Get Us to Seven feat. Rep. Mondaire Jones

We are here today because the United States Supreme Court is broken.

Hey, everyone, this is Leon from Fiasco and Prologue Projects.

On this week's episode of 5 to 4, Peter, Rhiannon, and Michael are talking about what it means that the Biden administration has appointed a commission to study the possibility of reforming the Supreme Court.

President Biden set up a pseudo-academic commission to study the merits of packing the Supreme Court.

Just an attempt to clothe this transparent power play

in fake legitimacy.

In the second part of today's episode, the hosts are joined by Representative Mondair Jones of New York State, one of the sponsors of the Judiciary Act of 2021, a bill that would increase the size of the court from 9 to 13 and shift the balance of power that has given conservatives on the court a supermajority.

This is 5 to 4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have swarmed our nation like a brood of cicadas.

I am Peter.

I'm here with Rhiannon.

Hi.

And Michael.

Hey, everybody.

And a little bit later.

In the show, we will be touching base with Congressman Mondair Jones to do a little interview.

Second Congressman to be on the show.

Not a big deal for for us anymore.

Yeah.

It's just something that we do.

It's normal.

We're just talking to powerful people all the time.

They're begging us, and it's like, I don't know.

It's obnoxious.

It's obnoxious, I think.

Yeah.

Yeah.

So today we are talking about.

Supreme Court reform, but more specifically, we are talking about some developments in Supreme Court reform, namely the Biden Reform Commission and the pending Supreme Court expansion bill in Congress.

So, last year, following the death of Justice Ruth Bader Ginsburg, there was a lot of talk about Supreme Court reform.

We did an episode on it.

We talked to Congressman Roe Khanna.

The presidential candidates debated it.

And Joe Biden sort of like hedged his bets by saying that he would support a commission to explore the possibility of court expansion or packing the courts, as the cool kids would say.

Right.

And now the time has come.

After some initial confusion and light skirmishes, Joe Biden became the president of the United States.

And on April 9th, he issued an executive order creating the Presidential Commission on the Supreme Court of the United States, which will explore potential Supreme Court reform.

Just a few days following the commission announcement, a number of congressional Democrats introduced a bill to expand the size of the court from nine justices to 13.

And so it seems that the prospect of court reform, once a fringe notion, is at least gaining some esteem.

If you haven't listened to our episode about court reform from last October or so, it's a good listen, you know, and we talked about the substance of it and what we thought good reforms looked like.

But today we are going to dive into the specifics of the new commission and the bill, talk about the political wins around them, and discuss the future of court reform.

So, first of all, we should talk about what exactly like a commission is, like a presidentially ordered commission.

And I think the best way to put it is it's just like a brainstorming sesh, you know?

It's like a reading group.

That's right.

Yeah.

Yeah.

Yeah.

Yeah.

So Biden just he gathers some people together, names who they're going to be, and then he gives them like a function.

And some commissions would issue reports, like the 9-11 Commission issued a report about 9-11 and concluded that

it was bad.

I don't remember what the point of the 9-11 Commission was.

I think it was just neutral.

Not taking sides, no politics.

A redacted country that nobody knows is mainly behind 9-11.

Right, right, right, right.

When could it be under these black marker lines?

So, no, I think we should talk about the stated purpose of the Commission.

Here is a quote from the executive order.

The Commission's purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.

The topics it will examine include the genesis of the reform debate, the court's role in the constitutional system, the length of service and turnover of justices on the court, the membership and size of the court, and the court's case selection, rules, and practices.

So if you're listening,

that's everything.

Yeah, just like other presidential commissions, this is really just like the president gives a topic, and the function of the commission is like vibe check on the topic.

Like, how's everybody feel about these words, right?

So, note that the stated purpose in the executive order is not to provide specific recommendations to president biden about what structural reforms should be enacted right it's just to evaluate them just evaluate what the options are essentially like this is a list like the commission is tasked with making a list this is a book report at best yeah but like an eighth grade book report where like you're not really saying anything yeah right yeah it's like this book is about this and the main characters are steve and jessica

and you're just like describing it.

That's right.

And at the end of it, the person is like, yeah, okay.

Yeah.

That's a pretty good summary of the book.

Yeah, exactly.

And on top of that, like the contents of the book are like, this isn't a fucking mystery.

Right.

This shit has been studied extensively.

Yeah.

Right.

Like, you give me five days.

And I can give you a rundown of all the research on the constitutionality of Supreme Court limits and how often we've expanded the size of the court and blah, blah, blah, blah, blah.

It's all there.

It's done.

Exactly.

Yeah.

It's on the Wikipedia.

If you look up Supreme Court reform, it's all there.

Yeah.

How do you think I prep for these episodes?

I mean, it's out there, right?

I didn't even think to search Wikipedia for Supreme Court reform.

That's interesting.

Oh, okay.

Yeah, you know the sources to go to.

No, I search Twitter for Supreme Court reform.

Yeah, so I think, you know.

I just, I read off the stated purpose and I think the real open question is like, yeah, but what's the real purpose, right?

Like, what, what's the political goal here?

On its face, there's something a little weird about a commission to explore a political power grab, right?

We've been clear that ultimately, like, the justification for court expansion is to put more progressives on the court and shift the balance of power.

I don't think that there is a way to frame it that gets around that or will like convince anyone that that is not the purpose.

We've been clear on that.

And, you know, we think we've been honest about what our goals are with respect to court reform.

And you're not going to commission your way around that, right?

Yeah.

So what is the commission doing?

There are a couple of ways to interpret it.

One is that the aim is to build enough legitimacy for the idea of court expansion that you can build a coalition, bring in moderates, whatever.

You're obviously never going to convince Republicans.

So that's not really part of the reason.

But there are centrist Democrats that maybe you could bring into the fold.

Another explanation is that Biden is trying to assuage the left that action is being taken when it's really not.

Or similarly, just to sort of hit on a campaign promise and check that box so he can say that he did it, sort of do the bare minimum without any substantive follow-through.

Right.

I also think there's a degree to which it just, you know, buys them time.

Right.

Like the delay itself in getting this set up and when it starts and the six months, that's all a virtue for them because it gives them a chance to just sort of like let public opinion clarify, right?

