not the same thing as court packing, and they have
different justifications. Court Packing is by definition partisan, that's the
point of it. Court expansion that is not court packing
can be accomplished in entirely nonpartisan ways, for example, by
having the expansion begin at a later date on which

(16:40):
we don't know who the president is going to be
or what the president's political party is going to be.
But what are the justifications for it? For just some
facts that you should be aware of, the United States
is the third largest country in.

Speaker 2 (16:55):
The world, but it has the smallest.

Speaker 3 (16:57):
Supreme court of any large country. Among the thirty biggest
countries in the world, the United States has the smallest
high court. It has the same number of justices as
it had in eighteen sixty nine, when the country was
one tenth of the size that it is now. That
is also, of course, before Federal Court said general federal

(17:18):
question jurisdiction. It's before the Bill of Rights were applied
to the States in any way, before the rights revolution
of the nineteen sixties and nineteen seventies. The larger Supreme
Court that I'm going to ask you to try to
envision might have let's say, anywhere from fifteen to twenty
five justices who sit not in bank but sit in panels,

(17:41):
just like every other appellate judge in the country, with
potentially larger benches, or potentially even an n bank court
for the most significant cases. I will very quickly try
to run through some of the benefits, and I'll list
seven for now. There would be less than this for me,

(18:02):
this most important one. There'd be less power held by
any individual justice. It's not a question of the power
of the court in general. Lots of people can disagree
about how much power the court should have, but any
individual justice would have less power. And if that's the case,
I become much less bothered by life tenure. I become
much less exercised about term limits. Two, the court could

(18:25):
hear a lot more cases. The federal courts in general
here are many, many, many, many more cases than they
once did, but the Supreme Court has remained the same size. Third,
you could commit a rotating panel of justices to here,
for example, so called shadow docket cases, so that it
doesn't pull the court away from its regular work. One

(18:48):
of the complaints of the shadow docket being they don't
have enough time to focus on these things and then
end up making kind of arbitrary decisions. A Fourth, a
bigger court would allow a subset of the court to
resolve complaints. One of the main contentions about the problem
of applying an ethics qude to the court is that
they always sit in bank and it's hard to pull

(19:08):
anyone away, or and you don't want their cases to
be reviewed by lower court justices. Well that's not necessary
if there are more people who are Supreme Court justices. Fifth,
you could have a rotating Sircherri panel so that the
people deciding whether to hear a case cannot necessarily make
predictions about the outcome. This would mitigate what I think
are quite reasonable concerns that in choosing its own docket,

(19:31):
as the Court largely has for the last hundred years,
the Court gives itself too much power over American politics.
If you think about the Marbury versus Madison justification for
judicial review, it falls apart actually if the court chooses
all of its own cases, so it actually doesn't have
to decide constitutional cases, but it chooses to do so.

Speaker 2 (19:51):
Sixth, because each.

Speaker 3 (19:53):
Individual justice would be much less powerful, the confirmation process
would look quite different. It could be normalized relative to today.
And Seventh, a larger bench would give some birth for
the diversity of life experience on the court, on a
court that helps to govern a nation of three hundred
and thirty million people. So, in short, much of the

(20:16):
so called politicization of the Supreme Court becomes a problem,
mostly because individual members of the Supreme Court themselves hold
an enormous amount of power. That is, something that can
be changed. It can be changed by statute, and it
can be changed without changing the power of the Court
as a whole, and without the unseemly specter of court packing,

(20:36):
which I myself have some significant reservations about.

Speaker 2 (20:40):
Okay, all right, thank you, Professor Green. I'm just gonna
have open it up to the other panelists here. I mean,
I think it could be a little stuffy to just
go in order. So I mean, if we behave ourselves
in you know, give everybody a chance. I think we

(21:01):
ought to just let folks speak as they're moved. That's
a good rule, by the way, in meetings, I have
this rule that I don't speak unless I'm moved to speak,
and it really keeps you out of trouble, because when
you're just talking to hear yourself heard, that's when you
say stuff that's not very smart. So anyway, let's hear
from our panelists, or I'll talk. I could certainly talk.

Speaker 5 (21:26):
About Amanda has been telling me when to speak and
when to be quiet since she was at my apartment
the night I was admitted to the bar. And she's
done it again.

Speaker 6 (21:38):
I'm going to interrupt him for old time sake. In
your wonderful introductions, you left out two really important facts
in Richard's biography. First, he clerked for Guido Calibrazy, which
by the way, makes this so half like Guido Reunion
up here. And second, he clerked for Justine Skinsburg. And
I know this because he was my co clerk both years.

(22:00):
I've done.

Speaker 5 (22:00):
Okay, I agree with a lot of what Professor Green
has said, maybe not all of it. I guess I
should start with this. I think poorly of the United
States Supreme Court. I don't think poorly of the Federal
Judiciary in general. As a general, I think rather well

(22:21):
of the Federal Judiciary in general. I think it's a
pretty well functioning institution with a lot of really smart
people trying to do the right thing. I have, and
my thinking poorly of the United States Supreme Court is
not a recent thing. I have thought quite poorly of
the United States Supreme Court, at least since I had
the great privilege of working there as a clerk, because

(22:44):
I think it's a dysfunctional institution in many ways, and
a number of them are traceable to the small group
dynamic and the permanence of their position, both of which,
if you don't have just the right people, create a
culture in which people don't listen to each other very well,
or at least as liable to that problem and a

(23:04):
number of the other problems that Professor Green talked about.
I think that it's so I'm very much in favor,
and again, as Professor Green said, without leaving aside for
a moment as orthogonal the question of whether the institution
has more power than it should, I'm definitely in favor

(23:24):
of measures that would cause individual justices to have less
power than they do in various ways, including some of
the ones that he mentioned. I should say I have
a suspicion that part of the resistance to court reform
is the history that associates it with FDR packing and

(23:46):
so forth. And because of the very real and I
think justified concern that if the court were altered in
ways that were overtly political or part of or so forth,
it would quickly cease to be able to play the
check and balance role that we need it to play,
because each that judicial review only works if the competitors

(24:11):
in the game of politics have a tacit understanding that
I will sit still for it when the court goes
against me, and you will sit still for when the
court goes against you. And if you have a situation
where the dominant political coalition in the other branches can
simply capture the court for its own side and have
all the cases decided the way it wants, that equilibrium
unravels very quickly, because then either that side uses its

(24:34):
power to lock itself in forever that's bad in a democracy,
or power alternates and the other side then does the
same thing and nobody has a good reason to respect
the court. So I think all of that is bad.
But that doesn't mean that we need the present structure.
It doesn't mean that we need to have super powerful
justices as we have them. I suspect that part of
the reason that people are reversed to the idea of

(24:56):
trimming the power of particular justices down to size is
actually this, and its just a psychological speculation that's beyond
my competence. I think that when most people who wind
up going into law first learn about the Supreme Court,
they think it's super cool, and they think it's super
cool because they imagine themselves in the black robe.

Speaker 7 (25:19):
Right.

Speaker 5 (25:21):
I forget which British Prime minister said, every backbench or
MP keeps a prime minister's baton in his back pocket.
I think ambitious law students and even and people who
become ambitious law students earlier in life envisioned themselves in
that role, and once that's lodged in your brain, you

(25:43):
root for the power of that position. I think it
takes a long time to unwind. And I want to
also say that although I think that power should be
oh well, and again, it's not about changing the power
of the court. The court needs to play the check
and balancing role. In fact, someone said to me, wow,

(26:04):
your panel is really timely, and I think, no. On
the contrary, this is this branch is not my worry
right now. Right My worry about this branch right now
is that it should be strong and able to play
a check and balanced role. But I do think it
would be good for individual justices to be less powerful.
And and here I'll just say a little bit more

(26:26):
about how we could do that and why it would
be a good thing, and then I'll turn over to
other people to speak. I think it's really bad for
people to identify themselves and their own dispositions as the law,
which is what you start to think. If you're an
Article three judge for too long, especially on an APEX court,

(26:49):
you you start to think of yourself as a kind
of titled nobility. That's not good. It's not conducive to
listening to other people. It's not conducive to modesty in
your decision making, and it raises the stakes of particular
personnel decisions enormously.

Speaker 2 (27:06):
Right.

