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July 21, 2023
Positively Dreadful
Would Democrats Live to Regret Court Packing?

In This Episode

Whatever you think of recent, watershed Supreme Court opinions, it’s indisputable that the court’s six Republican appointees are deeply out of step with the will of the public—not to mention the entire institution was constituted without public consent. But should anything be done about it? The Court’s architects think everything is wonderful and will claim any criticism of the justices represents some kind of subversive attack. But even good-faith critics can’t agree on an answer. Some influential liberals, like Joe Biden, think the answer is nothing. At least not now. Others think the answer is to pass a law expanding the court and fill the vacancies with liberals, so its balance reflects what it should have been all along. And between those two poles, there are a number of ideas for reforming the court to better insulate it from political ideology. Host Brian Beutler moderates a debate over which—if any—of these ideas is best, and how to go about enacting them given that the current state of the court suits Republicans just fine. Joining him are Atlantic staff writer Adam Serwer, whose criticisms of the court have put the justices themselves on the defensive, and Lawfare editor Benjamin Wittes, who has warned Biden’s commission on the Supreme Court against outright court packing.

 

 

 

TRANSCRIPT

 

 

Brian Beutler: Hello and welcome to Positively Dreadful. With me your host, Brian Beutler. If you socialize in liberal circles or progressive circles or with people who are politically active on the center left, you’ve probably noticed this in the past few years. 4th of July rolls around and you spend your Independence Day holiday grousing about whichever rights or benefits the Supreme Court’s conservative majority has just curtailed or eliminated. Last year, it was the right to abortion. This year, the right of sexual minorities to equality under the law. The court also effectively abolished affirmative action. And we could recite a litany of decisions over many years to illustrate that it’s on a kind of ideological rampage. I also think that case by case, we could stress test the logic of some of its six three or five four opinions, and the open minded people would agree that in many instances the Republican appointed justices are exercising power, sometimes even partisan power rather than pure judgment. But I don’t think that would be very productive. At the end of the day, a Supreme Court opinion is kind of like a hot take [laughs] that has the force of law. It isn’t really falsifiable. And the question of whether it’s well-reasoned or faithful to the law and constitution and precedent is fairly subjective. What’s beyond dispute, I think, isn’t the merits of any particular decision, but that many of them are deeply out of step with the will of the public today and imposed by a court that was constituted without the consent of the public. And that raises an obvious question what, if anything, should be done about it? Naturally, opinions on that question differ. The court’s architects think everything is wonderful and will claim that simple reporting about the justices or any criticism of them represents some kind of subversive attack. But even good faith interlocutors can’t agree on an answer. Some influential liberals like Joe Biden think the answer is for now at least, to do nothing. Others think the answer is to pass a law expanding the number of seats on the Supreme Court and filling the new vacancies with liberal justices so that its balance would reflect what it should have been all along. And between those two polls, there are a number of ideas for reforming the court to better insulate it from political ideology and just limit the scope of what it’s allowed to rule on, essentially. So let’s talk about which, if any of these ideas is best or least bad and what would a sensible way to go about enacting them be, given that the current state of the court suits the Republican Party just fine? To do that, I’ll be moderating a discussion with Adam Serwer, a staff writer for The Atlantic, whose criticisms of the court have put the justices themselves on the defensive. And Benjamin Wittes, the editor in chief of Lawfare, who warned Biden’s commission on the Supreme Court against outright court packing. Adam, Ben, it’s great to see both of you. Thank you for doing this. 

 

Benjamin Wittes: Thanks for having me. 

 

Adam Serwer: Thanks for having us. 

 

Brian Beutler: Ben, let’s start with you. Just because it’s been two years or almost two years to the day, I think, since you delivered that testimony to the Biden commission and kind of a lot has happened since then. So I just mainly want to confirm that your views on this haven’t radically changed since 2021. 

 

Benjamin Wittes: They have not. In terms of the what to do about it question. But I guess the sense in which they have is a great deal of exasperation with the court and a great deal of anger at individual justices who are, from my point of view, behaving terribly and deserving of a lot of the criticism that they’re getting, particularly Justices Thomas and Alito. I guess my my caution about court expansion and other dramatic changes and I want to bracket the subject of term limits where I think there’s a lot to talk about that would be high value. But some of the more dramatic changes that people are proposing I think would backfire pretty dramatically because of the Republican built in advantage in the Senate and that the the ultimate ability to control the Senate gives Republicans disproportionate power over the court. And I think when when Democrats contemplate some of the more dramatic. Expansions of the core expansions of the court, limitations on jurisdiction. They may have the perverse effect, given that Republicans will more often than not be in control of the Senate of actually empowering Republicans. 

 

Brian Beutler: We should get into that in a bit. But just when President Biden says, as he did a couple of weeks ago, that this is not a normal court, but that expanding it would politicize it in a way that’s sort of like it like makes the cure worse than the disease. You more or less agree with President Biden on that. 

 

Benjamin Wittes: More or less. Let me let me specify the more and the less. I think what was done to Merrick Garland and the Ruth Bader Ginsburg seat was grotesque and calls out for a response. And I’m not necessarily opposed to the idea of say, imagine that you had filibuster control of the Senate and and control of the House and control of the White House. I think it would not be a terrible thing to say. All right. We will use that power to remedy this one way or the other. Work with us on a remedy for this or we will just do it ourselves. I do worry. First of all, I think Biden is absolutely right not to put himself on the record as favoring that while he has no power to execute it, because all that would do in the event of a Republican victory in the next round. All it would do would be to give them the opportunity to preempt it, which is what they want to do anyway. And so I think you don’t you don’t come out for that until you have the power to do it. And I think when you do have the power to do it, you have to be exceptionally careful about what exactly you do and how you do it. I would honestly rather the retaliation for Merrick Garland and for the RBG seat to be done by holding people up rather than by adding seats. And we can we can talk about why. But but that’s my bottom line. 

 

Brian Beutler: Okay. So, Adam, why is that wrong or why do you disagree to the extent you do? 

