- This episode of "LegalEagle" was made possible by Skillshare. With the passing of Ruth Bader Ginsburg, President Trump was able
to nominate and appoint his third Supreme Court
justice, Amy Coney Barrett. This rankled many Democrats because the process took place right before the 2020 election and under COVID circumstances. And the process included a
COVID superspreader event at the White House. But they accused President Trump and Senate Majority Leader Mitch McConnell of rank hypocrisy, given
that the Republican Senate refused to hold a hearing on President Obama's
pick for Supreme Court, Merrick Garland, who was nominated 237 days
before the 2016 election. - I think it's safe to say there will not be hearings or votes. I think it is also safe to say the next president, whoever that may be, is gonna be the person who chooses the next Supreme Court justice. - This appointment of Amy Coney
Barrett to the Supreme Court represents a large shift
in ideology on the Court and some Democrats are
calling for retribution. And this has caused some to suggest that if President Biden is able to take control of the Senate, he should engage in what's
called court packing. If the Democrats are able to take Georgia, they could conceivably
have the votes to do it. And the thing is, there's nothing special about the number of justices
on the Supreme Court. We didn't arrive at that
number by divine intervention and it's not in the Constitution. So that raises the question, would it in fact be legal to just simply expand the Supreme Court if the Democrats take the Senate? Can the party simply add
justices to the Supreme Court and then fill those vacancies? What happened the last time a president tried to pack the Court? And are there any other limits that can be imposed on the
members of the Supreme Court? (regal orchestral music) Hey Legal Eagles, it's
time to think like a lawyer because the future of the Supreme Court is actually at stake. You might recall that two years ago, Marco Rubio introduced a
Constitutional amendment limiting the Supreme Court
to nine justices forever. He said, "There's nothing
magical about the number nine. "It's not inherently right "just because the number of
seats on the Supreme Court "remains unchanged since 1869, "but there is something
inherently good and important "about preventing the
further destabilization "of essential institutions." So is Senator Rubio correct that in order to limits
on the Supreme Court we'd actually need a
Constitutional amendment? Well, it depends on what kind of limits you're talking about. And to understand the Supreme Court, we have to understand what's
called the Judiciary Act and of course the US Constitution. The Constitution mandates
that there be a chief justice. Article I, Section III, Clause
6 refers to a chief justice, quote, "Who shall preside
over the impeachment trial "of the President of the United States." But beyond that, the
Constitution is silent as to how many justices actually
have to be on the Court. In theory, the Constitution
allows for just two justices, or 11, 23, or 41. It doesn't say that there
is an optimal number and that's for Congress to decide. Article III, Section 1 of the Constitution gives Congress broad discretion to establish the court system. Quote, "The judicial
Power of the United States "shall be vested in one Supreme Court, "and in such inferior
Courts as the Congress "may from time to time
ordain and establish." Now Article III does not
provide how many justices will still on this Supreme Court. That was to be hashed out politically by the earliest members of
Congress and the president. We typically call these
folks the Founding Fathers to give them extra gravitas, but at the end of the day, they were just the earliest
politicians in this country. They made some brilliant decisions and some boneheaded ones, and that's what happens when
you're inventing a new country. And the Judiciary Act of 1789 established the first Supreme
Court with six justices. The country was so small that
the Supreme Court justices, quote, "Rode the circuit," hearing cases in the
regional circuit courts as well as the cases
before the Supreme Court. But in 1801, President John Adams and a lame duck Federalist Congress passed the Judiciary Act of 1801 which actually reduced
the number of justices on the Court to five. The goal was to stop incoming president Thomas Jefferson's Court appointments. Jefferson and his Democratic Republicans quickly repealed the act, putting the Court back to six justices. But President Jefferson wasn't convinced that six was the right number of justices for the Supreme Court either and in 1807, Jefferson and Congress agreed to expand the Court,
adding a seventh justice when Congress added a
seventh federal circuit. The ideal being that as
the country gets bigger, you need more federal
circuits and thus more judges are needed for the Supreme Court as well. And the next amendment to
the Judiciary Act in 1837 followed this same principle. President Andrew Jackson
added two additional justices after Congress expanded the number of federal
circuit courts again. And the next big amendment
to the Judiciary Act was during the Civil War when Congress created
the 10th circuit in 1863. At this point, the Supreme
Court had 10 justices, but in 1866, after the war,
Congress passed legislation to gradually reduce the
Court to seven justices. This happened for two reasons. First, Republicans were
redrawing the geographical lines for the judicial circuits, going
back down to nine circuits. So why not nine justices then? Well, because of the second point. They wanted to limit the influence of the former Confederate states. There'd been a tradition of appointing a judge from each circuit, so each circuit had a justice who could also hear circuit cases. But this meant that between 1837 and 1862 five of the nine circuits comprised exclusively Slave states. So former Confederates still