Speaker 5 (27:06):
Presidential elections turn on who will get appointed to the
court and so on and stuff. But I think this
is quite bad for multiple reasons, including that we have
a system in which no political interest group can be
confident that even if it's successful in electoral politics, cycle
after cycle after cycle, it will ever get a majority

(27:28):
coalition on the Supreme Court that is friendly to its interests. Right,
you can get lock in perpetually. I think it would
be a really good idea. The suggestions not mine originally
to have a system where the Supreme Court, however many
justices it had nine or more, where each president got

(27:49):
two appointments, every new appointment each two years, and you
push the most senior people off of the merits panel
and onto a different panel of the court that does
cert or shadow docket or something else like that. The
virtue of this is, first of all, when you're going
to cycle out, at some point, you might identify yourself

(28:12):
personally with the law less. There would be less of
an incentive to appoint judges justices younger and younger.

Speaker 6 (28:20):
People.

Speaker 5 (28:21):
It would channel the impulse to legal change more into
democratic politics, and lessen too judicial selection. I think all
of those things would be good, and so though I
do not though I don't think any of this is
going to happen on a foreseeable timeline. But I think

(28:44):
that those would be salutary reforms, And I'll stop.

Speaker 1 (28:47):
There for now.

Speaker 2 (28:49):
I would just say, you know that the eighteen or
the eighteen year term limit, as it's typically proposed, I mean,
that would seem to be the lowest hanging fruit here potentially.
I mean, it's not an attempt to manipulate the judiciary
or to drive it towards certain outcomes. And I think

(29:11):
the reasons you just stated are ones that a lot
of people recognize is having merit. So you know, they
better get going on it because it would only take
effect for new people who go on there. And if
we're going to see this in our lifetime, you know,
the better get started. But okay, well I'll let who Tara,

(29:33):
what do you think you have a reaction to this? Sorry,
I should use the titles, I apologize.

Speaker 7 (29:39):
Oh that's fine. I have lots of reactions, but I don't.
I don't want to go on too long. So just
to just a quick note on term limits, I think
if you were starting a country from scratch, so it
was seventeen eighty nine and we're trying to figure out
how to build a constitution, one thing you would probably
not do, or in twenty twenty five we're starting a

(30:00):
new constitution. One that you would probably not do is
give life tenure to federal court judges. I think that
is probably true. That's not a world in which that
I would pick if I were writing the constitution anew.
I think the issue with term limits is just once
you have that system in place, and have that system
in place for well over two hundred years, it's extraordinarily

(30:24):
complicated to change it. It's extraordinarily complicated to change it,
in part for legal reasons because these justices do come
in with tenure during good behavior, which we have understood
to mean life tenure for a very long time in
our system. So what do you do with these justices.
You could do it by constitutional amendment, which is very

(30:45):
hard to do in our system. Some people think you
could do it by federal statute. I don't agree with that,
but the proposals are out there. So it's a really
hard thing to do, whether you do by constitutional amendment
or federal statute. And I think for those of us
who think life tenure means that it would need to
be a constitutional amendment, which would be very politically difficult

(31:06):
but frankly so it is statute. So even if it
would be a good idea from the beginning, I think
it's really hard to do. And I think it's particularly
hard to do in a system like ours, where the
whole federal judiciary has life tenure. So do you do
you have term limits just for you a Supreme Court?
Do you have it for the whole federal judiciary? If not,
why not? So that creates lots and lots of concerns.

Speaker 2 (31:31):
Maybe it's not such a good idea.

Speaker 7 (31:33):
I mean, yeah, and I have a lot more to say,
but I want to make sure our other panelists have some common.

Speaker 6 (31:43):
I was waiting for you to chime in their judge
when she said.

Speaker 2 (31:46):
That, I've been holding my tongue for a while.

Speaker 6 (31:48):
She was making sure you were awake. There's so much
here that it's hard to know how much to say.
I think one of the early proponents of the term
limit eighteen year staggered terms with Stephen Calibrazy actually another Calibrazi,
known well to the Federalist society. There's a lot to

(32:10):
that that I like. It doesn't fully respond to some
of the concerns that Jamal raised. Professor Green that is
because you still are talking about a nine member court,
and I do think there's something different about the Supreme
Court today in terms of the individualization of the justices,

(32:30):
at least over the course of the decades that I've
watched the Court, and it plays out in a lot
of different ways. The criticism of individual justices is more
biting and more targeted. We've seen that this week. We
made reference to it yesterday when we were talking about
Justice Bart. I think the security threats to the individual

(32:51):
justices seem much more threatening and dangerous and scary than
I remember in times past, although maybe I'm glossing over
past incidents. We are also seeing, on the other hand,
we're seeing a lot of separate opinions, a lot of
separate opinions. And the other scholars here can correct me

(33:13):
if they think this is wrong, but it seems like
we're seeing more and that there is this almost cult
of individualization on the Court that I don't think is
good for the institution, and I think is one of
several reasons why it is worth seriously considering alternative proposals
when we think about the structure of the course. Professor
Grove of course is right that it's hard to what

(33:36):
is the expression put the horse back in the bar,
and after it's taken off that we've had this system,
and it would be very difficult to change, certainly, talk
about term limits, it would be quite difficult to come
up with a structure that would make sense. But it's
not that hard to increase the size of the court.
We've at one point had ten justices. We started with six.

(33:58):
That number is not fixed the constitution, so there really
isn't a serious debate there that you have to amend
the Constitution to do it. And I do think that
there is something really attractive for the reasons that Professor
Green highlighted, as well as what I see as this
heightened individualization of the justices, to seriously consider increasing the
size of the court. What I like about term limits

(34:21):
is also something that has been mentioned, but I will
say it even more emphatically. We are electing Supreme Court
appointments when we elect a president, and I think it
would be good to make that much more direct for
the voters. So that is something that I like about
the term limit idea. Each administration gets to justices if
we stick with nine, for example, But that's for me

(34:44):
a separate reason to consider that as a model. You know,
some of the other things will I will respond to,
and then I'd love to let others chime back in
on the number of cases. It is very interesting also
to see dramatic chain just there. Over the course of
the last few decades, the Court on the Merits has

(35:05):
been deciding cases on the order of the very low
numbers that it decided during the reconstruction period. And this
is after a period where at one point they were
deciding drastically more even I think when I was in
law school they were still deciding almost one hundred and
fifty a term, or soon had been doing that soon
thereafter me I should be careful about dating myself too much.

(35:28):
But it is worth highlighting that when the justices proposed,
and they were big proponents of full Sorcerai jurisdiction, one
of the justices testified at the relevant hearing and said
that he expected the court would hear roughly five hundred
cases a term. And that's not what they're doing. To

(35:50):
put it mildly, they are, I think they would tell
you a lot of what they're doing now. Is Professor
Green highlighted talking about that they're dealing with the emergency docket,
and that is taking up a huge part of their
time and will continue to do so. I think during
the next four years. We've already seen it quite active,

(36:10):
even just in a couple of months of the new administration,
so that is also something I think that we do
need to seriously be considering how the court operates today
and it can it be sufficiently responsive and provide the
kind of due process that we tend to want from
our court and flow excuse me, slow methodical consideration of

(36:31):
very important issues. I will say that another issue I
hope we will talk about. I want to make two
final points and then I'll be quiet. Well. First is
if we talk about panels. A lot of countries do that,
and I think it's really interesting to do comparative jurisprudence

(36:52):
here when we talk about the Supreme Court and to
look at how other countries do this. I have done
a deep dive into the UK Supreme Court, which often
sits in panels, and I had the privilege when I
was on sabbatical living in England to interview all the
then sitting UK Supreme Court justices, and one of the
questions that I was most interested in was when you

(37:14):
have high profile cases and you're going to have to
name a panel a subset of the justices to hear it,
how does that happen? And what I learned is that
there was some strategic naming and control of how that
panel is set. And so when we do talk about
expanding the court and we think about panels, we do

(37:36):
have to think about taking measures to ensure that panels
aren't stacked to try and lead to a specific outcome.
And that's a very very hard problem, actually, one that
we would have to confront and really think through. Then
the final thing I'll say, and then I'll be quiet,
is I can't get up here and talk about court

(37:56):
reform and the Supreme Court's jurisdiction without And I was
prodded to do this in an earlier call by Professor
Grove talking about a tool that has been utterly forgotten
and is still very much on the books and available.
And I hope Judge you're listening, and that is certification,
because a lot of circuit judges and district judges will

(38:18):
tell you we need more guidance on particular issues, and
the Supreme Courts hearing all these cases. But what we
really need is for them to hear these cases and
give us guidance because we're all over the place. There's
a very easy way to do that, and that is
to certify a case. To them.

