    [House Hearing, 119 Congress]
    [From the U.S. Government Publishing Office]

                    COURT PACKING: A THREAT TO THE SUPREME
                              COURT'S LEGITIMACY

    =======================================================================

                                    HEARING

                                   BEFORE THE

                      SUBCOMMITTEE ON COURTS, INTELLECTUAL
                     PROPERTY, ARTIFICIAL INTELLIGENCE, AND
                                  THE INTERNET

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                         U.S. HOUSE OF REPRESENTATIVES

                        ONE HUNDRED NINETEENTH CONGRESS

                                 SECOND SESSION
                                   __________

                             THURSDAY, MAY 21, 2026
                                   __________

                               Serial No. 119-70
                                   __________

             Printed for the use of the Committee on the Judiciary

                    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov

                                   ______

                     U.S. GOVERNMENT PUBLISHING OFFICE

    63-809                    WASHINGTON : 2026

                           COMMITTEE ON THE JUDICIARY

                            JIM JORDAN, Ohio, Chair

    DARRELL ISSA, California             JAMIE RASKIN, Maryland, Ranking
    ANDY BIGGS, Arizona                      Member
    TOM McCLINTOCK, California           JERROLD NADLER, New York
    THOMAS P. TIFFANY, Wisconsin         ZOE LOFGREN, California
    THOMAS MASSIE, Kentucky              STEVE COHEN, Tennessee
    CHIP ROY, Texas                      HENRY C. ``HANK'' JOHNSON, Jr.,
    SCOTT FITZGERALD, Wisconsin              Georgia
    BEN CLINE, Virginia                  TED LIEU, California
    LANCE GOODEN, Texas                  PRAMILA JAYAPAL, Washington
    JEFFERSON VAN DREW, New Jersey       J. LUIS CORREA, California
    TROY E. NEHLS, Texas                 MARY GAY SCANLON, Pennsylvania
    BARRY MOORE, Alabama                 JOE NEGUSE, Colorado
    HARRIET M. HAGEMAN, Wyoming          LUCY McBATH, Georgia
    LAUREL M. LEE, Florida               DEBORAH K. ROSS, North Carolina
    WESLEY HUNT, Texas                   BECCA BALINT, Vermont
    RUSSELL FRY, South Carolina          JESUS G. ``CHUY'' GARCIA, Illinois
    KEVIN KILEY, California              SYDNEY KAMLAGER-DOVE, California
    GLENN GROTHMAN, Wisconsin            JARED MOSKOWITZ, Florida
    BRAD KNOTT, North Carolina           DANIEL S. GOLDMAN, New York
    MARK HARRIS, North Carolina          JASMINE CROCKETT, Texas
    ROBERT F. ONDER, Jr., Missouri       Vacancy
    DEREK SCHMIDT, Kansas
    BRANDON GILL, Texas
    MICHAEL BAUMGARTNER, Washington

                                     ------

                 SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY,
                   ARTIFICIAL INTELLIGENCE, AND THE INTERNET

                        DARRELL ISSA, California, Chair

    THOMAS MASSIE, Kentucky              HENRY C. ``HANK'' JOHNSON, Jr.,
    SCOTT FITZGERALD, Wisconsin              Georgia, Ranking Member
    BEN CLINE, Virginia                  ZOE LOFGREN, California
    LANCE GOODEN, Texas                  TED LIEU, California
    LAUREL LEE, Florida                  JOE NEGUSE, Colorado
    RUSSELL FRY, South Carolina          DEBORAH ROSS, North Carolina
    KEVIN KILEY, California              SYDNEY KAMLAGER-DOVE, California
    MICHAEL BAUMGARTNER, Washington      Vacancy

                   CHRISTOPHER HIXON, Majority Staff Director
                    ARTHUR EWENCZYK, Minority Staff Director

                                C O N T E N T S

                                  ----------

                            Tuesday, April 21, 2026

                               OPENING STATEMENTS

                                                                       Page
    The Honorable Darrell Issa, Chair of the Subcommittee on Courts,
      Intellectual Property, Artificial Intelligence, and the
      Internet from the State of California..........................     1
    The Honorable Henry C. ``Hank'' Johnson, Jr., Ranking Member of
      the Subcommittee on Courts, Intellectual Property, Artificial
      Intelligence, and the Internet from the State of Georgia.......     3
    The Honorable Jim Jordan, Chair of the Committee on the Judiciary
      from the State of Ohio.........................................     5
    The Honorable Jamie Raskin, Ranking Member of the Committee on
      the Judiciary from the State of Maryland.......................     6

                                   WITNESSES

    Louis J. Capozzi, III
      Oral Testimony.................................................    10
      Prepared Testimony.............................................    12
    William G. Ross, Albert P. Brewer Professor of Law and Ethics,
      Samford University, Cumberland School of Law
      Oral Testimony.................................................    16
      Prepared Testimony.............................................    18
    Gene Schaerr, Partner, Schaerr Jaffe LLC
      Oral Testimony.................................................    28
      Prepared Testimony.............................................    30
    Nikolas Bowie, Louis D. Brandeis Professor of Law, Harvard School
      of Law
      Oral Testimony.................................................    38
      Prepared Testimony.............................................    40

              LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

    All materials submitted for the record by the Subcommittee on
      Courts, Intellectual Property, Artificial Intelligence, and the
      Internet are listed below......................................    72