Maybe the pressure on them dissipates as other shit comes up.

Or maybe the court does something extreme and public pressure ratchets up.

Either way, I think they're much happier to just like deal with infrastructure and deal with voting rights and deal with COVID relief and worry about this, you know, in 2022.

Right, right.

We're just kicking the can kind of.

And, you know, mentioning public opinion, I do want to like highlight that there is some polling on this stuff.

And one poll shows that 63% of the public favors term limits and getting rid of life terms.

That's a pretty substantial majority in American politics.

Yeah.

That same poll shows that less than 50% of the population has like any confidence in the court's decisions, which feels right.

Right.

That poll shows that like, you know, packing the court is like break-even.

It's 38% support, 42% oppose.

Other polls show it less popular than that, at more like 26% favor, 48% oppose.

Either way, there's no, I think, consensus, national consensus, like majority position on most reforms other than like fucking life terms is stupid and we should get rid of reforms.

Right.

Yeah.

The 50% of people in this country who have no faith in the courts' opinions, that's what in business terms we would call our addressable market, right?

That's our potential.

Right.

Right.

There is a bucket of people there.

Love to see those numbers.

Absolutely.

Yeah.

So maybe another way to sort of suss out the real purpose of this is is to look at who's on the commission and see what we can glean.

There is a lot there, I gotta say.

So there are a lot of people on this dang thing.

The commission will be comprised of 36 people.

They're all legal scholars, former federal judges, some practicing attorneys on there.

The commission itself, it's bipartisan, but media outlets have noted that the composition leans left.

The Libertarian Cato Institute says that progressives outweigh conservatives on the Biden Commission three to one.

And important note here, some 80%

are graduates of or otherwise affiliated with just two law schools.

Give you a second to guess.

It's Harvard or Yale.

Oh.

So that's cute.

Florida State.

Yeah, yeah.

Right?

It's a crazy coincidence.

Right.

Yeah.

So something like, you know, 28 or 29 out of 36 people are, you know, either graduated from Harvard law or Yale law or, you know, are professors there or, you know, some sort of affiliation with those two universities.

Yeah.

Yeah.

When I was trying to like do research on this and I was just like Googling articles and things like that, it was just like impossible to find stuff between all these like Harvard and Yale pieces being like,

oh, three professors, another four alumni, like

all these like, you know.

They're putting out braggy press releases.

Very annoying.

Yeah.

So as you might guess, the emphasis is on like prestige.

It's on like big names in legal academic circles.

But like, who gives a fuck?

Like, right.

Honestly, who cares?

There are a lot of like old Democratic hands, like Bob Bauer and Walter Dellinger.

Like, Bauer was, I think, general counsel in the Obama administration, and he's like a big name in Democratic politics.

Dellinger was like a, I think, a solicitor general at some point and was probably would have been a Supreme Court justice if Kerry had won.

So I can kind of see Biden just being like, Hey, you guys just read this shit and tell me what's up.

You know, like, yeah, it's like already his party guys who are like doing the law stuff anyway.

Yeah.

Right, exactly.

They're just like handing it off to these guys.

And Larry Tribe is on there, who is a fucking lunatic.

Yeah.

I'm doing the wank jerk off motion.

Yeah.

God, Larry Tribe.

He's a guy who had like a big name in left legal academics for like 40 years at Harvard, but is now like in the last few years has been like spending time on like MSNBC spinning conspiracy theories about like Russia shooting down jets and things like that.

Yeah, he's a poster.

Larry Tribe is now most famous for being on Twitter.

Yeah, like how 80% of the Republican Party is QAnon and the Democrats have like a lesser, maybe like 10% of the Democratic Party got really swept up in the Russia stuff and thinks that like all sorts of nefarious shit is happening that makes no sense.

And they call it Larry Tribe.

That's right.

Yes.

Yeah.

It's been a rough few years for his brain.

I do think he's got a little bit of the

always wanted to be on the Supreme Court.

And

ambition has been dashed sort of syndrome.

So it's like anything for more adulation, right?

Anything for the faves and the retweets.

Absolutely.

And the MSNBC appearances is good for him.

He's a clout shark.

That's right.

Exactly.

There are very few people on this who have made any public statements on court reform.

Sort of the most radical positions taken that I could find were from tribe, Jack Balkin, who's actually a pretty decent professor, and Kermit Roosevelt, three law professors who have all signed a letter.

to Congress saying that they should impose term limits.

Balkan, however, is on record opposing expanding the court.

Right.

And he's probably the best of the people that they appointed.

So, you know, that gives you a sense.

One interesting thing, Sherilyn Eiffel, the head of the NAACP Legal Defense Fund, is on the commission, which I think, you know, I think great.

She's pretty cool.

But I think mostly notable because that rules her out as a dark horse for the Supreme Court, I think.

Yeah, I think so.

Pretty affirmatively.

And she was sort of on that list.

And so just sort of a notable addition there.

Yeah.

But I do think the bigger story, well, we'll talk about the conservatives on it.

But I think in general, the biggest story is who's not on this, right?

Yes.

And so, like, first of all, someone like Erwin Chemerinsky Chemerinsky would have been totally at home here.

He is a huge name in academia.

He's dean at Berkeley.

He wrote the fucking con law textbook that like everyone else uses to learn constitutional law.

Right.

But he's not on here.

And that's almost certainly because he is on record as favoring expanding the court.

Right.

He's made a public statement in favor of that.

So he's not on the commission.

That's like, that's the reason.

Right.

Also, like anybody who's actually studied this stuff, researched it, try to look into like the effects that like putting term limits would have on judicial decision making or

how often the court has been expanded in what contexts.

None of them are there.

Sam Moyne at Yale, Maya Sen, Daniel Epps, Ganesh Sidamaran.

There are a ton of people who have made this like a point of academic focus.

And, you know, instead of having them on the commission, you're going to have some jerk-offs who care so little about this shit that they've had nothing to say about it in the the last 15 years while it's been a live issue?

They're going to read those people's papers and tell us what they think about them.

Right.

Or people who, you know, in terms of the progressives, supposed progressives on this commission, it's people who, you know, were worked in the Obama administration.

And we know what the Obama administration did on the court, right?

Like, which is to say nothing, like, did not treat it like a political issue, did not take advantage when Democrats had political power.