Speaker 2 (38:32):
It's the dissenters who want to certify.

Speaker 6 (38:34):
Yes, yeah, well I can tell you, but it is.
Certification was also part of the Curcherai transition and a
big part of what was supposed to be the deal,
which was you would still hear a lot of cases
even as we got rid of mandatory jurisdiction, and lower
court judges would tell you, Supreme Court, what issues are

(38:55):
really important to them are plaguing their courts on which
they want more guidance. And yet the certification tool has
really died down. The last attempt at a certification effectively failed.
If you look back, interestingly, when you teach constitutional law,
a lot of big cases we're certified, it turns out

(39:17):
where you either have ap pellet court saying we can't decide,
we're all over the place, or we don't want to decide.
We'd rather just pass the hot potato. But in all events,
it is a tool that is slumbering and out there,
and it is available to lower court judges.

Speaker 8 (39:37):
So let me just say a couple of things briefly
in relationship to this. I think the issue of changing
the sizes of the Supreme Court, of course, has been
very much in the air lately. It's long been in
bad odor as a consequence of the debates surrounding the
new Deal. And one notable thing about this particular suggestion

(39:59):
in the rationale behind it is that it tries to
take a different tack than the normal rationale for trying
to expand the size of the Supreme Court. That often
the justification for expanding the size of the Streme Court,
and the concern with expanding the size of the Supreme
Court is primarily a partisan one. We don't like what
the court's doing now, we don't like the outcomes of

(40:20):
cases the court is currently confronting. Let's change the composition
of the court so we can get a different set
of outcomes. And that's a particularly disturbing use of Congress's
authority to alter the size of the Spreme Court. And
this proposal instead points us toward other kinds of reasons
that we might have if we were thinking from scratch

(40:42):
about the size of the Supreme Court. How big should
it be one way of thinking about this is if
you imagine we sort of said, if you're thinking from
a constitutional design perspective and you're trying to decide, how
would you write this today, we probably wouldn't write it
with lifetime tenure for judges, for example, if you're writing
it today. Likewise, it'd be an interesting question whether if

(41:03):
you were writing Article three of the Constitution today, would
you leave it up to Congress to determine how many
justice there ought to be on the screen court? Would
you just simply write that in to the Constitution and
entrench it in the text in order to take this
particular weapon away from Congress so Congress can't saber rattle
about threats to pack the court. And there's lots of

(41:23):
good reasons I think why you would actually want to
just write that into the court, into the text of
the Constitution. But one reason why they didn't, and one
reason why one might be reluctant to is you might
think that over the course of a nation's history, as
the nature of the court and its jurisdiction and its
caseload changes over time, maybe you need more judges. And so,
for example, I'd be much more open to the idea

(41:44):
of maybe you need more judges.

Speaker 2 (41:45):
If we also wanted.

Speaker 8 (41:46):
To talk about the caseload of the court, if you
want to talk about getting rid of the start system,
for example, are dramatically expanding how many mandatory pellet cases
the court had to take so that their workload was
actually dramatically heavy than it is now, then it might
be quite reasonable to say, and you need more justices
in order to handle that dramatically increased workload as opposed

(42:08):
to the pittons that they currently do, which really doesn't
require very many judges at all in order to do
that much that much work. But the Congress in the
early twentieth century made the decision that instead of expanding
the court in order to deal with more cases, will
shrink the number of cases by giving the court control
over its own docket and allowing them to handle a

(42:30):
much smaller workload. And as a consequence, they get by
with this smaller number of justices on the bench as
a consequence. And so if you wanted to go those
two things hand in hand, it might be I think
a plausible rationale at least for trying to think about
doing it. I think one of the concerns one could
reasonably have, though, is the functional one about how do

(42:52):
you make a panel system work? And really large courts
tend to operate with some kind of panel system. I
think from a formal textual matter, in the context Article
three of the US Supreme Court is the Uspreme Court
is designated as being the one supreme Court of the
United States, which may actually exclude the possibility of adopting
a panel system of the type that we see other
courts doing. And I think that would have to require

(43:14):
some real thought as to whether or not that kind
of approach to how the court organizes itself would be
consistent with what our constitution currently requires. I'll just know
one thing about the comparative point about the size of
our court, and then one last point. So the comparative
point to note is the US Preme Court is quite

(43:35):
small relative to lots of other national high courts. It's
not small and relative to state supreme courts. So in
the American context, the US Supreme Court is actually pretty normal,
even a little large, relative to what's been the norm
within our own national history. And moreover, if you look
specifically at constitutional courts in other countries, they tend not

(43:56):
to be dramatically larger than the U. S. Supreme Court,
and so constitutional systems outside the United States distinguished between
their high court for their ordinary judiciary and a constitutional
court that examines constitutional cases. Specifically, our Supreme courts basically
has become a constitutional court because they don't like dealing
with things like mere questions of tax law and bankruptcy

(44:17):
law and whatnot. That's for the peons that the circuit
courts to deal with. The Supreme Court doesn't do that
kind of stuff. So basically, our Supreme Court is a
constitutional court, and in that sense it's actually not internationally
speaking that much smaller than most other constitutional courts. The
final thing I would just know is a specific point
that Professor Green emphasized and his concerns here, and I

(44:38):
think a lot of his concerns and discussion are really
driven by the corruption that Anthony Candy made to all
things associated with the court, which is that Candy, for
a very long time was the media and justice on
the court, and as a consequence, had a lot of power.
But no one selected him to be the media and

(44:58):
justice on the court. He just happened to be the
media and justice the court, and it was a completely
contingent fact that he was the median justice, and he
was the median justice for quite some time, and so
in most of American history you didn't have a justice
occupying that kind of role. There's always going to be
a median justice. No matter how big your court is,
there's a median justice. And if the court is evenly

(45:19):
divided or closely divided, that median justice is going to
have a lot of power, and it's going to have
a lot of power for a long time. And so
it's impossible if you're looking at collective decision making institutions
to say.

Speaker 2 (45:29):
I just don't like the median. He has a lot
of power.

Speaker 8 (45:31):
Who elected him to be king? Well, the answer is
he became king because he's the median and as long
as he's the median, that's going to be true for
quite some time. But there's no intrinsic reason I think
that's going to be very stable or last a long time.
In general, it just happened to be true in the
historical circumstances it surrounded Anthony Canty in particular. It's not
true of our current court, for example, so it's not

(45:52):
a five four court for the most part. We don't
have a long tenured median justice with the same kind
of power at the moment. It's quite likely that's not
going to be true in the future either, And so
I'm not sure we ought to worry or seriously reform
our constitutional institutions because we look at the particular example
of Anthony Candy and say that was a terrible mistake.

Speaker 2 (46:13):
We shouldn't do that again. All right. I have a
few things to say first about Justice Kennedy. You know,
we might disagree with some of his rulings, but for me,
he is a wonderful role model of conscientiousness, of dedication
to duty. He mastered firsthand all the cases that I

(46:35):
worked on with him, and he's a man of humility, kindness,
gentlemen of the old school, and I'm proud to have
work for him. I would like to offer a judicial
perspective on a few of these things. So life tenure.

(46:56):
I mean, one thing to bear in mind is that
these structures that were talking about are really a product
of evolution over centuries. I mean, the judicial power itself
is something that evolves really with the create from the
beginning of when Henry the second creates a professional judiciary

(47:19):
in the twelfth century forward. It's constantly evolving into what
it had become by the time of the seventeen eighty seven.
Life tenure in particular was something that was the product
of a struggle over centuries. I mean, you know, of course,

(47:39):
it was before you had life tenure judges. And I'm
talking about Anglo American history, which is all I'm competent
to talk about. The king obviously could remove judges at
the king's will, and I mean, you look at the
example of Edward Cook, who I would say, I don't

(48:00):
think there'd be a lot of disagreement, was the greatest
jurist in Anglo or English legal history. And you know,
maybe Anglo American. One writer said that Cook to the
common law was what Shakespeare was to literature. And so
Cook is extremely courageous in standing up to the early

(48:24):
Stuart kings as they're trying to move toward absolute power
as there was for the monarchs on the continent. And finally,
in sixteen sixteen he crosses James one time too many.
There was a case called the Case of Commandants, and
this is just an illustration of the importance of having

(48:45):
the judiciary insulated somehow from the political branches. It was
this case called the Case of Commandants, And the short
version is that James thought that the scope of his
prerogative power, meaning his power that was discretionary not bounded
by law, that that was at issue in that case,

(49:06):
and it was. And he ordered the court to the
King's bench to stand down. He said, you know, how
dare you determine what the limits of my absolute power is?
And Cook refused to stand down and defied him on that,

(49:27):
and James removed him from office, fired him in sixteen
sixteen because Cook was insisting on drawing lines around what
was you know, executive power at that time. And it
was only in seventeen oh one and what's called the
Settlement Act that Parliament finally passed a law that gave

(49:50):
judges they could retain their office during good behavior, which
is the phrase that we have to this day in
the Federal Constitution. This, I mean life tenure is something
that was the product of a century's long struggle, and
it's a struggle that is just unending to subordinate power

(50:12):
to law that have law over power, not power over law,
and power is always always seeking one way after another
to get the upper hand over law.

