“Court Packing: A Threat to the Supreme Court’s Legitimacy”

1[House Hearing, 119 Congress]2[From the U.S. Government Publishing Office]34                COURT PACKING: A THREAT TO THE SUPREME5                          COURT'S LEGITIMACY67=======================================================================89                                HEARING1011                               BEFORE THE1213                  SUBCOMMITTEE ON COURTS, INTELLECTUAL14                 PROPERTY, ARTIFICIAL INTELLIGENCE, AND15                              THE INTERNET1617                                 OF THE1819                       COMMITTEE ON THE JUDICIARY2021                     U.S. HOUSE OF REPRESENTATIVES2223                    ONE HUNDRED NINETEENTH CONGRESS2425                             SECOND SESSION26                               __________2728                         THURSDAY, MAY 21, 202629                               __________3031                           Serial No. 119-7032                               __________3334         Printed for the use of the Committee on the Judiciary3536                [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]3738               Available via: http://judiciary.house.gov3940                               ______4142                 U.S. GOVERNMENT PUBLISHING OFFICE434463-809                    WASHINGTON : 20264546                       COMMITTEE ON THE JUDICIARY4748                        JIM JORDAN, Ohio, Chair4950DARRELL ISSA, California             JAMIE RASKIN, Maryland, Ranking51ANDY BIGGS, Arizona                      Member52TOM McCLINTOCK, California           JERROLD NADLER, New York53THOMAS P. TIFFANY, Wisconsin         ZOE LOFGREN, California54THOMAS MASSIE, Kentucky              STEVE COHEN, Tennessee55CHIP ROY, Texas                      HENRY C. ``HANK'' JOHNSON, Jr.,56SCOTT FITZGERALD, Wisconsin              Georgia57BEN CLINE, Virginia                  TED LIEU, California58LANCE GOODEN, Texas                  PRAMILA JAYAPAL, Washington59JEFFERSON VAN DREW, New Jersey       J. LUIS CORREA, California60TROY E. NEHLS, Texas                 MARY GAY SCANLON, Pennsylvania61BARRY MOORE, Alabama                 JOE NEGUSE, Colorado62HARRIET M. HAGEMAN, Wyoming          LUCY McBATH, Georgia63LAUREL M. LEE, Florida               DEBORAH K. ROSS, North Carolina64WESLEY HUNT, Texas                   BECCA BALINT, Vermont65RUSSELL FRY, South Carolina          JESUS G. ``CHUY'' GARCIA, Illinois66KEVIN KILEY, California              SYDNEY KAMLAGER-DOVE, California67GLENN GROTHMAN, Wisconsin            JARED MOSKOWITZ, Florida68BRAD KNOTT, North Carolina           DANIEL S. GOLDMAN, New York69MARK HARRIS, North Carolina          JASMINE CROCKETT, Texas70ROBERT F. ONDER, Jr., Missouri       Vacancy71DEREK SCHMIDT, Kansas72BRANDON GILL, Texas73MICHAEL BAUMGARTNER, Washington7475                                 ------7677             SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY,78               ARTIFICIAL INTELLIGENCE, AND THE INTERNET7980                    DARRELL ISSA, California, Chair8182THOMAS MASSIE, Kentucky              HENRY C. ``HANK'' JOHNSON, Jr.,83SCOTT FITZGERALD, Wisconsin              Georgia, Ranking Member84BEN CLINE, Virginia                  ZOE LOFGREN, California85LANCE GOODEN, Texas                  TED LIEU, California86LAUREL LEE, Florida                  JOE NEGUSE, Colorado87RUSSELL FRY, South Carolina          DEBORAH ROSS, North Carolina88KEVIN KILEY, California              SYDNEY KAMLAGER-DOVE, California89MICHAEL BAUMGARTNER, Washington      Vacancy9091               CHRISTOPHER HIXON, Majority Staff Director92                ARTHUR EWENCZYK, Minority Staff Director9394                            C O N T E N T S9596                              ----------9798                        Tuesday, April 21, 202699100                           OPENING STATEMENTS101102                                                                   Page103The Honorable Darrell Issa, Chair of the Subcommittee on Courts,104  Intellectual Property, Artificial Intelligence, and the105  Internet from the State of California..........................     1106The Honorable Henry C. ``Hank'' Johnson, Jr., Ranking Member of107  the Subcommittee on Courts, Intellectual Property, Artificial108  Intelligence, and the Internet from the State of Georgia.......     3109The Honorable Jim Jordan, Chair of the Committee on the Judiciary110  from the State of Ohio.........................................     5111The Honorable Jamie Raskin, Ranking Member of the Committee on112  the Judiciary from the State of Maryland.......................     6113114                               WITNESSES115116Louis J. Capozzi, III117  Oral Testimony.................................................    10118  Prepared Testimony.............................................    12119William G. Ross, Albert P. Brewer Professor of Law and Ethics,120  Samford University, Cumberland School of Law121  Oral Testimony.................................................    16122  Prepared Testimony.............................................    18123Gene Schaerr, Partner, Schaerr Jaffe LLC124  Oral Testimony.................................................    28125  Prepared Testimony.............................................    30126Nikolas Bowie, Louis D. Brandeis Professor of Law, Harvard School127  of Law128  Oral Testimony.................................................    38129  Prepared Testimony.............................................    40130131          LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING132133All materials submitted for the record by the Subcommittee on134  Courts, Intellectual Property, Artificial Intelligence, and the135  Internet are listed below......................................    72136137Materials submitted by the Honorable Darrell Issa, Chair of the138  Subcommittee on Courts, Intellectual Property, Artificial139  Intelligence, and the Internet from the State of California,140  for the record141    An article entitled, ``The Supreme Court Is Not Supposed to142        Have This Much Power: And Congress should claw it back,''143        Jun. 8, 2022, Nikolas Bowie, The Atlantic144    An article entitled, ``The Separation-Of-Powers145        Counterrevolution,'' 2022, Nikolas Bowie, The Yale Law146        Journal147    An article entitled, ``The Imaginary Immigration Clause,''148        2022, Nikolas Bowie, Michigan Law Review149    An article entitled, ``How the Supreme Court dominates our150        democracy,'' Jul. 16, 2021, Nikolas Bowie, The Washington151        Post152    A statement entitled, ``Presidential Commission on the153        Supreme Court of the United States,'' Jun. 30, 2021,154        Nikolas Bowie, Presidential Commission on the Supreme155        Court of the United States156    A Bill entitled, ``To authorize additional district judges157        for the district courts and convert temporary158        judgeships,'' H.R. 1702, 119th Congress 1st Session, Feb.159        27, 2025160    A Bill entitled, ``To amend title 28, United States Code, to161        allow for twelve associate justices of the Supreme Court162        of the United States,'' H.R. 3422, 118th Congress, 1st163        Session, May 17, 2023164    An article entitled, ``Democrats renew calls for US Supreme165        Court overhaul after voting rights decision,'' May 1,166        2026, News From The States167    An article entitled, ``The Supreme Court Has Grown Too168        Powerful. Congress Must Intervene,'' Oct. 11, 2024, The169        New York Times170    A Memorandum Opinion, Committee on the Judiciary of the171        United States House of Representatives v. Harriet Miers,172        et al., John D. Bates, United States District Judge, July173        31, 2008174An article entitled, ``Justice Samuel Alito: ProPublica Misleads175  Its Readers,'' Jun. 20, 2023, Wall Street Journal, submitted by176  the Honorable Jamie Raskin, Ranking Member of the Committee on177  the Judiciary from the State of Maryland178Materials submitted by the Honorable Zoe Lofgren, a Member of the179  Subcommittee on Courts, Intellectual Property, Artificial180  Intelligence, and the Internet from the State of California,181  for the record182    An article entitled, ``Supreme Court Justice Clarence Thomas183        accepted gifts worth millions of dollars over 20 years,184        analysis finds,'' Jun. 6, 2024, CNBC185    A chart of gifts amount received by Supreme Court Jusitices186    An article entitled, ``Clarence Thomas Defends Undisclosed187        `Family Trips' With GOP Megadonor. Here Are the Facts,''188        Apr. 7, 2023, ProPublica189    An article entitled, ``Clarence Thomas and the Billionare,''190        Apr. 6, 2023, ProPublica191    An article entitled, ``Clarence Thomas Secretly Participated192        in Koch Network Donor Events,'' Sept. 22, 2023,193        ProPublica194    A press release entitled, ``Senate Judiciary Committee195        Releases Revealing Investigative Report on Ethical Crisis196        at the Supreme Court,'' Dec. 21, 2024, U.S. Senate197        Committee on the Judidiciary198199                QUESTIONS AND RESPONSES FOR THE RECORDS200201Questions for Nikolas Bowie, Louis D. Brandeis Professor of Law,202  Harvard School of Law, submitted by the Honorable Deborah Ross,203  a Member of the Subcommittee on Courts, Intellectual Property,204  Artificial Intelligence, and the Internet from the State of205  North Carolina, for the record206    Response from Nikolas Bowie, Louis D. Brandeis Professor of207        Law, Harvard School of Law208209                COURT PACKING: A THREAT TO THE SUPREME210                          COURT'S LEGITIMACY211212                              ----------213214                         Thursday, May 21, 2026215216                        House of Representatives217218           Subcommittee on Courts, Intellectual Property, and219220               Artificial Intelligence, and the Internet221222                       Committee on the Judiciary223224                             Washington, DC225226    The Committee met, pursuant to notice, at 10 a.m., in Room2272141, Rayburn House Office Building, the Hon. Darrell Issa228[Chair of the Subcommittee] presiding.229    Members present: Representatives Issa, Jordan, Fitzgerald,230Cline, Gooden, Kiley, Lee, Fry, Baumgartner, Schmidt, Johnson,231Raskin, Lofgren, and Ross.232    Mr. Issa. The Subcommittee will come to order. Without233objection the Chair is authorized to declare recess at any234time. We welcome everyone here today on today's hearing on235Court packing. Without objection, Mr. Schmidt will be able to236participate in today's hearings for the purpose of questioning237the witness if a Member yields him time for that purpose.238    I will now recognize myself for an opening statement.239Although the title today is Packing of the Supreme Court, it is240more than that. This Committee, this Subcommittee's primary241goal is to empower the Supreme Court to do its job, while242retaining its independence. That often means that we are being243asked to consider pay, benefits, budget, and in fact as there244is a need to lobby from this body to the Court.245    We do so with the recognition that the U.S. Supreme Court,246unlike any other court in history, is in fact a court of247independent decision. The Supreme Court has that critical248constitutional responsibility. Unlike branches one and two,249which move back and forth with the will of the people. The250Constitution itself created a court empowered to act as a check251against the other branches.252    As a check against the branches that reflect the current253will of the people. Throughout our history the U.S. Supreme254Court has been at its best when it told the reflection of the255will of the people of the moment that they could not do what256they wanted to do. It is likely that at its worst, when it257succumbed to the fever of the crowd, or the feeling of the258moment.259    Whether that is Dred Scott, as may be brought up today, or260in fact questions of locking up Americans in concentration261camps during World War II. We have had a long history of being262proud of the Court the vast majority of the time. That doesn't263change the fact that the Court must reflect that which the264American people can in fact live with.265    No question at all that the Court moves at a slow pace, as266the American people come along sometimes behind them. The Court267has delivered wins and losses for both political parties, not268just throughout history, but throughout the last nearly two269years. The Court at our founding was different than it is today270only in one major sense.271    It was viewed as the second court, meaning the U.S. Supreme272Court justices rode circuit, the U.S. Supreme Court justices273were effectively the Appellate Court, in addition to being the274single Supreme Court, as our country grew, that changed.275    Whether or not the American people anticipated in the276Constitution the fact that the population would go from single277digit millions to 350 million, and likely to double again in278the next century, they did create the ability under the279Constitution for the high court to remain supreme, while lower280courts have been created by this very Committee.281    Democrat leaders have threatened specific justices by name,282slandered family members and justices, called for all manner of283laws explicit to undermine the Court's power under the284Constitution. I have not been the greatest student of history,285but I strongly suspect there were times when the other party286did so, whether that party was the Republican party or the287Whigs, politicians have been unhappy with the Court for the288Court doing its job in a professional manner.289    The witness that our Democrat Minority has chosen to invite290today to this very hearing demonstrates my point. Many of the291writings of Professor Bowie clearly anticipates the view of the292Democrat party, that which tends to be more populous, more the293will of the moment, more will of the people, that in fact294democratizing the Supreme Court has been well written by our295witness.296    I take no exception to his words, these are his words, his297studies, and he is well written. The question is today, in this298hearing and beyond, will the U.S. Congress side with the idea299that we should be more democratic in our third branch, or that300our third branch should remain more independent, less if not301completely outside the will of the people's will of the moment302as reflected through either direct will of Americans, or303through their elected representatives in both Article I and304Article II.305    It appears the Democrats believe the Supreme Court should306be prohibited from second guessing any Federal laws, unless the307Court is unanimous. Allowing any single justice, no matter how308radical, to veto the entire Court. I find that interesting, and309I reject it in every possible way. Democrats believe Congress310should decide when the Supreme Court meets, delay when it hears311arguments, force justices to resume the pre-Civil War practice312of riding Circuit and acting as District judges.313    Democrats seem to believe that they should regulate what314anyone can ask any court to do, blocking Americans from seeking315relief from Supreme Court for unconstitutional laws. It appears316Democrats believe the Court should be packed with more justices317who share their views. If written testimony of these views on318behalf of the Democratic colleagues isn't enough for the319Committee, Professor Bowie has written extensively in support320of anti-Supreme Court views.321    I now ask unanimous consent to enter into the record many322of these articles, I will not go through them one by one, but I323will make sure they are available to all the Members. These are324in fact the writings of Professor Bowie, who I have in fact325given a brief synopsis of. Without objection, so ordered.326    In contrast, Republicans understand that even the Court327rules against us, that is its constitutional work. We can328revise laws and even amend the Constitution if we want to. As I329told to some of the individuals in the audience today, we have330one of our original constitutional amendments still before the331American people.332    If the American people so chose thorough its States, they333could choose to go from the House of Representatives having 435334Members determined by the body itself, or we could have over3356,000 members if we simply enacted one of the original336constitutional amendments, the 12th of the 12 original. That337would in fact cap at 60,000 the number of people each member on338the dais could represent.339    At the time of our founding, it seemed like a good idea to340at least some of our founders. If anyone on the dais here today341thinks that a baseball park filled with House Members pushing342their thumbs up and down would give us more democracy, or if343any of the witnesses think that it is more than just a relic of344the past, I ask them all to please consider opining on it345during the hearing.346    With that, I would like to recognize the Ranking Member of347the Subcommittee, Mr. Johnson, for his opening statement.348    Mr. Johnson. Thank you, Mr. Chair, and thank you to349witnesses for your appearance today. Last summer Kash Patel350took a taxpayer funded snorkel tour of Pearl Harbor, one of our351Nation's most hallowed grounds, while the cost of living for352Americans skyrocketed. The Trump Administration just created a353taxpayer funded 1.8 billion dollar relief fund for the January3546th insurrectionists, and others, in exchange for dropping a 10355billion dollar personal lawsuit that he filed against the IRS,356which he controls.357    He is doing this while millions of Americans are