And so those are the left voices on this commission.

Yeah.

Also, like, talking about what like left lawyers could have been, you know, better choices, but like, why lawyers?

Why just lawyers?

Why not politicians?

Why not like public policy types?

Why not just more regular everyday people or lawyers who work to ensure that women have reproductive freedom or who work on like access to the ballot?

Maybe a citizen who would like to vote in an upcoming election.

Right.

Yeah.

Yeah.

People whose lives and work are actually impacted by what the court does.

Sure.

Maybe they should be talking a little bit about like the degree to which it currently has any legitimacy and like how to fix that.

Absolutely.

It's just like a myopic and sort of revealing thing that buys into this assumption that the law is like somehow different, right?

And special.

And only the smartest lawyers can tell us about like how the Supreme Court should function.

And that's fucking bullshit.

Yeah.

So I think in the abstract argument you could make like, oh, we don't want people who are advocating for court reform to be on the commission.

We want people who are supposedly like more neutral to be reviewing the scholarship or whatever, people who come in like as a blank slate or whatever.

But

court reform is not new and it has been a salient issue for a long time.

And these are people who are prominent and prolific academics who publish a lot, who talk a lot about the law and about important issues in the law.

And if you don't have a public position on this at this point, if it's not well known how you feel about this, the options are either you're like a fucking dullard,

you're a fucking coward, or you're just so satisfied with the status quo that this is not something that is salient to you.

Right, right.

It's not an issue that like affects your life or your work at all.

And I can't imagine a worse set of people to put on a commission than uncurious dollards

or people who are afraid of the court and its prestige and don't want to

upset it and people who are satisfied with the status quo.

It's like the worst possible fucking pool of people you could be.

Yeah, really good point.

And people with expertise tend to develop opinions.

Right.

And I feel like you should allow that.

Yeah.

And if you were talking about it in another context, like no one would say, well, we can't have climate scientists who have strong opinions

on a climate science commission.

Right.

And I understand these these are like, you know,

I'm not saying those are like one-to-one comparisons, but you can see the sort of inherent absurdity there.

Like you're allowed to draw conclusions from the data you're studying.

That's fine.

That should be allowed.

Yeah, your life is studying the court and its effects.

Like you can have opinions about its institutional design.

It would be weird if you didn't.

But so all that aside, we should talk about the conservatives.

There's only, I think, nine on there, something like that.

Not a ton, not enough to like, I think really like guide the commission and its there's going to be a dissenting commission opinion.

Yes, yes, that's right.

The two I wanted to highlight are one former judge Thomas Griffith, who it was a total fucking Republican hack.

This guy, I think, most infamously ruled to completely invalidate Obamacare.

Not the first time, but the second case, the one that couldn't even get four conservative votes.

It lost six, three at the Supreme Court.

His reasoning was so fucking shoddy.

It was so hackish, arguing that Congress had created exchanges that could have

nobody qualified for the exchange.

It was so fucking stupid.

So he's on the commission, and that's that's a guy who I'm sure will be giving us lots of good faith opinions on how the Supreme Court works.

And another one is Jack Goldsmith, who's a Harvard law professor.

He's a conservative that like liberals love to cite as a reasonable and moderate.

And I think mainly that's because when he worked in the Bush White House, he was sort of prominently a critic of the torture memos and resigned over them.

And I do think, actually, having seen him talk, I think he'll probably engage on these issues in good faith on the commission.

I will give him that.

I also like want to note that he may have been not okay with the torture memos, but he fucking wrote the memos authorizing warrantless wiretapping after 9-11, which was a huge scandal, and which I think would qualify him as, I'll call him a light fascist.

Sure.

Yeah.

Might not be full on, you know, give them the same pain as if they were having an organ removed, tortured, John Yu level fascism.

But he is like, yeah, let's just monitor everybody's fucking digital communications.

Who the fuck cares about his good faith opinions?

I don't.

Right.

Right.

Let's put Ted Kaczynski on the commission.

Fuck.

Right.

I mean, he went to MIT.

He's a fucking smart guy, right?

He's got the fancy degrees.

Yeah.

So, so, like, given the makeup, right, of the commission, the supposed progressives and left thinkers that are on here, as well as the nine conservatives that are included, it shows how this is just an easy way for President Biden to say that he is fulfilling a campaign promise, right, to evaluate possible reforms to the Supreme Court, but it doesn't require him to commit.

to anything concrete yet, right?

The people who are on this commission, like Michael said, are sure like prestigious kind of elite names, right, in legal thought, but not actual experts on Supreme Court reform, not the people who have studied it and been published on these ideas over the course of the

people who have been podcasting their asses.

That's right.

Where is the lawboy on this list?

For God's sakes.

I think I would be on before the lawboy.

Thank you very much.

Oh, just because you seriously study it, I don't know if you've been paying attention, Michael, but that doesn't help.

That's true.

I think you get that.

So I think we're going to take a quick break, and then we're going to talk a little bit about Nancy Pelosi.

And then later in the show, we're going to talk to Congressman Mondair Jones and ask him what Nancy Pelosi is like in person.

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And thanks again for being so cool.

All right, we are back, and we should talk about some of the reactions to the Commission and to the Judiciary Act.

Those are two separate things, obviously.

The Commission is writing this book report, and the Judiciary Act is legislation to expand the court.

But if you're not a fan of them, you're going to sort of lump them together and call them both court packing.

Sure.

So the Judiciary Act would expand the court from nine to thirteen justices.

It's sponsored by House Judiciary Chair Jerry Nadler and Mondair Jones, who we are going to talk to later on.

But despite those big names backing the bill, Nancy Pelosi has said, and I quote, I have no intention to bring it to the floor.

Oh my God.

And regarding the commission, she said, quote, I don't know that that's a good idea or a bad idea.

I think it's an idea that should be considered.

The commission itself?

Yeah.

Thank you, Nancy Pelosi.

Just that smooth, effortless politicking that you get out of Nancy Pelosi.

I think saying I have no intention to bring it to the floor is just so like, so like revealing of someone who's been a politician for so long that they like can't remember.

what people want to hear.

Yes.

Yes.

Not processing like the political stakes at all.

Just a demon who haunts the Democratic Party.

From beyond the grave.