Speaker 9 (50:26):
The other.

Speaker 2 (50:27):
I just want to give kind of a judicial perspective
on judging a little bit and just respectfully pushback on
the idea that that judges are lawyers deciding political questions.
I was a lawyer and now I'm a judge, and

(50:47):
I think that there is a marked difference in perspective
between a judge and a lawyer, or a judge and
a senator somebody who's elected. You know, as a lawyer,
you have a particular object that you're You have a

(51:09):
concrete end that you're pursuing, which is an outcome. You're
seeking a particular outcome in a case. That's exactly what
as a judge must not do. A judge is only
I would call it. This is what hi I call it,
and I think he's had a right a good term.
A judge's only concrete end must be upholding the legal

(51:33):
order itself. Not I want to advance this policy goal.
I want to have uh more of a market economy
in our country, in less class, fewer class actions. Not
I think we should have cleaner water or you know,
a better environment, or you know, why are we worrying
so much about those things? A judge cannot bring that

(51:54):
to the adjudication of the rights of the individuals in
front of him. In a case, our only our only
end can be to uphold the legal order. So you know,
this is a positive law system. Usually there's some document
that is the ultimate source of the legal rule that

(52:14):
we're we're always applying rules. It's not you know, court
of chancery, like what do I think, what's a good idea?
That's not the question. The question is what is the rule?
And we have to discern what the rule is and
then apply it honestly to particular facts. And so you
know it's positive law. So we have we have a
body of rules now about how we construe that document

(52:39):
and and and there's good faith disagreement. Not all judges
see it the same way. And by no means would
I ever say or am I saying that there's only
one way to do this and everything else is illegitimate.
I mean we have we would have disagreements up here,
I'm sure, But but there is a body of rules
about how it's law at this point, about how we

(53:01):
interpret texts. You can know those rules in advance. That
allows parties to predict with more certainty or more confidence
where the boundary between legal and illegal conduct is. And
then we take those rules and we try our best
to discern how the persons subject to illegal to that document,

(53:24):
a statute, the constitution, how the persons subject to it
at the time, how would they understand it? And we
try to do that as honestly as we can. And
so at no point is the question one of judicial will.
It is instead trying to apply these rules of interpretation

(53:47):
themselves impartially and then discerning the sub substantive rule and
applying it impartially in the particular case to the parties.
There is it perfect, No, no human institution is do
some judges not even try? I think maybe to some extent,

(54:08):
But over time you can kind of tell, you know,
do you do you make decisions that you don't like.
If you always make decisions that you like, you're not
doing what I'm describing. And if you make decisions that
you just I mean, you just it's beyond holding your nose.
You really don't like it. You're distressed by it. But
sometimes you must decide the case a certain way, then

(54:30):
you know, then maybe you are doing it right. And
but the difference, I mean, John Adams, you know, government
a government of laws, not men. That what he's saying there.
It's it's a government where we make decisions about coercion
and individual rights in a case based on rules. That's

(54:53):
what he means by laws, rules impartial application of rules,
and not by wa meaning judicial will in that instance
that is ruled by men. And so I don't think.
I don't think judges are lawyers. There's a difference. And
I honestly don't think I'm deciding political questions. I'm confident

(55:19):
that's not what I'm doing. And let me just say this.
We have, you know, just as an example, we have
four new colleagues from President Biden. They are doing on
my court. They are doing what I described. They are
doing their level best to discern, not make up, but
to discern the law impartially and then to apply it

(55:42):
impartially in their cases. This is something This is an ideal, yes,
but it is one we can realize. And I just
want it from my perspective in front of a group
of students, I want to tell you that this is
this is something we can achieve in a meaningful sense
in my humble opinion. Okay, you all go.

Speaker 3 (56:08):
If I may, I wanted to just offer a couple
of observations based on what others have said, and maybe
a couple of clarifications. So one is Professor Whittington mentioned
that the Supreme Court is in effect a constitutional court,
that it resolves constitutional questions. Constitutional courts exist in many
countries around the world, and they are generally smaller than

(56:32):
apex courts. I think that's right, though. What's distinctive I
think about one of the things that's distinctive about the
Supreme Court is that it's both a constitutional court and
an apex court. Most of its docket is not constitutional cases,
and among again, I'll go back to the thirty largest
countries in the world. There is no court of one

(56:53):
of those countries that here's both constitutional and non constitutional
cases that has fewer than eleven justices, and many of
them have many, many more than that. The second point
is about the constitutionality of a panel system, whether it
conflicts with the Article three injunction that the Supreme that

(57:13):
there'll be one Supreme Court. I don't think it does.
I don't think we think of the Sixth Circuit as
multiple Sixth Circuits because it sits in panels. I think
so long as there's I think, especially if there is
an option for in bank review of whatever the panel does,
it's a single court if they're rotating among panels, I
don't think there's any real.

Speaker 2 (57:32):
Question about that.

Speaker 3 (57:34):
Third, just to go back to this question about life
tenure and its importance over time, it has been important
over time. It was a significant innovation at the time,
as Judge Cathlage mentions, but as he also mentions, the
alternative to life tenure was service at the pleasure of

(57:56):
the king, and the pathologies associated with that simply don't
apply to a system with a ten year process of
some kind that says you serve for a definite term
or serve until a certain age. So this is what
almost every country in the world does. This is what
every state does other than the state of Rhode Island.

(58:17):
So you know, there's nothing sort of unusual about it. Again,
I think it's I think it's fairly clear if we
were starting from scratch, this is what we do. But
I am sensitive to what Professor Grove mentions. Of course,
we have a long history of life tenure and that
is a significant factor in deciding how to how and
whether to change things. I think we have to be
very mindful not to endorse the kind of permanent status

(58:40):
quo just because we've done things a certain way for
a long time. How do you do it, How do
you make it constitutional? I think it's clear important to
clarify that, you know, the eighteen year proposal and a
lot of the proposals that rely on a statutory amendment
would not sort of kick the person to the curb

(59:00):
at the at you know, at the end of the term.
They would remain a Supreme Court justice. They would have
different statutory duties. It is already the case that there
are Supreme there are, including Justice Kennedy, there are Supreme
Court justices right now who do not hear merits cases.
They are they are Supreme Court justices. If they were
not Supreme Court justices, they could not sit and hear

(59:21):
lower court cases, which is what they sometimes what David
Suitor has done in recent years. So it's already the
case that it's it's not an irreducible minimum of a
Supreme Court justice if they hear merriage cases. That's been
the case for about about one hundred years when we've
had a senior system for scodist justices. Why just the

(59:45):
Supreme Court rather than other federal courts. I think quite
simply because the individual justices on the Supreme Court exert
in an enormous amount of power, both because they are
apex both because they do sit and bank in every instance.
At the moment, I think there are again, I think
there are other and I'm talking about term limits for
the moment. There are other reasons why why, there are

(01:00:07):
other innovations you could do to reduce that power. But
the Supreme Court is I think unique in this respect.
And then the last point, a broader point and response
to a judge Cathlage about about political questions. So, and
I just want to make clear what I mean when
I say that small numbers of elite lawyers decide political

(01:00:32):
questions over their lifetimes when they sit US Supreme Court justices.
By political questions, I don't mean they decide partisan questions.
I don't and I don't mean political as something pejorative.
I don't mean political as something as an exercise of will.
I mean political as the exercise power over our collective governance.
That's what I mean by political. I don't mean it

(01:00:52):
to be an insult and it requires the exercise of judgment.
It does not simply follow from a set of rules
when we're talking about constitutional interpretation, often when we're talking
about statutory interpretation. I agree with Justice Marshall and McCulla
that the Constitution is not a legal code. There's a
lot of There are some rules in the Constitution, there

(01:01:14):
are some standards in the Constitution. There are some principles
in the Constitution, all of which are part of the
Constitution and require application in individual cases. And that again
requires the exercise of judgment. Someone can be operating entirely
in good faith, and it still is the case that
we would not want that one person to have the
enormous amounts of power that Supreme Court justices have over

(01:01:37):
their lifetime. And again I'll go back to a really
important point here, which is, and this gets into something
Professor Primus mentions about regularization of retirements. Is part of
the problem is timing your retirement so that someone who
shares your political ideology replaces you and serves under similar conditions.
This is utterly pathological, and anyone who thinks that that's

(01:02:01):
a good system, I'd like to have a long conversation
with them.