 

Adam Serwer: Well, actually, I don’t know that any of that is wrong. As you know, as a as a sense of. Political strategy. The problem that you have is that there is a lit fuse on the Supreme Court in terms of its current composition, which is that and I want to be very specific. You know, there are a lot of bad rulings that this Supreme Court has given. I thought Dobbs was an absurd ruling. I was extraordinarily frustrated with what I felt like was the Supreme Court’s bad faith in the affirmative action ruling. I thought the 303 Creative ruling, for example, is kind of a joke. It’s going to legalize discrimination in all sorts of ways that the court claims not to intend, but that they must understand how the law is going to work in practice. It’s going to legalize a lot more discrimination than their supposed narrow window that they have prescribed in the in the actual ruling. But these are not things that I think justify court packing. What justifies court packing is that the Supreme Court does not give a shit about the 14th and 15th Amendments to the Constitution in the United States. When it comes to their original purpose, which is preventing racial discrimination, particularly when it comes to voting. They handed out two rulings that indicate that John Roberts and Brett Kavanaugh are a little concerned about this, which is that they did not endorse the absurd, cockamamie, completely made up, independent state state legislature theory, and they did not completely decapitate section two of the Voting Rights Act. Now, why do I bracket these things off differently from other very important issues like the right to an abortion? I bracket them off differently because, you know, in those issues, democracy allows the people to respond. But if the Supreme Court allows Republicans to set up elections in such a way that they cannot be voted out of office, then the people cannot respond. That is an urgent problem. And I think they understand that. I think Roberts and Kavanaugh do understand. I think members of the court do understand that that is the main issue that really creates a problem for them, because John Roberts has spent you know, he was in his twenties when he was fantasizing about gutting the Voting Rights Act, and then he got to actually do it. And the results of that have been that Republicans have been experimenting in state after state with how to disenfranchise constituencies that do not support them. And eventually they’re going to get it right. And one of the things that frightens me about the Supreme Court is that the Roberts slash Clarence Thomas view of the 14th Amendment, that if something is superficially race neutral, it does not count as racial discrimination, is precisely how the neo confederates at the end of reconstruction imposed voting restrictions and wrote Black people out of the electorate and disenfranchise Black voters for a century. They did it with things that were superficially colorblind. We remember these things as explicitly racist because the thing that comes to mind with Jim Crow is a segregated whites only waterfront. But these voting devices were designed to withstand 14th and 15th Amendment challenges because they were superficially race neutral. And when you say, as John Roberts has, as Clarence Thomas has, that, you know, if you don’t say I am fucking discriminated, then it’s fine. You are saying the 14th and 15th Amendments do not matter. And that is the real issue, because you could say, you know, the Supreme Court is going to make mistakes because people are fallible. They can make bad decisions. You can win a bunch of elections and one party will dominate the Supreme Court. But the issue is people can ultimately correct that with elections. And what they’re doing now to the Voting Rights Act and to the 14th and 15th Amendment is saying, actually, we’re not going to let you change your mind. We’re going to dominate politics in this country for as long as we can, rigging the rules as well as we can in order to make sure that you cannot respond, that the electorate cannot do what it is meant to do in a democracy, which is give their consent to what has happened. This question of political backlash that Ben has brought up, these are very serious questions. You know, there’s not you know, I don’t think that it is trivial for Ben to bring this up, that there may be a form of retaliation that escalates this to a worse place than we already are. I think that is something you do have to consider, especially if you lack, as Ben points out, the broad political support to do it. I mean, when you think back to reconstruction, when the Republicans unpacked the court, they shrank the number of justices so that Andrew Johnson couldn’t. I mean, this is constitutional stuff, just like holding up Merrick Garland was constitutional stuff, but it is extreme hardball. And unless you have the power to sustain the backlash, it can cause a lot of problems. So I agree with Ben that that is a real concern. But this is a ticking time bomb for American democracy. And it’s something that cannot simply be solved by, you know, in the way that you can beat Trump at the ballot box. It cannot be solved that way. This is going to be a problem for decades to come. 

 

Brian Beutler: So I want to get Ben’s response to that. But just real quickly, I’m interested in your observation that you think that what kind of lurks in the back of Robert’s mind and maybe Brett Kavanaugh’s mind is the is that they might push things too far in the realm of effectively of disenfranchisement. And that’s where they’re worried that the backlash is going to come from. 

 

Adam Serwer: To be clear, I don’t think they’re worried about that so much as far as like in like a moral sense. I think they’re worried about what it would mean for the court. 

 

Brian Beutler: Right. And so to me, if you’re like the most nefarious, like a caricature of a of a conservative Supreme Court justice, isn’t that the path to permanently locking down the the majority, whereas something like Dobbs is the real threat where it causes public support for the court to collapse and creates an opening for the legislature to add seats if they can win the the forthcoming election by a large enough margin. 

 

Adam Serwer: I mean, I think the answer here is that ideology matters a lot. Dobbs is something that they’ve been trying to do for, you know, 50 years and they’ve been you know, we talk about this whole question of delegitimizing the court, that conservative legal movement had been delegitimizing the court for decades in order to set the political stage for what they were able to do, which was take it over. And now that it’s been taken over, they don’t want anybody to say anything bad about it because they don’t want people mad at the court because they understand how that energy can shift things. But with something like Dobbs, I think they knew there would be a backlash. I think pretty much every pro-life person would trade losing the 2022 midterms for outlawing abortion or being able to outlaw an abortion in the states the way that they have. So I don’t think that’s a huge loss for them. But I do think. I mean, I do think that where they. Where they want to achieve long sought after ideological goals. They will they will take the L and where they. You know, where they where there things that are less important to them, that they’re willing to sacrifice in the name of preserving the legitimacy of the court. Such as, you know, something is as as insane as the independent state legislature doctrine. They’re willing to throw the public a bone and get lots of headlines from The New York Times about how it’s such a moderate court. It’s a three, three, three court. 

 

Brian Beutler: So Ben I guess if I’m detecting a a debate to be had here. My sense is that if you think that the cure of court packing would be worse than the disease, Adams seems to think the disease is actually worse than the cure. And it and something needs to happen or else, you know, we’re on the road to someplace very dark. Do you disagree? Do you disagree with Adams assessment of what happens if nothing happens? 