had a disproportionate impact on who was on the Supreme Court watching out for their interest. But the 1866 acts left only two circuits that comprised of only former Slave states and only one that comprised
only former Confederate states. But as you learn from history, Democrats fought
Reconstruction tooth and nail and three years later a new Judiciary Act put the number back to nine justices. The Judiciary Act of 1869 said, "Be it enacted by the Senate
and House of Representatives "of the United States
in Congress assembled, "that the Supreme Court
of the United States "shall here and after consist "of the Chief Justice of the United States "and eight associate justices, "any six of whom shall
constitute a quorum; "and for the purposes of this act "there shall be appointed "an additional associate
justice of said court." So that more or less brings us up to date with the Judiciary in 2020. The number of Supreme Court justices has remained at nine since 1869. And there are currently 12
regional federal circuits organized from the 94
US judicial districts and there's a 13th circuit
that's called the Federal Circuit which has nationwide
jurisdiction over certain appeals based on subject matter. And, obviously, the US has done away with the custom that there
should be one justice for each of the judicial circuits, otherwise we would have
four additional justices. But let's pause here and think back to Senator Rubio's proposal that there should be nine justices on the Supreme Court forever. Why would that be? Well, for comparison purposes, consider other common law countries. The Supreme Court of the
United Kingdom has 12 members. Australia's highest court has seven. Canada's has nine. Does this really tell us anything about the fairness of the institutions? We could, of course,
make this a numbers game, but that's not really what this all about. Supreme Court battles
are all about ideology. Whose views are represented and what are the judicial philosophies of the different justices, and how does a judge tend to
rule about a particular issue? As much as both sides try
to stand on principle, the Court battles are mainly about power and this is just as true now as it historically has been over time. And for comparison's sake, the population of the US back in 1869 was almost 39 million people. The population in the US in 2010 was over 300 million people. You could argue that a
nation of 300 million people needs a bigger Supreme Court to adequately represent
everyone's interests. And many countries in Europe ensure that the courts have justices representing all sides of
the political spectrum. So given this logic, the rising population and the fact that there is no requirement that the number of justices on the Supreme Court stay at nine, and of course the tit-for-tat nature of adding more justices in retribution for what happened to Merrick Garland, some people have argued that
the next Democratic president should simply add justices
to the Supreme Court, something that's called court packing. Now many of you might be familiar with the term court packing
from your school days. Because President Biden won't be the first to wrestle with the idea of court packing. And what most people remember is that FDR tried to add six
justices to the Supreme Court, but that's not quite the whole story. In the midst of the Great Depression, Roosevelt had proposed a
number of laws and regulations to stop the economic meltdown and to provide welfare to Americans. Generally these are referred
to as FDR's New Deal. But the Supreme Court overturned a number of FDR's New Deal programs on the basis that they
were unconstitutional, saying generally that Congress
simply didn't have the power to pass these kinds of
economic regulations because they didn't have the power under the Constitution's Commerce clause. And FDR particularly disagreed with the decision the
Supreme Court made in 1935 in Schechter Poultry
Corp. versus United States which struck down a part of the National Industrial Recovery Act. And given that the Supreme Court had said these laws were unconstitutional, there was nothing that Congress
or the president could do. They lacked the power. It wasn't available
under the Constitution. So in retaliation, Roosevelt suggested
expanding the membership of the Supreme Court. The law would've added one
justice to the Supreme Court for every justice over the age of 70, with a maximum of six additional justices. The idea being that he
would pack the Court with justices who agreed with his ideology and his interpretation of the Constitution that would allow Congress
and the president to pass the New Deal legislation. But after public outcry, the law to expand the Supreme
Court did not in fact pass. But interestingly, the Supreme Court did take a more favorable
view of New Deal legislation in allowing much of it to stand. And since that time,
it obviated the request for more people to join the Supreme Court and FDR's attempt to pack the courts has been portrayed as a
power grab ever since. But there's an additional
dimension to FDR's plan that often doesn't get recognition. It actually doesn't add,
necessarily, six justices. It would've simply added one justice for every sitting justice
over the age of 70 up to a maximum of six, ensuring that you would
never fall below nine, even if the older judges died or retired. In part, FDR's plan was addressing the lifetime tenue of
Supreme Court judgeships. Life terms for Supreme Court justices has always been controversial. But in 1789, at the time of the first Constitutional Convention, life expectancy was 34 years old. But 2011, life expectancy