Speaker 2 (01:02:08):
Floors open here, and we can you know, we can
talk about jurisdiction. We should we should talk about your says,
that's a really interesting question about you know, when does
that undermine the separation powers and so on. But anyway,
floors open.

Speaker 7 (01:02:26):
I just wanted to talk about court packing slash expansion.
But but I do have to say a couple of
words now about term limits as well. So some of
the proposals say eighteen year terms. President gets to appoint
a new justice every couple of years, which of course
means court expansion, right, Like, you're going to get more justices,
especially if we do it by a federal statute. So

(01:02:46):
then what happens on the Supreme Court? So many of
the proposals say, well, the nine newest folks can serve
on like the main court here here all of the appeals,
all the all certain cases, and the other justices can
do other stuff. What would that other stuff be? There
are different proposals. Some say they get to do original
jurisdiction cases. I don't know if you guys know what

(01:03:08):
those are. But there are a lot of water disputes
between Florida, Florida and Georgia. My personal favorite is the
suggestion that the most senior justices just serve on the
Federal Rules Committee, and so design our federal rules of
civil procedure, federal rules of a pellet procedure. Why do
I mention this when when a president nominates a person

(01:03:29):
to the US Supreme Court and the Senate confirms them,
they are confirmed to an office. And so it's not
just that we're messing with traditional notions of good behavior.
And now the Constitution does not say life tenure, let's
be clear about that, but it does say good behavior.
It's also what is the office? And I think there
are a not insignificant number of people who would think
the office has changed substantially if someone no longer performs

(01:03:52):
that appellate court job, but yet is doing just original
jurisdiction or even the shadow docket or or the Federal
Rules may Committee. And this doesn't necessarily mean it's unconstitutional,
but there are at least really serious constitutional questions about
term limits. And I think it's also important to recognize
that now when justices step down and retire and serve

(01:04:14):
on lower federal courts, they're doing it voluntarily. And I
think there's a big, big change for digital independence if
justices are forced rather than doing something voluntarily. But I
actually wanted to say a few words about the court
expansion thing. But I want to pause if other people
want to chime in on any of this stuff.

Speaker 6 (01:04:33):
So I.

Speaker 7 (01:04:36):
Did you want to say something?

Speaker 5 (01:04:38):
Sure, I guess my view is, if it's done properly,
limiting terms by creating more seats and moving the most
senior justices into other rules within the court, is not
a problem for judicial independence at all. It's a problem
for the power and maybe the ego of the individ

(01:05:00):
To a person who's been moved, I'm sorry. Like, you've
been a Supreme Court justice for eighteen years. That's quite
enough for one lifetime, and not just that. If you
had another panel that was in charge of Sir CHAIRAI
and or shadow docket and or something else, that's actually

(01:05:20):
still quite a lot of work and quite a lot
of power, you know. I mean, I think most of
you in this room would accept that job if it
were offered to you.

Speaker 2 (01:05:29):
I wouldn't.

Speaker 5 (01:05:32):
Well, we'll we'll, we'll see, we'll see. I do want
to say, I do want to say a couple of
other things right on this on, on, on this subject.
One Professor Whittington is of course right that the Supreme

(01:05:54):
Court in its size is not an outlier with respect
to state supreme courts. It is, and I don't want
the point to go by Professor Green mentioned it an
outlier with respects to life tenure right. Only Rhode Island
does life tenure right, and those two things are related
to each other. Right, the small size exacerbates the life
tenure problem, or, at least, like from some perspectives, right.

Speaker 2 (01:06:16):
It does.

Speaker 5 (01:06:17):
And I should also say that I agree with Professor
Whittington that the experience of Justice Kennedy or just As
Kennedy on the hills of Justice O'Connor magnifies in many
people's minds the idea of the overly powerful justice beyond
what we normally have. But I don't think of that
as the core of the problem. I mean, I don't
think that's a good thing, but I don't think of

(01:06:38):
it as the core of the problem. In the years
when Justice O'Connor and Justice Kennedy were the swing justices,
Justice Scalia and Justice Ginsberg sat on the court, and
they both had cults of personality. I consider myself lucky
and proud to have worked for Justice Ginsburg, but I
don't like cults of personality, even when it's a person

(01:07:01):
I like. I think they're bad in Republican government, and
I think that life tenure encourages cause of personality because
they're not like us anymore. They're celebrities, right, They're not bureaucrats.
And I think it changes how they see themselves. I
think it changes how people see them in relatively unhealthy ways.

(01:07:23):
I think that and then two other quick things. Right
for here, one, the very important things that Judge Cathildge
says about you know, what he thinks he's doing and
what he's committed to doing as a judge are super important.

(01:07:43):
They're essential for a rule of law system.

Speaker 6 (01:07:46):
Right.

Speaker 5 (01:07:47):
The way that Judge Cathildge described his consciousness and his
project judging cases is absolutely the way we would want
judges to approach and decide their cases. And I don't
think it's a fairy tale. I think that most of
the time, most judges in my experience are proceeding like
that way or close to that way, you know, to

(01:08:08):
something like the best of their abilities. And thank god.
I also think that human beings are fallible and lack
perfect self knowledge, and that there's a really important difference
between the kind of court on which Judge Cathilage sits
and the Supreme Court of the United States in the

(01:08:29):
following respect. The US Court of Appeals, including the Sixth Circuit,
decides lots and lots and lots and lots and lots
and lots of cases, many of them technical, many of
them on cases where there's well developed precedent right and
so the cases of first impression, the cases that are
really open where the positive law materials won't get you,

(01:08:49):
there are relatively few. When I was in law school,
you know, from reading the cases that I read, you know,
I could easily get the idea that anything was possible
in any case. But that's because the case is that
you read in law school of hard ones. I then
clerked on the US Court of Appeals, right, the court
that Judge Cathildge now sits on, and was astonished and

(01:09:12):
delighted to discover this is not so right that in
like ninety five plus percent of cases, there is a
right answer, and a panel of three intelligent, competent, hardworking judges,
regardless of who appointed them, will come to that right answer.
Right They work together and listen to each other and
so on. Sorry, that's great.

Speaker 2 (01:09:32):
Right.

Speaker 5 (01:09:33):
The thing is, there's a couple of percent that aren't
like that. There are a couple of percent that are
really open questions where the positive law doesn't ultimately decide,
or at least where you cannot predict you would go
wrong by predicting that judges of good faith and technical
skill would all converge on the same answer. Right. There's

(01:09:55):
a small set of cases that are like that, and
those are the cases in which different people's judgments and
intuitions and worldviews and values are going to come into play.
The US Court of Appeals and the people. That's an
exceptional case, right, That's not what they're doing every day.
The US Supreme Court selects for that case, right, it's

(01:10:17):
a much higher proportion of what they do right, which
makes them mechanical, uh like rule based view applicable, less applicable,
right to applicable to a smaller percentage of their docket
or to a smaller percentage of the decision weight of
a given case on their docket than at the Court
of Appeals. This is actually why, when I had the

(01:10:41):
privilege of talking at the Supreme Court, my favorite cas
is to work on with the technical ones. Right, the
technical non ideological like we're going to work it out cases.
The last thing I want to say is about independence,
which is oh so important and here, like you know,
exactly as Judge Keffilidge says, life tenure emerged in English
speaking law as an alternative to the dependence of the

(01:11:05):
judges on some political authority right at the time of
the crown, and that independence, I think is indispensable. But
it doesn't require life tenure.

Speaker 2 (01:11:15):
Right.