 

Adam Serwer: Well, I would say I would say that there is a fork in the road and both roads go to the same dark place. [laughter] If it or there’s a possibility that they lead to the same dark place. 

 

Benjamin Wittes: Such a ray of sunshine you are. 

 

Brian Beutler: Yeah. 

 

Adam Serwer: I’m fun at parties. [laughter]

 

Benjamin Wittes: All right. So I do think the situation from a democratic, a small d democratic functioning point of view is a little bit less dire than than Adam does. But I take these concerns very seriously. I do think the gutting of Section 5 of the Voting Rights Act a couple of years ago was an abomination. And I was like a lot of other people, surprised in a sort of pleasant way that the it was not followed up this year by a gutting of Section 5, which does give you an idea that I share some of Adam’s dark view of of what’s happening. That said, I, I do think it is important to note that the court did not do to Section 2 what it did to Section 5, and that actually creates significant opportunity for democratic or preserves significant opportunity for democratic protection. I agree with Adam that we shouldn’t be in this position and that it makes you think about, you know, how how much ticking is the time bomb going to give before we have, you know, a serious Democratic longevity problem? I agree. It’s a legitimate question. Here is my somewhat rosier take than Adams on the answer. Number one, when you’re dealing with the Supreme Court, the actuarial tables are always on your side. That is, majorities that look very permanent on the Supreme Court don’t tend to be nearly as permanent as they look, because in any group of nine middle age to upper middle age to, frankly, quite old people. Attrition is a thing that happens. And, you know, the Ruth Bader Ginsburg’s of the world who think they are going to outlast the current administration, very often turn out to be wrong. And so, I mean, I don’t think you have to win a lot of elections before this becomes a self-correcting problem. Now, I don’t want to overstate that as a palliative, because a lot of damage gets done in the meantime. And Adam is not wrong to say. And in the meantime, you could have decisions that prevent you from having that process from taking place. But I’m not terribly worried about that in the context of, you know, non Republican control over the executive branch and the and one house of Congress at least. I do think the balance of power is very different than if you were looking at a kind of unified Republican control situation. Now, could that come up any time? Yes, but there’s no prospect before it does of creating these court reforms anyway. There’s no there aren’t isn’t a majority in the House and there’s no prospect of 60 votes in the Senate. So you’re not getting there without some elections passing anyway. That’s the first thing. The second thing is, I do think that the place to focus is there’s one area in all of the court reform discussion that has a possibility of of actual enactment. And that is the area of. Term limits where you could theoretically send a bill to you know, you could probably get there’s a there’s a much more kind of bipartisan belief in term limits than there is in in court packing. 

 

Adam Serwer: Can I ask you a question about that though? 

 

Benjamin Wittes: Yeah. 

 

Adam Serwer: So so I agree with you. Obviously, term limits are much more popular. People in general love term limits even when they’re a bad idea. 

 

Benjamin Wittes: And by the way, in the case in the case of the courts, they’re not a bad idea. The the the idea of life—

 

Adam Serwer: I’m not saying they’re a bad idea. I’m not saying they’re a bad idea. But my question to you, though, is, one, are they constitutional? And two, is this Supreme Court going to accept term like let’s say you pass term limits? Are the guys who are the people who are currently on the court, are they going to say, oh, yeah, you can you can you can do this to us, but we’ll accept that. 

 

Benjamin Wittes: So there has been a lively debate about whether term limits can be done constitutionally. Jack Balkin at Yale has a very interesting creative proposal that I won’t go into the details of unless you make me [laughter] to as to how you could do it by statute.  Frankly, I think doing it by statutes a bad idea. I think the right way to do it is to, you know, is to get a couple seats to flip a seat or two, put the fear of God in Republicans about a few young Democratic appointees. And just the way today there is the fear of God in Democrats about how young, you know, Brett is and how young Amy Coney Barrett is. You know, just as liberals are, you know, afraid of that, the conservatives need a few Ketanji Brown Jackson’s to to start the the institutional anxiety. Oh my God, we’re never going to get rid of these people thing going. But there is actually a neutral principle here that you could front date. You could exempt current people on the court and you could just say the next appointment after X and such date when nobody knows who’s going to control the Senate, nobody knows who’s going to control will only serve for 18 years. And I don’t think there’s a good argument against that. And I actually think it’s in the interests of both parties to do it. And it doesn’t solve our short term problem. It doesn’t address the only way we’re going to address the problem. There’s only three ways to address the problem that you’ve identified. One is a Democratic victory. In the Senate of upwards of 60 votes. Not going to happen. No chance. The second is a Democratic victory in both houses and the abolition of the filibuster. To which I say be real careful what you wish for. Look how many years in the last 20. Mitch McConnell has been in the majority leader’s seat versus Chuck Schumer or, you know, anybody else. You know, I’m sure Mitch McConnell will, you know, smile his way all the way to the dais to complain about this, because it’s basically, you know, it privileges rural states over urban states. It privileges area over over people, and therefore, it privileges Mitch McConnell over Chuck Schumer. So and then the third way is to do it by some measure of consensus. And this strikes me as the area where there’s plausible consensus to be had. I don’t think you’re going to have it now. I don’t think you’re going to have it while Donald Trump is still on the scene. But I do think there comes a point where Democrats can look at themselves and say, do we want another Amy Coney Barrett? Do we want another, you know, Brett Kavanaugh? And Republicans can look at themselves and say, do we want another Ketanji Brown Jackson? And if you put the effective date far enough in the future, you could probably get term limits done. 

 

[AD BREAK]

 

Brian Beutler: So stipulating that this is in some sense like an academic discussion, because in order for like the political cards to be aligned to allow Democrats do this, they need a trifecta. They need to abolish the filibuster. And they need to have like the the [?] to do court reform. And so far, we don’t have any reason to think that. But if we got there, if we if, you know, the backlash to Dobbs ushered in a new trifecta, the Republican appointed justices continued issuing the kinds of rulings that are A, infuriating to Democrats and B, making Democrats seemingly more and more enviable party. You get there. And we could also stipulate that it would be some kind of global bipartisan settlement that insulates the court from partisan judging would be would be the ideal outcome. But how do we get there without first engaging in some tit for tat style court packing, or at least the like, credible threat to add five seats or four seats to the court because the Republicans now are just going to say we don’t want a deal. We like the 6 to 3 court and maybe doesn’t that at least the threat of court packing? Isn’t that the lever you need to get the consensus? 