losing358their health insurance. President Trump is blocking clean359energy projects for his fossil fuel campaign donors, while the360rest of us pay, and pay, and pay at the pump more and more361every day. What do these facts have to do with this hearing?362    On its face, the daily demonstrations of incompetence and363corruption of the Trump Administration have little to do with364the Supreme Court. If you look closer, these stories mirror the365far Right, and how far the far Right has created a corrupt U.S.366Supreme Court that too often works for the corporations, the367billionaires, and the oligarchs at the expense of the American368people.369    For decades MAGA Republicans have systematically chipped370away at the impartiality of our third branch. They have already371delegitimized our judiciary, yet they now stand before the372American people pretending to be guardians of judicial373integrity. Today's blatant attempt to rewrite history would be374laughable if the consequences were not so dangerous for our375democracy.376    History matters, the American people deserve to understand377how we got to this moment. To understand how we got here, we378must follow both the money and the machinery behind the modern379conservative legal movement. The Roberts' court is the380culmination of a plot that began 50 years ago.381    In the early 1970s, soon to be Justice Powell wrote quote,382383        The judiciary may be the most important instrument for social,384        economic, and political change.385386He said that to reassert corporate power over the needs of the387individual. This Powell memo set off a decades long crusade by388Republicans to concentrate power in the hands of the few at the389expense of the many.390    Wealthy donors and corporate interests spent billions of391dollars to reshape the judiciary in their image. Nowhere is the392success of this decades-long effort more visible than at the393U.S. Supreme Court. Where a carefully appointed conservative394super majority, a MAGA super majority, now delivers the MAGA395conservative outcomes this movement spent billions of dollars396to achieve, and achieve they did.397    In the last several years the Roberts' Court opened the398floodgates to unlimited dark money in our political system.399Empowering billionaires and oligarchs like Elon Musk, the Koch400brothers, Leonard Leo, Harlan Crow, and other powerful special401interests to reshape the Court, and drown out the voices of402ordinary Americans.403    This Court has decimated reproductive freedoms that404generations of women fought to secure. Stripping away rights405that millions of Americans relied on for nearly half a century.406It has granted Trump vast immunity, placing him virtually above407the law. Now, the Court has put the nail in the coffin of the408Voting Rights Act, dismantling protections that generations of409Americans fought, marched, and died for.410    Abraham Lincoln once said this government cannot endure411half slave and half free. Yet, that seems to be the vision for412America that Chief Justice Roberts and the conservative super413majority on the Supreme Court envision. Where some enjoy easy414access to the ballot, others are forced to overcome legal415barriers designed to make our voices quieter.416    Our Nation is now in Jim Crow 2.0. We are a Nation where417the right to vote once again can be diluted, restricted, or418simply ignored, and where the voices of rich and powerful419people carry more weight than the voices of ordinary Americans,420but particularly Americans who look like me. Our 250-year421experiment in self-governance can only succeed if Americans422decide that the clock has run out on the far Right's attempt to423overturn our democracy.424    We can either sit back as our Supreme Court continues to425act without any restraints, or checks and balances, or we can426do something about it. The American people deserve427accountability for the damage that has been done. The American428people deserve a judiciary that serves our democracy, not a429narrow ideological agenda that only benefits the rich and430powerful.431    I want to thank the witnesses again for being here, I am432looking forward to a discussion about how to ensure that our433democracy serves everyone, all of us, not just the wealthy, and434the well-connected few.435    With that, I yield back.436    Mr. Issa. The gentleman yields back. We now recognize the437Chair of the Full Committee, Mr. Jordan, for his opening438statement.439    Chair Jordan. Thank you, Mr. Chair.440441        I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you442        have released the whirlwind, and you will pay the price. You443        won't know what hit you if you go forward with these awful444        decisions.445                                                 Chuck Schumer, March446        4, 2020.447448Highest ranking Democrat in our government threatening a449separate and equal branch of government.450    If you doubt it is a threat, just remember where he made451that statement, on the steps of the Supreme Court. That threat452began the six-year assault on the Court by the Democrats. It453started with that threat, then you had Senator Markey say the454Court is illegitimate. Well, how is that? Every justice I know455in the Court was actually confirmed by the U.S. Senate, that is456how our Constitution works, how could it be illegitimate?457    Senator Markey thought it was. Then, we went to something458that has never happened, the Democrats leaked the Dobbs opinion459in 2022. You talk about trying to undermine a separate and460equal branch of government, start leaking the opinions, that's461what they did, which resulted in protests at justices' homes,462which by the way the Justice Department at the time under the463Biden Administration and Attorney General Garland refused to464enforce the law.465    The 18 U.S.C. 1507 says you can't protest at a judge's466home, and they refused to enforce the law. Which of course led467to some crazy guy going to Justice Kavanaugh's house with the468design to kill a Justice of the Supreme Court. Then, of course,469we had all the hearings by the Democrats when they were in470charge attacking Justice Thomas and attacking Justice Alito.471    We had a hearing where a guy came in and lied about Justice472Alito and said he leaked some document, which go back and watch473the hearing, definitely a lie by this guy. Why do they do it?474Why do they do it? To concoct some basis for packing the Court.475Now, they are saying it again, time to pack the Court. By the476way, why do they want four justices, four new justices on the477Court?478    Why not one, why not two, why not three, and why not five?479Why do they want four? Because it is a six three majority for480conservatives, a six three majority for people who actually481interpret what the Constitution, the law says, versus making it482up as you go, and making some new policy. They want four483because they want a seven-six majority, plain and simple, raw484political power.485    They have been willing to do almost anything, threaten the486Supreme Court on the steps of the Supreme Court, leak opinions,487bring witnesses in to lie about justices, that is why this488hearing is important. Frankly, I hope we move the489constitutional amendment on the floor, I hope there is a vote,490and we will see if these guys want to keep the Court at nine,491which it should be, it has been there for what, 160 years or492something?493    This whole Carville was talking about it, former Vice494President Harris is, they are all talking about it, the Ranking495Member is talking about it, we have got to pack the Court. Why,496why? Because they don't like the decisions that this good Court497is giving this country. Thank the Chair for this hearing, thank498our witnesses for being here, I look forward to hearing your499testimony.500    I yield back.1501    Mr. Issa. The gentleman yields back. I now recognize the502Ranking Member of the Full Committee for his opening statement.503    Mr. Raskin. Thank you very much, Mr. Chair. I suppose that504Court packing, like justice itself, lies in the eye of the505beholder. There are many different kinds of Court packing. Here506is one, when Justice Scalia died in February 2016 when Barack507Obama was President, Senator Mitch McConnell announced 10\1/2\508months before the Presidential election that the Senate would509not be considering any replacement.510    The Judiciary Committee would not have any hearing, there511would be a vote in Committee, and there would be no vote on the512floor. When people asked why, that makes no sense to hold the513Supreme Court seat open, to hold that vacancy open for nearly a514year, he said it was too close to the next Presidential515election, and the people should decide.516    Of course, the people had decided in electing Barack Obama517to one of those genuine, bona fide four-year terms in office,518like every other President. Well, we have got a controlled519experiment about what would happen, because that was held open,520Merrick Garland was nominated by Barack Obama, and was left521twisting in the wind for nearly 11 months after the death of522Justice Scalia.523    Then Trump, when he got in was able to nominate Neil524Gorsuch to the seat, his first week in office, and that seat525was open for 422 days. Mitch McConnell bragged about it,526calling it the most consequential decision of his entire public527career. Of course, it cemented the rapid movement of the528Supreme Court to the Right, to incarnate the MAGA agenda on the529Supreme Court.530    Here is what happened when Ruth Bader Ginsberg died, now531she died on September 18, 2020. Close to the next election,532which was less than two months away, that early voting had533started in a lot of the States. It wasn't even two months away,534and then the Democrats asked Mitch McConnell, some reporters535asked Mitch McConnell, well of course you are not going to have536hearings, or vote, or anything are you?537    He laughed it off, he laughed off the suggestion that they538would maintain the same rule that they had used to block539Marrick Garland and President Obama from having a seat. Then,540they rammed through the nomination of Amy Coney Barrett within541two months, consolidating the Right wing, antichoice, anti-542environmental regulation, antilabor, antivoting rights,543antidemocracy majority on the Supreme Court.544    Had the original McConnell rule been applied, or even a545reasonable approach taken with just a few weeks before the546election, that Supreme Court seat would have been filled by547President Biden, not by Donald Trump. Biden won that election548by the way, by more than seven million votes if you are549interested in what the people want, 306 to 232 in the electoral550college.551    I know some people came down to overthrow the election,552attack our police officers to accomplish a political coup to553deny that, but that is what happened. Right there we have got554two seats officially stolen by Mitch McConnell and the555Republican Senate, giving them a six-three mega court, with a556majority of the court now made up of nominees of Presidents who557lost the popular vote.558    Roberts, Alito, Gorsuch, Kavanaugh, and Amy Coney Barrett,559all nominated to the Court by Presidents who lost the popular560vote. Now, if you don't believe that this Supreme Court has561conceived, and achieved a remarkable transformation in562constitutional jurisprudence, ethics, and behavior on563everything from abortion, to voting rights, to political-564corruption cases, then you don't have to believe me, or you565don't have to believe your own eyes.566    Just listen to Donald Trump, who openly says it is really567OK for them to be loyal to the person that appointed them to568almost the highest position in the land, a Justice of the U.S.569Supreme Court. He berates and vilifies justices and judges up570and down the Federal system who disagree with him, or who he571feels have been insufficiently robotic in their loyalty to the572MAGA agenda.573    It is true he doesn't want a justice loyal to the people,574as the good Chair of the Subcommittee says, or the575Constitution. He wants a Supreme Court loyal to him, and576whatever is going to advance his interests, his money, his577family, and his corporations. He has got a Supreme Court578majority so robotically loyal that they will pluck a doctrine579out of thin air.580    Nothing to do with originalism, nothing to do with581textualism, out of thin air to insulate the President from582liability for felony crimes committed in office. We went for583more than two centuries without any President ever claiming the584right to commit crimes under his office and not to be585prosecuted for it, but here we are today.586    The Supreme Court, we must acknowledge, has been a587profoundly conservative, reactionary institution for the vast588majority of our history. What did the Supreme Court ever do for589enslaved people between the founding and the Civil War?590Nothing, other than in 1857 in the Dred Scott decision cement591their subjugation into place.592    Saying that the African slave and his descendants have no593rights a White man is bound to respect in any way. Then even594after the Civil War, after the passage of the 13th, 14th, and59515th Amendments drawn from the blood, sweat, and tears of the596Union, and the people who fought to defend our country against597the Confederacy, the Supreme Court gutted the meaning of the598reconstruction amendments in the civil rights cases.599    Then, in 1896 in Plessy v. Ferguson constitutionalized the600reign of Jim Crow, separate but equal. We have a couple decades601around the Warren Court, maybe the first few years of the602Burger Court, where the Supreme Court acted on the side of the603people. Brown v. Board of Education, striking down American604apartheid, the White primary line of cases, Terry v. Ohio and605Roe v. Wade.606    It didn't last long before it all sank away with the607Rehnquist Court, and the Roberts' court. Now they have returned608to the historic baseline of political White supremacy. They609wiped out our Voting Rights Act, first in Shelby County v.610Holder in 2013, and a couple months ago in the Callais611decision.612    We are about to see, they are not going to be able to613accomplish it all in 2026, but by 2028 we will probably see all614White Congressional delegations from the deep South, wherever615the Republicans control the State legislatures. That is Court616packing, that is political packing by a packed Supreme Court.617    The Court today has a legitimacy crisis, not just because618of the way it has been composed, stacked, packed,619gerrymandered, and divided by Mitch McConnell, who laughs about620it, he thinks it is funny what they did. Why do some people621want 13 circuits, Mr. Chair, 13 members of the Court?622    You don't need a conspiracy theory for that; there are 13623Federal circuits in America. Traditionally the Supreme Court624has been made up of the number of justices equal to the number625of circuits. We have got 13 circuits, but we only have nine626justices. That means that under the best of circumstances, four627entire Federal regions, four Federal circuits will be left out628completely.629    It is much worse than that today, because we have got five630justices from New York City alone, one for each borough. You631are telling a majority of the people who live in a majority of632the States that they can't find anybody qualified to serve on633the Supreme Court. That is the answer to that particular634question.635    We have got a complete structural, ethical, and636jurisprudential crisis in the Supreme Court, whose name is in637the gutter because of these terrible decisions that they keep638issuing. Like the overthrow of Roe v. Wade and Planned639Parenthood v. Casey, the complete construction out of thin air640of immunity of Presidents to commit felony crimes while in641office, and so on.642    I hope that this Court will do its best to try to behave643like a Supreme Court, but there are things that we can do, and644I introduced one bill yesterday called the SCOTUS Act, and the645SCOTUS Act is creating a new way for a cert to be granted,646because this Supreme Court is obviously acting like a647legislature.648    They set up an agenda where they want this case about the649Voting Rights Act, they want to destroy it. Now, it is time for650us to overthrow abortion rights, we are going to take that651case. A lot of countries don't leave the agenda setting652authority on the court itself, and certainly we should not653leave it in the hands of this Supreme Court.654    It belongs with the 13 Federal circuits, we should have a655panel made up of the Chief Judge of each Federal circuit, or656their designee if they want another judge to do it, and they657should decide when there is a meaningful circuit split, or a658Federal question that should go up to the Supreme Court. This659Court obviously cannot be trusted with that agenda setting660authority.661    Let us begin to create a real Supreme Court in the country662by moving in this direction. I thank you, Mr. Chair.663    I yield back to you.664    Mr. Issa. I thank the distinguished Member from Maryland,665your length of time as a professor shows in the history dating666back to 1929 when the Tenth Circuit was created. Can I just ask667one question as a point of inquiry? Are you saying that the668circuits should push involuntarily to the high court the cases669they should take?670    Mr. Raskin. Not involuntarily, we should setup a new system671where cert is granted by a cert panel that is made up of 13672judges, the lead judges of each Federal circuit in the country,673and those would be the cases that go to the Court, instead of674the Court determining like a legislature what bills it wants to675bring up to