Speaker 5 (01:11:17):
It requires some relatively long tenure, and it requires that
you can't be dismissed for doing something that some other
authority doesn't like. But it doesn't require it doesn't require
life tenure. If you are going off or getting a
smaller pile of duties at some dates certain in the future,
you can still act independently. Here's what I think. It

(01:11:38):
does require that people that we ought to worry about
you never ever ever want to judge to say to
himself or herself, I'm not going to be a judge forever.
How am I going to make a living after I'm done?
Because that biases the judgment, even if people who are
trying to act in good faith. So it's my view,

(01:11:59):
and this is actually my view for all federal judges,
not just for Supreme Court justices. That part of the
deal of taking the seat should be that you are
permanently prohibited from making money in other ways. After you
leave the bench, you get a lifetime pension. Like you

(01:12:20):
when you leave the bench, assuming you've done your years
of a certain number of years of service, you will
continue to collect your salary even though you're not deciding
cases anymore. Right, so you'll be fine right economically, But
that's it. You cannot go out and lawyer or consult
or give go on speaking to anything else like that
that might dispose you to curry favor with someone, because

(01:12:42):
you're going to need the money in the future. People
sometimes say to me, you know, if you impose that limitation,
you would denude the quality of the people who are
willing to be judges because you make their futures less lucrative.
And I'm not worried about this at all. I think
there are enough people lining up to be judges. Maybe
they would do it later in their career. I don't
know the person who's going to turn down a Supreme

(01:13:03):
Court justiceship because they're going to have to retire at
that salary.

Speaker 6 (01:13:12):
I'm to you guys with.

Speaker 7 (01:13:16):
Yeah, So I just wanted to talk about the court
expansion idea. So I think it's important to when you're
when you think about how big can it be? Fifteen
to twenty five is actually both very large in terms
if they sit on bank, and at the same time,
it's also still a tiny, tiny fraction of the American population,

(01:13:37):
So I'm not sure that there would be a huge
gain in that respect. At the same time that we're
causing some efficiency problems unless there is a panel system
that went into effect. Professor Tyler's already mentioned some potential
problems with a panel system. I just want to say
that the constitutionality of it is not at all clear
and kind of build on what Professor Whittington is saying.

(01:14:00):
So a lot of people say, in response to the argument,
well you can't have a panel system for one Supreme Court,
they say, well, we have panel systems of the lower
federal court. So what's the problem. Well, the Constitution doesn't
say there be there have to be one. There has
to be one sixth circuit or one fifth circuit. The
Constitution says such inferior federal inferior courts as the Congress

(01:14:22):
shell from time to time ordain and established right. The
inferior courts can look like whatever Congress wants them to,
and they don't have to look like any particular thing.
And that doesn't necessarily mean panels are invalid at the
US Supreme Court. It just means the fact that we
have panels of the lower federal courts doesn't really tell
us very much. But I think history actually tells us
a fair amount. So Congress has considered splitting the Supreme

(01:14:47):
Court into panels, just as Congress has considered various options
for dealing with a growing workload on the Supreme Court.
It considered it in the eighteen sixties, it considered it
again in eighteen ninety. I was eighteen nine twenty one
when Congress created searcher or a jurisdiction and the certification process,
and I grew with Professor Tyler, please use it. They

(01:15:08):
created that in eighteen ninety one, but they considered other options,
including a panel system. So there was a minority report
of the Senate Judiciary Committee that said, hey, let's split.
Let's have a bigger court and have them hear cases
in panels. They'll be able to hear a whole bunch
of stuff. We've solved the workload problems, no problem at all.
And the response of the Senate was, well, is that constitutional?

(01:15:31):
And a number of members of the Senate said no.
Other people said, well, but if they decide the cases
in panels, will those decisions be as legitimate as decisions
by the Court as a whole. And so ultimately the
Senate overwhelmingly rejected that in eighteen ninety and over the
years as it has come up, some members of the

(01:15:53):
Supreme Court said, yeah, well, you know, people come up
with this idea, but we think it's a real problem
with the one Supreme Court notion. Now, what does this
tell us? It doesn't necessarily tell us how a judge
should decide a case. That depends on how much history
and tradition should work into judicial decisions. But it tells
us that there's been a political decision for a really
long time that panels do not comport with our federal constitution,

(01:16:17):
which makes the size of the Supreme Court much more
complicated if true. The final thing I'll say is I
very much appreciate that Professor Green is doing this in
a non partisan way, and I knowing Professor Green, that
is absolutely sincere and he really does, he really does
believe this. But throughout our history, court reform has been partisan,

(01:16:39):
sometimes from the left, sometimes from the right. It has
been a partisan project, and when it has been non partisan,
it has often failed. So a lot of people probably
don't know that. In the nineteen fifties, this was in
part a belated response to President Roosevelt's court packing plan.
There was a constitutional amendment proposed that would have both

(01:17:00):
fixed the size of the Supreme Court at nine members
and would have prevented Congress from ever stripping the Supreme
courts apelate jurisdiction over constitutional cases. This thing got through
the Senate, actually got a two thirds vote in the Senate,
went to the House, and members of the House said, well,
we don't know, but we're worried about exactly the problem

(01:17:25):
that Professor Whittington mentioned earlier, which is that, like, if
you fix the size of the Constitution, maybe that will
make it harder for future changes, for better or for worse.
But ultimately there just wasn't political support. And I will
say six days after that constitutional amendment failed, Brown versus
the Board of Education came down, and then there was

(01:17:47):
no room for compromise at all when it came to
court reform. But boy, were there are a lot of
proposals for court reform.

Speaker 2 (01:17:55):
Well, we've got about ten minutes before we go to
Q and A, so no, we're not doing it yet
until Q and A. We'll try to get there soon.
We got some pent up demand apparently, But let's have
a few I mean, let's talk in the time we
have about jurisdiction stripping. Sorry, Professor Tyler, Okay, you've written

(01:18:24):
about this, and I thought maybe you could start us
off and some thoughts about I mean, you know, you
read the Constitution, it just seems like sort of this
like absolute power on Congress's part to strip the Supreme
Court or the federal courts generally of jurisdiction. I mean,
obviously you could take that to a point where we
don't really have a constitution anymore. So what are your

(01:18:46):
thoughts you got I'm kidding the timers right.

Speaker 6 (01:18:54):
There, I'm kidding. So everyone up here has written and
thought a lot about jurisdiction stripping. It's interesting because I
was teaching a very high profile constitutional Locke case last
week to my students, and it was a case involving
really salient questions of first impression, and it made me
think about jurisdiction stripping, even though it wasn't a federal

(01:19:15):
courts class. And here's why. So many of the questions
when we talk about jurisdiction stripping, including the very one
that you pose, the sort of heart hardest one can
congress strip jurisdiction over constitutional questions, we really haven't resolved.
And in Heartwaxler, and this is predate to me, I
did not write this. The editors ask is it maybe

(01:19:37):
healthy that we haven't resolved this not dissolved resolved this question?
And what made me think of that is that we've
had some high profile, very salient cases where the court
has had to answer really momentous questions of first impression
that frankly I wish they hadn't had to answer, And

(01:19:58):
it made me think of jurisdiction stripping. But there really
is something healthy that some of these boundaries are a
little gray, because it means that we don't have a
direct clash between the branches over these really important, sort
of fundamental questions.

Speaker 2 (01:20:10):
I mean, people want law to be a backstop and
they want courts to decide these things were anyway go ahead?

Speaker 6 (01:20:18):
Well, no, that's right. And then also law students they
hate this because they want the rule. They want to
know what's the answer for the exam, and don't take
my class because it's all muddy. It's all it's all
unsettled in my class. Let's debate it. That's the fun.
But you're right, we need law as a backstop, and
we need the courts to have And indeed, that was

(01:20:40):
the larger vision of the separation of powers, is that
the courts would play this role. You know, Hamilton and
Madison both spoke of the courts as the guardians of
constitutional rights their words, and Hamilton talks about how the
courts would stand between in particular, what was thought of
as the most threatening branch at the time of the
founding Congress and the people. And well, I mean, we're

(01:21:05):
talking about reviving Congress here, so I don't know how
threatening it is now. But in all events, that the
larger point is that clearly there was an idea that
the courts were going to play a very significant role
in the balance of the constitutional structure. John Marshall talks
in Osborne and elsewhere about how he thought they would

(01:21:25):
that the branch should be on par with the other branches,
And if you allow Congress to go to the extremes
of jurisdiction stripping, then obviously they can undercut that role
quite drastically, if not really almost entirely when we're talking
about constitutional questions.

Speaker 2 (01:21:40):
So where would you draw the line.

Speaker 6 (01:21:44):
I think it's darn important for the courts to have
some jurisdiction over interpreting the Constitution. That's pretty broad, but
that's I think that's really important for the Grand Experiment
to work.