    Materials submitted by the Honorable Darrell Issa, Chair of the
      Subcommittee on Courts, Intellectual Property, Artificial
      Intelligence, and the Internet from the State of California,
      for the record
        An article entitled, ``The Supreme Court Is Not Supposed to
            Have This Much Power: And Congress should claw it back,''
            Jun. 8, 2022, Nikolas Bowie, The Atlantic
        An article entitled, ``The Separation-Of-Powers
            Counterrevolution,'' 2022, Nikolas Bowie, The Yale Law
            Journal
        An article entitled, ``The Imaginary Immigration Clause,''
            2022, Nikolas Bowie, Michigan Law Review
        An article entitled, ``How the Supreme Court dominates our
            democracy,'' Jul. 16, 2021, Nikolas Bowie, The Washington
            Post
        A statement entitled, ``Presidential Commission on the
            Supreme Court of the United States,'' Jun. 30, 2021,
            Nikolas Bowie, Presidential Commission on the Supreme
            Court of the United States
        A Bill entitled, ``To authorize additional district judges
            for the district courts and convert temporary
            judgeships,'' H.R. 1702, 119th Congress 1st Session, Feb.
            27, 2025
        A Bill entitled, ``To amend title 28, United States Code, to
            allow for twelve associate justices of the Supreme Court
            of the United States,'' H.R. 3422, 118th Congress, 1st
            Session, May 17, 2023
        An article entitled, ``Democrats renew calls for US Supreme
            Court overhaul after voting rights decision,'' May 1,
            2026, News From The States
        An article entitled, ``The Supreme Court Has Grown Too
            Powerful. Congress Must Intervene,'' Oct. 11, 2024, The
            New York Times
        A Memorandum Opinion, Committee on the Judiciary of the
            United States House of Representatives v. Harriet Miers,
            et al., John D. Bates, United States District Judge, July
            31, 2008
    An article entitled, ``Justice Samuel Alito: ProPublica Misleads
      Its Readers,'' Jun. 20, 2023, Wall Street Journal, submitted by
      the Honorable Jamie Raskin, Ranking Member of the Committee on
      the Judiciary from the State of Maryland
    Materials submitted by the Honorable Zoe Lofgren, a Member of the
      Subcommittee on Courts, Intellectual Property, Artificial
      Intelligence, and the Internet from the State of California,
      for the record
        An article entitled, ``Supreme Court Justice Clarence Thomas
            accepted gifts worth millions of dollars over 20 years,
            analysis finds,'' Jun. 6, 2024, CNBC
        A chart of gifts amount received by Supreme Court Jusitices
        An article entitled, ``Clarence Thomas Defends Undisclosed
            `Family Trips' With GOP Megadonor. Here Are the Facts,''
            Apr. 7, 2023, ProPublica
        An article entitled, ``Clarence Thomas and the Billionare,''
            Apr. 6, 2023, ProPublica
        An article entitled, ``Clarence Thomas Secretly Participated
            in Koch Network Donor Events,'' Sept. 22, 2023,
            ProPublica
        A press release entitled, ``Senate Judiciary Committee
            Releases Revealing Investigative Report on Ethical Crisis
            at the Supreme Court,'' Dec. 21, 2024, U.S. Senate
            Committee on the Judidiciary

                    QUESTIONS AND RESPONSES FOR THE RECORDS

    Questions for Nikolas Bowie, Louis D. Brandeis Professor of Law,
      Harvard School of Law, submitted by the Honorable Deborah Ross,
      a Member of the Subcommittee on Courts, Intellectual Property,
      Artificial Intelligence, and the Internet from the State of
      North Carolina, for the record
        Response from Nikolas Bowie, Louis D. Brandeis Professor of
            Law, Harvard School of Law