was 78 years old. Is this a problem for the Supreme Court? Well, that depends on who you ask. At times, Congress passed legislation to nudge judges towards retirement. Several Republican Congresses in the 1860s provided full salaries and benefits to all federal judges who retired. This worked and Republicans
were able to fill several formerly Democratic
seats on the Judiciary. In 1932, Herbert Hoover
enacted austerity measures during the Depression. One of them was cutting
Supreme Court justices retirement salaries in half. According to research by Judge Glock, Herbert Hoover's attorney general warned that the law meant justices will, quote, "Hang on like grim death "until the Angel Gabriel blows the horn." He was, of course, correct. Once the bill passed,
nobody wanted to retire. FDR recognized this and attempted to restore their
full retirement salaries, but the bill failed. And that was actually part of FDR's court packing plan as well. The legislation would've restored the justices' full pensions. Judge Glock's research on this matter found records in FDR's library, in the papers of his attorney
general, Homer Cummings, demonstrating that the
Court expansion plan was modeled on what
Republicans did in the 1960s. And in 1937, Congress did, in fact, restore the full pensions
for retiring justices and one justice actually retired. Now, critics of court packing point out some extremely obvious
flaws with the idea. The first of which is that court packing isn't really a permanent solution. Since this isn't codified
in the Constitution itself, if the norm of a nine justice
Supreme Court is violated, then effectively any
time a political party takes control of the House,
the Senate and the presidency, then they can change the number of justices on the Supreme Court. And the two parties can enter
into a never-ending cycle of one-upsmanship where
they simply expand the Court whenever it is convenient for them. And in fact, former Harvard professor and legal commentator Lawrence Tribe says, "Obviously partisan Court-expansion "to negate the votes of justices
whose views a party detests "and whose legitimacy the party doubts "could trigger a tit-for-tat spiral "that would endanger the
Supreme Court's vital role "in stabilizing the national
political and legal system." So not only could the Supreme
Court expand and expand any time that a political party finds it convenient to do so, but that very expansion might take away some of the legitimacy
that people associate with the Supreme Court's
rulings on different things and remove some of the independence that the Supreme Court is,
at least theoretically, supposed to have. So apart from simply adding
justices to the Supreme Court, what else could be done to reform it? Well, some people are arguing for ending lifetime appointments. This is Constitutionally suspect. The Constitution says that the
judges of the Supreme Court will stay in times of good behavior, which generally has been interpreted as being a lifetime appointment, that the judge gets to
decide when he or she retires and that there's nothing
that Congress can do to force someone to early retirement or to set term limits for the justices. And there are many
places in federal service where you want lifetime appointments to be free from any kind
of political influence. But some scholars suggest
that you can get around this by simply rotating the judges through, that someone can be appointed
to a term in the Supreme Court and then relegated to one
of the federal circuits after a certain number of
years have been served. And there are pros and
cons to this approach. Some argue that having
a lifetime appointment means that justices will be completely free
from political influence. Others say that it simply
creates an incentive for politicians to appoint
extremely young judges who agree with you ideologically, who will stay on the Court
for years and years and years and then the other side simply
won't have an opportunity to appoint somebody else. But as we saw since the FDR days, a lifetime appointment means
that some of the justices will simply hold on forever, until they actually might
pass away in office. This is one of those areas that regardless of what
the Constitution says, there's not necessarily a right answer in terms of term limits
for Supreme Court justices. In fact, Justice Ginsburg
supported shorter terms for Supreme Court justices. The most popular suggestion is limiting justices to 18 year terms. This is a reform that seems to have had bipartisan
support in the past, but there are some
Constitutional problems with it. Neither Congress nor the
president can fire judges or force them out of office without cause, however the Constitution provides that justices shall hold their
offices during good behavior. Good behavior has been interpreted as conferring lifetime tenue on judges and imposing term limits would probably require a
Constitutional amendment. Though some argue it's possible that you could shuffle
a Supreme Court justice off of the Supreme Court into
one of the federal circuits, thus keeping them employed in
the federal system as a judge, just not on the Supreme
Court for their life tenue. But this also wouldn't solve
the politicization problem. Battles over nominees would
probably still be fierce. Some argue for a bigger Court
and a panel review system. Vanderbilt professors Tracey
George and Chris Guthrie propose that Congress change the Court's institutional design. Their idea is to increase the size of the Supreme Court's membership and remake in the image of
the US court of appeals. First, they suggest of
increasing the size, so it's approximately the same
size as the circuit courts, which have around 13 judges per circuit. Second, they propose that the Court should hear almost all the cases in panels rather than as a full Court, which could at least double
and perhaps even triple the Supreme Court's
decision making capacity, which means that the Court