Speaker 2 (01:21:58):
I mean, it's kind of another application of justice Jackson's
point about the Constitutions not a suicide pact and including
not for itself.

Speaker 6 (01:22:06):
Perhaps right, I think that's absolutely spot on.

Speaker 2 (01:22:09):
I mean, I'm just floating ideas here, you know, But yeah,
all right, who else has thoughts on this? Folks have
written about it.

Speaker 7 (01:22:22):
I think we have an important history year two. Jurisdiction
stripping has been tried many times and has failed in
the political process. That doesn't mean it's unconstitutional, but it
means that Congress has throughout history recognized or at least effectively,
given the courts a lot of room to maneuver. I
will say, I think whenever we're talking about court reform,

(01:22:44):
we should think seriously about how the conversations, how the
conversations affect the norms of our society. And this is
actually something I worry about a lot right now whenever
anybody proposes any kind of attack on the federal judiciary.
And this is something I've worried about for a long time.
Whenever you're thinking about court reform, whatever your personal motives,

(01:23:05):
I think it's really important to ask yourself how you
would feel if just say you're worst nightmare of a
president or from either side, or the one making the
court reform, and how would you feel about it then?
And I think that's something to recognize for jurisdiction stripping,
for term limits, for court packing, and everything else. And

(01:23:26):
I think when we think about how we would feel
if the other side, someone we don't politically support, we're
proposing it, we have a very different reaction to all
of these court reform proposals.

Speaker 3 (01:23:39):
Just two observations about jurisdiction stripping that I think it's
important to keep in mind. One is that jurisdiction stripping
is a very broad category. Congress alters has altered the
jurisdiction of the federal courts many times before. I don't
think anyone doubts that they have some authority to do that,

(01:24:01):
And any particular quote unquote jurisdiction stripping proposal doesn't become
constitutional or unconstitutional based on whether we call it jurisdiction
stripping or call it something else. We have to ask
another set of more specific questions about what they're doing,
why they're doing, what the effect of what they're doing is,
which leads me to the second point, which is, I

(01:24:22):
think it may well be productive to think about jurisdiction
stripping in much the same way we were encouraged to
think about the relationship between other branches Congress and the
President by Justice Jackson in steel seizure cases, which is
to say, is this something where Congress is actually interfering
with core powers of the judiciary as opposed to well,

(01:24:46):
you know, we didn't. We thought it was unproductive for
them to hear this set of cases or that set
of cases. We're building a different kind of institutional structure
to handle this particular kind of problem. That's ordinary governance.
The courts are not kind of sort of you know,
missed coal permanences that have to stay the same way
all the time. But again, much and much as we
think about, or tend to have historically thought about executive power.

(01:25:08):
There's a there's a kind of dialectic that you have
to think about between what the core powers of the
courts are and what powers Congress may have to regulate
those powers.

Speaker 8 (01:25:20):
I just wanted to make a brief political science point
on relative to jurisdiction stripping. In that jurisdriction jurisdiction stripping,
like the size of the court, there's clearly a lot
of space there for Congress to act because the Constitution
is pretty clear that there's some constitutional authority, although there
may be some questions on the outer bounds of how

(01:25:44):
that power.

Speaker 2 (01:25:44):
Gets used or might be used.

Speaker 8 (01:25:46):
And one implication of that has been across American history
that this is a kind of thing that the Congress
and those who are unhappy with the Court in Congress
used to reach for in order to rattle sabers at
the court. And so if you're unhappy with what the
court's doing, you threaten to do things to them that
they don't want done, like stripping their jurisdiction or expanding

(01:26:07):
the size of the court, or various other kinds of reforms.
But those are two of the big ones that frequently
get proposed in Congress, and so there's been a tremendous
amount of proposals over time to strip the jurisdiction of
the Court for one thing or another across Congressional history.
Most of those don't go anywhere, but most of those
have the primary goal of simply trying to intimidate the justice,

(01:26:28):
and there's a fair amount of empirical evidence they frequently
do intimidate the justices. And so we should not only
sort of have legal questions about when exactly can you
strip the jurisdiction and under what kind of circumstances, but
just recognize there's a bare aspect of power politics involved
here that as long as Congress has some authority to

(01:26:48):
alter the jurisdiction of the Court, they will threaten the
Court with that in order to try to get the
Court to do what it wants.

Speaker 2 (01:26:55):
Okay, very good, Well, why don't we open it up
for Q and A. We're about at that point, and
these two gentlemen in the middle, Okay, you guys get
to go first, you know how about that? You can go, sir,
and then you can go after that. To say their
hands up ten minutes ago and then we'll go from there.

Speaker 10 (01:27:13):
Well, thank you Gregory Festilius, Texas A and m SO.
A practice has become commonplace in the lower courts, and
we've even seen at the Supreme Court all bit without
consequence is the contingent retirements. And my question is this
even a lawful practice? And if so, is it something
that we should be concerned about?

Speaker 6 (01:27:35):
That's my question.

Speaker 2 (01:27:39):
I'm gonna let other people talk about that. I'm going
to consecrict Professor Green, what do you think?

Speaker 7 (01:27:52):
So?

Speaker 3 (01:27:53):
I mean, I find it mildly uncomfortable, but I'm not
sure that it makes me more uncomfortable than lots of
other or practices that we have in some of which
we've talked about. One of the points I wanted to
I think it's worth making here is that if we talk,
if we're trying to think about what are when are
we worried about political pressure and political considerations being attached

(01:28:18):
to the decision whether to retire or the decision even
to make certain kinds of decisions in cases. The fact
that we have a senior system, the fact that we
have a retirement system that gives significant benefits to judges
when they retire, opens the door to various kinds of
pressure being put on judges to retire or not to retire,

(01:28:41):
and that has been the case for a long time.
If we think that that's okay, then I find it
odd to think that it's not okay to say, okay,
here's the date certain when everyone just retires, which would
eliminate the kind of pressure that we're that that one
is worried about when there are again, this has happened

(01:29:01):
many times throughout history, especially at the Supreme Court, of
various incentives being put in place for someone to retire.
You know, if there's a again, if there's a date
certain that goes away.

Speaker 2 (01:29:12):
I mean, whether it's legal, it's hard to say. Well,
I guess what's hard is to see how that could
be litigated, how somebody would have standing to challenge that. So,
you know, I mean, some things are governed by custom,
you know, in life generally that rather than by kind

(01:29:32):
of a positive law or law. And this maybe was one,
but now we've had departures and so we'll see. I mean,
I think the thing is that it doesn't take effect
until it does, right, and then you know, I guess
the idea is a person can change her mind but

(01:29:53):
it's I don't think there's a clear answer to this,
So how about this other gentleman, and then well, yeah, yeah,
and then we'll try to thank you have some other folks.

Speaker 4 (01:30:08):
Sebastian Griffin, University of Idaho My question, and I think
Professor Groves stated it. In my mind, clearly, this has
been a partisan issue and when it gets brought up,
it's from a partisan perspective. Do you all, because you've
been around and experienced enough, notice a trend that judges

(01:30:29):
being confirmed, whether it be Supreme Court or lower courts,
are more politically polarizing, and if expanding the court or
packing the court or term limits comes into play, do
you see that as a solution to lessening the political
polarization that we're seeing in certain rulings and opinions, Because
I think from a individual's perspective, a taxpayer perspective, wherever

(01:30:54):
you come from, the issue is more from we want
to avoid politicalization and a political narrative and just get
down to the root of what is the law.

Speaker 7 (01:31:10):
So I think the question is partly about the confirmation process,
right and how difficult it is it has become. So
I just want to say that my own observations in
conversations with federal judges, and I suspect many of us
agree with this. I think we believe federal judges are
trying to do their jobs and rule on the law
and not politics. And I think there's a there's a

(01:31:30):
general sense of that, but there's a perception that that's
maybe not what they're doing. So the confirmation process started
to get really ugly at the lower federal courts in
the nineteen eighties, and it continued to get really really
ugly as time went by. And I just want to
say it was by partisan ugly. Both Republicans and Democrats

(01:31:51):
did pretty horrible things when the other side was nominated
for the federal bench. This one under the radar screen.
I think for a lot of folks. When I dug
into this history, it didn't surprise me at all that
the filibuster was obliterated. I don't think term limit solves
that problem, because I think you're still going to have
fights over people serving for eighteen years. As Professor Primes
was saying, that's still a long time and a really

(01:32:13):
cool job, and yet we're going to have the fights
every two years if we do that at the Supreme
court level in terms of how how do we address that.
I think we all have an obligation in terms of
how we talk about our government institutions not to lambass
them all the time, whether we're talking about the federal
judiciary or Congress or the presidency. I think we actually

(01:32:35):
have an obligation, or the federal bureaucracy for that matter,
to talk about them and respect that the people who
are working in these institutions are actually trying to do
a good job, even if they disagree on what qualifies
as a good job. So I think there are real,
real issues when with political actors on both sides of

(01:32:56):
the aisle are attacking federal judges as partisan without kind
of looking at the whole picture and recognizing that, as
Judge Cathl's were saying, actually, well over ninety percent, well
over ninety five percent of lower federal court opinions are unanimous.
And I think that's one of many facts we should
talk about more.