Yeah.

A lich queen just fucking like

rising from the floor every time you enter the House chamber.

I don't know if we'll bring it to the floor.

This was like scary.

The eldritch power of the NC Polo.

It is insane how ineffectual she sounds.

Not just like how ineffectual she is, but how ineffectual she sounds, right?

You have the president taking the initial steps here with the commission and

combine it with the legislation.

You've got big name congresspeople stepping forward and putting their names on a court expansion bill.

And she's just like, no, I'm not going to bring it to the floor.

Thanks.

But, you know, even more fascinating than the Pelosi reaction to me is the right-wing reaction to the Biden Commission.

Because unlike the bill, which could theoretically be passed and expand the court, the commission is just sort of, again, like Rhea said, a book report, right?

Not something that's particularly substantive.

So Rhea, I know you've been looking at how some of the big name GOP types have been responding.

Yeah, so Republican senators really be wilding already on the commission.

So Ben Sasse, you know, he's a senator on the Judiciary Committee, said, quote, President Biden knows that he doesn't even have the votes in his own party to pack the court.

He knows that court packing is a non-starter with the American people.

And he knows that this commission's report is just going to be taxpayer-funded door stopper.

Hard to argue.

So

jokes on you, buddy.

There won't even be a report.

Okay.

So yeah, the Republicans in the Senate are, you know, already sort of dripping in whiny toddler energy on the topic of the commission.

And they're making sure to do all their dumb shit throwing circus act about it.

For his part, Senate Minority Leader Mitch McConnell called the commission a, quote, faux academic study of a non-existent problem that fits squarely within liberals' years-long campaign to politicize the court, intimidate its members, and subvert its independence.

End quote.

Just like, let's take a step back.

Look how

I love it.

I'm sorry.

The shamelessness.

Yes.

Mitch McConnell operates at Mitch McConnell.

Just incredible.

Incredible.

Like, I cannot conceive of just like going into public and being like this every single day.

Yeah.

Where like every single person just knows you're full of shit and you're just fucking gunning for it.

It doesn't matter.

You're like, fuck you.

Right.

Look how ugly little freaks lie to our faces every day.

And Democrats just let them.

It's like seriously embarrassing.

Like this man made it his personal mission to take control of the court for his party.

He said it publicly.

Every time he is intellectually dishonest, his skin just falls a half a centimeter further from the rest of his face.

You know, he said that taking control of the court for the Republicans, he said that publicly and explicitly.

He was vindictive.

He was dirty, hostile.

He was aggressive in reaching those goals.

And the mere introduction of a panel of people who are going to write a list of possible reforms to the court has this festering wound of a senator calling it radical leftism.

Like it is bold.

Yeah.

They need to overreact to this, right?

Because they can't let this spiral out of control.

That's the takeaway.

Yeah.

And he did all these things that Rhiannon said in the face of public opinion.

That's right.

Right.

Like this was holding Scalia's seat open for a year was unpopular.

Like that was like consistently polled unpopular.

Filling Ginsburg's seat while people were in the middle of voting.

was unpopular.

Absolutely.

And he's like, fuck it.

Right.

You know, we don't need a commission to study whether it's okay to hold a seat open for a year.

We're just going to fucking do it.

I don't care if it's like 30% approve and I don't care if there's no precedent for it.

We're doing it.

Yeah.

You know, really good point.

Yeah.

I just, I'm thinking of McConnell as a Pinocchio and every time he lies, his skin gets like a little bit droopier.

You know, you guys know that I like to keep my finger on the pulse of right-wing sentiments.

And my initial impression on a review of my usual sources is that because this is so early stages politically, mainstream conservatives, by which I mean QAnon Facebook moms, don't really talk about this.

But some of the more ostensibly intellectual elements of the right-wing media ecosystem are actually freaking out a little bit.

National Review remains, you know, the preeminent publication of the more establishment adjacent GOP conservative types, and its recent coverage of court packing is just breathless.

I went back through like 10 days of articles, literally the last 10 days.

Yeah.

And they have published 15 articles about court packing in the last 10 days.

They're freaking out.

That reads like maybe a little bit of anxiety to me.

That's great.

These articles have titles like Democrats Plan a Power Grab.

Court packing Democrats Corrupted by Their Own Power.

High quality writing, by the way, because it's important to clarify that someone is being corrupted by their own power.

And an article title that might lead to a potential copyright infringement from Michael title, Democrats Court Packing Two-Step.

Oh, shit.

That is your intellectual property.

Last year, Michael coined the phrase, the John Roberts two-step, the Roberts two-step.

to explain how Roberts will put down a one opinion that takes a small step towards going sort of all the way towards the conservative position, but lays the groundwork.

And then, when the next opportunity arises, he will take the second step and land where the conservatives wanted him to land.

But it looks like he sort of laid the groundwork and whatever.

And this is about how the Democrats are going to make a commission, and then the second step is they pack the court.

I fucking wish.

The general thrust of all of of these articles is just like, this is absolutely treacherous behavior by the Democrats.

Naked and unprecedented power grab by authoritarian tyrants, you know, et cetera, et cetera.

I read a bunch of these mostly because I was sort of curious how they squared this with the Merrick Garland debacle and whether they confronted it directly, seeing as that was also a naked and unprecedented power grab.

Absolutely.

And as you may expect, they don't like exactly do a great job of explaining the big distinction there.

One article says Republicans, quote, merely used their constitutional powers to approve or reject the candidates they were sent, unquote.

First of all, not true because there was no vote on Garland.

Right.

And also seems to be an argument that it was okay because it was technically within the bounds of the Constitution.

Right.

But so is court packing.

So not sure exactly what the argument is there.

Right.

Again, these are like conservatism's luminaries.

You know, these are their biggest brains.

Right.

My best guess is that the prospect of court reform isn't real enough to have like enthralled the mainstream types, but the potential is there.

And the idea that this conversation is shifting into the mainstream, very disconcerting to the establishment Republicans.

And they're gearing up for a very public fight.

Right.

They're on the cusp of victory here, right?

They've been working towards this for decades.

Yeah.

And they are going to jealously defend that victory.

So turning to,

I got to say, the least interesting opinions on Supreme Court reform, which is the opinions of the actual Supreme Court justices.