overthrow this or that particular policy, or law676they don't like.677    Mr. Issa. Interesting, I look forward to seeing your bill678for that.679    Mr. Raskin. I will get it to you, I will get you a copy680right now.681    Mr. Issa. I thank the gentleman. Without objection, all682other statements will be included in the record. We would now683like to introduce our panel.684    Mr. Louis Capozzi is the Solicitor General of Missouri. He685previously worked in private practice at Jones Day, growing up686in Cleveland, that is a household word I appreciate. Has served687as an Adjunct Professor at the University of Pennsylvania Carey688Law School.689    He clerked for Justice Neil Gorsuch, and Judge Wilkinson on690the Fourth Circuit Court of Appeals, Judge Anthony Scalia on691the Third Circuit Court of Appeals. Thank you, and welcome.692    Professor William Ross, Mr. Ross is the Albert P. Brewer693Professor of Law and Ethics at Stanford University Cumberland694School of Law.695    Professor Ross teaches courses on professional696responsibility, civil procedure, constitutional law, and697American legal history.698    Mr. Gene Schaerr is a partner at his own firm of Schaerr699Jaffe LLP, where his practice focuses on civil appellate700matters. He has argued seven cases before the U.S. Supreme701Court, and previously was Chair of the U.S. Supreme Court and702Appellate Practice Group at Winston and Strawn.703    He is a constituent of our Ranking Member in Maryland, and704perhaps will be able to answer the Ranking Member's questions705in full.706    Professor Nikolas Bowie, Mr. Bowie is the Louis D. Brandeis707Professor of Law at Harvard University. Professor Bowie teaches708courses on Federal constitutional law, State constitutional709law, and local government law.710    We welcome our witnesses here today, and as is the rule of711the Committee, I would ask all our witnesses to rise to take712the oath, and raise their right hand. Do all of you solemnly713swear or affirm under penalty of perjury that the testimony you714are about to give will be true and correct to the best of your715knowledge, information, and belief, so help you God?716    Let the record reflect that all witnesses answered in the717affirmative, you may be seated. I know all of you are learned,718and have certainly watched us on C-SPAN intently in the years719leading up to this. I have to say for the record that your720entire statements will be placed in the record, and that what721you say in your opening statement preferably will be722abbreviated portions of it, or extemporaneous.723    Most importantly your entire written statement will be724placed in the record. The five-minutes in an opening statement725can be either similar or dissimilar, it is your choice, but we726do ask you to stay as close as you can to those little timers727that tell you your time is coming close to an end, and then728eventually that it has ended.729    With that I would ask Mr. Capozzi to begin. OK, now this is730a major test, even Members of Congress get it wrong, so we will731test each of you for your ability to get the mic on and then732back off again. This is your second chance, sir.733734               STATEMENT OF LOUIS J. CAPOZZI, III735736    Mr. Capozzi. Chair Issa, Ranking Member Johnson, Chair737Jordan, and Ranking Member Raskin, thank you for the738opportunity to testify today. I will do my best to turn the mic739on for the rest of the hearing. The framers of the Constitution740guaranteed the Supreme Court's independence because they741understood that independent courts are essential to the rule of742law.743    The Supreme Court's insulation from partisan politics744preserves its ability to adjudicate disputes on what the law745requires, not the fleeting goals of political actors.746Nevertheless, at various points in our history, partisans have747proposed reforms that would undermine the Supreme Court's748independence, with Court packing being the obvious example.749    Today I urge Congress to reject proposals to interfere with750the Court's independence. I would like to start by emphasizing751what is at stake. The Supreme Court, as with all courts, relies752on respect for its judgments. This critical respect did not753arise automatically. As Justice Breyer has explained, during754the 19th century an independent judiciary was more an755aspiration than a reality.756    As an illustration Justice Breyer pointed to President757Andrew Jackson's infamous refusal to respect the Supreme758Court's decision in Worcester v. Georgia, which led to the759removal of the Cherokee from their Native homeland.760Fortunately, by the 20th century respect for the Supreme Court761became firmly entrenched.762    Thus, despite Southern efforts to resist desegregation,763State officials eventually followed the Court's orders to do764so. Today we take it for granted that government officials will765follow the Supreme Court's orders. That could change if766politicians interfere with the Supreme Court's independence.767    That is why I am alarmed by the current trend of attacking768the Supreme Court's legitimacy. Even on their own terms, the769trending criticisms of the Supreme Court make little sense.770First, critics frequently claim that the Supreme Court771consistently rules in favor of President Trump and Republicans,772but this is not true.773    During his first term the Supreme Court ruled against774President Trump in several crucial cases, including on775rescinding DACA, adding a citizenship question to the 2020776census, and allowing subpoenas of the President's personal777financial records. The Supreme Court has also not hesitated to778rule against President Trump early in his second term.779    For example, the Court struck down the President's tariffs,780prevented him from deploying the National Guard in major781cities, and barred the removal of Lisa Cook from the Federal782Reserve. Another common attack on the Supreme Court's783legitimacy is that it has been more willing to overrule784precedent than in the past.785    A quick look at history refutes this proposition. During786the 1930s and 1940s the Supreme Court revolutionized787constitutional law, and allowed for the massive growth of the788Federal Government. The Warren Court also regularly covered789precedent, and dramatically overhauled many areas of the law.790For example, in Reynolds v. Sims, the Supreme Court791restructured State legislatures across the country, finding the792State's equivalents of the U.S. Senate unconstitutional.793    Compared to its predecessors, the current Supreme Court794overrules precedents at a slower pace. Indeed, the Supreme795Court has conspicuously declined to overrule precedent in796several recent important cases, including Fulton v. City of797Philadelphia. At the same time the Supreme Court can and should798overrule precedent when it believes a past decision was wrong,799with Brown v. Board of Education being an obvious example.800    The Supreme Court continues to strike a balance between801preserving precedents and correcting its mistakes, just as it802has always done. As solicitor general of Missouri and a recent803Supreme Court clerk, I can attest the Supreme Court is working804exactly as it should be. The Supreme Court derives its805legitimacy from the fact that it is not a partisan institution.806    No political group gets everything it wants there,807disagreeing with the Court's decisions is no excuse to threaten808judicial independence, a cornerstone of our republic that took809centuries to build. I urge Congress to continue its tradition810of respecting the Supreme Court's independence. Thank you again811for your invitation to be here today, I look forward to your812questions.813    [The prepared statement of Mr. Capozzi follows:]814815[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]816817    Mr. Issa. Thank you, sir. We now recognize Professor Ross.818OK, you get two chances too. Don't feel bad, like I say, we819have had senators not be able to get it right, sir.820821                  STATEMENT OF WILLIAM G. ROSS822823    Mr. Ross. Chair Issa, Ranking Member Johnson, Chair Jordan,824and Ranking Member Raskin, and the distinguished Members, thank825you very much for inviting me to testify here today. I am here826to testify in opposition to proposals to expand the number of827U.S. Supreme Court Justices, and to provide historical828perspectives about so called Court packing.829    Increasing the Court's size for political reasons could830diminish judicial independence, and interfere with separation831of powers, because it would permit the President and the Senate832to manipulate the outcome of judicial decisions by appointing833additional justices who would be expected to conform to the834political predilections of the President and his or her party.835    Moreover, the prospect of Court packing could intimidate836justices, and influence the Court's decisions. The Court's837independence from political pressure and intimidation has838helped to ensure its ability to protect the civil liberties of839Americans in countless cases involving racial, religious,840political, and ethnic minorities whose rights were ignored or841impugned by Congress, the President, and State governments.842    Similarly, the Court generally has protected the liberties843of speech, press, religion, and assembly more faithfully than844have the President, the Congress, or the three branches of845State government. A politically motivated increase in the846number of justices could also erode public respect for the847Court, since it would exacerbate the growing tendency of848Americans to believe that the Court's decisions are guided by849political prejudices, rather than by constitutional principles.850    Advocates of Court packing claim that the appointment of851additional justices, presumably by a Democratic President,852would restore balance to a Court the conservatives have853allegedly high-jacked. How and where would Court packing end854once it began? Court packing is a game that both parties can855play. If a Democratic President could obtain a liberal majority856on the Court by appointing additional justices, a subsequent857Republican President could restore a conservative majority by858appointing still more justices.859    It is therefore clear that both parties and both860conservatives and liberals should have compelling reasons to861fear and oppose Court packing. Tampering with the size of the862Court also is ill advised because the nine member Court is863deeply rooted in tradition and is based on practical864considerations.865    Supreme Court justices and legal scholars have tended to866agree that nine is the ideal size of the Court, since that is867large enough to distribute the Court's heavy workload, and868provide a range of viewpoints, but small enough to promote869collegiality, and efficient deliberation. Increasing the870Court's size could impair the Court's ability to function871effectively.872    In particular, an increase in justices would provide873individual members with less time and opportunity to ask874questions during oral arguments, and to participate in the875Court's conferences. It could also dilute the clarity and force876of the Court's opinions by increasing the number of concurring877opinions.878    As Chief Justice Charles Evans Hughes in opposing Franklin879Roosevelt's ill-fated Court packing plan in 1973, quote,880881        There would be more judges to hear, more judges to confer, more882        judges to discuss, more judges to be convinced, and to decide.883        The present number of justices is large enough so far as the884        prompt, adequate, and efficient conduct of the work is885        concerned.886887    Although advocates of the Court packing contend that the888Court's new conservative majority should not frustrate the889programs of the other two branches of government, it is the890very role of the Court to filter political agendas through a891constitutional lens, tethering the Court to the President and892Congress contravenes the fundamental concept of separation of893powers.894    The Court often has fulfilled its most important function895when it has overturned unconstitutional legislation. Although896proponents of the Court packing also argue that the present897Court is out of step with public opinion, the Court throughout898its history has broadly remained within the general parameters899of public opinion, even during periods when it has a distinctly900liberal or conservative tinge.901    Justices are keenly aware that, as Alexander Hamilton wrote902in the Federalist,903904        The Court has neither the power of the purse, nor the power of905        the sword, and that its decisions are ultimately dependent upon906        the good will of the coordinated branches of government and the907        American people.908909    Since Court packing proposals jeopardize the Court's910integrity and independence, it is my hope and expectation that911Americans today will reject such interference with the Court912just as they did in 1937. Thank you.913    [The prepared statement of Mr. Ross follows:]914915[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]916917    Mr. Issa. Thank you, Professor. Mr. Schaerr?918919                   STATEMENT OF GENE SCHAERR920921    Mr. Schaerr. Good morning, Chair Issa, Ranking Member922Johnson, Chair Jordan, Ranking Member Raskin, and the923distinguished Members of the Subcommittee. Thank you for this924opportunity to address recent proposals for packing the U.S.925Supreme Court, which is an issue of enormous importance to all926who care about the rule of law, as I know each of you does.927    In 1983 a well-known Democratic politician, Senator Joe928Biden, pointedly referred to Franklin Roosevelt's 1937 attempt929at packing the Supreme Court as quote ``A terrible mistake, and930a bone headed idea.'' Let me offer five reasons why that931remains true today in addition to those that have been932mentioned by my esteemed colleagues here on the panel.933    First, the current Court packing proposals are really based934on an incorrect factual premise, namely that the Roberts' court935is relentlessly partisan, and consistently reaches conservative936outcomes. Now, we have heard already today about a handful of937decisions that people on the Left don't like. We have heard938about Citizens United, which recognized First Amendment939limitations on the government's ability to curb or regulate940political speech.941    People on the Left are also concerned about Dobbs, which we942have heard about, and the recent Supreme Court decision in943Louisiana v. Callais, which some people claim gutted the Voting944Rights Act. In fact, and I will come back to those specific945examples in a minute, but in fact the Roberts' court, often946joined by some of President Trump's nominees, has also ruled947against what most people view as Republican or conservative948interest in several hotly contested cases.949    Mr. Capozzi mentioned the recent tariff decision. Another950example of that phenomenon is the Obergefell decision from a951few years ago, which ruled that States are constitutionally952forbidden from limiting the definition of marriage to man--953woman unions. Then, there was the Bostock decision which954extended Title VII's protections against nondiscrimination to955gay, lesbian, and transgender people.956    Don't forget the Supreme Court's earlier decision in NFIB957v. Sebelius, which upheld the individual mandate that was the958heart of Obamacare. Each of those decisions was excoriated by959folks on the Right, and they were as a political matter and a960policy matter, they were big wins for progressives. The claim961that the Roberts' court is somehow in the pocket of962conservatives or Republicans just doesn't withstand analysis of963the facts.964    Second, current proposals rest on an unrealistic predictive965judgment about new justice's likely voting patterns. In Roe v.966Wade for example the key votes supporting abortion rights came967from justices appointed by the conservative President Nixon,968while one of the most vocal dissents in Roe v. Wade came from969Justice Byron White, who had been appointed by President970Kennedy.971    We have all seen examples of where Supreme Court Justices972vote against the wishes of the President who appointed them.973Even adding four more justices to the Supreme Court is by no974means any guarantee that the Court would shift more toward975progressive priorities.976    Third, as has been mentioned, Court packing proposals977really ignore the incentives of the other side once they regain978power.979    If Democrats have a trifecta in the next election, and are980able to expand the Supreme Court to 13, does anybody think that981Republicans are going to stand still for that and not do the982same thing the next time there is a Republican trifecta? Before983long the only venue that will be large enough to accommodate984the Supreme Court's conferences, their private conferences,985will be the new White House ball room, and I don't think that986is in anybody's interest.987    Mr. Issa. You are assuming that there will be one.988    Mr. Schaerr. I am assuming that I am not advocating for it,989but I am assuming it.990    Fourth, Court packing proposals distract from the more991important work of building political and legislative992coalitions. That is illustrated by some of the recent Court993decisions that we have discussed today.994    If you look at the Callais decision for example, that995decision was premised on the Court's interpretation of a996Federal statute, namely the Voting Rights Act, and the Court997held that there was a violation of equal protection in that998case because the Voting Rights Act did not establish that999majority-minority districts were required.1000    Well, if Congress goes back and changes the Voting