                    COURT PACKING: A THREAT TO THE SUPREME
                              COURT'S LEGITIMACY

                                  ----------

                             Thursday, May 21, 2026

                            House of Representatives

               Subcommittee on Courts, Intellectual Property, and

                   Artificial Intelligence, and the Internet

                           Committee on the Judiciary

                                 Washington, DC

        The Committee met, pursuant to notice, at 10 a.m., in Room
    2141, Rayburn House Office Building, the Hon. Darrell Issa
    [Chair of the Subcommittee] presiding.
        Members present: Representatives Issa, Jordan, Fitzgerald,
    Cline, Gooden, Kiley, Lee, Fry, Baumgartner, Schmidt, Johnson,
    Raskin, Lofgren, and Ross.
        Mr. Issa. The Subcommittee will come to order. Without
    objection the Chair is authorized to declare recess at any
    time. We welcome everyone here today on today's hearing on
    Court packing. Without objection, Mr. Schmidt will be able to
    participate in today's hearings for the purpose of questioning
    the witness if a Member yields him time for that purpose.
        I will now recognize myself for an opening statement.
    Although the title today is Packing of the Supreme Court, it is
    more than that. This Committee, this Subcommittee's primary
    goal is to empower the Supreme Court to do its job, while
    retaining its independence. That often means that we are being
    asked to consider pay, benefits, budget, and in fact as there
    is a need to lobby from this body to the Court.
        We do so with the recognition that the U.S. Supreme Court,
    unlike any other court in history, is in fact a court of
    independent decision. The Supreme Court has that critical
    constitutional responsibility. Unlike branches one and two,
    which move back and forth with the will of the people. The
    Constitution itself created a court empowered to act as a check
    against the other branches.
        As a check against the branches that reflect the current
    will of the people. Throughout our history the U.S. Supreme
    Court has been at its best when it told the reflection of the
    will of the people of the moment that they could not do what
    they wanted to do. It is likely that at its worst, when it
    succumbed to the fever of the crowd, or the feeling of the
    moment.
        Whether that is Dred Scott, as may be brought up today, or
    in fact questions of locking up Americans in concentration
    camps during World War II. We have had a long history of being
    proud of the Court the vast majority of the time. That doesn't
    change the fact that the Court must reflect that which the
    American people can in fact live with.
        No question at all that the Court moves at a slow pace, as
    the American people come along sometimes behind them. The Court
    has delivered wins and losses for both political parties, not
    just throughout history, but throughout the last nearly two
    years. The Court at our founding was different than it is today
    only in one major sense.
        It was viewed as the second court, meaning the U.S. Supreme
    Court justices rode circuit, the U.S. Supreme Court justices
    were effectively the Appellate Court, in addition to being the
    single Supreme Court, as our country grew, that changed.
        Whether or not the American people anticipated in the
    Constitution the fact that the population would go from single
    digit millions to 350 million, and likely to double again in
    the next century, they did create the ability under the
    Constitution for the high court to remain supreme, while lower
    courts have been created by this very Committee.
        Democrat leaders have threatened specific justices by name,
    slandered family members and justices, called for all manner of
    laws explicit to undermine the Court's power under the
    Constitution. I have not been the greatest student of history,
    but I strongly suspect there were times when the other party
    did so, whether that party was the Republican party or the
    Whigs, politicians have been unhappy with the Court for the
    Court doing its job in a professional manner.
        The witness that our Democrat Minority has chosen to invite
    today to this very hearing demonstrates my point. Many of the
    writings of Professor Bowie clearly anticipates the view of the
    Democrat party, that which tends to be more populous, more the
    will of the moment, more will of the people, that in fact
    democratizing the Supreme Court has been well written by our
    witness.
        I take no exception to his words, these are his words, his
    studies, and he is well written. The question is today, in this
    hearing and beyond, will the U.S. Congress side with the idea
    that we should be more democratic in our third branch, or that
    our third branch should remain more independent, less if not
    completely outside the will of the people's will of the moment
    as reflected through either direct will of Americans, or
    through their elected representatives in both Article I and
    Article II.
        It appears the Democrats believe the Supreme Court should
    be prohibited from second guessing any Federal laws, unless the
    Court is unanimous. Allowing any single justice, no matter how
    radical, to veto the entire Court. I find that interesting, and
    I reject it in every possible way. Democrats believe Congress
    should decide when the Supreme Court meets, delay when it hears
    arguments, force justices to resume the pre-Civil War practice
    of riding Circuit and acting as District judges.
        Democrats seem to believe that they should regulate what
    anyone can ask any court to do, blocking Americans from seeking
    relief from Supreme Court for unconstitutional laws. It appears
    Democrats believe the Court should be packed with more justices
    who share their views. If written testimony of these views on
    behalf of the Democratic colleagues isn't enough for the
    Committee, Professor Bowie has written extensively in support
    of anti-Supreme Court views.
        I now ask unanimous consent to enter into the record many
    of these articles, I will not go through them one by one, but I
    will make sure they are available to all the Members. These are
    in fact the writings of Professor Bowie, who I have in fact
    given a brief synopsis of. Without objection, so ordered.
        In contrast, Republicans understand that even the Court
    rules against us, that is its constitutional work. We can
    revise laws and even amend the Constitution if we want to. As I
    told to some of the individuals in the audience today, we have
    one of our original constitutional amendments still before the
    American people.
        If the American people so chose thorough its States, they
    could choose to go from the House of Representatives having 435
    Members determined by the body itself, or we could have over
    6,000 members if we simply enacted one of the original
    constitutional amendments, the 12th of the 12 original. That
    would in fact cap at 60,000 the number of people each member on
    the dais could represent.
        At the time of our founding, it seemed like a good idea to
    at least some of our founders. If anyone on the dais here today
    thinks that a baseball park filled with House Members pushing
    their thumbs up and down would give us more democracy, or if
    any of the witnesses think that it is more than just a relic of
    the past, I ask them all to please consider opining on it
    during the hearing.
        With that, I would like to recognize the Ranking Member of
    the Subcommittee, Mr. Johnson, for his opening statement.
        Mr. Johnson. Thank you, Mr. Chair, and thank you to
    witnesses for your appearance today. Last summer Kash Patel
    took a taxpayer funded snorkel tour of Pearl Harbor, one of our
    Nation's most hallowed grounds, while the cost of living for
    Americans skyrocketed. The Trump Administration just created a
    taxpayer funded 1.8 billion dollar relief fund for the January
    6th insurrectionists, and others, in exchange for dropping a 10
    billion dollar personal lawsuit that he filed against the IRS,
    which he controls.
        He is doing this while millions of Americans are losing
    their health insurance. President Trump is blocking clean
    energy projects for his fossil fuel campaign donors, while the
    rest of us pay, and pay, and pay at the pump more and more
    every day. What do these facts have to do with this hearing?
        On its face, the daily demonstrations of incompetence and
    corruption of the Trump Administration have little to do with
    the Supreme Court. If you look closer, these stories mirror the
    far Right, and how far the far Right has created a corrupt U.S.
    Supreme Court that too often works for the corporations, the
    billionaires, and the oligarchs at the expense of the American
    people.
        For decades MAGA Republicans have systematically chipped
    away at the impartiality of our third branch. They have already
    delegitimized our judiciary, yet they now stand before the
    American people pretending to be guardians of judicial
    integrity. Today's blatant attempt to rewrite history would be
    laughable if the consequences were not so dangerous for our
    democracy.
        History matters, the American people deserve to understand
    how we got to this moment. To understand how we got here, we
    must follow both the money and the machinery behind the modern
    conservative legal movement. The Roberts' court is the
    culmination of a plot that began 50 years ago.
        In the early 1970s, soon to be Justice Powell wrote quote,

            The judiciary may be the most important instrument for social,
            economic, and political change.

    He said that to reassert corporate power over the needs of the
    individual. This Powell memo set off a decades long crusade by
    Republicans to concentrate power in the hands of the few at the
    expense of the many.
        Wealthy donors and corporate interests spent billions of
    dollars to reshape the judiciary in their image. Nowhere is the
    success of this decades-long effort more visible than at the
    U.S. Supreme Court. Where a carefully appointed conservative
    super majority, a MAGA super majority, now delivers the MAGA
    conservative outcomes this movement spent billions of dollars
    to achieve, and achieve they did.
        In the last several years the Roberts' Court opened the
    floodgates to unlimited dark money in our political system.
    Empowering billionaires and oligarchs like Elon Musk, the Koch
    brothers, Leonard Leo, Harlan Crow, and other powerful special
    interests to reshape the Court, and drown out the voices of
    ordinary Americans.
        This Court has decimated reproductive freedoms that
    generations of women fought to secure. Stripping away rights
    that millions of Americans relied on for nearly half a century.
    It has granted Trump vast immunity, placing him virtually above
    the law. Now, the Court has put the nail in the coffin of the
    Voting Rights Act, dismantling protections that generations of
    Americans fought, marched, and died for.
        Abraham Lincoln once said this government cannot endure
    half slave and half free. Yet, that seems to be the vision for
    America that Chief Justice Roberts and the conservative super
    majority on the Supreme Court envision. Where some enjoy easy
    access to the ballot, others are forced to overcome legal
    barriers designed to make our voices quieter.
        Our Nation is now in Jim Crow 2.0. We are a Nation where
    the right to vote once again can be diluted, restricted, or
    simply ignored, and where the voices of rich and powerful
    people carry more weight than the voices of ordinary Americans,
    but particularly Americans who look like me. Our 250-year
    experiment in self-governance can only succeed if Americans
    decide that the clock has run out on the far Right's attempt to
    overturn our democracy.
        We can either sit back as our Supreme Court continues to
    act without any restraints, or checks and balances, or we can
    do something about it. The American people deserve
    accountability for the damage that has been done. The American
    people deserve a judiciary that serves our democracy, not a
    narrow ideological agenda that only benefits the rich and
    powerful.
        I want to thank the witnesses again for being here, I am
    looking forward to a discussion about how to ensure that our
    democracy serves everyone, all of us, not just the wealthy, and
    the well-connected few.
        With that, I yield back.
        Mr. Issa. The gentleman yields back. We now recognize the
    Chair of the Full Committee, Mr. Jordan, for his opening
    statement.
        Chair Jordan. Thank you, Mr. Chair.