 

Benjamin Wittes: The problem is that you don’t have that threat. What you have is the threat to threaten it. But you don’t have the votes. You don’t have control of the House. And by the way, you don’t have enough Democrats who are willing to blow up the filibuster. Even if I’m wrong on the merits of blowing up the filibuster. Different conversation. You don’t have enough Democrats who were willing to do it. So you’re not actually threatening to do court packing. You’re threatening to threaten to do court packing. And Republicans know that’s an idle threat. 

 

Adam Serwer: I think that, you know, this is the problem with term limits is that there’s actually so much consensus that it doesn’t work as a threat. And in terms of like a political equilibrium, you kind of do want I mean, just in a purely political sense, you do want Democrats. Absolutely enraged at the Supreme Court and threatening to do all sorts of things. You do want Joe Biden saying, I’m holding these guys back because they’re crazy. And, you know, but people I’m trying to be reasonable here, but they’re mad. And you want what exist, what remains of the instant the conservative institutionalists on the court to be like, okay, we need to not go too crazy because. If you just have Democrats acquiescing to it. And only promoting those reforms which the Supreme Court might not be too upset about. Then you abandon the essentially the only tool left for keeping it for for for preventing core overreach or for ameliorating core overreach, which is. Absolutely enraged public opinion. That is not much of a check on a 6-3 court, but it is something of a check. And we know that because of how they responded in the voting rights cases this term in terms of not going crazy. We know that in terms of how they have slowed down these sweeping shadow docket rulings in response to the substantive criticism both from the public and from their own colleagues on the court. And if they don’t feel the heat at all. Then they’re not. They’re not going to check themselves and they’re not checking themselves much anyway. But the extent to which they are is only possible because of people saying, we’re going to pack the court and Biden saying, you know, this court is out of control, but that’s not a good idea. And Mitch McConnell saying that he has to go on thinking that he has to go on to The Washington Post and write op eds about how the court isn’t conservative. That is to the extent that you could do anything in the current situation that we’re in. That’s what you can do. And if you don’t. Threaten sweeping reforms. Then you don’t have that. 

 

Benjamin Wittes: So I actually agree with that. I think the the Democratic position flirting with and sort of the democratic ambiguity on how radical it would go from a legislative point of view is actually healthy. Biden’s denial that he’s interested in this, I don’t think should be taken as a denial. It should be taken as roughly equivalent to the Israeli nuclear posture, which is, you know, they call strategic ambiguity. They don’t confirm that they have nuclear weapons, but everybody knows they do. And Biden has no reason to say, yes, I would sign a a court enlargement bill if one came to my desk. All that would do is give Mitch McConnell a weapon. But if he has a bunch of Democratic senators who are pushing for that and he has the ability to appear like he’s the brakes, and then if they ever have the power to do it, then he can decide whether to flip sides, much as he has about the filibuster. I don’t. I would not take his public posture as reflective of anything, except that he knows that the Democrats have no ability to get this done right now. Now, there are a few things. There are a few things that I emphatically agree with Adam about, and I just want to tick them off. The first is, if you are not thinking from a as a as a Democratic Senate strategist, how to exact a price for what was done to Garland. And when I say Garland, I don’t mean Merrick Garland personally. Right. And what was done with the RBG seat. That’s kind of malpractice when when you you know, to go back to my nuclear metaphor, deterrence theory is the right way to think about this. And, you know, you’re trying to figure out how to use your cards to prevent the other side from, you know, launching nuclear strikes on you. In this case, Mitch McConnell got through, you know, a major, major change in the balance of power that affected not just the balance of power between the Senate and the White House in the waning years of the Obama administration, of the waning year, and then again in the last six weeks of the Trump administration. But but also a major you know, it’s one thing to have Dobbs If you elect Republicans over and over and over again, it’s another thing to have Dobbs you know, and and the affirmative action decision. If you don’t elect Republicans over and over and over again and the majority of the American people has not voted for a Republican to name Supreme Court justices, except once in the entire century that we’re in. Only George W. Bush in the second time got a majority of the popular vote. And yet we are experiencing the effects of a gerrymandering of the Supreme Court by the Senate. And that is an outrage. And by the way, I’m not a particularly partisan guy. You know, I. I spend a lot of time working with Republicans. I’m you know, it’s an outrage. And if you’re thinking about how to rectify that problem, you have to be thinking about what cards you have to play. And if you’re not playing those cards, you’re just ceding ground. I don’t think that the effective card is going to be the court enlargement card. I think the effective card is going to be preventing confirmation of judges at a very large scale. The next time a Republican president faces a Democratic Senate. 

 

Brian Beutler: How do you prime, as Joe Biden or leaders of the Democratic Party generically, how do you prime the party to expect to consider doing this? Should they should they win the 2024 election, Say if you’re currently saying it would be a bad idea to do right like there’s there’s space between this will politicize the courts so bad that we’ll never get it back. And if somebody sends me a court expansion bill tomorrow, I’ll sign it. Right. Like Biden could be saying that this Supreme Court is giving me no choice but to consider some checks and balances because it’s out of control. Like, that’s how you threaten to threaten, right?

 

Adam Serwer: I think politically, you want Biden to refuse publicly. You know, I couldn’t do that because from the perspective of presidential elections, it looks better. Like all things being equal, people prefer the moderate, more moderate perceived candidate. But you do want Democrats screaming about that they want to do it. 

 

Benjamin Wittes: I agree with that. 

 

Adam Serwer: You know, that thing where it’s like when you’re a kid and you’re about to get in a fight with somebody and someone’s like, call me back, hold me back. But, you know, you’d never actually plan to throw a punch. That’s that’s what you want. You want Joe Biden in the hold me back position. At least I think Ben is right about this, at least until you can credibly pull that trigger or you can threaten to pull it because the thing was, you know, in during reconstruction, you know, the Republicans had majorities where they were able to be like, nah, we’re going to shrink the Supreme Court because we don’t want you appointing any justices. Like they could just do that. 

 

Brian Beutler: They kind of did. 