Rights1001Act to do what progressives would like, and require majority-1002minority districts, my guess is that this decision would come1003out very differently. Dobbs is another example, many1004progressives, and even not so progressive States have already1005effectively neutered Dobbs within their own State boundaries by1006passing laws that protect abortion to an equal or greater1007extent than Roe ones did.1008    Fifth, other panelists have already discussed how Court1009packing would erode public trust in the Court, and ultimately1010in the entire Federal Government. Because the Supreme Court has1011long been viewed correctly as a bit of a ballast or a1012counterweight to the other branches of the government. They can1013correct the mistakes that the other branches occasionally make.1014    It is also instructive that Court packing in other1015countries has become a favorite tool of tyrannies around the1016world, like Robert Mugabe in Zimbabwe, Victor Orban in Hungary,1017and Hugo Chavez in Venezuela. There are many reasons to reject1018the current Court packing proposals. Thanks you.1019    [The prepared statement of Mr. Schaerr follows:]10201021[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]10221023    Mr. Issa. I thank the gentleman. We now go to Professor1024Bowie for his, I'm terribly sorry to mangulate your name.10251026                   STATEMENT OF NIKOLAS BOWIE10271028    Mr. Bowie. No worries, but thank you, Chair Issa, Ranking1029Member Johnson, Chair Jordan, and Ranking Member Raskin, thank1030you for inviting me to testify before the distinguished Members1031of the Subcommittee. My name is Nikolas Bowie, and I am the1032Louis D. Brandeis Professor of Law at Harvard Law School. For1033the past seven years with my colleague Daphna Renan, I have1034researched a forthcoming book called Supremacy, how rule by the1035Court replaced government by the people.1036    The book shows how the Supreme Court acquired the power it1037now wields, and what Congress can do about it. We are here to1038assess whether Court packing is a threat to the Supreme Court's1039legitimacy. We first need to answer a more basic question,1040which is what is the legitimate role for the Court to play1041under our Constitution? As Professor Renan and I wrote in our1042book, this question was a critical one for the people who1043founded the Republican Party.1044    Their mission was to fight the spread of slavery. In 1857,1045in Dred Scott v. Sanford, the Supreme Court declared that1046mission unconstitutional for Congress to put into practice.1047That founding generation of Republicans had never before1048experienced an attempt by the Supreme Court to override1049Congress.1050    They called such an attempt despotic, and unwarranted by1051the Constitution. When Abraham Lincoln and other Republicans1052won in the 1860 elections, Congress enacted statutes that1053rejected Dred Scott, and began reconstructing the South into a1054multiracial democracy. That Republican controlled Congress1055wanted Courts to enforce their laws, but they were wary of a1056second Dred Scott decision.1057    They changed the Court's size, they stripped it of1058jurisdiction to review its most important laws, and they1059proposed further regulations to check and balance the Court.1060They understood that under our Constitution, the legitimate1061role for the Court is to enforce Federal law against anyone who1062considers themselves above it, whether that person is a1063corporate executive, a State official, or the President.1064    The Court's role is not to defy Federal law by placing1065itself above you all, our Nation's representatives of we the1066people, to whom the Constitution gives primary responsibility1067to determine the Constitution's meaning. The Supreme Court's1068assertion of power to defy Federal law has a name, judicial1069supremacy.1070    The founding generation of Republicans argued that this1071idea undermines Republican governance. They failed to bury it,1072and it re-emerged when the Court declared Congress1073constitutionally incapable of banning lynching, of banning1074racial discrimination by businesses, or banning widespread1075disenfranchisement.1076    In the years since then the Court has continued to1077undermine Federal voting laws, Federal civil rights laws, and1078Federal laws that prevented the wealthy from dominating our1079elections, and your daily call time. Judicial supremacy has1080also unleashed Presidential authoritarianism, disabling the1081laws Congress enacted to prevent corruption, self-dealing, and1082attacks on the peaceful transition of power.1083    Those early Republicans, we need not accept judicial1084supremacy any longer. Those Republicans, and their abolitionist1085allies, advocated for an alternative tradition that Professor1086Renan and I call democratic constitutionalism. This is the idea1087that we the people have the power to interpret and define the1088meaning of the Constitution through the process of Federal law1089making.1090    This was the position of the lawyers who argued Brown v.1091Board of Education in the 1950s. They urged the Court to stop1092defying Congress' civil rights laws, and to start enforcing it1093against discrimination in the South. One law in particular, the1094Ku Klux Klan Act of 1871 explicitly directed courts to prevent1095State officials from violating anyone's constitutional rights.1096    The Court applied that Federal law in Brown to end1097segregation in the South, and it has applied it in many1098landmark cases since. Meanwhile, a bipartisan Congress1099inaugurated a second reconstruction of the Voting Rights Act of11001965. That law overrode Supreme Court decisions that had1101interpreted the Constitution to be consistent with all the Jim1102Crow laws that disabled Black people from voting in the South.1103    You have the power to continue this legacy and replace1104judicial supremacy with democratic constitutionalism. The1105Constitution says nothing about the Court's power to defy acts1106of Congress, but it explicitly empowers Congress to regulate1107the Court. Your predecessors used that power to curb the1108Court's defiance of Federal statutes, and to override harmful1109constitutional interpretations.1110    In fact, nearly everything about the Court can be regulated1111by statute, including the number of justices, where it sits,1112and what it has the power to do. If the current majority of the1113Court is exercising an illegitimate supremacy over Federal law,1114one the Constitution does not grant, and that is being used to1115make Republican governance unviable, then regulating the Court1116is not just legitimate, it is your duty. Thank you very much.1117    [The prepared statement of Mr. Bowie follows:]11181119[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]11201121    Mr. Issa. Thank you. We will now proceed to the five-minute1122rule. I will ask for unanimous consent at this time to place1123into the record the Judges Act, H.R. 1702, a bill to expand the1124District Courts over a phased-in period. Additionally, I will1125put in H.R. 3422, the Judiciary Act of 2023 to expand the1126court.1127    I will put in a news story from 2026, just a few days ago,1128``Democrats renewed call for U.S. Supreme Court overall after1129the Voting Rights Act decision.'' Without objection, so1130ordered.1131    We now proceed to the gentleman from Wisconsin, Mr.1132Fitzgerald, for five minutes.1133    Mr. Fitzgerald. Thank you, Chair. Mr. Ross, for the first113480 years of our Nation's history, the size of the Supreme Court1135changed with some regularity, why was that? Microphone.1136Microphone.1137    Mr. Ross. Pardon. The expansion of population, originally1138the justices were chosen largely on geographical grounds, and1139every of course the justices rode circuits, the justices wore1140two hats until 1891. They served as Circuit Court judges, and1141they also served as U.S. Supreme Court Justices. In a smaller1142Nation, there were only four million people in the 1790 census,1143there was less need for a larger Court.1144    As the country expanded, as the number of circuits1145expanded, the number increased, but only to nine, from five to1146nine. A maximum of ten, and then only for six years, from 18631147to 1869 there were ten. Since 1869 we have had nine. That is a1148long history, a century and a half with nine members, and it1149has worked very well so far. In my opinion that ought to be the1150number.1151    Mr. Fitzgerald. Well, let me followup then. In 1869, when1152Congress did pass that Judiciary Act, why did they set it at1153nine justices at that point, do you figure?1154    Mr. Ross. Well, if the Court divided, that would be five to1155four, if you have ten then the Court could be split, if the1156Court splits, then the lower court decision stands. It is1157generally better to have a decisive decision of the Court. Nine1158permits the Court to divide one way or the other.1159    Mr. Fitzgerald. As Ben alluded to a couple times, when1160President Roosevelt tried to unsuccessfully, in 1937, to expand1161the Court to 15 justices, was there any sound logic to this1162expansion that the President was using, or making, or was it1163merely an overreaction to a Supreme Court that had repeatedly1164struck down the New Deal?1165    Mr. Ross. Historians are unanimous, or virtually unanimous,1166historians are never unanimous on anything, but about as1167unanimous as they can be that the Court packing plan in 19371168was politically motivated. The Supreme Court had struck down a1169number of significant New Deal statutes in the previous two1170years, and the Social Security Acts, and the National Labor1171Relations Act were coming up for adjudication before the Court.1172    These were the signature legislation of the New Deal, and1173Roosevelt was understandably worried that the Court would1174strike those down. His remedy was to increase the number of1175justices to pack the Court so that the Social Security Acts,1176both the old age pension and the unemployment compensation1177laws, and the National Labor Relations Act, which was hugely1178important at the time of industrial unrest, would be secured.1179    Franklin Roosevelt originally claimed that he was doing1180this because the Supreme Court was overworked, and the justices1181were geriatric, there were six of them who were over the age of1182seventy, that is why he chose six, one new justice for every1183justice who was over the age of seventy. The older justices1184were, for the most part, quite vigorous, including Louis1185Brandeis, and Chief Justice Hughes was in the peak of health,1186despite his age, over seventy.1187    It was so disingenuous that it was almost laughed at.1188Roosevelt, about a month after he introduced the plan, admitted1189that his motives were frankly political. By the way, the then1190Chair of the House Judiciary Committee, Hatton Sumners, a1191Democrat, opposed Roosevelt's plan from the very first day,1192that is why Roosevelt introduced it in the Senate, rather than1193in the House.1194    Mr. Fitzgerald. Very good, thank you. Already this morning1195there has been some attacks on the Supreme Court by some of my1196colleagues on the other side over--well just as a former Clerk,1197Mr. Capozzi, you State in your testimony that if too many come1198to view the Supreme Court as a partisan actor rather than a1199neutral arbitrator of law, the losing parties would be tempted1200to disregard court orders. What would that mean for our1201government as a whole? I know that is a big question.1202    Mr. Capozzi. It would mean the end of the rule of law,1203plain and simple.1204    Mr. Fitzgerald. Do you think that are there certain1205parameters to criticizing the Court, or is that unacceptable1206beyond the First Amendment?1207    Mr. Capozzi. It is perfectly acceptable to criticize the1208Supreme Court, people always have, Presidents from the1209beginning of our country have lost major cases before the1210Supreme Court. President Jefferson frequently criticized1211decisions from the Supreme Court. There is a line between1212criticizing decisions, criticizing their reasoning, and1213attacking the legitimacy, and the independence of the Supreme1214Court itself.1215    Mr. Fitzgerald. Very good, I yield back.1216    Mr. Issa. The gentleman yields back. We now go to the1217Ranking Member of the Subcommittee, the gentleman from Georgia1218for five minutes.1219    Mr. Johnson. Thank you, Mr. Chair. Professor Bowie, the1220Supreme Court's recent decision in Louisiana v. Callais1221represents the culmination of a decades long campaign led in1222part by Chief Justice Roberts to dismantle the Voting Rights1223Act, from Shelby County to Brnovich, and now Callais, there has1224been a systemic, and systematic effort to substitute judicial1225skepticism for Congress' explicit constitutional authority to1226protect the right to vote.1227    Professor Bowie, how does the Callais decision compare to1228the Supreme Court's treatment of Reconstruction era1229protections, and the initial passage of the Voting Rights Act?1230    Mr. Bowie. It is directly related, because for the first1231century after Congress proposed the 15th Amendment to protect1232the right of people to vote, and to prohibit States from1233violating that right on account of race, the Supreme Court1234interpreted the 15th Amendment to prohibit only laws that it1235thought had the intent of discriminating on the basis of race.1236    Applying that test, the Court allowed literacy tests, poll1237taxes, and all sorts of other State laws to effectively1238disenfranchise all Black people, or nearly all in the South.1239    When Congress passed the Voting Rights Act in 1965, its1240goal was to overcome those decisions, and instead apply an1241effects test, or something that said when a State law has the1242effect of making it more difficult for people of color or any1243other group to vote on account of their race, then that is1244illegal.1245    When the Supreme Court interpreted that law in the 1980s,1246it said that actually what Congress did was apply the same sort1247of intent test, had to prove that a State legislature intended1248to discriminate against Black people. Congress again said no,1249you are getting this wrong. We think the problem is all these1250laws that have the effect of making it more difficult for1251people to vote.1252    What happened in the recent decision just a few weeks ago1253is the Court said no, we think what Congress actually did was1254apply this same test that we have applied for generations that1255has had the effect of making it far more difficult for people1256of color to vote, and we are seeing the consequences right now1257as every Southern State considers laws to take away1258representation in Congress that is currently occupied by Black1259or Hispanic representatives.1260    Mr. Johnson. Many Americans increasingly view the Court as1261acting less like a neutral judicial body, and more like a1262political institution, advancing a particular ideological1263agenda. When the Court repeatedly invalidates laws enacted1264through the democratic process to expand voting rights and1265representation, does that contribute to a crisis of legitimacy1266of the institution itself?1267    Mr. Bowie. It does in the sense that what people expect1268from the Supreme Court is what Congress has asked the Court to1269take an oath to do before anyone can become a justice. Which is1270to apply the law without fear or favor to rich and poor alike.1271When people look at the kinds of rulings coming out of the1272Court that seem to systematically favor one party, or the1273wealthy, or corporations, or any number of people on a pretty1274predictable basis.1275    Just knowing kind of what is going on in the case before1276the Court even issues a decision I think does have an effect on1277what people think the Court is in effect doing. I agree with my1278colleagues on this panel that to the extent what people think1279the Court is doing is simply issuing Truth Social posts, then1280no one will take it seriously.1281    The Court's power comes from the idea that what the1282justices are doing is different from what you are all doing as1283politicians. When all the evidence, and all the public1284information about the Court suggests that actually the same1285kinds of policy decisions are happening on the bench that are1286happening in Congress, it becomes very difficult to treat the1287Court as a different kind of institution than your esteemed1288body.1289    Mr. Johnson. Thank you. If the Court continues to narrow1290Congress' ability to protect voting rights under the1291Reconstruction amendments, what does that mean for the balance1292of powers as envisioned by our Constitution, and for the future1293of multiracial democracy in this country?1294    Mr. Bowie. The Constitution is ours to interpret as1295Americans. It is a document for all of us, and people have1296marched in protest and died in order for the Constitution to1297reflect that we are a democracy, we should protect the ability1298of all of us who can vote to do so, and that we should not1299tolerate laws that make it more difficult for people to access1300the ballot.1301    When the Supreme Court interprets the Constitution to say1302that this kind of rule is not constitutional, that the 15th1303Amendment, when it specifically empowers Congress to adopt1304appropriate legislation, but that a law as fundamental as the1305Voting Rights Act is not appropriate, that is a misreading of1306the document that we do not have to accept.1307    Because if we do, the consequence is going to be the end of1308our ability to govern ourselves, and the end of our ability to1309enact voting protections.1310    Mr. Johnson. Thank you, with that, I yield back.1311    Mr. Issa. The gentleman