            I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you
            have released the whirlwind, and you will pay the price. You
            won't know what hit you if you go forward with these awful
            decisions.
                                                     Chuck Schumer, March
            4, 2020.

    Highest ranking Democrat in our government threatening a
    separate and equal branch of government.
        If you doubt it is a threat, just remember where he made
    that statement, on the steps of the Supreme Court. That threat
    began the six-year assault on the Court by the Democrats. It
    started with that threat, then you had Senator Markey say the
    Court is illegitimate. Well, how is that? Every justice I know
    in the Court was actually confirmed by the U.S. Senate, that is
    how our Constitution works, how could it be illegitimate?
        Senator Markey thought it was. Then, we went to something
    that has never happened, the Democrats leaked the Dobbs opinion
    in 2022. You talk about trying to undermine a separate and
    equal branch of government, start leaking the opinions, that's
    what they did, which resulted in protests at justices' homes,
    which by the way the Justice Department at the time under the
    Biden Administration and Attorney General Garland refused to
    enforce the law.
        The 18 U.S.C. 1507 says you can't protest at a judge's
    home, and they refused to enforce the law. Which of course led
    to some crazy guy going to Justice Kavanaugh's house with the
    design to kill a Justice of the Supreme Court. Then, of course,
    we had all the hearings by the Democrats when they were in
    charge attacking Justice Thomas and attacking Justice Alito.
        We had a hearing where a guy came in and lied about Justice
    Alito and said he leaked some document, which go back and watch
    the hearing, definitely a lie by this guy. Why do they do it?
    Why do they do it? To concoct some basis for packing the Court.
    Now, they are saying it again, time to pack the Court. By the
    way, why do they want four justices, four new justices on the
    Court?
        Why not one, why not two, why not three, and why not five?
    Why do they want four? Because it is a six three majority for
    conservatives, a six three majority for people who actually
    interpret what the Constitution, the law says, versus making it
    up as you go, and making some new policy. They want four
    because they want a seven-six majority, plain and simple, raw
    political power.
        They have been willing to do almost anything, threaten the
    Supreme Court on the steps of the Supreme Court, leak opinions,
    bring witnesses in to lie about justices, that is why this
    hearing is important. Frankly, I hope we move the
    constitutional amendment on the floor, I hope there is a vote,
    and we will see if these guys want to keep the Court at nine,
    which it should be, it has been there for what, 160 years or
    something?
        This whole Carville was talking about it, former Vice
    President Harris is, they are all talking about it, the Ranking
    Member is talking about it, we have got to pack the Court. Why,
    why? Because they don't like the decisions that this good Court
    is giving this country. Thank the Chair for this hearing, thank
    our witnesses for being here, I look forward to hearing your
    testimony.
        I yield back.1
        Mr. Issa. The gentleman yields back. I now recognize the
    Ranking Member of the Full Committee for his opening statement.
        Mr. Raskin. Thank you very much, Mr. Chair. I suppose that
    Court packing, like justice itself, lies in the eye of the
    beholder. There are many different kinds of Court packing. Here
    is one, when Justice Scalia died in February 2016 when Barack
    Obama was President, Senator Mitch McConnell announced 10\1/2\
    months before the Presidential election that the Senate would
    not be considering any replacement.
        The Judiciary Committee would not have any hearing, there
    would be a vote in Committee, and there would be no vote on the
    floor. When people asked why, that makes no sense to hold the
    Supreme Court seat open, to hold that vacancy open for nearly a
    year, he said it was too close to the next Presidential
    election, and the people should decide.
        Of course, the people had decided in electing Barack Obama
    to one of those genuine, bona fide four-year terms in office,
    like every other President. Well, we have got a controlled
    experiment about what would happen, because that was held open,
    Merrick Garland was nominated by Barack Obama, and was left
    twisting in the wind for nearly 11 months after the death of
    Justice Scalia.
        Then Trump, when he got in was able to nominate Neil
    Gorsuch to the seat, his first week in office, and that seat
    was open for 422 days. Mitch McConnell bragged about it,
    calling it the most consequential decision of his entire public
    career. Of course, it cemented the rapid movement of the
    Supreme Court to the Right, to incarnate the MAGA agenda on the
    Supreme Court.
        Here is what happened when Ruth Bader Ginsberg died, now
    she died on September 18, 2020. Close to the next election,
    which was less than two months away, that early voting had
    started in a lot of the States. It wasn't even two months away,
    and then the Democrats asked Mitch McConnell, some reporters
    asked Mitch McConnell, well of course you are not going to have
    hearings, or vote, or anything are you?
        He laughed it off, he laughed off the suggestion that they
    would maintain the same rule that they had used to block
    Marrick Garland and President Obama from having a seat. Then,
    they rammed through the nomination of Amy Coney Barrett within
    two months, consolidating the Right wing, antichoice, anti-
    environmental regulation, antilabor, antivoting rights,
    antidemocracy majority on the Supreme Court.
        Had the original McConnell rule been applied, or even a
    reasonable approach taken with just a few weeks before the
    election, that Supreme Court seat would have been filled by
    President Biden, not by Donald Trump. Biden won that election
    by the way, by more than seven million votes if you are
    interested in what the people want, 306 to 232 in the electoral
    college.
        I know some people came down to overthrow the election,
    attack our police officers to accomplish a political coup to
    deny that, but that is what happened. Right there we have got
    two seats officially stolen by Mitch McConnell and the
    Republican Senate, giving them a six-three mega court, with a
    majority of the court now made up of nominees of Presidents who
    lost the popular vote.
        Roberts, Alito, Gorsuch, Kavanaugh, and Amy Coney Barrett,
    all nominated to the Court by Presidents who lost the popular
    vote. Now, if you don't believe that this Supreme Court has
    conceived, and achieved a remarkable transformation in
    constitutional jurisprudence, ethics, and behavior on
    everything from abortion, to voting rights, to political-
    corruption cases, then you don't have to believe me, or you
    don't have to believe your own eyes.
        Just listen to Donald Trump, who openly says it is really
    OK for them to be loyal to the person that appointed them to
    almost the highest position in the land, a Justice of the U.S.
    Supreme Court. He berates and vilifies justices and judges up
    and down the Federal system who disagree with him, or who he
    feels have been insufficiently robotic in their loyalty to the
    MAGA agenda.
        It is true he doesn't want a justice loyal to the people,
    as the good Chair of the Subcommittee says, or the
    Constitution. He wants a Supreme Court loyal to him, and
    whatever is going to advance his interests, his money, his
    family, and his corporations. He has got a Supreme Court
    majority so robotically loyal that they will pluck a doctrine
    out of thin air.
        Nothing to do with originalism, nothing to do with
    textualism, out of thin air to insulate the President from
    liability for felony crimes committed in office. We went for
    more than two centuries without any President ever claiming the
    right to commit crimes under his office and not to be
    prosecuted for it, but here we are today.