A few weeks ago, Justice Stephen Breyer spoke at Harvard Law School's Scalia lecture in a speech titled The Authority of the Court and the Peril of Politics.

Oh, boy.

In this speech, Justice Breyer explicitly spoke out against institutional reform of the court, saying, quote, it's wrong to think of the court as another political institution.

And he was saying that like treating it like one, like a political institution, by instituting these reforms would erode public trust in the Supreme Court as an institution.

And he pointed out that the court has not produced uniformly conservative opinions.

And he said that the idea that there are liberal and conservative justices, quote, reinforces the view that politics, not legal merits, drives Supreme Court decisions.

It's politics when you try to reform the court.

When you publicly speak out against it, that is.

Right.

Yes, exactly.

Exactly.

Thank you.

In a sort of bizarre tangent in this speech, he held out Bush v.

Gore as an example of the country's belief in the court's legitimacy.

Oh, my God.

He said, quote, the court divided five to four.

I did not agree with the majority, and I wrote a dissenting opinion.

Despite its importance, despite the belief held by half the country that it was misguided, the nation followed the decision without violent riots, without the throwing of stones in the streets, and the losing candidate, Al Gore, told his supporters, don't trash the Supreme Court.

Unquote.

So, credit where it's due, using the single most brazenly political case in Supreme Court history as evidence of the court's non-political nature is the sort of creativity and ambition that you love to see out of our nation's top legal minds.

You know?

Oh, my God.

This is weird, mostly because I feel like the point he's making is that the public continued to trust the court as an institution, even after it engaged in behavior that made it clearly untrustworthy.

And that is somehow, in his mind, a good thing.

Right, right.

I mean, it's just like Michael was saying about like the composition, the people, the figures, the thinkers who were on this Biden commission to study potential reforms to the Supreme Court.

Like Justice Breyer is either delusional, right?

Or an idiot.

Or like a corrupt, rotten coward to be saying these things publicly, right?

And it's just like, none of those options are good.

Why are these the smartest, best people for this job?

Look, I mean, I think if you're even a little bit familiar with us, you know what we think about his contention that the court is not political or that you cannot create ideological delineations between the justices.

Again, you know, that's incorrect, but it's more accurate to describe it as like viewing the world through a framework so deeply misguided that it has lost any descriptive or proscriptive ability.

Right.

To say that the occasional liberal decision is proof that the court is non-ideological is like, it's just incoherent.

Incoherent.

If the vast majority of the ideologically contentious decisions are conservative, and they are, absolutely, it's a conservative court.

That's not hard to understand, right?

What Breyer's saying is the equivalent of a coach losing 20 straight games and then winning one and being like, well, that's proof that we're competitive.

Yeah.

We're a good team.

What fucking sets me off about his talk was his preoccupation with like public public perception of the court, which like as we mentioned earlier, it's not great

right now.

And like he might, you know, muse on that, on why that's so.

But like how fucking dull do you have to be to be engaged as heavily in law as he has been for like 60 years and watch one political party relentlessly criticize the legitimacy of any court ruling it disagreed with and think, wow, now that the shoe's on the other foot, what's important important here is that we try to protect public perceptions of their justices while they go about completely remaking the social compact, right?

It's mad.

It's nonsensical.

It's hard to imagine someone else with as much power as the Supreme Court justices, the Liberal Supreme Court justices, who seem to misunderstand their own position in the American power structure as much as these guys do.

It's fucking embarrassing.

And this is why they keep losing, right?

Republicans are punching them in the face and they're like turning to the audience to break the fourth wall and be like, it's okay that they're punching us in the face.

It's good.

That's right.

That's how this goes.

They just punch us in the face and we spit out our teeth.

Yeah, I think Breyer's comments are like in that way, really just like a monument to how effectively the right has cowed the liberal legal establishment, right?

Like the conservatives consistently describe liberal decisions as activist, and they even do it now when they're like winning and have been winning for an extremely long period of time.

The National Review, I recently found out in my review of their articles, runs a daily column called This Day in Liberal Judicial Activism.

Oh my gosh.

Where they like do a this day in history where they like find liberal Supreme Court decisions and just call it judicial activism.

That is a daily column at the National Review.

Clarence Thomas just last week or so.

dropped a footnote in a juvenile sentencing case about how the liberals use manipulative language in their decisions to their advantage.

So why is a liberal Supreme Court justice carrying their water by saying that the conservatives are not ideological?

This is why the Federalist Society is so appealing to law students, right?

If you have conservatives saying the liberals are bad faith actors and the liberals saying, well, actually, we're all good faith actors.

Who looks like they're lying?

Yeah.

And another thing that the conservative justices do that you just reminded me of, Peter, Peter, is ritualism isn't just like an affirmative theory of how to interpret the Constitution.

It's a statement that the way Breyer and Stevens and all the liberal judges and justices interpret the Constitution is illegitimate.

That their entire mode of statutory interpretation is literally unconstitutional.

It's ridiculous to turn around and be like, yeah, but that's just friends disagreeing and not like right right people engaged in a long campaign of propaganda trying to delegitimize everything you do and your failure to meet them in that competition the name of the lecture is the scalia lecture right the lecture he's giving is literally named after a dude who spent his career shitting on us

right right in all this what breyer doesn't seem to to care about is whether the court is actually legitimate right just whether it appears legitimate uh whether people believe it's legitimate.

But one reason why the court does not have public trust is because it's fundamentally out of step with the public on a huge number of issues.

Absolutely.

It is totally out of date on access to the ballot, on bodily autonomy and reproductive health, on campaign finance and money and politics.

It's just not reflective of the public.

And, you know, in a democracy, the public is where the government gets its legitimacy.

It's not by accident that they're out of step with the public, right?

Like, Democrats have dominated national elections for 25 years, almost 30 years.

Like they have won the popular votes in all but one presidential election since 1992.

And yet five of the last eight justices have been appointed by Republican presidents.

And on top of that, there's like a massive generational divide in American politics right now that simply has never existed before.

Millennials and Zoomers represent like the first time in American politics where there's like a massive ideological generation gap, which means that like a huge portion of the electorate is not reflected in the Supreme Court because they don't have the political power.

We'll see what happens once they are paying their first property taxes at the age of 68.