 

Adam Serwer: They did do that. I actually think the only situation in which you might get and you would name Democrats to actually hold their ground, which I’m very skeptical of their ability to do, is not hold up judges and mask confirmation by refusing to confirm credibly. Refusing to confirm. A a Republican Supreme Court nominee unless you pass term limits. I think that’s probably the only scenario in which that could happen. And you would actually need Democrats to actually be willing to stay in that ground in a way that Republicans are willing to hold up Merrick Garland’s nomination until the election. 

 

Benjamin Wittes: So what about a public Democratic posture that says we will not confirm, we will not, as Majority Leader Dick Durbin, as as Judiciary Committee chairman, will not hold a hearing for we will Merrick Garland, any Republican nominee for Supreme Court, until there is a reckoning for what happened with these last two Supreme Court seats. And we’re willing to have a reasonable conversation about it. But we are not willing to treat the next nominee like through the regular order. 

 

Adam Serwer: I mean, you would need enough Senate seats and enough votes in those Senate seats to to make that threat. You know, I still think Republicans have it pretty good right now it’d be really hard for them to. I mean, there might have to be like another factor, but I mean, it’s possible. 

 

Benjamin Wittes: But the point is you need fewer votes to do that. Then you need to enlarge the court. 

 

Adam Serwer: That’s right. 

 

Benjamin Wittes: Yeah. And and so my point is, before we talk about court enlargement, let’s talk about the things that you actually plausibly might have the votes to do and what concessions you may or may not be able to gouge with them. And I just want to remind everybody, you know, Mitch McConnell didn’t have the necessary votes to do what he did either. He you know, Susan Collins opposed it publicly. I think Lisa Murkowski opposed it publicly. He just had his own control of the floor and he had the control of the Judiciary Committee through I forget who was Judiciary Committee chair then. 

 

Adam Serwer: Grassley right. 

 

Benjamin Wittes: Grassley. And so there was no hearing and there was going to be no floor vote. And it really didn’t matter what Susan Collins had to say about the subject. And so I really think there’s been a failure of messaging from the Democratic Senate leadership that says there will be a response to this. We are not forgetting about it. And there’s a convenient kind of let’s endorse policy proposals that are kind of fantastical in this or any other plausible elective universe. And and I have, as I said before, I have no objection to Democrats raising, you know, rattling swords on that stuff. But I do think having a clear, hey, this is the party’s position about how we are going to exact retribution for what happened and thereby reestablish a sort of don’t fuck with us deterrence posture is much more important than then I and having the rabble scream about that in the background with pitchforks and torches is all the better. But I really do think you need to establish that line. 

 

Adam Serwer: I think. I think you’re right then. But I think that there is a there’s a serious problem here with the composition of the Democratic coalition, which is that you have all these lawyers who love the Supreme Court, who love the law, who love who love the infinite majesty—

 

Benjamin Wittes: I’m not a lawyer, and I fell out of love long ago. 

 

Adam Serwer: Yeah, yeah, I know. But what I’m saying is that there are a lot of these guys who are who are invested in the Supreme Court as an institution. These, like, very influential, important lawyers who staff Democratic administrations, who donate to Democratic candidates, who helped write Democratic proposals, who are so they are so such small c conservative institutionalists when it comes to the court that I think it is a serious problem with their ability to do the kind of thing that you’re talking about because the conservative legal movement where obviously there were lawyers but they were outsiders in a sense, they were not afraid to diminish, attack, undermine the very institutions that they’re now complaining about being undermined by Democratic criticism. They did it for 50 years, 68 actually longer than that. Really, when you when you it goes all the way back to the Warren Court. But the point is, they do not have the same emotional investment in protecting these institutions the way the democratic big law types do who are still to this day, you know, just trying to find a way to defend their their their institutionalist takes on the Supreme Court. And I think that is like a big obstacle to the kind of messaging that you’re talking about, which is that the conservative legal movement has figured out that this is a partisan fight. And Democratic lawyers are still, by and large, lying to themselves about the reality of that. And part of that is that you have these Supreme Court litigators whose job it is to argue before the court who have to go out and write publicly about how rational and and nonpartisan the court is and kiss its ass, because someday soon, they’re going to have to go up there in front of these people and argue a case for their client. And so I really think, you know, the kind of thing that you’re talking about is very much hampered by the composition of the Democratic coalition and the ascendancy that the legal establishment has within the Democratic Party. It’s a real problem. 

 

Brian Beutler: I mean, wouldn’t wouldn’t Biden’s involvement or like the kinds of just like Chuck Schumer, you know, he said the thing prior to Dobbs about the Supreme Court reaping the world, but if he said something a little bit more like what Ben is talking about, there will be a reckoning for what happened with the Garland seat and the Amy Coney Barrett seat, that one of the ways you get institutional actors in the Democratic Party to stop doing the thing that that you’re talking about, Adam, which I agree is a huge problem is to say like membership in this organization in some sense depends on you no longer lying to yourself about what’s happening. Like, it helps bring both elite opinion and public opinion around to your side to say it’s time for us to check and balance the court, which is out of control. And the polling suggests, like maybe if you say court packing, it’s unpopular, but people believe the court is out of control. You can get the whole Democratic Party to accept that. I think if. You decided you wanted to. 

 

Adam Serwer: I mean, like I said, I think Biden has to be in the person holding you back [laughter] position. But but, yes, Chuck Schumer should be. You know, I’m saying these to the extent like if this is what these guys want to do and I’m not a political strategist, I’m much better at identifying problems then proposing solutions. [laughter] But, you know, to the extent that you want people doing this, you want people in the Senate doing it. I really think that there is a political problem in the Democratic Party, which is that, you know, it’s most important, legally related constituency really does not want to do. 