yields back. With that, we1312recognize the Chair of the Full Committee, Chair Jordan.1313    Chair Jordan. Their argument is the Court is too political,1314so let us let the political body add four new seats. That is1315one of the dumbest things I have ever heard, but that is the1316arguments the Democrats are making, and their witness is1317articulating. It makes no sense. That is why we need to keep1318the Court at nine.1319    I will yield to the former Attorney General from the great1320State of Kansas the remainder of my time.1321    Mr. Schmidt. Thank you, Mr. Chair. I appreciate the Chair1322and the Chair convening this hearing. I am sitting here1323listening to this today, I was musing about something I often1324think about when there is no point in debating it, and that is1325what things in Independence Hall would have been like all those1326years ago if we had all had cameras, cell phones, and social1327media, where every statement is calibrated for consumption by a1328particular audience somewhere not in this room.1329    This is one of those heavy issues that is not solely about1330the issues of the day. This is one of those questions that is1331about, to paraphrase the professor, how we choose to govern1332ourselves. The discussions we are having here aren't materially1333different in nature than the ones they had in Independence Hall1334about how you balance out the decisionmaking, and who does1335what.1336    The difference is we have come to focus on looking at this1337through a lens of the issues of the day, not a lens of how we1338should structure our self-determination. Our history is one1339that when we have attempted to do that before, when we have1340erred in looking at these important structural questions1341through the issue of the day, we have so far rejected that1342notion.1343    I would like to on that point go back to what we have1344referenced many times, but not talked a lot about today, which1345is the failed effort to pack the Court by expanding its numbers1346in the Roosevelt Administration in 1937 I believe it was.1347    Remember the context of that time, it has been mentioned by1348Professor Ross and others about the Court overturning a number1349of--modifying and reversing its view in some cases on the1350appropriate limitations on the constitutional powers of1351Congress to act in the economic space in particular.1352    Remember what was happening politically. Less than a year1353before there had been a Presidential election in this country,1354and Franklin Roosevelt was re-elected, and these issues were1355central in that election. I wasn't alive then, but it is a1356little personal for me, the Republican nominee for President1357that year was Alf Landon, he is from my little home town of1358about 9,000 people.1359    He was the only Republican Governor re-elected in the1360country in 1934, which is why he became our nominee in 1936,1361and he lost in a landslide. In fact, he only carried Maine and1362Vermont, he didn't even carry Kansas. Roosevelt had a mandate1363we might say, and yet he overreached. It took a bipartisan1364Majority to say notwithstanding that clear message from the1365people and notwithstanding the power of the Presidency, we are1366going to defend the structure of this democracy, and of this1367Court.1368    As has been mentioned, the Chair of the House Judiciary1369Committee at the time, a Democrat, didn't favor packing the1370Court. Ultimately, when it came to a vote in the Senate, the1371Democrat led Senate Judiciary Committee said they don't favor1372the packing of the Court. The U.S. Senate, which was a Majority1373Democrat at the time, voted overwhelmingly, it was 70 to1374something, not to adopt a Court packing plan.1375    What is happening in this room today, and in our politics1376today is different. It is different because for some reason we1377seem incapable of having what I would believe to be a more1378reasoned bipartisan or a partisan nonpartisan discussion about1379how we want our Supreme Court to function, and what its1380appropriate role is.1381    I won't read all the statements, they have been entered1382into the record, but right now at this moment in our history it1383is my friends on the other side who seem intent because they1384don't like the direction the Court is headed to pack it with1385new members. I suppose those of us on the more conservative1386side could have made the same argument for many years after the1387Roosevelt courts because we didn't like a lot of those1388decisions.1389    We, for the most part, didn't as vociferously argue about1390just fundamentally changing the structure. I want to return to1391just a couple of questions here that have been touched on1392before. Can any of you tell me, let me start, Professor Ross,1393you have addressed this, Mr. Capozzi, let me ask you, and Mr.1394Schaerr, and then Mr. Bowie.1395    Let us assume that a Court expansion plan is adopted in1396some form, what is the limiting principle that will limit its1397further expansion in the future if we succumb again to the1398political passions of the moment? Mr. Capozzi?1399    Mr. Ross. I don't think that there is any limit. That is1400one of the fatal flaws of the proposal. If one President packed1401the Court, then the next President could pack the Court, and it1402would just be a never ending cyclical process and end up with1403potentially hundreds of Supreme Court Justices.1404    Mr. Schmidt. Thank you, Mr. Ross. Mr. Capozzi?1405    Mr. Capozzi. The only limit would be what each side can get1406away with.1407    Mr. Schmidt. Mr. Schaerr?1408    Mr. Schaerr. There is no limit.1409    Mr. Schmidt. Professor, what is the limiting principle?1410    Mr. Bowie. The role of the Court is an important question1411as you have laid out, and the role is not to be this1412undemocratic super weapon in the middle of our democracy. The1413role is not to try to put as many of our--1414    Mr. Schmidt. Is there a limiting principle if we expand it1415today because one side is mad, do we expand it tomorrow because1416somebody else is? What is the limiting principle?1417    Mr. Bowie. Putting justices on the Court for their own sake1418is not a good idea, nor is changing the size of the Court1419simply because nine is a better number than eight, or ten is a1420better number than nine.1421    Mr. Schmidt. Thank you, Professor, I yield back, I am out1422of time.1423    Mr. Issa. I appreciate that, the gentleman yields back. We1424now go to the Ranking Member of the Full Committee, the1425gentleman from Maryland for his questions.1426    Mr. Raskin. Thank you, Mr. Chair, and thank you, Mr.1427Schmidt, for those thoughtful comments. One of the things you1428say is we should be talking about how the Supreme Court should1429function, and is it consistent with the Constitution, and the1430rule of law? Let us talk about the shadow docket, and what is1431actually going on in the Supreme Court today.1432    When Trump's policies, whether it is an attempt to directly1433nullify the first sentence of the 14th Amendment, which1434establishes birthright citizenship, or his attempt to usurp the1435spending powers of Congress are challenged, he is losing 601436percent of the time in the District Courts he has lost, 571437percent of the time in the Federal Circuit Courts.1438    Then, it gets up to the Supreme Court, and its shadow1439docket, and there he has won 84 percent of the time. He goes1440from losing 40 percent of the time to winning more than 801441percent of the time when it gets up into the Supreme Court.1442Now, obviously, we would disagree about substance, those who1443want to go with Trump, and say that he can nullify birthright1444citizenship in the country, just going to disagree about that,1445fine.1446    What about the shadow docket, and how it operates? Nobody1447has uttered a word about what that does to undermine the1448legitimacy of the Court. We have hundred-page opinions,1449authoritative, magisterial opinions being written by District1450Court judges, or panels, Circuit Court judges that are being1451overturned with one sentence or one paragraph in the shadow1452docket.1453    Is that legitimate, or is that illegitimate? Maybe we can1454just go down the line, Mr. Schaerr?1455    Mr. Schaerr. In general, it is legitimate, every Appellate1456Court has the authority to stay a decision of a lower court--1457    Mr. Raskin. OK, Mr. Ross, do you think it is legitimate,1458what is taking place with the shadow docket?1459    Mr. Ross. I share your concern about the shadow docket; I1460am troubled by it too. I don't think criticism of the shadow1461docket provides any justification for Court packing--1462    Mr. Raskin. Is it legitimate or illegitimate, I am just1463asking whether it is legitimate or illegitimate.1464    Mr. Ross. I don't think it is illegitimate.1465    Mr. Raskin. OK, Mr. Capozzi?1466    Mr. Capozzi. It is legitimate, it has been around for a1467long time. You look at the stay of execution litigation going1468back decades--1469    Mr. Raskin. OK, thank you. Mr. Bowie, what about you?1470    Mr. Bowie. I don't think it is legitimate, in part because1471of the damage that it is doing to the Court's credibility, as1472well as to our country. We have a Court right now that is1473issuing decisions without the benefit of argument, without the1474benefit--1475    Mr. Raskin. That really is Truth Social, meet the Supreme1476Court, we will send you one sentence and overturn an entire1477analysis. The legitimacy of the rule of law depends on the1478character of the analysis that is given to the legal question.1479Nobody has taken me up on my invitation to discuss the1480legitimacy or the illegitimacy of the Court based on what1481Senator McConnell did.1482    Is there anybody who would argue that what he did was1483legitimate in saying we will not even have a hearing on1484President Obama's nominee, Merrick Garland, and we will not1485have any votes 11 months before the election, but we will rush1486through the nominee to take Justice Ginsberg's seat. Anybody1487want to argue that this is legitimate?1488    Mr. Schaerr. I will certainly take you up on the first part1489of that. When McConnell did that, he announced that he was1490applying the pre-existing Biden rule, which is that we don't1491consider new Supreme Court nominees during an election year. I1492agree that the Amy Coney Barrett hearing was an exception to1493that, but--1494    Mr. Raskin. OK, anybody else wants to defend the legitimacy1495of what Senator McConnell did, and would anybody agree with me1496that this is a form of Court packing? Just as much as the1497mythical Court packing that we are denouncing today, since I am1498not aware of any proposal on the table.1499    Mr. Capozzi. It is fundamentally different, the Senate1500plays a role in our separation of powers, it has to check and1501balance the President, the people that are in the Senate1502matter. If they don't want to confirm a Justice of the Supreme1503Court, they don't have to--1504    Mr. Raskin. If the Senate does it, it is OK, it is just you1505don't want a President nominating, but of course if a President1506nominated under a new law, then that would be legitimate,1507wouldn't it?1508    Mr. Capozzi. It is a different thing when the Senate plays1509its constitutionally--1510    Mr. Raskin. Do you know how many times we have changed the1511number of people in the Supreme Court?1512    Mr. Capozzi. It has been almost 160 years since it1513happened.1514    Mr. Raskin. No, it has happened six different times, a1515total of eight times.1516    Mr. Issa. Ending in 1869 is the last time.1517    Mr. Raskin. Yes. Right, well in any event it has changed1518numerous times throughout our history, there is nothing1519remotely illegitimate about it; it is not frozen in the1520Constitution, would you agree?1521    Mr. Capozzi. I agree, it is not frozen in the Constitution,1522but we have a tradition dating back to 1869--1523    Mr. Raskin. All right, but in any event, I don't know why1524we went off on this numerical thing, because that is not what1525this is really about, the question is about the legitimacy of a1526Court that is demolishing the voting rights of the people.1527Essentially overruling democracy at every turn.1528    I wonder, Professor Bowie, in the time remaining, if you1529could discuss what it means for the Supreme Court to intervene1530in elections like in Bush v. Gore, or like with the Voting1531Rights Act in a way that undermines the people's ability to1532govern?1533    Mr. Bowie. Well, one thing to speak about in terms of the15341869 precedent that keeps coming up, is in 1866 Congress passed1535the Civil Rights Act to guarantee citizenship to all people1536born in this country. They feared that President Johnson was1537going to appoint justices to the Court that were going to try1538to overrule that law, which has become foundational for our1539democracy.1540    Congress changed the number of justices; it reduced the1541size of the Court to prevent the President from appointing new1542justices.1543    Mr. Raskin. Thank you, I yield back, Mr. Chair.1544    Mr. Issa. Thank you. For the Ranking Member, apparently1545Congressman Green did put in a Court expansion in this1546Congress, and there were ones in the last Congress, would you1547join with me in a discharge petition to do that immediately?1548    Mr. Raskin. The fact that I have not heard of it tells you1549exactly how much political traction it has. Look, there are a1550lot of things we should do in terms of Supreme Court ethics--1551    Mr. Issa. The question is, do you support that it--1552    Mr. Raskin. I have never seen it; you would have to--1553    Mr. Issa. If I drop one today, will you cosponsor it for1554this Congress?1555    Mr. Raskin. Cosponsor what?1556    Mr. Issa. An expansion of the Court pursuant to what you1557had in the last Congress?1558    Mr. Raskin. We haven't had a single hearing about it. If1559you have a hearing about it then we can analyze it. We have got1560to take this seriously, right? I honestly don't even know what1561his proposal is.1562    Mr. Issa. Why don't I just take the one that you had when1563you were in the Majority, and present it?1564    Mr. Raskin. Well, I am interested in term limits of 181565years, the vast majority of the American people support term1566limits for justices, and if they want to stay on the Court as a1567District judge or an Appeals Court judge, that is consistent1568with--1569    Mr. Issa. It is a constitutional change, you would--1570    Mr. Raskin. No, it is not, if they stay on the Court as a1571District judge or a Circuit Court judge, that is consistent1572with the command of life tenure. I am interested in term limits1573for Members of Congress. We can look at the question of whether1574every Federal Circuit should be represented on the Supreme1575Court, which was the whole original idea behind it, that is1576what Circuit riding is all about.1577    Mr. Issa. Do you really mean to say for Members of1578Congress?1579    Mr. Raskin. For the Supreme Court.1580    Mr. Issa. OK, just checking.1581    Mr. Raskin. I am actually for that, I am actually for that.1582    Mr. Issa. Just checking, after you and I have been here the1583past the six years.1584    Mr. Raskin. It was a Freudian slip, I am actually not1585opposed to term limits.1586    Mr. Issa. The longer I stay, the more in favor of that I1587am, including in this term. I thank the gentleman from the1588colloquy. With that we go to the gentleman from Virginia, Mr.1589Cline.1590    Mr. Cline. Thank you, Mr. Chair. This hearing is very1591important, especially when, and I appreciate the consistency of1592the Ranking Member, or the attempt thereof, the importance of1593consistency when talking about judicial decisions, when you1594have judicial decisions that may not comport with your1595understanding of the Constitution, that somehow democracy is1596being overturned.1597    That was the rhetoric that was just used by the Ranking1598Member, and it is offensive to me.1599    Mr. Raskin. Would the gentleman yield for just a second?1600    Mr. Cline. I will not. Well, yes, for a second.1601    Mr. Raskin. I actually wrote a book with that title, which1602I will give to you, called ``Overruling Democracy,'' the1603Supreme Court v. The American People about Bush v. Gore, and1604Right-wing judicial--1605    Mr. Cline. I appreciate that the gentleman is being1606consistent with the book that he wrote. It is equally1607frustrating to see that in not all cases do you have,1608especially in the shadow docket, you have examples where they1609did not rule in favor of a conservative philosophy, if you look1610at just the Mifepristone ruling last week, or this week.1611    Mr. Raskin. If you would yield for one second?1612    Mr. Cline. I will yield.1613    Mr. Raskin. There have been 27 cases in the shadow docket,1614and Donald Trump has won 25 of them. You may have identified1615one of the two that he didn't win.1616    Mr. Cline. I understand that. One of the things I want to1617talk about is just because you agree with the decision a court1618makes shouldn't determine whether or not democracy is being1619upheld or overturned. It is going down a road that is very1620destructive, and I want to talk about what is happening in1621Virginia.1622    Because in Virginia right now we have a destructive path1623that is being pursued by the Majority in our legislature. Now,1624we are one of two States where the legislature actually1625appoints the judiciary, so you have a somewhat convoluted1626process that actually doesn't work as efficiently as some other1627States.1628    Mr. Capozzi, you may be aware that Virginia Democrats1629passed a redistricting amendment through a procedurally flawed1630process. The Virginia Supreme Court struck that process down as1631a