Yeah, but like court membership, right?

It's been picked from and chosen by generations that are simply just like not in touch with half the country.

Like the story of the Supreme Court and the conservative legal movement, movement the conservative political movement over the past several decades is about the republican party taking seriously right that they actually represent smaller and smaller minority of people in the united states and in order to retain any power they have to take control of the least democratic branch of government right and so breyer's thoughts about this and who's on this biden commission and what the biden commission is actually tasked with doing it's a denial of that reality.

Yeah.

I've said it before, and I don't want to hammer the same point too much, but like when someone like Breyer sees what Mitch McConnell did with the scalia seat, why does he think he did that?

Do you think Mitch McConnell is like the biggest fool in the fucking country?

Right.

I mean, that's the only thing is he's like, you moron, we're all just going to interpret the law in good faith.

It's, I just, I don't understand what he thinks is happening.

Like, what is going on in your mind?

I will say one thing.

I do think this will erode the legitimacy of the court and make it more political than it is.

I also think that is vastly preferable to 25 years of conservative domination of the court.

The legitimacy of a reactionary institution is bad.

It's a bad thing.

I don't want reactionary institutions to be legitimate.

Absolutely.

Legitimacy is...

You can think of it in a lot of different ways, but if the Supreme Court came out and started upholding strict campaign finance laws and overturning Citizens United and reaffirming a very robust Roe v.

Wade, it would be popular.

Yeah.

It would be too popular for its legitimacy to even matter.

Exactly.

They're just going to become part of the canon and people are going to move on.

And that is how it has worked forever.

I mean, the New Deal had its legitimacy questioned, right?

The civil rights era legislation had its legitimacy questioned.

This shit gets popular.

It entrenches itself.

And that's that.

It's over.

Yeah.

Yeah.

Yeah.

We're obviously going to put out some Stephen Breyer retire bitch merch.

And we're going to get rich.

Yeah.

Hopefully by the time this episode is out,

we'll have it.

So to wrap on this, I don't see packing in the court happening.

I mean, you know, things like overturning Roe v.

Wade would put a lot of things on the table.

So I don't want to speak in broad strokes, but I think it's unlikely.

But I think the real impact of the commission, of the bill, is that the Overton window is being shifted here, right?

The public discussion is being shifted.

A few years ago, the idea of court expansion was was considered a relic of history and way outside the bounds of modern politics.

But Republicans have turned the court into a political battlefield so openly and brazenly that even moderate Democrats are being forced to reckon with it.

And at the very least, we are seeing a public discourse far to the left of where it was even very recently.

Yeah, that's true.

And whether that manifests in practical results is obviously another story.

And again, I'm not super optimistic on court expansion in the next couple couple of years, but I do think that this shift in the discussion presents some real opportunities.

Something like expansion of the lower federal courts, which would create the opportunity for Democrats to make a number of appointments and is also much more politically palatable, might suddenly seem like a reasonable middle ground here versus court expansion, right?

And so I think the optimistic take is not only are we now having this conversation very publicly, but we're also creating these opportunities by shifting the conversation left for actual practical reforms.

Yeah, absolutely.

All right, I think we'll take a minute and then we are going to talk to Congressman Mondair Jones about the whatever the name of that bill is.

He'll tell us.

That'll be our first question.

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All right, folks, we've got our interview with Congressman Mondair Jones coming up.

We recorded this separately from the main episode, and Rhea had to miss the first portion of it because she was doing Public Defender stuff.

So she was literally in jail for most of this.

And then at the end, she pops up.

She shows up for the final like 15% of the interview.

Classic Rhea, if you know her.

So roll the interview.

We are joined now by Congressman Mondair Jones from his office at the Capitol.

Congressman, thanks for coming on.

We appreciate it.

Thanks for having me.

I've heard a little bit about this podcast, and I'm excited by the opportunity to partake in the fun.

let's get down to business we want to talk about the court expansion bill so tell us a bit about it what does it do and why are you co-sponsoring it our democracy is in crisis and it is in crisis because of the far-right assault on the right to vote for example And what I want people to understand is that the Supreme Court majority has been an accomplice in unraveling our democracy, including in striking down

the heart of the Voting Rights Act and that 2013 Shall We Beholder decision.

And so in order to save our democracy, I introduced the Judiciary Act of 2021, which would add four seats to the Supreme Court of the United States.

And I was joined by the chair of the House Judiciary Committee, Jerry Nadler, and the chair of the House Subcommittee on Courts, Hank Johnson, as well as our Senate sponsor, Ed Markey of Massachusetts, in this effort that I think will continue to gain traction as the court hands down draconian decision after draconian decision.

We hope that's, well, we don't hope that they hand down draconian decisions,

but we do hope that this continues to gain traction.

So we were wondering, is there a specific reason why four seats as opposed to two or six or however many?

Is it more palatable or is there a specific reason you picked four?

It's not more palatable to people who have reservations about doing anything to stand up to the far right, but it is required to get a majority on the Supreme Court of the United States that will protect the fundamental right to vote, that will protect

the rights of marginalized people in our society.

black and brown people, immigrants, members of the LGBTQ community like myself.

You know, this is personal for me.

I have to wait every June, like most gay people, to see whether the Supreme Court is going to extend me rights I should have gotten a long time ago or take away my rights.

And now I'm really worried with Justice Amy Coney Barrett

effectively neutering John Roberts because he's no longer the swing vote.

I mean, she could comprise a 5-4 majority without it.

That's right.

To be clear, though, I mean, the purpose of the four seats, it's to get us to seven, right?

To get progressives or left-leaning justices to seven so that we outnumber them.

That is correct.

I love the honesty there because I was reading some critiques where they were like, well, this is shameless.

And I was like, what else would the purpose of it be?

Right.

Right.

Yeah.

I've seen some attempts at saying like, hey, you know, when we first expanded to nine justices, there were nine circuits and now there are 13.

And talking about Scalia's seat being held open and the circumstances of Amy Coney Barron's confirmation and all that.

But I do think it's right.

And I think it's refreshing to hear someone say, no, this is just about the substance, right?

This is about the actual law that we want to reflect our values.

So I appreciate that.

I don't want this to be a total softball interview, but I do want to say I appreciate that.