 

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Brian Beutler: I guess I should have just moved on from the question of what Joe Biden should do, because I feel like I’m outnumbered here and I’m not going to persuade either of you. [laughter] But but you guys can come back at me about that if you want in a minute. But like, let’s say we wake up on on November, whatever, 2024 and January 2025, and Democrats have 55 Senate seats in the House and Biden has been reelected. And by pure coincidence, Mitch McConnell and Kevin McCarthy wake up the same morning and say, you know what? We slept on it a bit and we realized that we behaved badly. And so we want to join you in court reform along the lines of term limits, along the lines of like, we’ll pick five justices and you pick five justices and those five justices will pick five justices or those ten justices will pick five more. And then so we’ll have like a Supreme Court, that’s kind of insulated from the partisanship we’ve seen in the last 20 years. But the catch is the last two, two and a half decades of Roberts Court jurisprudence, they come along for the ride. Do you think, I guess either of you but Adam, first, would that be an acceptable cost to pay for a detente in the judicial wars that everything that came before is going to stay in place until Congress can pass new laws or amend the Constitution or this, you know, new less partisan court gets around to overruling Heller and and the Voting Rights Act case and Citizens United, whatever else. 

 

Adam Serwer: Brian, I’m a little confused. It sounds to me like you’re saying that those precedents cannot be overturned under any circumstances, or are you saying that they can by the new extra large jumbo court? 

 

Brian Beutler: Well, what I’m saying is that in a world where Republicans get the fear of God in them, about Democrats just packing the court and undoing everything they come around to to to Ben’s sort of sweet spot view that you want to reform the court by consensus. Is that something that you think Democrats would be wise to take Republicans up on in that event, given that they would do it as a way to kind of like ring fence everything that’s happened since since the Roberts court took hold and and they end up with another indefinite span of time with that being the law of the land. 

 

Adam Serwer: I think that’s a very difficult question. But I think if you were in a position to say if you had so much power that you were Republicans were in the position of asking you nicely. [laughter] To keep the Roberts Court jurisprudence intact, it would mean that you would probably be in a position to overrule it. And so I don’t know why you would take that deal. At the same time, it’s an abstract question. 

 

Brian Beutler: Yeah. 

 

Adam Serwer: If you’re asking, is it worth it? I think it really depends. I mean, as of today, maybe, you know, but it can get it’s going to get a lot worse. 

 

Brian Beutler: To lay my cards on the table about why I think this is important. Like I’m a little bit agnostic about what structure the court ought to have in an ideal world. But the things I do care about, like I think it’s very urgent that it be reformed whatever way you pick in a way that allows it to bring the court back into sync with the voting public, and that allows the most extreme excesses of the court of the last 20 years to be reversed fairly quickly. Right. Like if you’re going to say that this court is constituted with legit like legitimacy questions around it, then it’s not just that you want reform it so it stops issuing bad rulings. It’s you want to do something about the rulings that have already come down. And I don’t know that Ben solution allows for that. Ben. [laughs]

 

Benjamin Wittes: Look, there’s an old adage that the Supreme Court follows the election turns and it doesn’t it doesn’t mean it in the literal sense of, you know, the people vote X way and then the Supreme Court rules X way. It means that over time, when the people vote X way over time, the court is never too far behind that. And we simply do not have an example. We have an example of the court lagging public opinion on major issues by modest periods of time. You know, the New Deal court took nine, ten years to catch up, but that’s nine or ten years over over, you know, nine, ten years is not long in the or eight years, really, in the history of the Supreme Court. We are going to have a period where there is a right wing court that is far right of the population as it votes. And if the question is, what can we do about that, the answer is nothing. And I’m sorry to be blunt about it, but you’re wish is not going to come true. It’s just not going to happen. There is only one way to remediate the problem in the long run. And that is a consistent streak of election victories, which praise be to all the gods. The Republicans seem very committed to facilitating. But that’s the only way it’s going to happen in the long run. Now, what you’re suggesting is that there may be accelerants that you can use to bring it along. And I agree with that. There may be the conditions in which you can do. You can use them are narrower than people like to think. And they’re not a substitute for the big the big solution, which is, you know, certain people have to be denied power over long periods of time in a serious and sustained way. And there’s just no substitute for that. And I I understand the catch 22 of Adam’s point, which is. Yeah, but the jurisprudence is going to make that super hard. And he’s absolutely right about that. It doesn’t. Which is another way ultimately of restating the point, which is that you got to do it anyway. 

 

Brian Beutler: Let me interject by asking to go back to what you said before about the sort of careful what you wish for thing. Why? I mean, I, I take your point that the Senate is mal apportioned and the Electoral College may favor Republicans in this period of history. But to pack the court. You need to pass a law. So you need a trifecta. It’s not just the Senate and it’s not just the presidency. If the Democrats get a trifecta and pack the court, it is not written in stone that when the Republicans win the Senate again because of mal apportionment, that they’ll be able to. Tit for tat at all. They would have to—

 

Benjamin Wittes: Correct. 

 

Brian Beutler: Also, they’d have to win back the whole government at a time when they’re having a hard time winning the presidency with the majority of the votes anyway. 

 

Benjamin Wittes: Yes. So the the Republicans have the hardest time with the presidency. They have the easiest time with the Senate. And they have been in control of the House more years than not in this century. And so if you look at the House, you say, well, the house is is there’s a certain amount of gerrymandering goes on in the house. It tends to favor Republicans, although depends that’s a state by state thing. If you look at the Senate, there’s no gerrymandering except that the entire Senate is a gerrymander and it favors Republicans in a massive way. And the Electoral College, at least in modern history, has tended to favor Republicans, too. So you have three bodies that have been in Republican hands a disproportionate amount of time. And you say, why would we want to give those bodies more power to pack the courts, to enlarge the courts, to guard the gateways to the courts when they are all, to one degree or another, going to over represent the interests that are currently wildly overrepresented on the court? That just seems to me to be a bad game to play and one that ultimately works in the hands of the people who are who you know. And this is, by the way, exactly what happened at the lower court level where Democrats used a you know, there was a very uneasy piece about filibusters and and lower court nominations. Democrats decided to blow that up, and it has not worked out well for them. 

 

Adam Serwer: I disagree. I think that was the right decision at the time. I think that the fact that Republicans have taken advantage of it as well is I’m perfectly fine with that. I think when you look at the blue slips, for example, you know, you have a situation where there’s only one side who is adhering to these norms. I thought the filibuster was a bad idea to begin with. So I what, I was not disappointed in its demise. I did not regret it when the Republicans took back power. I think it is perfectly fine. I think it should not exist in general. But I think when you look at I mean, like when you look at the other institutional breaks, what you have is that the Republicans come in and they ignore blue slips and then the Democrats come in and for some reason they’re like, we’re going to bring decorum back to the chamber. And they keep on, they keep on playing—

 

Benjamin Wittes: You didn’t hear me say a word in defense of blue slips. 