        The Supreme Court, we must acknowledge, has been a
    profoundly conservative, reactionary institution for the vast
    majority of our history. What did the Supreme Court ever do for
    enslaved people between the founding and the Civil War?
    Nothing, other than in 1857 in the Dred Scott decision cement
    their subjugation into place.
        Saying that the African slave and his descendants have no
    rights a White man is bound to respect in any way. Then even
    after the Civil War, after the passage of the 13th, 14th, and
    15th Amendments drawn from the blood, sweat, and tears of the
    Union, and the people who fought to defend our country against
    the Confederacy, the Supreme Court gutted the meaning of the
    reconstruction amendments in the civil rights cases.
        Then, in 1896 in Plessy v. Ferguson constitutionalized the
    reign of Jim Crow, separate but equal. We have a couple decades
    around the Warren Court, maybe the first few years of the
    Burger Court, where the Supreme Court acted on the side of the
    people. Brown v. Board of Education, striking down American
    apartheid, the White primary line of cases, Terry v. Ohio and
    Roe v. Wade.
        It didn't last long before it all sank away with the
    Rehnquist Court, and the Roberts' court. Now they have returned
    to the historic baseline of political White supremacy. They
    wiped out our Voting Rights Act, first in Shelby County v.
    Holder in 2013, and a couple months ago in the Callais
    decision.
        We are about to see, they are not going to be able to
    accomplish it all in 2026, but by 2028 we will probably see all
    White Congressional delegations from the deep South, wherever
    the Republicans control the State legislatures. That is Court
    packing, that is political packing by a packed Supreme Court.
        The Court today has a legitimacy crisis, not just because
    of the way it has been composed, stacked, packed,
    gerrymandered, and divided by Mitch McConnell, who laughs about
    it, he thinks it is funny what they did. Why do some people
    want 13 circuits, Mr. Chair, 13 members of the Court?
        You don't need a conspiracy theory for that; there are 13
    Federal circuits in America. Traditionally the Supreme Court
    has been made up of the number of justices equal to the number
    of circuits. We have got 13 circuits, but we only have nine
    justices. That means that under the best of circumstances, four
    entire Federal regions, four Federal circuits will be left out
    completely.
        It is much worse than that today, because we have got five
    justices from New York City alone, one for each borough. You
    are telling a majority of the people who live in a majority of
    the States that they can't find anybody qualified to serve on
    the Supreme Court. That is the answer to that particular
    question.
        We have got a complete structural, ethical, and
    jurisprudential crisis in the Supreme Court, whose name is in
    the gutter because of these terrible decisions that they keep
    issuing. Like the overthrow of Roe v. Wade and Planned
    Parenthood v. Casey, the complete construction out of thin air
    of immunity of Presidents to commit felony crimes while in
    office, and so on.
        I hope that this Court will do its best to try to behave
    like a Supreme Court, but there are things that we can do, and
    I introduced one bill yesterday called the SCOTUS Act, and the
    SCOTUS Act is creating a new way for a cert to be granted,
    because this Supreme Court is obviously acting like a
    legislature.
        They set up an agenda where they want this case about the
    Voting Rights Act, they want to destroy it. Now, it is time for
    us to overthrow abortion rights, we are going to take that
    case. A lot of countries don't leave the agenda setting
    authority on the court itself, and certainly we should not
    leave it in the hands of this Supreme Court.
        It belongs with the 13 Federal circuits, we should have a
    panel made up of the Chief Judge of each Federal circuit, or
    their designee if they want another judge to do it, and they
    should decide when there is a meaningful circuit split, or a
    Federal question that should go up to the Supreme Court. This
    Court obviously cannot be trusted with that agenda setting
    authority.
        Let us begin to create a real Supreme Court in the country
    by moving in this direction. I thank you, Mr. Chair.
        I yield back to you.
        Mr. Issa. I thank the distinguished Member from Maryland,
    your length of time as a professor shows in the history dating
    back to 1929 when the Tenth Circuit was created. Can I just ask
    one question as a point of inquiry? Are you saying that the
    circuits should push involuntarily to the high court the cases
    they should take?
        Mr. Raskin. Not involuntarily, we should setup a new system
    where cert is granted by a cert panel that is made up of 13
    judges, the lead judges of each Federal circuit in the country,
    and those would be the cases that go to the Court, instead of
    the Court determining like a legislature what bills it wants to
    bring up to overthrow this or that particular policy, or law
    they don't like.
        Mr. Issa. Interesting, I look forward to seeing your bill
    for that.
        Mr. Raskin. I will get it to you, I will get you a copy
    right now.
        Mr. Issa. I thank the gentleman. Without objection, all
    other statements will be included in the record. We would now
    like to introduce our panel.
        Mr. Louis Capozzi is the Solicitor General of Missouri. He
    previously worked in private practice at Jones Day, growing up
    in Cleveland, that is a household word I appreciate. Has served
    as an Adjunct Professor at the University of Pennsylvania Carey
    Law School.
        He clerked for Justice Neil Gorsuch, and Judge Wilkinson on
    the Fourth Circuit Court of Appeals, Judge Anthony Scalia on
    the Third Circuit Court of Appeals. Thank you, and welcome.
        Professor William Ross, Mr. Ross is the Albert P. Brewer
    Professor of Law and Ethics at Stanford University Cumberland
    School of Law.
        Professor Ross teaches courses on professional
    responsibility, civil procedure, constitutional law, and
    American legal history.
        Mr. Gene Schaerr is a partner at his own firm of Schaerr
    Jaffe LLP, where his practice focuses on civil appellate
    matters. He has argued seven cases before the U.S. Supreme
    Court, and previously was Chair of the U.S. Supreme Court and
    Appellate Practice Group at Winston and Strawn.
        He is a constituent of our Ranking Member in Maryland, and
    perhaps will be able to answer the Ranking Member's questions
    in full.
        Professor Nikolas Bowie, Mr. Bowie is the Louis D. Brandeis
    Professor of Law at Harvard University. Professor Bowie teaches
    courses on Federal constitutional law, State constitutional
    law, and local government law.
        We welcome our witnesses here today, and as is the rule of
    the Committee, I would ask all our witnesses to rise to take
    the oath, and raise their right hand. Do all of you solemnly
    swear or affirm under penalty of perjury that the testimony you
    are about to give will be true and correct to the best of your
    knowledge, information, and belief, so help you God?
        Let the record reflect that all witnesses answered in the
    affirmative, you may be seated. I know all of you are learned,
    and have certainly watched us on C-SPAN intently in the years
    leading up to this. I have to say for the record that your
    entire statements will be placed in the record, and that what
    you say in your opening statement preferably will be
    abbreviated portions of it, or extemporaneous.
        Most importantly your entire written statement will be
    placed in the record. The five-minutes in an opening statement
    can be either similar or dissimilar, it is your choice, but we
    do ask you to stay as close as you can to those little timers
    that tell you your time is coming close to an end, and then
    eventually that it has ended.
        With that I would ask Mr. Capozzi to begin. OK, now this is
    a major test, even Members of Congress get it wrong, so we will
    test each of you for your ability to get the mic on and then
    back off again. This is your second chance, sir.