I think it's important to go over some of like the common critiques.

And I think maybe the most popular one is that this is going to damage the institutional legitimacy of the court.

And I don't want to give you my full thoughts here, but I think to some degree that's sort of obviously true, right?

I mean, to the degree that the court is not already in people's minds a political battleground, this would make it very much clear that it is.

So I think the argument is like this is a slippery slope, right?

And we're headed down it to some degree if we pass a bill like this or push for a bill like this.

What's your response to that sort of critique?

What a terrible argument that is.

I mean, the crisis is already here.

We saw Mitch McConnell effectively packed the court when he held an open seat for 14 months.

After Antonin Scalia died, you know, that seat ultimately was filled by Neil Gorsuch.

And then four years later, Mitch McConnell went on to rush through the confirmation of Amy Coney Barrett.

as a presidential election was well underway.

You will recall this because it was just a few months ago.

And so this idea that it would be court expansionists like myself

somehow politicizing the court

is just on its face, not an historically accurate statement.

And I actually think given the way the far right has arrived at this 6-3 supermajority on the court, it would help to restore faith in the institution

to rebalance it.

Yeah, Yeah, the way we were just discussing it was, I don't particularly care one way or another about the institutional legitimacy of anti-democratic conservative institutions.

I think undermining that legitimacy is great if that's what needs to be done.

Yeah.

And I think legitimacy flows from doing things that are like consonant with the country's values, doing things that are in line with what the people want.

I think the least legitimate thing you can have in a democracy is an institution that is like

so anti-democratic and counter-majoritarian that it's pushing back against what the people want, right?

That seems illegitimate.

I mean, I think back to the reauthorization of the Voting Rights Act in 2006 with unanimous support in the Senate and near unanimous support in the House.

But the Roberts Court gutted the heart of the Voting Rights Act anyway, just years later in 2013.

I think of the fact that most Americans don't agree with the Citizens United decision.

And of course, all of the rights that you would expect to have in a civilized society.

I don't see

the decision from last June interpreting the Civil Rights Act to forbid discrimination against the LGBTQ community in the employment context being extended now.

to housing and lending and in the educational context, not with the addition of Amy Coney Barrett, who has been finding religious exemptions to COVID restrictions.

And what's been frustrating for me, and I knew this would happen because I'm an attorney myself,

is that, of course, the biggest institutionalists in this country are members of the legal profession.

And

what do you have to show for yourself by preserving

the number nine when people's rights have been eviscerated and they're just lying down on the floor in front of you?

Do you feel good about yourself?

Yeah, and they fancy themselves institutionalists, but they seem more concerned with the appearance of legitimacy than the substance of legitimacy.

As long as people think it's legitimate, it doesn't matter where it's coming from and what it's doing.

And I think that's exactly backwards.

Like the legitimacy is in the substance.

It's who's on the court and what they're doing is what does or does not make it legitimate.

And some traceability to democratic accountability, right?

I mean,

some sort of mechanism for tracing back the power of the court to popular will.

Right.

All that being said, it does feel like we're on the same page with a lot of this stuff, but the bill's prospects don't seem great right now in either house.

And so we want to hear what you have to say about that.

If you see a realistic path for changing that, or is this more meant as a political statement?

I am very serious about passing this legislation.

That doesn't require that I believe Joe Manchin would vote for today.

But i do believe that as

time elapses uh this supreme court will show itself to be increasingly out of step with american public opinion on any range of things uh that again many people would just take for granted in a civilized society right including most importantly the right to vote because the right to vote in this country it secures all the other progressive stuff that people like myself want to see upheld once it is passed through the Congress.

We shouldn't have to worry about the ACA being gutted or just completely struck down now with the 6-3 majority.

Of course, I'm a proponent of Medicare for all, but I know that this court would never go for that if it would come up on review.

And so many other things like that.

Roe v.

Wade, now on the chopping block, there is demonstrably a majority of justices on the court that does not believe in the

Roe v.

Wade decision.

So it is my job and the job of people of good conscience, including organizations and private citizens,

to lobby representatives who have not yet signed on to the Judiciary Act of 2021.

We are rapidly securing co-sponsors, but I don't expect there to be a majority this month or next month.

in order for it to get the floor vote that I think will be possible.

Nor would I want that to happen now because we don't have the level of support for it in the Congress.

But what we do have is the American people behind it because just literally the day after we introduced this legislation, it was a Thursday, Data for Progress did a poll, a multi-day poll, showing that more people supported court expansion than oppose it in this country, including 75% of Democrats supporting adding four justices to the Supreme Court of the United States.

Look at what happens when you lead on issues that might have before not been in the public consciousness or even controversial.

It does feel like at the very least, even if the popular appetite is not quite there, that there's room for it, that people haven't been confronted with this possibility as directly as they could be.

And that as you see the court start handing down more decisions and this legislation or legislation like it, related reforms are sort of centered in the public debate, there's a lot of potential for a real shift, especially among Democrats.

And what I want people to understand is that the idea of changing the size of the Supreme Court, which is the constitutional prerogative of Congress, contrary to some people on Twitter saying it's somehow unconstitutional,

the size of the court has been altered seven times before in our nation's history, including multiple times to defeat white supremacy.

Sound familiar?

Yes.

You know, with a majority of the court now hostile to voting rights.

You know, I think back to 1866, President Lincoln had been assassinated and his vice president

was actually trash.

He became president and like, you know, he was actually pro-slavery.

Lincoln had chosen him as his vice president in order to unite the country from his perspective.

And Congress said, we're not going to let this guy appoint a white supremacist to the Supreme Court.

So they passed legislation that would shrink the size of the court over time.

Congress with balls back then, I guess.

We could take a lesson.

Yeah.

So it's hard not to discuss your bill without also mentioning what the executive branch is doing, what the Biden administration is doing, which is their blue ribbon commission with its mandate to, I don't know, form a reading group about the scholarship around court reform and provide a report, I guess, with or without recommendations.

I wanted to know your thoughts on that, just in general, how you think that helps or hurts your bill and how useful it is, you think, in this moment.

Look, I think it is a recognition at the presidential level that something must be done with respect to the courts.

However, the composition of this commission does not inspire hope.

I don't care what conservatives have to say about the Supreme Court.