 

Adam Serwer: No, no, no, no, you did not. I’m not. I’m not putting this on you, Ben. I’m just saying, you know, in general, like, I think that you are right about the dangers of payback in a broader sense for something like court packing, because it is a major change. But when you’re talking about rule changes in the chamber, I just don’t think that, you know, I just I think those are much lower stakes, you know, in terms of backlash. And the punishment from those is largely self inflicted on the Democratic side. 

 

Benjamin Wittes: Right. But in this case, they’re they’re deeply intertwined because right now, under Senate rules, you could not pass a court enlargement without breaking a filibuster. And there’s no way the Democrats are going to get 60 votes in the Senate. So the only way they do court enlargement is if they blow up the legislative filibuster as well, which I understand at Crooked Media is, you know, is the gold standard of it’s the highest policy ambition of some of your colleagues. But I think that’s just a Mitch McConnell empowerment plan. You know, you blow up—

 

Brian Beutler: We should have had a debate about this. [laughter]

 

Adam Serwer: Yeah, I understand why you feel that way. And you might be true. That might actually be true in the short term or in the medium term. But, you know, it has been such a tremendous obstacle for years to just basic governance. 

 

Benjamin Wittes: The only reason we still have Obamacare. 

 

Brian Beutler: Yeah, I, I think I think Mitch McConnell likes the filibuster for real. 

 

Benjamin Wittes: Actually, that’s wrong, that’s wrong. That was under that was under reconciliation that’s wrong. 

 

Adam Serwer: But it has played a role in other I mean, they’ve tried to repeal Obamacare many times, but it’s also the reason we have a worse Obamacare than we could have had. 

 

Brian Beutler: We have a status quo right now. And this is why I think Ben is wrong about the McConnell thing. We’ve a status quo right now that allows Republicans to do the things they care most about with 50 votes, that is, appoint justices—

 

Benjamin Wittes: And lower taxes.

 

Brian Beutler: And lower taxes. It requires Democrats for the things that they want to do. They need 60 votes in most cases. And then if they manage to get 60 votes for them and Republicans still don’t like it, then they can go to the Supreme Court, which they appointed with 50 votes, to say, just overturn that. And they stand a pretty good shot at at the court overturning it. 

 

Adam Serwer: And also the court acts as a heat shield, because when the court does something unpopular, that Republicans want to do it, but they can’t do that they leave to the court to do. They the Republicans, don’t necessarily face the backlash. We hadn’t seen that happen. We hadn’t seen the court’s decisions, backlash from Republicans until Dobbs. 

 

Brian Beutler: Okay. Let’s let’s hear Ben’s push back. 

 

Benjamin Wittes: I think, Brian, you would be surprised how many regulatory agencies would cease to exist if Republicans could move legislation with 51 votes. You know, the Department of Housing and Urban Development created by statute could be uncreated by statute. There’s, you know, the Food and Drug Administration. I mean, like the only reason half the federal government exists is because it would take 60 votes to get rid of it. 

 

Brian Beutler: There’s actually a tie in here. Back to the Supreme Court question, which is I am still confused why the tit for tat thing that you worry about is is worse than the status quo. And it’s kind there’s an analogy, too, like if you get rid of the filibuster, Republicans will have the ability to just abolish the Department of Housing and Urban Development. Well, okay, like, but then they also have to stand for election again. And if they just mis govern the country into a ditch like they have in the past, and then they’ll lose the election. And I mean, it would be bad, I think, to have this like sort of on again, off again HUD jubilee where where sometimes it exists and then it gets abolished again. But like I think what you would find is that some sort of like you wouldn’t be— [laughter]

 

Adam Serwer: I’m sorry I’m still laughing at HUD jubilee.

 

Brian Beutler: So. So if you if Democrats manage to get a large enough majority to make the court 13 members and 7-6 Liberal and then five years, whatever, ten years down the line, Republicans got a trifecta again and made it 8-7 conservative. And then you went back and forth like that until some kind of detente broke out. Why is that worse than the situation where it’s, like you said, like ten years until attrition does the work for Democrats. The Lochner Court was like, actually, it was like for four decades, so maybe longer than ten years. 

 

Benjamin Wittes: But the Lochner Court persisted over a lot of administrations that were that were consistent with it. 

 

Brian Beutler: That’s true. That’s true. Okay. 

 

Benjamin Wittes: But now it’s a situation where the public was voting the other way. You know, the public elected Calvin Coolidge. 

 

Brian Beutler: So forget the 40 years of Lochner, just the ten years to do the attrition. That’s ten years of living under this court, which will continue to issue rulings. And I don’t see why that’s more just or safer politically or an outcome that’s safer politically for Democrats than doing the the the back and forth until—

 

Benjamin Wittes: Fortunately for your point of view, if the Democrats win a trifecta in 2024, the last person they will be consulting on this question is me. [laughter] But if they were to, here’s what I would say. I know it’s attractive right now. But, you know, the last time you had a trifecta was when Barack Obama was elected and it looked, you know, we were all doing election. We were all doing commentary about how there was a permanent Democratic majority and, you know, filibuster proof. And it lasted two years. And within four years, within six years, you’d lost both. So don’t think that the situation is permanent. And, you know, it is not just the size of the court that is statutory. It is also the budget of the court. It is also the jurisdiction of the court. And if you open up these things to statutory manipulation for you, the the Pandora’s box that you’re opening is you have no idea where it’s going to go. And by the way, Amy Coney Barrett is not as young as she was when she was appointed. I know time ticked slowly when it’s the other side’s age you’re dealing with, but go easy. And they would laugh at me and say, you sound like a conservative. And I would, you know, trudge home knowing I had done my job and I wouldn’t expect to be listened to. But that’s what I actually think, that we’re you know, that there are these three stools of congressional relationship, really four with the judiciary. One is the a certain a certain modesty in the confirmation process that’s just gone. The second is, you know, the budget that we don’t say we’re going to defund the court if you don’t rule the way we like on this subject, there is no reason why that the legs cannot be kicked out. The third is the size— 

 

Brian Beutler: Sounds good. [laughs]

 

Benjamin Wittes: —size of the court. And the fourth is the jurisdiction of the court, which on most issues is subject to congressional meddling. And we have done real violence to one of these stool, one of these legs of the stool. And there’s a real chance that we could kick them all out. And I don’t think that that is you know, I don’t think that is something we want to play with. And by the way, you don’t have to turn back the clock a lot of years before any right thinking liberal would agree with me, which means you don’t need shouldn’t need to turn the clock forward. And a few years before people should be able to see in that something that should be attractive. That’s the closest to an argument of principle I’m going to make. 