Speaker 9 (01:33:24):
But I wrote this one down, Okay. A key theme
to meet today seems to be by the way I
should start, my name's Eddie two well at Notre Dame
Law School, and thank you guys all for common and
talking about this issue. A key theme to me seems

(01:33:46):
to be concerned about the accumulation or centralization of power
and the Supreme Court or a subset of it, or
even alone justice. And underlying that worry is that certain
interested ideologies are factions can entrench themselves into power. That's
how we started this whole thing about retiring and making
sure you know someone else that thinks like you can

(01:34:07):
take your seat. And that seems to me to be
a problem only if those factions are ideologies are abusing
that power, you know, if they are acting in a
way that is beyond the scope of their authority. So
I have two questions that kind of play off each other.
One is how do term limits or a larger court
answer the problems of judges acting outside of their authority?

(01:34:31):
And two is what is the role? And that was
a little bit just answered but wasn't fully kind of
fleshed out. And then two is what is the role
of other actors in facing this problem? So the other branches,
you know, kind of a more departmentalist approach law schools
in terms of teaching the law and properly criticizing the

(01:34:53):
court where they act outside of their authority, and the
bar in general, and do we need to improve in
kind of holding the court accountable on the merits? Is
that really the big issue?

Speaker 6 (01:35:10):
Something that I've been thinking a lot about, and it
somewhat answers your question. I'm not going to answer every
different aspect. You kind of cheated there with two. I'm
just kidding. I'm just kidding, but that I've been thinking about.
You know, one of the things that I spoke about
in my opening remarks was the individualization, and I think
it's something Professor Primus was talking about with this sort

(01:35:31):
of cult of personality. Professor Sherry at Vanderbilt Law School
has proposed that the Supreme Court stops signing opinions with
individual justices names. And it's a really intriguing proposition. And
here's what I would ponder where I would put for
all of you to ponder, which is, if you are

(01:35:52):
opposed to the idea of unsigned opinions, that is to say,
individual justices don't get to slap their names on their
concurrences or their majorities or their descents, why are you
opposed to it? Because I think fleshing out the response
to that question can be really insightful about how you

(01:36:13):
think about the Supreme Court, whether you think about it
as a team of individuals or an institution, and it's
not unclear to me that we couldn't have a similar
rule on courts of appeals.

Speaker 2 (01:36:25):
I mean, just on this point. I mean, my kind
of quick reaction is the reason that comes to my
mind is accountability. And I can just tell you that
there's a difference between joining a percurreum opinion and having
an opinion with your name on it, and you're just
accountable and you kind of bearer responsibility that I personally

(01:36:50):
just feel we don't when it's I mean, in a
sense we're adjudicating rights in both situations, but I feel
a greater response ability and accountability when it's signed by me.
Then when I join a per curium. It's almost it
can be a way to hide.

Speaker 6 (01:37:09):
Almost you would feel that on the Supreme if you
were on the Supreme Court.

Speaker 2 (01:37:15):
Thank uh. I mean, I'm so happy I'm not on
the Supreme Court.

Speaker 6 (01:37:21):
But I believe he's dodging the question you.

Speaker 2 (01:37:26):
I mean, I think, I mean, it's another I don't know.
I honestly can't speak to that. You'd have to ask
one of them. But I think I think that it's
information that that that the country wants. You know, we
want to know. We want like when I said, you
can tell if somebody is just ruling the way that

(01:37:49):
that person wants to in every case. I mean, it
might be hard to tell in one case or in
three cases, but if geez, every single time that person
comes out, you know, if there's a colorable window in
most cases, there's a colorable window of decision. And if
every single time that person comes out pegged at one

(01:38:10):
end or the other, that tells us something. And we
wouldn't have that information if they were procuring whatever. Okay,
over there, Yeah, thank you very much. So this question,

(01:38:33):
why don't you just stand up if you don't mind,
Thank you very much.

Speaker 11 (01:38:36):
So this question is very much pertinent to what you
just said there. I guess for me, the most curious
part about Congress's potential to oversee and hold the Supreme
Court in check is its ability to impeach and remove
a justice from the Supreme Court for a good reason.
But from what I understand, Congress has never exercised this

(01:38:57):
constitutional power. Can any of you speak to why that
might be?

Speaker 8 (01:39:05):
Professor Whittington, So I have a book that you should
go by you did it, that's a plan. I'll give
you the five dollars after So, so, there's been one
justice to the Supreme Court that actually was impeached by
the House and not convicted by the Senate, and that's

(01:39:26):
a consequence not removed, which was just a Samuel Chase.
During the Jefferson presidency. There's been lots of threats to
impeach justice subsequently, but those tend not to go very far,
and they're sort of both a sort of base level
of politics explanation from why they don't go very far,
and that's worth thinking about what the con social rules

(01:39:48):
and standards ought to be surrounding that as well. So
let me just bracket the substance of constitutional issues about
high crimes and mismemors and how they might apply to
various judial decisions. There's just a baseline political difficulty of
actually removing a judge through the impeachment process. Right, relatively
easy to imagine getting a bare majority of the House

(01:40:09):
to impeach a judge, But in order to remove a judge,
as we have encountered through recent impeachments more generally right,
a very high bar in the Senate because it requires
a super majority, which almost always means you gotta be
able to reach across the aisle and get some degree
a bipartisanship in order to agree to remove somebody through

(01:40:29):
the impeachment process. And if what you're talking about impeaching
people and removing people for is the substance of their decisions.
For example, you think they're behaving lawslessly on the bench,
there's going to be partisan disagreement on that almost always,
and as a consequence, extraordinarily difficult is a practical matter
to actually make it happen.

Speaker 5 (01:40:49):
I think that's right, and I think in a way
that links together a number of the questions that have
been raised, there would never it's really difficult to imagine
an impeachment of a Supreme Court justice that doesn't turn
very substantially on the different values in world views of

(01:41:12):
that justice and of supermajority in Congress. Right, And one
of the reasons that it would be super difficult to
get a supermajority of the Senate to agree to remove
any particular justice is that these people are so salient
to the exercise of power in the system, friendly to
or opposed to their worldviews. Right, I think that it

(01:41:35):
is a noble but impossible dream to imagine that we
will have a Supreme Court against which there will not
be partisan based complaints. Right, as long as we have
a Supreme Court that acts as a constitutional court and
that decides questions that people care about, where the positive
law doesn't dictate unique right answers that any competent person
must recognize, there are going to be people who use

(01:42:00):
the justices of acting lawlessly, right the people who don't
like what they're doing. There is no previous moment in
American history where people did not feel that way about
the Supreme Court. People are going to people aren't always
going to be equally justified about whether the justices are
behaving badly, but we will always have it as a
sociological fact that people there are people who criticize the

(01:42:21):
Court in that way, and sometimes the criticism will be warranted.

Speaker 6 (01:42:26):
Right.

Speaker 5 (01:42:27):
My own view is that because we can't cure that,
what we could at least do is channel political disagreement
about what the Court should be doing into electoral politics
rather than into confirmation process judicial selection and so far.
Then that we could do that by having a system
going forward where you have some guarantee that if you
win elections who you can appoint the people who you

(01:42:52):
will be less angry at Right. It won't eliminate partisan
based complaint about the Court, but it might distribute it
through the population, which I think is much healthier in
a society than to have one or another interest group
for decades and decades. Right, thinking that it's the one
I'm losing side. That's bad for legitimacy, and to Professor,

(01:43:16):
grows very important criterion for a kind of reform like that.
I wouldn't care what president implemented it or what Congress,
because it would only work if it's forward looking. Right,
you say, starting four years from now or whatever it is,
we're going to start doing.

Speaker 2 (01:43:28):
It that way. Okay, I'm sorry, but we're out of time,
so let's thank this panel.

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