                   STATEMENT OF LOUIS J. CAPOZZI, III

        Mr. Capozzi. Chair Issa, Ranking Member Johnson, Chair
    Jordan, and Ranking Member Raskin, thank you for the
    opportunity to testify today. I will do my best to turn the mic
    on for the rest of the hearing. The framers of the Constitution
    guaranteed the Supreme Court's independence because they
    understood that independent courts are essential to the rule of
    law.
        The Supreme Court's insulation from partisan politics
    preserves its ability to adjudicate disputes on what the law
    requires, not the fleeting goals of political actors.
    Nevertheless, at various points in our history, partisans have
    proposed reforms that would undermine the Supreme Court's
    independence, with Court packing being the obvious example.
        Today I urge Congress to reject proposals to interfere with
    the Court's independence. I would like to start by emphasizing
    what is at stake. The Supreme Court, as with all courts, relies
    on respect for its judgments. This critical respect did not
    arise automatically. As Justice Breyer has explained, during
    the 19th century an independent judiciary was more an
    aspiration than a reality.
        As an illustration Justice Breyer pointed to President
    Andrew Jackson's infamous refusal to respect the Supreme
    Court's decision in Worcester v. Georgia, which led to the
    removal of the Cherokee from their Native homeland.
    Fortunately, by the 20th century respect for the Supreme Court
    became firmly entrenched.
        Thus, despite Southern efforts to resist desegregation,
    State officials eventually followed the Court's orders to do
    so. Today we take it for granted that government officials will
    follow the Supreme Court's orders. That could change if
    politicians interfere with the Supreme Court's independence.
        That is why I am alarmed by the current trend of attacking
    the Supreme Court's legitimacy. Even on their own terms, the
    trending criticisms of the Supreme Court make little sense.
    First, critics frequently claim that the Supreme Court
    consistently rules in favor of President Trump and Republicans,
    but this is not true.
        During his first term the Supreme Court ruled against
    President Trump in several crucial cases, including on
    rescinding DACA, adding a citizenship question to the 2020
    census, and allowing subpoenas of the President's personal
    financial records. The Supreme Court has also not hesitated to
    rule against President Trump early in his second term.
        For example, the Court struck down the President's tariffs,
    prevented him from deploying the National Guard in major
    cities, and barred the removal of Lisa Cook from the Federal
    Reserve. Another common attack on the Supreme Court's
    legitimacy is that it has been more willing to overrule
    precedent than in the past.
        A quick look at history refutes this proposition. During
    the 1930s and 1940s the Supreme Court revolutionized
    constitutional law, and allowed for the massive growth of the
    Federal Government. The Warren Court also regularly covered
    precedent, and dramatically overhauled many areas of the law.
    For example, in Reynolds v. Sims, the Supreme Court
    restructured State legislatures across the country, finding the
    State's equivalents of the U.S. Senate unconstitutional.
        Compared to its predecessors, the current Supreme Court
    overrules precedents at a slower pace. Indeed, the Supreme
    Court has conspicuously declined to overrule precedent in
    several recent important cases, including Fulton v. City of
    Philadelphia. At the same time the Supreme Court can and should
    overrule precedent when it believes a past decision was wrong,
    with Brown v. Board of Education being an obvious example.
        The Supreme Court continues to strike a balance between
    preserving precedents and correcting its mistakes, just as it
    has always done. As solicitor general of Missouri and a recent
    Supreme Court clerk, I can attest the Supreme Court is working
    exactly as it should be. The Supreme Court derives its
    legitimacy from the fact that it is not a partisan institution.
        No political group gets everything it wants there,
    disagreeing with the Court's decisions is no excuse to threaten
    judicial independence, a cornerstone of our republic that took
    centuries to build. I urge Congress to continue its tradition
    of respecting the Supreme Court's independence. Thank you again
    for your invitation to be here today, I look forward to your
    questions.
        [The prepared statement of Mr. Capozzi follows:]

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        Mr. Issa. Thank you, sir. We now recognize Professor Ross.
    OK, you get two chances too. Don't feel bad, like I say, we
    have had senators not be able to get it right, sir.