 

Adam Serwer: I think if we had a 6-3 Democratic appointed court, you would absolutely hear the phrase defund the court. 

 

Brian Beutler: Oh yeah. 

 

Adam Serwer: On AM talk radio. You would be hearing it—

 

Benjamin Wittes: And you did for many years, and yet nothing like it ever happened. 

 

Adam Serwer: But what did happen, was a political mobilization that grew large enough and capable enough to eventually take over the court. 

 

Benjamin Wittes: And that is precisely why I don’t say things like this sort of rhetoric is irresponsible. I why, I say I don’t. I think Democratic senators should sound a lot like Adam Serwer, and I think they should. You know, I— [laughter]

 

Adam Serwer: I think they really should not. I would warn them against that. But I do appreciate the sentiment. [laughter] 

 

Benjamin Wittes: I’m not criticizing the the rhetoric. I’m not criticizing the idea that these these cards need to be held in the in the hand. I just think they’re cards you want to be super careful about actually playing because Mitch McConnell has more of them than you do. 

 

Adam Serwer: I think you know, I think what you said Ben about time, you know, it wasn’t that long ago that Barack Obama was winning Florida and Ohio. And now those places seem out of reach for Democrats. I mean, I think you’re right that, you know, the cliche at time makes fools of us all. It really does seem, you know, politics can change very fast. And when a change is very fast, it seems like the changes have been coming for a very long time. But it’s true. It’s true what you say that it is very, very difficult to predict the future and the consequences of something significant. Nevertheless, I do maintain that we’re in a very dangerous position here, not simply because I do not like the policy decisions made by the Supreme Court, but because I regard them as a threat to the public, the sovereign public’s ability to change their minds and to change those decisions, which is something the Supreme Court is supposed to an ability that the Supreme Court is supposed to protect them. The Supreme Court is supposed to protect their ability to do that, not remove it. And that is my my big concern. 

 

Brian Beutler: I do have a question for Ben. You mentioned that the sort of the damage done over the years of the confirmation process. And in your testimony, you you frame your testimony around the idea that all of this existential rancor, like the clamor for court packing, stems from the decay of the confirmation process. And I wanted to push you on that, because I think that’s a little too pat. It it doesn’t account first for Bush v. Gore, which I think we tend to interpret in terms of its impact on who controlled the presidency. But you could just as easily interpret it as a right wing faction of the Supreme Court, thumbing the scales of the law to protect its own majority. And it doesn’t account secondarily, for the the circumstances of Trump’s election, which he you know, he he lost the popular vote, but he also only won the Electoral College by committing and benefiting from the commission of many serious felonies. So with that history in mind, it isn’t just the confirmation process, it’s real legitimacy question issues. 

 

Benjamin Wittes: I agree with that. And I did not mean to say that in I haven’t looked at my testimony in a couple of years, but I did. I don’t think I meant to say that it was only the confirmation process, merely that it was the exporting of the fights that we traditionally had. You know, as Clausewitz would say, a continuation of the confirmation wars by other means. And, you know, specifically, the fight emerges directly out of the confirmation wars. First, we fought about, you know, judges. It finally escalates to blocking Merrick Garland and forcing Amy Coney Barrett down the throats of the electorate in the weeks before an election. And and then in response to that, Democrats start talking about court packing, which is, you know, again, a totally legitimate discussion to have in response to that. But I do think it is a sort of outgrowth of wars that we typically fought in the confirmation space now, where I’m sure I disagree with. Like, I have watched the confirmation battles long enough to see them as, you know, a a war of two sides, not a war of aggression by one side. I do think this final chapter was a war of aggression by one side. So I think I think actually Democrats have a lot to answer for in the confirmation fights. And the way they developed this last step was a very deliberate step of preventing Supreme Court nominees from being confirmed. Holding them over until after elections was an unprecedented step that one side took and the other side has never taken. 

 

Brian Beutler: All right. Well, if we can agree on that much, then we can agree that the incoming Democratic trifecta, if it packs, the court, will return here and talk about what a great idea that is. Right. [laughs]

 

Benjamin Wittes: I don’t believe that principle touches these questions anymore. I used to think that there was like there was a set of rules that we should all abide by, and I just don’t believe that anymore. It’s a power game. And the only question is how to play your cards most effectively. 

 

Adam Serwer: I think it says a lot for Ben to be that black belt on the Supreme Court. 

 

Brian Beutler: [laughs] I agree. 

 

That says a lot about how far things—

 

Benjamin Wittes: I say it with no joy. I have never lost a policy argument harder or more completely than I lost the one about how we should do judicial confirmations. [laughter] You know, like I put I put it all out on the field. People read it and they all, like by in a bipartisan way, said, we don’t know what the right answer is, but it’s not this. [laughter] And so I’m like, okay, you know, it’s all just power. 

 

Brian Beutler: Yeah, it’s a mad grab. Adam Serwer, Benjamin Wittes, thank you both for spending so much of your time with us this week. 

 

Benjamin Wittes: Thank you. 

 

Adam Serwer: Thanks for having us. [music plays]

 

Brian Beutler: Positively Dreadful is a Crooked Media production. Our executive producer is Michael Martinez, our associate producer, is Emma Illick-Frank, and our guest associate producer is Rebecca Rottenberg. Our intern is Naomi Birenbaum. Evan Sutton mixes and edits the show each week. Our theme music is by Vasilis Fotopoulos.

 

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