could decide even more cases. Panels would be randomly selected, so we would not know in advance precisely which judges
would decide the case. And third, Guthrie and George say that the Court should
retain the authority to grant and en banc review
in the small fraction of cases that call for the Court
to speak as a full body. And this is effectively how
the other federal circuits operate all the time. Theoretically, the
benefits of this proposal include greater consistency
and clarity of in the law in addition to, arguably, less politicized nomination processes. And still others argue
for Supreme Court reforms that acknowledge that it is,
in fact, a political body. Some argue for what's called
the Balance Bench approach, a plan created by law professors Daniel Epps and Ganesh Sitaraman. Their plan in a nutshell starts with 10 Supreme Court justices, five would be affiliated
with the Democratic Party and five with the Republican Party. These 10 justices would then
select five additional justices chosen from the current circuit, or possibly district court judges. These five circuit court judges would need to be selected unanimously by the 10 partisan judges and they'd need to be
chosen two years in advance for one year terms. And if the justices fail to agree on a slate of additional colleagues, the Supreme Court would lack a quorum and they could not hear
any cases for that year. The Balanced Bench plan rests on the idea that the partisan affiliated justices would have to pick justices would probably would never be
appointed to the Supreme Court because they have views
that aren't easily traceable to party affiliations. And Epps and Sitaraman
believe that the justices would select five people who
have a reputation for, quote, "Fairness, independence, and centrism." But of course, regardless
whatever benefits this approach would have,
it's clearly unconstitutional, so it would require a
Constitutional amendment to actually implement. But why let a silly little thing
like being unconstitutional prevent it from being adopted? But there's no dispute
that, for better or worse, the system currently is
based largely on luck. Some presidents might not get to appoint a single Supreme Court justice while others might appoint three or four. But whether there are nine justices on the Supreme Court or 900, if you ever want to get
to the Supreme Court, you've got to learn to write really well. In fact, all lawyers have
to write really well. And the best place to learn
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really helps out this channel. So do you agree with my analysis? Do you think that the Supreme Court should stay at nine justices
or should it be expanded? Leave your objections in the comments and check out this playlist over here with all of my other Real Law Reviews talking about the crazy
stuff that's happening in the Trump administration,
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and I'll see you in court.
Just to add to what he is saying about term limits -
TLDR; 1700-1800s: millions of dead babies every year 2020: very many less dead babies per capita so a much higher Life Expectancy A Life Expectancy since birth of 34 belies the fact that a large proportion of people during the 1700’s, especially the wealthy, could live well into their 80s (the average age of the first 5 Presidents).
I think they had in mind ages that are not too far from what we see now but couldn’t have guessed the ability of technology to keep some of these brain dead people alive and in office of all 3 branches of government.(I’m thinking of one in particular, but I won’t say who)
The Eagle’s point still stands obviously, I just wanted to throw in some potential perspectives for people like me that throughout most of their lives heard the statistic that people only lived into their late 30’s but some how everyone in the textbooks seemed to live twice as long.
END of TLDR
….Ok, I just have to make sure you understand I was talking about Donald Trump. Our current President. WTH?!? He called COVID a HOAX and then caught the HOAX and was given the best treatment in the world to save his life and then went on to become an actual vector for the virus! A Super Spreader. He was the #1 cause of disinformation that will cause untold amounts of death with the very people who trusted him with their lives! He’s still alive when the odds say he shouldn’t be because of technology. and money.
Dear Mr. Legal Eagle, I hope this makes sense
I think that using a "Life Expectancy from Birth" can be a bit misleading when we try to infer what the founding fathers had in mind when it comes to “life" time appointments and the unintended consequences of increased life expectancy.
If you look at the Median or Mode Ages at Death during the 1700s, the ages are much higher and more in line with our current Life Expectancies than the difference between the given Life Expectancy ages of 34 to 78 would lead us to believe.
this link gives some more information on Life Expectancy https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3000019/
If you average the first 5 presidents age of deaths out, they come in at almost ~80 years old! I think that for the most part they knew that many people would live well into their 70s but just couldn’t account for technological advances that would allow people to keep their bodies alive long past when their brains are set to expire.
It may also be in large part due to technology’s ability to feel like there is a change in politics by zeitgeist every few months as opposed to every decade or so before modern media.
Combine aging brains with lower and lower neural plasticities and a tech oriented society that thrives on change and it’s starting to look like you have a recipe for disaster.
Seems like science could be both man’s biggest achievment as well as our own undoing.