violation of the Virginia Constitution. Undeterred by their1632State court loss, Democratic Attorney General Jay Jones1633appealed to the U.S. Supreme Court.1634    Although in his filing it indicated he was appealing to the1635Supreme Court of Virginia again, and it was ``Virgnia,'' and it1636was ``Sentator,'' but there were a lot of misspellings. He1637appealed to the U.S. Supreme Court despite raising no Federal1638claims, and was denied. Rather than accept that, Senate1639Majority Leader Scott Surovell took to X to spin the ruling,1640claiming that only one justice had weighed in.1641    In fact, the denial itself stated quote, ``The application1642for stay presented to the Chief Justice, and by him referred to1643the Court is denied.'' No noted dissents, not even from the1644three Democrat appointed justices. Yet, Democrats immediately1645attacked quote, ``Far right extremists on the Supreme Court.''1646Quickly used the unanimous rejection to continue their campaign1647against the Court's conservative justices.1648    Mr. Capozzi, how damaging is it to the rule of law when1649political actors use a legally correct unanimous court ruling1650as a pretext for attacking judicial legitimacy?1651    Mr. Capozzi. Yes, just to clarify, a decision like that1652would have been referred to the full Supreme Court. It wasn't1653just a single justice, all nine justices agreed that this1654appeal lacks merit, and most intelligent observers in the1655Supreme Court bar agreed that this was a borderline frivolous1656appeal. It presented only a question of State law.1657    At minimum, I would encourage people not to attack the1658Supreme Court when they unanimously reject a frivolous appeal.1659    Mr. Cline. Mr. Schaerr, Court packing isn't just a Federal1660ambition, after the Virginia Supreme Court struck down the1661State's redistricting map, Democrats floated the idea1662encouraged by alleged phone conversations with Federal1663Democrats, slashing the mandatory retirement age for its1664justices from 75 to 54 to purge the entire bench.1665    Virginia delegate Dan Helmer went further, publicly vowing1666to remove Justice Kelsey, who wrote the opinion, from the bench1667when he is up for reappointment this coming year. For a party1668that has made no kings its rallying cry, isn't threatening a1669justice by name and purging an entire bench a rather1670dictatorial definition of democracy?1671    Mr. Schaerr. Absolutely, Mr. Cline, and it is a move1672reminiscent of the authoritarians that we discussed earlier,1673like Robert Mugabe in Zimbabwe, and Hugo Chavez in Venezuela.1674That is the kind of stuff they did to their judiciaries to try1675to get them in line with their programs.1676    Mr. Cline. Agreed, I appreciate the comments of the1677gentleman. I yield back.1678    Mr. Issa. The gentleman yields back. We now go to the1679gentlelady from California, Ms. Lofgren.1680    Ms. Lofgren. Mr. Chair, with all due respect, keep hearing1681about how Court packing is the greatest threat facing the1682judiciary and the rule of law, but I don't think that is the1683crisis facing the Court right now. The real crisis is a growing1684ethics and corruption problem at the Supreme Court, and it is1685one that Congress can actually do something about.1686    Unfortunately, my time does not allow me to list every1687undisclosed luxury trip, private jet flight, billionaire-funded1688vacation, yacht excursion, and lavish gift uncovered so far,1689but the scale is staggering. According to Fix the Court,1690Justice Clarence Thomas alone reportedly received more than 1001691gifts worth over 2.4 million dollars.1692    While all his fellow justices combined received gifts worth1693only 248,000 dollars over the same period, a 20-year period.1694Here are just a few examples Justice Thomas reportedly1695accepted. Luxury vacations on a billionaire's super yacht in1696Indonesia that ProPublica estimated likely exceeded half a1697million dollars.1698    More than two decades of repeated private jet flights on1699billionaire-owned aircraft, including trips on a Bombardier1700Global 5000, and even a private Boeing 737, with some1701individual flights estimated in the tens of thousands to over1702100,000 dollars. At least 26 private jet flights and eight1703helicopter trips identified by investigators.1704    Annual stays at an exclusive, private Adirondacks resort,1705where nearby rooms can cost more than 2,000 dollars a night.1706Luxury resort stays in Florida and Jamaica, VIP sky box access,1707and luxury suite tickets to major sporting events, trips to1708Bohemian Grove, private school tuition payments for a child he1709was raising, and real estate transactions involving property1710tied to his family.1711    According to Fix the Court, Justice Alito accepted1712approximately 170,000 dollars in gifts over the same period,1713including private jet transportation to a luxury Alaska fishing1714lodge, expensive lodging, and fishing accommodations tied to1715billionaire Paul Singer, and gifts that the Senate Judiciary1716Committee concluded should have been disclosed under Federal1717law.1718    Now, Americans watching at home understand that this is1719wrong. Billionaires should not be getting the kind of1720undisclosed access and luxury relationship with Supreme Court1721Justices. Let me ask you this, Professor Bowie, yes or no, do1722you believe these kinds of gifts and luxury travel arrangements1723undermine confidence in the Court?1724    Mr. Bowie. Yes.1725    Ms. Lofgren. Thank you. Mr. Chair, I would ask unanimous1726consent to put into the record a CNBC article on Justice1727Thomas' acceptance of gifts, two ProPublica articles on the1728same topic, a Senate Judiciary Committee press release, and an1729additional article from ProPublica.1730    Mr. Issa. Without objection, so ordered.1731    Ms. Lofgren. I will yield the balance of my time to the1732Ranking Member.1733    Mr. Raskin. Thank you kindly, Ms. Lofgren. Just picking up1734on that point, there is a 50-dollar gift ban that applies to1735all of us in Congress, and to the Executive Branch as well.1736Would you agree that it would enhance the independence of the1737Court, from not just congressional and Presidential attacks,1738but special interest domination, to apply a 50-dollar gift ban1739to the Supreme Court Justices? Professor Bowie, if you would go1740first?1741    Mr. Bowie. Yes, I will just note that Congress has already1742passed laws that prohibit justices from taking bribes. Congress1743has also passed laws that require the justices to recuse from1744cases in which their impartiality may be reasonably questioned.1745    Mr. Raskin. Yes. Attorney General Capozzi, do you agree1746that a 50-dollar gift ban should apply to all three branches,1747not just two?1748    Mr. Capozzi. I am skeptical that such a ban is needed for1749the Supreme Court, but at the same time, I don't have strong1750opposition to such a proposal.1751    Mr. Raskin. OK, Mr. Ross?1752    Mr. Ross. I would agree with the solicitor general.1753    Mr. Raskin. OK, and Mr. Schaerr?1754    Mr. Schaerr. Well, there is a fundamental difference1755between Members of Congress and Supreme Court Justices in this1756regard. When you are a Member of Congress, just about every1757person in your district, and elsewhere in the country is a1758potential supplicant for your services, and your assistance.1759When you are in the Supreme Court, you are only dealing with a1760relatively limited number of cases with people who have direct1761interests in your work.1762    It is certainly appropriate, and I know Justice Thomas, and1763he is scrupulous about avoiding accepting gifts from anybody1764who has business before the Supreme Court--1765    Mr. Raskin. Really, well we need to have a hearing on that1766then. Because we have a completely different point of view on1767that point, but don't you think just in terms of public1768perception, it would be much better not to believe that1769justices could be compromised by virtue of receiving gifts from1770people who appear before them? After all, they have no binding1771ethics code now.1772    They are the only Supreme Court in America that doesn't1773have a binding ethics code. Without a binding ethics code, we1774are leaving it up to them to decide.1775    Mr. Schaerr. I don't think it would affect the reality of1776their independence. It might affect the public's perception of1777their independence; it would take away a talking point.1778    Mr. Raskin. Do you think it is OK for a billionaire to pay1779for Clarence Thomas' nephew's private school tuition, that is1780OK?1781    Mr. Schaerr. If the billionaire doesn't have any business1782before Justice Thomas, there is nothing wrong with that.1783    Mr. Raskin. When, if he does, you would agree that is1784wrong? If he does have business before the Court, you would1785agree that is wrong?1786    Mr. Schaerr. If he has concrete business before the Court,1787then that would be a different matter, and I am confident in1788that situation, Justice Thomas would recuse from cases that1789involved him.1790    Mr. Raskin. You are?1791    Mr. Schaerr. Yes.1792    Mr. Raskin. OK, what about a situation where somebody with1793potential business before the Court--1794    Mr. Issa. I ask unanimous consent that the gentlelady to1795have an additional thirty seconds, without objection.1796    Mr. Raskin. Just to complete this point--1797    Ms. Lofgren. Reclaiming my time, if I may say also, that1798you can have a pecuniary interest before the Court, but many of1799these billionaires have philosophical points of view that is1800before the Court, and that is why they are paying off the1801justices. I yield back.1802    Mr. Raskin. Then, just to complete that question, so if1803Justice Thomas or any justice were to get a free recreational1804vehicle from somebody who has an interest in the work of the1805Court, do you think that would be legitimate, or do you think1806that they should be held to the same standard we are, a 50-1807dollar gift ban, somebody can take you out for lunch.1808    Mr. Schaerr. If they have a concrete business interest1809before the Court, then yes, it would be inappropriate for1810Justice Thomas to accept that kind of a gift, and then sit on a1811case that involves that--1812    Mr. Raskin. What if they have a general business before--1813    Mr. Schaerr. I am sorry?1814    Mr. Raskin. What if they have a general business interest1815before the Court?1816    Mr. Schaerr. Well, I don't--1817    Mr. Raskin. See, we don't get into that in Congress. We1818basically say we are going to cut it off at the pass, none of1819us are going to be compromised in that way--1820    Mr. Schaerr. That is true--1821    Mr. Issa. OK, I apologize, but I am going to close this1822off, because Mr. Gooden is next. I will say to the gentlelady,1823and to the gentleman, that although I can't support the full1824bill that was offered earlier this year on forcing a set, I1825would be happy to entertain discussion between our staff and,1826individually, the Members on trying to harmonize some aspect of1827what is nonreimbursable between us.1828    As you know, the Senate, you pay for a first-class seat if1829you want to fly on that aircraft, while the House has1830prohibition. I would be happy to work with the Minority on1831trying to set a cap on how much could be received as a gift,1832versus how much would have to be reimbursed. I believe that is1833certainly middle ground that we could look into doing this1834Congress.1835    Mr. Raskin. I would welcome that, thank you, Mr. Chair.1836    Mr. Issa. OK, look forward to it. With that, we go to the1837gentleman from Texas for his time.1838    Mr. Gooden. Mr. Ross, you were speaking earlier, I believe1839with the Ranking Member, about the number of times that the1840number of Supreme Court Justices has changed. When was the last1841time we changed the makeup of the Supreme Court, when was that?1842    Mr. Ross. In 1869.1843    Mr. Gooden. In 1869, and I believe it was 1863 that the1844Emancipation Proclamation came out. What I am hearing is that1845Democrats want to go back to slavery era politics with respect1846to the Supreme Court makeup. One of the arguments is, well, it1847has been done several times, but you just said it has been no1848time since 1869. Six years after the Emancipation Proclamation1849is when Congress stopped playing games with the makeup of the1850Supreme Court.1851    Now, Democrats are defending this idea. Fortunately, some1852are well, some are not living, but some were not quite1853outrageous. In 2019, Justice Ruth Bader Ginsberg stated,18541855        I think it was a bad idea when President Franklin Roosevelt1856        tried and failed to pack the Court, and if anything, it would1857        make the Court look partisan.18581859    In 2021, Justice Stephen Breyer remarked during a Harvard1860Law School speech that,18611862        Packing the Court would be a structural alteration that would1863        result in eroding trust in the judiciary.18641865More recently, in September 2021, Justice Breyer again1866criticized packing the Court. President Joe Biden expressed1867skepticism about Court packing proposals during his Senate1868tenure in 1983. When speaking about FDR's proposal, he called1869it a bonehead idea.1870    Former President Biden's own Presidential commission on the1871Supreme Court expressed hesitation in 2021, the commissioners1872noted that court expansion is likely to undermine rather than1873enhance the Supreme Court's legitimacy and its role in the1874constitutional system. I really appreciate my Republican1875colleagues for not pushing this slavery era idea that was last1876successful during the slavery days that I think we are trying1877to move past.1878    I yield the balance of my time to the Chair, Mr. Jordan.1879    Chair Jordan. Thank you. Mr. Capozzi, if you don't like1880what the Court is doing, and you would like it changed, how do1881you do it?1882    Mr. Capozzi. Well, you can ask the Supreme Court to1883reconsider its decisions, that is something the Supreme Court1884has done from time to time.1885    Chair Jordan. In a more broad way how do you do it?1886    Mr. Capozzi. Well, you can take your case to the public,1887you can buildup a record of opposition you can advocate for1888change. The conservative legal movement did that after Roe v.1889Wade for example.1890    Chair Jordan. Yes, you go make the argument, and you win1891elections, right? You win the White House, you have a Majority1892in the Senate, that is how the Courts figure it out, straight1893from the Constitution. No, they don't want that. They don't1894want that because a Republican is in the White House, and1895you've got to nominate people, and you have Republicans in the1896Senate who control the Senate, and they got to confirm them.1897    That is how the process of law, we don't like that. One1898point they are saying, it is too political, but there is a1899political process to it as well, that is how it works, you have1900got to go winning elections. Do you believe leaking the Dobbs1901decision was designed to undermine and change the Court's1902decision, Mr. Schaerr?1903    Mr. Schaerr. It certainly appears to have been done with1904that intent. It was an attempt to try to get one or two of the1905justices who ended up in the majority on Dobbs to back away. It1906didn't work--1907    Chair Jordan. Thank goodness it didn't work.1908    Mr. Schaerr. Thank heavens.1909    Chair Jordan. I think it was an effort to intimidate the1910Court. Do you think so, Mr. Ross, Professor Ross, do you think1911that was the case?1912    Mr. Ross. I would agree with that.1913    Chair Jordan. Yes, it was wrong, it was bad, right? We1914don't want that to happen again; it should have never happened1915before, do you agree, Mr. Capozzi?1916    Mr. Capozzi. I was a clerk when the leak happened, I am not1917going to discuss details of the leak, but I will say that it1918was a cowardly act, and I hope it never happens again.1919    Chair Jordan. Yes, do you agree with that, Mr. Bowie?1920    Mr. Bowie. I don't really have a strong opinion about the1921leak; I was not a clerk on the Court at the time.1922    Chair Jordan. Good thing or bad thing?1923    Mr. Bowie. That more publicity for what the Court does1924would be good, but I think that sacrificing one's ethics is not1925good, no.1926    Chair Jordan. Just yes or no, is it a good thing to leak a1927decision before it is final, before the Court has actually1928weighed in, is that a good thing or bad thing?1929    Mr. Bowie. I don't think it is good for anyone to sacrifice1930their ethical responsibilities.1931    Chair Jordan. OK, by the way, why don't we know who leaked1932the Dobbs opinion? Mr. Capozzi, you were there. Why don't we1933know that?1934    Mr. Capozzi. I am going to respectfully decline to answer1935that question.1936    Chair Jordan. Yes, I am not asking if you do know it, I am1937just saying, why don't we know that? Mr. Schaerr, why don't we1938know that?1939    Mr. Schaerr. I believe there was an investigation done by1940the--1941    Chair Jordan. I know there was an investigation done by the1942Court.1943    Mr. Schaerr. It was inconclusive.1944    Chair Jordan. Yes, amazing, they couldn't figure it out.1945Mr. Ross, do you any thoughts on that?1946    Mr. Ross. I really don't know.1947    Chair Jordan. All right, I yield back.1948    Mr. Issa. The gentleman yields back. We now go to the1949gentlelady from Florida, Ms. Lee.1950    Ms. Lee. Thank you, Mr. Chair. As a former judge, I1951understand that the legitimacy of the judiciary does not depend1952on whether people agree with every decision. It depends on1953whether judges interpret and apply the law independently,1954without political intimidation, threats to their safety, or1955pressure to deliver preferred