                      STATEMENT OF WILLIAM G. ROSS

        Mr. Ross. Chair Issa, Ranking Member Johnson, Chair Jordan,
    and Ranking Member Raskin, and the distinguished Members, thank
    you very much for inviting me to testify here today. I am here
    to testify in opposition to proposals to expand the number of
    U.S. Supreme Court Justices, and to provide historical
    perspectives about so called Court packing.
        Increasing the Court's size for political reasons could
    diminish judicial independence, and interfere with separation
    of powers, because it would permit the President and the Senate
    to manipulate the outcome of judicial decisions by appointing
    additional justices who would be expected to conform to the
    political predilections of the President and his or her party.
        Moreover, the prospect of Court packing could intimidate
    justices, and influence the Court's decisions. The Court's
    independence from political pressure and intimidation has
    helped to ensure its ability to protect the civil liberties of
    Americans in countless cases involving racial, religious,
    political, and ethnic minorities whose rights were ignored or
    impugned by Congress, the President, and State governments.
        Similarly, the Court generally has protected the liberties
    of speech, press, religion, and assembly more faithfully than
    have the President, the Congress, or the three branches of
    State government. A politically motivated increase in the
    number of justices could also erode public respect for the
    Court, since it would exacerbate the growing tendency of
    Americans to believe that the Court's decisions are guided by
    political prejudices, rather than by constitutional principles.
        Advocates of Court packing claim that the appointment of
    additional justices, presumably by a Democratic President,
    would restore balance to a Court the conservatives have
    allegedly high-jacked. How and where would Court packing end
    once it began? Court packing is a game that both parties can
    play. If a Democratic President could obtain a liberal majority
    on the Court by appointing additional justices, a subsequent
    Republican President could restore a conservative majority by
    appointing still more justices.
        It is therefore clear that both parties and both
    conservatives and liberals should have compelling reasons to
    fear and oppose Court packing. Tampering with the size of the
    Court also is ill advised because the nine member Court is
    deeply rooted in tradition and is based on practical
    considerations.
        Supreme Court justices and legal scholars have tended to
    agree that nine is the ideal size of the Court, since that is
    large enough to distribute the Court's heavy workload, and
    provide a range of viewpoints, but small enough to promote
    collegiality, and efficient deliberation. Increasing the
    Court's size could impair the Court's ability to function
    effectively.
        In particular, an increase in justices would provide
    individual members with less time and opportunity to ask
    questions during oral arguments, and to participate in the
    Court's conferences. It could also dilute the clarity and force
    of the Court's opinions by increasing the number of concurring
    opinions.
        As Chief Justice Charles Evans Hughes in opposing Franklin
    Roosevelt's ill-fated Court packing plan in 1973, quote,

            There would be more judges to hear, more judges to confer, more
            judges to discuss, more judges to be convinced, and to decide.
            The present number of justices is large enough so far as the
            prompt, adequate, and efficient conduct of the work is
            concerned.

        Although advocates of the Court packing contend that the
    Court's new conservative majority should not frustrate the
    programs of the other two branches of government, it is the
    very role of the Court to filter political agendas through a
    constitutional lens, tethering the Court to the President and
    Congress contravenes the fundamental concept of separation of
    powers.
        The Court often has fulfilled its most important function
    when it has overturned unconstitutional legislation. Although
    proponents of the Court packing also argue that the present
    Court is out of step with public opinion, the Court throughout
    its history has broadly remained within the general parameters
    of public opinion, even during periods when it has a distinctly
    liberal or conservative tinge.
        Justices are keenly aware that, as Alexander Hamilton wrote
    in the Federalist,

            The Court has neither the power of the purse, nor the power of
            the sword, and that its decisions are ultimately dependent upon
            the good will of the coordinated branches of government and the
            American people.

        Since Court packing proposals jeopardize the Court's
    integrity and independence, it is my hope and expectation that
    Americans today will reject such interference with the Court
    just as they did in 1937. Thank you.
        [The prepared statement of Mr. Ross follows:]

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        Mr. Issa. Thank you, Professor. Mr. Schaerr?