They're the ones that got us in this position in the first place.

That's right.

I'm also concerned about the fact that

the commission has not apparently been instructed to issue recommendations, but rather a report sort of assessing the arguments.

It just, it feels like

at once a recognition that there is a problem, but also a political stunt to deflate the momentum that court expansion

has been getting.

Yeah.

Do you think, I mean, you know, we saw Nancy Pelosi had a fairly immediate reaction to this bill that was at least at first a little bit dismissive, not going to bring it to to the floor at least not not right now but you guys you know

i wouldn't want her to bring it to a floor vote right now because i haven't spoken to most of my colleagues about this bill yet uh you know it's it's it's the responsibility of organizations and myself and hank johnson and jerry nadler to ring the alarm and and to make a persuasive case And so what the speaker said was, I have no intention of bringing it to a floor vote.

That's not foreclosing, ever bringing it to a floor vote.

But the press already had a view.

And so they, you know, they took that and said, oh, it's dead on a rock.

Right.

What piece of legislation gets introduced and you immediately have a vote on it?

Very few.

Yeah.

You know, there was an assumption when the bill first got announced that having Jerry Nadler be a co-sponsor was some sort of indication that Pelosi and Hoyer and broader House leadership were on board with it.

And so I think it was a little surprising then to see her less than enthusiastic comments about it.

But you don't seem disheartened by that.

You think it takes time.

You know, the speaker knew we were going to be introducing this bill, and she did not discourage us from introducing it.

Okay.

And I think that speaks volumes.

There is great support for this.

I mentioned that 75% of Democrats as of that poll a couple of weeks ago support expanding the court specifically adding four justices.

to the Supreme Court to make it 13.

And that support will continue to grow, not just among among Democrats, but among independents, and maybe even some Republicans of good conscience remaining in this country.

I find that hard to imagine.

I think you'll get all the Republicans of good conscience, if you know what I mean.

All right, speaking of our buddies across the aisle, another sort of common critique that this gets is that this is going to lead to an arms race.

Next time they have the chance,

five justices that they get to a point and whatever.

And, you know, it's just this sort of race to the top.

Everyone keeps adding justices whenever the opportunity is available to them.

So there's a lot of ways to address this possibility, but does it concern you?

Do you think it's a legitimate concern?

No, I don't think it's a legitimate concern, but I do respect the question.

My response is this.

First of all, the crisis is already here.

Mitch Mccano, as I mentioned, left that Supreme Court vacancy open for 14 months after Antonin and Scalia died.

So he has already altered the size of the court.

He has already denied the ability of a duly elected Democratic president to

get his nominee confirmed, not on the merits of Merrick Garland's qualifications in that case, but again, on some non-existent rule that he created.

And of course, H.R.

1, once we pass it, is a bulwark.

against the kind of retaliation that people fear.

We have a bill that would enfranchise 50 million additional people nationally.

That is a key provision of H.R.1, also known as the For the People Act.

H.R.

1 would also end partisan gerrymandering of congressional districts,

making it far more difficult for Republicans to

draw people like Marjorie Taylor Greene into existence in the United States Congress.

That is a distortion of our democracy, that someone like her is able to win in a general election contest, despite being so far outside the main street.

Yeah, I think there's a good argument that they have to worry about winning the presidency and two houses before they can add more seats of their own.

And with free and fair elections,

it's just hard to see them doing that anytime soon.

Right.

All right, Rhee has joined us from jail.

Hi.

So I'm finally home from jail.

And Congressman, I'm so sorry.

But yeah, I was stuck in the jail

longer than I thought.

So thank you so much for being with us.

Did you talk about

so sorry?

Did we talk about um Justice Breyer?

And just

what that's all you thought.

That's what I thought you were going to ask me about.

That's the only question you have not asked me about today relevant to this.

Yeah, so just wondering what your thoughts are on ostensibly liberal justices themselves on the Supreme Court and what they're saying about potential reform to the institution, which is, I mean, you know, Justice Breyer publicly is stating, don't do any court packing.

We don't need a bigger court.

We don't need institutional reform.

The institution is objective and non-political, and that's what works about it.

Do you see what I mean when I say that people who live lives of privilege are inoculated from decisions that have real-world implications for large swaths of the American public?

You know, I respect his service.

I think he's a tremendous jurist.

I wish he had not weighed in on the constitutional prerogative of Congress.

The court declines to weigh in on cases on the basis of this political question doctrine all the time.

And so

it seemed extraordinary to to me.

Having said that, I would like for him to give the president of the United States an opportunity to appoint a liberal or progressive justice to the Supreme Court.

And that requires that Justice Breyer step aside at the end of this term so that we can at least get some staying power with respect to the three on the court.

And I say that with great respect.

I didn't think it was controversial when I said it a few weeks ago, but apparently I'm the first person in Congress to call on him to retire.

I guess that means, you know, some other folks to probably speak up.

Yeah, well, we're beating the Briar retire drum as loudly as possible.

But yeah, maybe the halls of Congress, not so much yet.

I do

wonder if

he is lying to himself with this or if he like knows he's shuffling bullshit.

right when he says that the court is apolitical and i don't know what to think of that i when i I hear him say that, I think he's either like the most naive person in the world or he's lying to us.

Either way, it's not very flattering.

And another reason why he should retire.

Yeah.

Yeah.

Yeah.

I did want to ask, the judicial conference has requested lower court expansion a lot.

You know, I think last year they wanted five more appellate judges in the Ninth Circuit and 60 plus new district judges throughout, I think over 25 district courts.

So I wanted to know what you thought about that, if that is likely to happen.

I think it is likely to happen.

Even my Republican colleagues on the court subcommittee on which I serve acknowledge the need to add lower court judges within the federal judiciary.

And so

I would just be on the lookout for that legislation over the rest of the Congress.

Excellent.

Love to hear that.

Yeah.

Love to hear that.

Well, Congressman, we don't want to take up too much of your time.

I don't know if we're...

I want to take up every minute he'll give us, personally.

All right.

Well, we appreciate you coming on.

It's been great.

Thank you so much.

Thank you for your time and thank you for all you do.

Yeah, thank you.

Thank you.

Take care.

All right.

Next week, Patreon-only premium episode, we are going to do a watch party.

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Yeah.

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