opinions.1956    Today we are seeing increasing efforts, we are hearing them1957today, to delegitimize the Court through Court packing1958proposals, spurious personal attacks on justices, and1959criticisms of judicial philosophies like originalism simply1960because some disagree with outcomes in particular cases. An1961independent judiciary cannot function if judges are treated1962like politicians whenever they issue an unpopular opinion.1963    Baseless, unfounded allegations impugning the ethics of1964judges and justices, incoherent attacks on principled1965application of judicial philosophy, and failure to appreciate1966that a disciplined adherence to the laws and the Constitution1967as written is actually the hallmark of a good and successful1968judge.1969    On that note, Mr. Schaerr, I would like to discuss one1970thing that concerns me about modern discourse surrounding the1971judiciary is the growing expectation that judges should reach1972politically preferred outcomes rather than faithfully apply the1973law. Critics sometimes today portray originalism as if it is1974some sort of political project to achieve conservative1975outcomes.1976    At its core, isn't originalism actually about judicial1977restraint requiring judges to interpret the Constitution as1978written, as opposed to applying their personal preferences?1979    Mr. Schaerr. Yes, I was a law clerk to Justice Scalia, and1980I had several experiences with him where he felt like the1981Constitution, or a given statute, required a result that he1982didn't like as a policy matter. The very first opinion that I1983helped him write as a new justice was an opinion sustaining a1984Fourth Amendment objection to the admission of certain evidence1985in a trial.1986    He sided with the liberal justices on that issue because he1987felt that is what the Constitution required. The morning after1988that opinion came out, there was an editorial in The Wall1989Street Journal that said we wonder whether President Reagan has1990made a mistake in putting Justice Scalia on the Court. We saw1991that in several different areas, so to me that is the hallmark1992of a good judge.1993    Is he or she willing to follow the law as written, even if1994it leads to places that the judge disagrees with as a policy1995matter, that is judging in my view.1996    Ms. Lee. That is exactly right, and I can tell you I shared1997that very same experience on the bench, that at times1998personally as a jurist you don't want the outcome that the law1999tells you that you must reach. That is actually something, tell2000me about that distinction between being a judge and essentially2001policymaking, reaching that decision which maybe you as a2002person would like.2003    Tell me why it is so important that our judges are able to2004make that distinction, and apply the law as it is written, and2005is that part of our very system, as we would learn in eighth-2006grade American history of checks and balances?2007    Mr. Schaerr. Yes, I agree, that is an essential part of our2008system. I go back to the Chief Justice's decision in the2009Obamacare case, and he was excoriated for that decision by2010conservatives. He believed, persuasively explained in his2011opinion that the individual mandate that was kind of at the2012heart of Obamacare could properly be considered as a tax.2013    For that reason, he decided well, we then should defer to2014Congress' judgment, even though we hate the policy outcome. He2015decided we should defer to Congress' judgment on this matter2016because what they did is within their authority. To me that is2017also the hallmark of a good judge. To be willing to defer to2018this body, even when you disagree as a matter of policy,2019because--2020    Ms. Lee. One final question, because this is important as2021we sit and we listen to our justices, and their ethics being2022impugned with baseless and spurious allegations. Isn't it also2023correct that they cannot respond; that judges cannot call a2024press conference, that they cannot speak publicly, that they2025have no opportunity to come out and say to the American people2026actually this is blatantly false. I did none of these things.2027The allegations that are being made are completely untrue.2028Isn't it correct that judges and justices cannot do that for2029themselves?2030    Mr. Schaerr. It is very difficult for them to be able to2031respond to those kinds of personal attacks, correct.2032    Ms. Lee. Thank you, Mr. Chair, I yield back.2033    Mr. Issa. The gentlelady yields back. I now ask unanimous2034consent to place in the record the ruling of Judge John Bates,2035an appointee of President George W. Bush, who ruled against2036George W. Bush in the Harriet Miers case, and the outcome, and2037ruling of Amy Berman Jackson, a Obama appointee who ruled2038against Obama in that case. Without objection, so ordered.2039    Mr. Raskin. Then, Mr. Chair, can I add one too?2040    Mr. Issa. Absolutely, it is tit for tat. What do you have?2041    Mr. Raskin. It is a unanimous consent just answering the2042last point about how justices cannot speak out. This is an oped2043by Justice Samuel Alito in The Wall Street Journal, ProPublica2044misleads its readers, June 20, 2023.2045    Mr. Issa. Without objection, so ordered. With that we go to2046the gentleman from South Carolina, Mr. Fry.2047    Mr. Fry. Thank you, Mr. Chair. Justice Ruth Bader Ginsburg2048stated,20492050        It was a bad idea when President Franklin Roosevelt tried to2051        pack the court, and that if anything would make the Court look2052        partisan, it would be that.20532054Justice Breyer said that,20552056        It would be a structural alteration, and it would erode public2057        trust if we packed the Court.20582059    What goes around comes around, and if the Democrats can do2060it, the Republicans can do it. Even our former President while2061he was in the Senate, Joe Biden admonished FDR, and said it was2062a boneheaded idea to consider packing the Court. We now find2063ourselves in this curious position where political thought2064leaders on the other side are actively engaged in this idea2065that packing the Court would solve the Nation's problems.2066    We have heard from James Carville, ``If we win, don't talk2067about it, we are just going to go pack the Court.'' Kamala2068Harris, in her intellectual stamina, said the same thing a2069couple weeks ago. That is a dangerous move. Mr. Ross, what is2070the most accurate historical lesson of FDR's 1937 Court packing2071plan, what do you think that would be?2072    Mr. Ross. The bipartisan opposition is perhaps the most2073important lesson, as has been pointed out earlier. Roosevelt2074had recently been elected with an enormous landslide; he2075carried 46 out of the then 48 States, he had more than 602076percent of the popular vote, he had assembled one of the most2077powerful political coalitions in the Nation's history.2078    He thought he was invincible, he thought that the Court2079packing plan would naturally have to sail thorough Congress,2080which at that point it was overwhelmingly Democratic, the2081Democrats won unprecedented majorities in the 1936 elections2082that re-elected Roosevelt himself. How Roosevelt was stunned2083when his plan encountered immediate and significant opposition,2084which eventually sunk it.2085    The reason was that Americans' low persuasions recognized2086that this was an attack on the independence of the Court2087itself. If I could give an example, Gutzom Borglum, who was the2088Mount Rushmore sculptor, was a political on everything except2089race, and he was outraged by the Supreme Court's recent2090decisions striking down New Deal regulatory legislation.2091    He wrote a letter to Senator Norris of Nebraska urging him2092to vote against the Court packing plan, because he said it2093would interfere with the independence of the Court. He was, at2094that time, engaged in sculpting the faces on Mount Rushmore. He2095said that, ``If the Court packing plan passed, he would throw2096down his chisel and wouldn't go back to Mount Rushmore to2097finish carving those faces.''2098    Because he thought that the packing of the Court would make2099a mockery of what those four Presidents stood for. Again, this2100was across the board, and that is the most important lesson.2101    Mr. Fry. Let us play an exercise. If FDR had been2102successful in altering the structure of the Supreme Court, what2103do you think the ramifications would have been at the time, and2104then moving forward?2105    Mr. Ross. Well, the immediate ramifications wouldn't have2106been all that great, because although Roosevelt lost the2107battle, he won the war because of deaths and resignations of2108the justices during the next few years. Within a few years,2109Roosevelt had a Court that was overwhelmingly supportive of his2110proregulatory legislation. Though, if the packing itself had2111occurred, it wouldn't have changed the outcome of the cases2112that much, because the Court shifted its positions fairly2113rapidly anyway.2114    The long-term effect would have been the same effect as if2115it would have happened if it occurred today, which would be an2116erosion of judicial independence, and a diminution of public2117respect for the Court. Of course, the prospect of ever-2118increasing numbers on the Court. A bigger and bigger Court,2119subsequent Presidents pack the Court on their own.2120    Mr. Fry. Or contractions, right? We could have taken, I2121guess Congress could have taken the same approach as Virginia,2122right? That they are trying to do, we don't agree with the2123opinion, so we are just going to sunset you all, right?2124    Mr. Ross. Yes, right.2125    Mr. Fry. Do you think, Mr. Schaerr, that expanding the2126number of justices would heal some sort of partisan divide in2127this country?2128    Mr. Schaerr. Not at all.2129    Mr. Fry. Expand on that for a minute. How would that not2130fix what I am hearing on the Left right now, which is that2131there is an illegitimate court, and it is dangerous, and what2132they are doing is undemocratic, so we can fix it by adding four2133new justices. How would that not heal the partisan divide?2134    Mr. Schaerr. Well, actually it would undermine what really2135needs to be done to heal those divides. That is because it2136distracts from the more important projects, as we discussed2137earlier, of building the political coalitions that allow you to2138achieve your legislative objectives. We have talked earlier2139about the Voting Rights Act for example, and people are2140complaining about who the Supreme Court quote, ``Gutted the2141Voting Rights Act,'' well, they didn't do that at all.2142    This body could amend the Voting Rights Act, and if this2143body wants to impose majority-minority districts on the2144country, or various places in the country, that is something2145that this body can do. My guess is that the Supreme Court would2146probably sustain that. For just about every one of the problems2147that we have discussed, there is a legislative solution that2148requires persuading voters, and then winning elections, and2149then--2150    Mr. Fry. Then doing it.2151    Mr. Schaerr. Then doing it, yes.2152    Mr. Fry. Thank you. Mr. Chair, I see my time is expired,2153and I yield back, sir.2154    Mr. Issa. Good use of your time, though. We now go to the2155gentleman from Washington for his time.2156    Mr. Baumgartner. Thank you, Mr. Chair, and thank you2157gentlemen, for coming for this important hearing. I am going to2158ask for some concise answers to these questions. There are a2159number of things I would like to cover. Can a court be2160unpacked? Could the legislature vote to remove members of the2161Supreme Court? We will go down the line. If they can add, can2162they subtract?2163    Mr. Schaerr. They have subtracted once before; I am not2164sure it would be constitutional to subtract in a way that would2165require sitting justices to resign.2166    Mr. Baumgartner. You think yes, with some caveats?2167    Mr. Schaerr. Correct.2168    Mr. Baumgartner. Mr. Ross?2169    Mr. Ross. I agree, I don't think that sitting justices2170could be removed, but clearly the Constitution permits the size2171of the Court to be reduced. There should be one Supreme Court,2172and it says there is a Chief Justice. Theoretically, I guess2173you could have two or three associate justices. I don't think2174there is any constitutional obstacle as long as it's2175prospective rather than retrospective.2176    Mr. Baumgartner. Very good.2177    Mr. Capozzi. You could phase a seat out; you just couldn't2178force a sitting justice off the bench.2179    Mr. Baumgartner. OK.2180    Mr. Bowie. Well, that is right, Congress can change the2181number of justices, the justices sit for good behavior. What2182good behavior means is also the subject of Federal law, so if2183justices are doing things that Congress regard as unethical,2184corrupt, or undemocratic, then Congress can do something about2185it--2186    Mr. Baumgartner. Very good, so that is a yes. As a way of2187background, when I was in our State Senate in Washington State,2188our State had originally started with five Supreme Court2189Justices, the Court had been packed up to nine for political2190reasons, people wanted different cases. We have elected Supreme2191Court Justices, they are politicians, just as I am, and this2192body is.2193    What our teacher's union discovered is that they could put2194significant financial resources into judicial elections, and2195then get some rulings on mandatory spending on education. That2196was when our State legislature thought the Supreme Court was2197over its skis. I sponsored a piece of legislation to actually2198shrink it back from nine to seven.2199    I had the Supreme Court Justices drawing straws at high2200noon on January 1st, which is a legal remedy in our State, but2201it was undetermined, so actually my bill is studied in law2202schools in Washington State; fortunately, we didn't get the2203opportunity. Broader point I just wanted to make on this is2204packing the Court, and really, its evil twin of adding States2205for political purposes are probably the most dangerous and2206destabilizing things that this body could consider for the2207future of the Republic.2208    It really will be a recipe for potential civil war in this2209country. By background, I spent some time doing2210counterinsurgency during the Iraq surge, and used to teach2211counterinsurgency to the U.S. military, and you think about our2212own Nation, why did we rebel? Why did people not feel they had2213a voice in the legitimate political process? We actually look2214at the foundation of American, what we teach in2215counterinsurgency, and population-centric counterinsurgency.2216    It is based on two principles, that people feel they have2217an effective government, and that they have a legitimate2218government. What Court packing will do is take a game of Chutes2219and Ladders in politics, where you win elections, you lose2220elections, but it is a game that everybody understands, and it2221will turn it, midstream for political purposes into Battleship.2222    That is something I do not think in this highly polarized2223political environment that the American people will2224countenance. It is extremely risky to talk about packing the2225Court, adding the States, because you want political outcomes.2226Each and every time somebody is disgruntled with the political2227process, and talks about it in a way that delegitimizes the2228Supreme Court, who are not elected, it is not like at the State2229level.2230    It really, really is a dangerous thing for the future of2231the Republic. I just wanted to make that statement. I only have2232about a minute left.2233    I am going to yield to the good gentleman from Kansas if he2234would like my time.2235    Mr. Schmidt. Thank you to my friend from Washington, and I2236would just say the baseball metaphor, calling balls and2237strikes, as Justice Roberts famously said in his confirmation2238hearing, nobody here has actually talked about what this2239hearing, I believe, is supposed to be about, other than our2240witnesses. Nobody has defended the idea that we ought to expand2241the number of justices on the Supreme Court.2242    We have had an airing of the grievances, just as you have2243people complaining about the umpire all the time, but nobody is2244defending the idea that I have heard, that the remedy to the2245grievances is you have a three judge panel metaphorically of2246umpires behind home plate because more gets you a better2247outcome.2248    There has been plenty of complaining from one party right2249now, including the Minority leader of this House, sitting2250Members of this House, the last Presidential nominee of the2251other party suggesting that Court packing by expanding ought to2252be a remedy to be considered. That has never been a good idea.2253    I would simply ask our panelists in whatever time the Chair2254allows them to respond, what is wrong with allowing the people2255of this country, through the constitutional amendment process,2256to decide whether that specific remedy ought to be allowed or2257taken off the table, what is wrong with that?2258    Mr. Issa. Briefly, any responses?2259    Mr. Schaerr. I don't think anything is wrong with that; it2260seems like a good idea to me.2261    Mr. Ross. I don't think that the constitutional amendment2262process is necessarily the best way to handle this issue.2263    Mr. Capozzi. I would support an amendment to fix the number2264of seats on the Supreme Court at nine.2265    Mr. Bowie. Justice Robert Jackson was asked this question,2266and his answer was it is the responsibility of Congress to see2267that the Court is an instrumentality in the maintenance of a2268just and constitutional government, and that it does not become2269an instrumentality for the defeat of constitutional government.2270He testified about that in 1937 when he was asked in a hearing2271like this one about whether Court packing was an appropriate2272remedy.2273    Mr. Issa. I thank all the gentlemen. We now go to the2274gentleman from California for his questioning.2275    Mr. Kiley. Thank you, Mr. Chair. Court packing is, of2276course, a really bad idea. Mainly because it seeks to change2277our institutions for the purpose of short-term political gain2278by one side or another. Then, it is very short-sighted, because2279when you change the institution, that has a lot of downstream2280consequences that you can't predict.2281    It makes just our overall system not really function when2282you don't have a stable institutional foundation for our2283political battles to play out. We don't just see this with2284proposals to pack the Court. We see it with this redistricting2285war that is going on, where in one State or another a party has2286control of the legislature, so rather than trying to win2287congressional seats by persuading people that their party has2288the right views, they say let us move the lines around, and2289give ourselves a structural advantage.2290    I saw it all the time when I was in the State legislature2291in California. If they didn't have the votes in the Committee,2292they would just remove people from the Committee or add people2293to the Committee. We see it here when the House rules, if they2294aren't convenient in a given circumstance, the rules just get2295waived or suspended.2296    Then, on the other side of the coin, as the Chair2297mentioned, we had a bill, the Judges Act, that actually2298instituted some needed institutional changes by giving us more2299District Court judges to hear claims when they have this huge2300back log so people actually get access to justice, and it had2301broad bipartisan support, but then suddenly it was vetoed2302because of the perceived short-term political consequences.2303    I guess my question for our esteemed panel here, for anyone2304that would want to weigh in, is how do we more assure that our2305institutions are insulated from the currents of short-term2306politics?2307    Mr. Capozzi. One thing that I will say is it is helpful2308what the Supreme Court just did in the Callais decision. That2309has been mischaracterized quite a bit during the hearing today.2310The Supreme Court said that it is a statutory interpretation2311case, but the Court strongly suggested that the Constitution2312also requires this, you can't discriminate against individuals2313on the basis of race during redistricting.2314    For decades, some States were forced to intentionally sort2315voters on the basis of race to maximize political advantage for2316one political party. The fact that we don't have to do that2317anymore, we don't have to discriminate on the basis of race in2318redistricting, is a good step forward.2319    Mr. Kiley. Professor Bowie?2320    Mr. Bowie. I would just like to say you all on the panel2321are Members of Congress, you took an oath to support the2322Constitution, and I trust your judgment that you can determine2323what counts as appropriate legislation for enforcing the2324Constitution. If you think the Voting Rights Act needs to be2325updated for our modern time, you can amend the Voting Rights2326Act, you can make it better.2327    We did not elect a Supreme Court to do that job for you. We2328did not vote for justices to override your interpretation of2329what the Constitution means. We have never as a country been2330asked should the Supreme Court have this role of putting itself2331above you all. It disrespects your oaths if the Court takes2332your words that you have taken responsibility to enact into2333legislation, and say actually, you are wrong.2334    Mr. Kiley. Surely part of this, and maybe you are agreeing2335with me, that it is the fault of Congress for relinquishing its2336constitutional authority. Like, if you look at, let us just2337take the last two Presidents, we had a decision in the Biden2338Administration, the Supreme Court struck down the student loan2339scheme, of course, we just had the tariff decision with this2340President.2341    Congress could have easily reclaimed its own authority on2342either count before the Court stepped in, it just chose not to,2343right?2344    Mr. Bowie. Frankly, my job is not to tell you how to do2345yours, but that said, you do have the responsibility to2346interpret the Constitution. I trust that you can do justice to2347that responsibility. When you think that the law needs to be2348updated, it is your job, not someone else's, and especially not2349someone who the American people have not chosen to decide what2350does the Constitution mean.2351    How do we give effect to its guarantees of freedom and2352equality rather than letting someone who no one has chosen2353taken that away from us?2354    Mr. Kiley. Yes, there is clearly a very important role for2355the Courts in our system, in maintaining the Constitution, in2356defending the Constitution, and upholding its principles. That2357Congress has, over time, relinquished more and more of its2358authority, both to administrative agencies and to the courts.2359Maybe we are saying the same thing, but in different words.2360    That there is a responsibility for Congress to reclaim some2361of that authority, and in particular, we are the house, we are2362the people's house, closest to the people. That our system2363works better when more policymaking happens here, and can take2364into account the views of folks all across the country.2365    Mr. Bowie. That is absolutely true. One of the reasons why2366Congress is feeling so disabled is because there are past2367Supreme Court decisions that have taken away your ability to2368police the President, your ability to prevent corruption, and2369your ability to ensure that Americans can vote. As long as we2370continue to have this system in which you are not in charge of2371the laws that you pass, then it is difficult for the American2372people to, in an election, to discern for ourselves what kind2373of country we want to live under.2374    Mr. Kiley. Thanks very much, I yield back.2375    Mr. Issa. I am recognizing myself now. Professor Ross,2376Congress does have--did I miss someone? OK, appropriately, I go2377last because I have the least to say, but I learn the most from2378these. Professor Ross, briefly, isn't one of Congress'2379authorities the right to limit what can be considered by the2380Court? Isn't that already a power that we can use if we want2381essentially decisions of Congress to stand?2382    Mr. Ross. Yes, in many statutory interpretation cases, the2383Supreme Court has invited, indeed almost begged Congress to2384offer a contrary interpretation. The Court can often only guess2385what Congress intends, and so it doesn't say that it is having2386the last word in statutory interpretation cases. It is saying2387that this is the way we interpret the Constitution, and if2388Congress disagrees, Congress is perfectly free to enact a2389statute that reaches a different conclusion.2390    Mr. Issa. Just to followup, in the Chevron decision, to a2391certain extent, the Court just gave Congress back a tremendous2392amount of power that for years we didn't have.2393    Mr. Ross. Yes.2394    Mr. Issa. Thank you. Professor Bowie, one quick question, I2395authored a bill, I put it on the record, to expand the Court2396significantly, about 10 percent more District Court judges. It2397phased them in over more than a decade so that no one Congress,2398and certainly no one President, would do that. Would you2399support this expansion of the Court as vigorously if, in fact,2400there was a strong possibility that it would be balanced in its2401expansion?2402    Mr. Bowie. I am sorry I haven't read this bill, but I will2403agree with the principle behind it that yes, to make the court2404less partisan would be a great thing, to have your decisions2405take effect--2406    Mr. Issa. OK, just for argument's sake, since none of these2407Court packing bills originating from the House did that, they2408all gave immediately, and gave it during a time in which the2409President of their party was in power. I would say in part of2410our closing that very clearly, this is Congress trying to get2411an outcome for their President, rather than trying to enhance2412the Court.2413    Would anyone doubt that, considering they didn't give that2414same consideration that Mr. Nadler and I did with our2415bipartisan bills to expand the Court? Mr. Schaerr?2416    Mr. Schaerr. I don't disagree with that, but I am not very2417familiar with the bills that you are talking about.2418    Mr. Issa. Well, right now we are still trying to get that2419expansion of the Court phased in overtime.2420    Mr. Schaerr. You are talking about an expansion of the2421number of lower-court judges, right?2422    Mr. Issa. District Court, to meet the caseload that many2423have opined about here. There are 179 or so Appellate judges2424spread over 11 regular circuits and two special circuits. That2425comes out to be about 16 to one if you evened out the2426Districts, if the First Circuit wasn't just six and so on, and2427that is not including the two special circuits; it is 20 to one2428if you include those.2429    When you look at that ratio, my question to each of you is2430as people talk about expanding the high court, the court that2431must make a decision for it to be universally the law of the2432land, or to fail to take a case to make it essentially2433sustained, or denied at a lower court, should we in the future2434when we are having this debate consider those 179 judges that2435did not exist at the origination of our country, and the2436earlier days of the court moving up and down?2437    Mr. Capozzi. My personal view is that the only Federal2438judges that are overworked in our system are District Court2439judges. Congress should create more District Court positions,2440Congress should also consider expanding the number of staff. It2441doesn't make any sense to me that District Court judges can2442hire fewer law clerks than Court of Appeals judges, they are2443the ones who need them more.2444    Mr. Ross. I strongly agree with what Mr. Capozzi has said.2445    Mr. Schaerr. Same here, as do I.2446    Mr. Issa. Professor, have you looked at the caseload of the2447District versus the Appellate, and the role relative to the2448Supreme Court? Because we have talked extensively about the2449expansion, yes or no of the Court, but not about the total2450number of judges, the caseload, and what they do.2451    Mr. Bowie. No, I agree with the principle, and one of the2452things that Congress used to do is require Supreme Court2453Justices to ride as District Court judges, as Circuit judges,2454to ease the caseload of trial courts. That is one option2455available to Congress right now. If the Supreme Court is under2456worked, but District Courts are over worked, then you can enact2457legislation to require the justices to spend their time as2458District judges.2459    Mr. Issa. Or even serving on Appellate. My time is2460expiring, but since there is no one else seeking, I will take2461just another minute. I have been generous with both sides, I2462think. This has been a serious but partisan discussion, no2463question at all. It is an important issue. I am going to ask a2464question to each of you as scholars in your area. There was a2465lot of discussion about the vacancy of the Courts and the2466filling of them.2467    Should we, in fact, have a system that allows for there2468never to be a vacancy in the court, meaning we certainly could2469create a high court, but we could have a process where an2470Appellate Court, through some process, became the designate to2471fill a temporary or permanent vacancy, or even an alternate to2472the Court that would step in when there was a vacancy.2473    Is the idea that there should never be events like the2474Ranking Member talked about, through a process that would2475ensure that we always have a full court. Professor, I would2476opine to you that that would potentially even include that idea2477that this alternate would serve whenever a justice has to2478recuse themselves.2479    Mr. Bowie. Yes, I believe the Ranking Member of the2480Subcommittee has introduced legislation that would give2481Presidents a regular appointment schedule so that vacancies2482would be more predictable, less likely to lead to the sort of2483partisan campaigns around nominations, and otherwise ensure2484that if the Court is doing its job then we can--2485    Mr. Issa. I included recusals because currently if there is2486a recusal, the Court goes from nine to eight, or nine to seven,2487whatever the recusal is. There have been very few refusals, but2488there have been certainly plenty of cases in which there was a2489case for recusal, but that person did not recuse, and perhaps2490because the Court would be without that vote.2491    Mr. Bowie. Absolutely, and to be honest, if anything, that2492is a sign that perhaps the number of concurrent justices is not2493the number that it should be. For an individual recusal to have2494that kind of effect, and therefore there are no refusals, if2495anything, that is a sign that refusals need to be easier to do2496so that justices--2497    Mr. Issa. Right, but in any lower court, a recusal simply2498means that a different judge steps in, there is not a lack of--2499a three-judge panel doesn't become a two-judge panel if there2500is a recusal. Mr. Capozzi?2501    Mr. Capozzi. There is a statutory process for if there are2502not enough justices to have a quorum on the Supreme Court. You2503can look at the Alcoa case, it is from 1939, where the Second2504Circuit had to hear a case in lieu of the Supreme Court. I2505would oppose the proposals that you suggested, Mr. Chair.2506    The power to appoint justices is tremendously important; we2507need checks and balances in our system, and we shouldn't weaken2508the Senate's role in checking the President on the appointment2509of justices.2510    Mr. Issa. Professor Ross?2511    Mr. Ross. I agree with Mr. Capozzi.2512    Mr. Issa. You get the closing opinion because I am well2513past my time.2514    Mr. Schaerr. Well, I would say there is also not a great2515need for that a process in the Supreme Court, because it is not2516really a disaster if a single justice has to recuse, then the2517number of justices who are sitting on the case is eight rather2518than nine. Generally, they are going to be able to decide the2519case without splitting four to four. That happens once in a2520while, but not enough, to make it the kind of problem that2521requires a solution.2522    Chair Jordan. Mr. Chair?2523    Mr. Issa. The Chair recognizes the Chair of the Full2524Committee.2525    Chair Jordan. Just one quick question, I am just curious2526what the panel thinks, why don't we just add four justices now,2527if 13 circuits, we need to go to nine to 13 as the Ranking2528Member of the Full Committee suggested at the start of the2529hearing, why wouldn't we just add them now if we are going to2530add them? What do you think of that, just maybe go down the2531line.2532    Mr. Capozzi. The first rule of justice is what is good for2533the goose is good for the gander, I oppose doing that now, just2534as I would oppose doing it under a different President.2535    Chair Jordan. That is where I am at, totally agree. It2536seems to me if we are going to do it, and 13 is some important2537number that we have got to get to base on the number of2538circuits, then we should, if we are going to do four, do it2539now. Mr. Bowie, would you support doing that, doing four? You2540said if Congress thinks it is the right thing to do we should2541go for it, so if it is the right thing to do can we go for it2542now?2543    Mr. Bowie. Well, I agree with the principle, it is in your2544prerogative, you have the prerogative to determine how the2545Supreme Court works. The Court did not descend from on high in2546its current form in the palace across the street. It is your2547job to determine what kind of court--2548    Chair Jordan. You would have no problem with us doing it2549now?2550    Mr. Bowie. Look, I disagree with many of the policies that2551come out of Congress right now, but I really have faith in your2552ability to live up to your office, and I think that you have2553the authority to determine what kind of justice we want to see2554in this country.2555    Chair Jordan. OK, that is great. I know what Professor2556Ross, and Mr. Schaerr's answer is as well, which is where I am2557out.2558    Mr. Ross. Again, I would oppose any expansion of the Court.2559    Chair Jordan. I am there too, OK. Thanks guys. I yield back2560to the Chair, thank you for the hearing.2561    Mr. Issa. I want to thank all our witnesses today, this2562concludes today's hearing. Pursuant to Committee rules, all2563Members will have five legislative days in which to submit2564written questions for the witnesses, and additional materials2565for the record. For all of you what that means is within five2566days additional questions will be forwarded. Would all of you2567agree within a short period of time so we can close the record,2568that you would attempt to respond to them?2569    All witnesses answered in the affirmative, so without2570objection, that is ordered. Without objection, we stand2571adjourned.2572    [Whereupon, at 12:22 p.m., the Subcommittee was adjourned.]25732574    All materials submitted for the record by Members of the2575Subcommittee on Courts, Intellectual Property, and the Internet2576can2577be found at: https://docs.house.gov/Committee/Calendar/ByEvent.2578aspx?EventID=119310.25792580                                 [all]