                       STATEMENT OF GENE SCHAERR

        Mr. Schaerr. Good morning, Chair Issa, Ranking Member
    Johnson, Chair Jordan, Ranking Member Raskin, and the
    distinguished Members of the Subcommittee. Thank you for this
    opportunity to address recent proposals for packing the U.S.
    Supreme Court, which is an issue of enormous importance to all
    who care about the rule of law, as I know each of you does.
        In 1983 a well-known Democratic politician, Senator Joe
    Biden, pointedly referred to Franklin Roosevelt's 1937 attempt
    at packing the Supreme Court as quote ``A terrible mistake, and
    a bone headed idea.'' Let me offer five reasons why that
    remains true today in addition to those that have been
    mentioned by my esteemed colleagues here on the panel.
        First, the current Court packing proposals are really based
    on an incorrect factual premise, namely that the Roberts' court
    is relentlessly partisan, and consistently reaches conservative
    outcomes. Now, we have heard already today about a handful of
    decisions that people on the Left don't like. We have heard
    about Citizens United, which recognized First Amendment
    limitations on the government's ability to curb or regulate
    political speech.
        People on the Left are also concerned about Dobbs, which we
    have heard about, and the recent Supreme Court decision in
    Louisiana v. Callais, which some people claim gutted the Voting
    Rights Act. In fact, and I will come back to those specific
    examples in a minute, but in fact the Roberts' court, often
    joined by some of President Trump's nominees, has also ruled
    against what most people view as Republican or conservative
    interest in several hotly contested cases.
        Mr. Capozzi mentioned the recent tariff decision. Another
    example of that phenomenon is the Obergefell decision from a
    few years ago, which ruled that States are constitutionally
    forbidden from limiting the definition of marriage to man--
    woman unions. Then, there was the Bostock decision which
    extended Title VII's protections against nondiscrimination to
    gay, lesbian, and transgender people.
        Don't forget the Supreme Court's earlier decision in NFIB
    v. Sebelius, which upheld the individual mandate that was the
    heart of Obamacare. Each of those decisions was excoriated by
    folks on the Right, and they were as a political matter and a
    policy matter, they were big wins for progressives. The claim
    that the Roberts' court is somehow in the pocket of
    conservatives or Republicans just doesn't withstand analysis of
    the facts.
        Second, current proposals rest on an unrealistic predictive
    judgment about new justice's likely voting patterns. In Roe v.
    Wade for example the key votes supporting abortion rights came
    from justices appointed by the conservative President Nixon,
    while one of the most vocal dissents in Roe v. Wade came from
    Justice Byron White, who had been appointed by President
    Kennedy.
        We have all seen examples of where Supreme Court Justices
    vote against the wishes of the President who appointed them.
    Even adding four more justices to the Supreme Court is by no
    means any guarantee that the Court would shift more toward
    progressive priorities.
        Third, as has been mentioned, Court packing proposals
    really ignore the incentives of the other side once they regain
    power.
        If Democrats have a trifecta in the next election, and are
    able to expand the Supreme Court to 13, does anybody think that
    Republicans are going to stand still for that and not do the
    same thing the next time there is a Republican trifecta? Before
    long the only venue that will be large enough to accommodate
    the Supreme Court's conferences, their private conferences,
    will be the new White House ball room, and I don't think that
    is in anybody's interest.
        Mr. Issa. You are assuming that there will be one.
        Mr. Schaerr. I am assuming that I am not advocating for it,
    but I am assuming it.
        Fourth, Court packing proposals distract from the more
    important work of building political and legislative
    coalitions. That is illustrated by some of the recent Court
    decisions that we have discussed today.
        If you look at the Callais decision for example, that
    decision was premised on the Court's interpretation of a
    Federal statute, namely the Voting Rights Act, and the Court
    held that there was a violation of equal protection in that
    case because the Voting Rights Act did not establish that
    majority-minority districts were required.
        Well, if Congress goes back and changes the Voting Rights
    Act to do what progressives would like, and require majority-
    minority districts, my guess is that this decision would come
    out very differently. Dobbs is another example, many
    progressives, and even not so progressive States have already
    effectively neutered Dobbs within their own State boundaries by
    passing laws that protect abortion to an equal or greater
    extent than Roe ones did.
        Fifth, other panelists have already discussed how Court
    packing would erode public trust in the Court, and ultimately
    in the entire Federal Government. Because the Supreme Court has
    long been viewed correctly as a bit of a ballast or a
    counterweight to the other branches of the government. They can
    correct the mistakes that the other branches occasionally make.
        It is also instructive that Court packing in other
    countries has become a favorite tool of tyrannies around the
    world, like Robert Mugabe in Zimbabwe, Victor Orban in Hungary,
    and Hugo Chavez in Venezuela. There are many reasons to reject
    the current Court packing proposals. Thanks you.
        [The prepared statement of Mr. Schaerr follows:]

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        Mr. Issa. I thank the gentleman. We now go to Professor
    Bowie for his, I'm terribly sorry to mangulate your name.

                       STATEMENT OF NIKOLAS BOWIE

        Mr. Bowie. No worries, but thank you, Chair Issa, Ranking
    Member Johnson, Chair Jordan, and Ranking Member Raskin, thank
    you for inviting me to testify before the distinguished Members
    of the Subcommittee. My name is Nikolas Bowie, and I am the
    Louis D. Brandeis Professor of Law at Harvard Law School. For
    the past seven years with my colleague Daphna Renan, I have
    researched a forthcoming book called Supremacy, how rule by the
    Court replaced government by the people.
        The book shows how the Supreme Court acquired the power it
    now wields, and what Congress can do about it. We are here to
    assess whether Court packing is a threat to the Supreme Court's
    legitimacy. We first need to answer a more basic question,
    which is what is the legitimate role for the Court to play
    under our Constitution? As Professor Renan and I wrote in our
    book, this question was a critical one for the people who
    founded the Republican Party.
        Their mission was to fight the spread of slavery. In 1857,
    in Dred Scott v. Sanford, the Supreme Court declared that
    mission unconstitutional for Congress to put into practice.
    That founding generation of Republicans had never before
    experienced an attempt by the Supreme Court to override
    Congress.
        They called such an attempt despotic, and unwarranted by
    the Constitution. When Abraham Lincoln and other Republicans
    won in the 1860 elections, Congress enacted statutes that
    rejected Dred Scott, and began reconstructing the South into a
    multiracial democracy. That Republican controlled Congress
    wanted Courts to enforce their laws, but they were wary of a
    second Dred Scott decision.
        They changed the Court's size, they stripped it of
    jurisdiction to review its most important laws, and they
    proposed further regulations to check and balance the Court.
    They understood that under our Constitution, the legitimate
    role for the Court is to enforce Federal law against anyone who
    considers themselves above it, whether that person is a
    corporate executive, a State official, or the President.
        The Court's role is not to defy Federal law by placing
    itself above you all, our Nation's representatives of we the
    people, to whom the Constitution gives primary responsibility
    to determine the Constitution's meaning. The Supreme Court's
    assertion of power to defy Federal law has a name, judicial
    supremacy.
        The founding generation of Republicans argued that this
    idea undermines Republican governance. They failed to bury it,
    and it re-emerged when the Court declared Congress
    constitutionally incapable of banning lynching, of banning
    racial discrimination by businesses, or banning widespread
    disenfranchisement.
        In the years since then the Court has continued to
    undermine Federal voting laws, Federal civil rights laws, and
    Federal laws that prevented the wealthy from dominating our
    elections, and your daily call time. Judicial supremacy has
    also unleashed Presidential authoritarianism, disabling the
    laws Congress enacted to prevent corruption, self-dealing, and
    attacks on the peaceful transition of power.
        Those early Republicans, we need not accept judicial
    supremacy any longer. Those Republicans, and their abolitionist
    allies, advocated for an alternative tradition that Professor
    Renan and I call democratic constitutionalism. This is the idea
    that we the people have the power to interpret and define the
    meaning of the Constitution through the process of Federal law
    making.
        This was the position of the lawyers who argued Brown v.
    Board of Education in the 1950s. They urged the Court to stop
    defying Congress' civil rights laws, and to start enforcing it
    against discrimination in the South. One law in particular, the
    Ku Klux Klan Act of 1871 explicitly directed courts to prevent
    State officials from violating anyone's constitutional rights.
        The Court applied that Federal law in Brown to end
    segregation in the South, and it has applied it in many
    landmark cases since. Meanwhile, a bipartisan Congress
    inaugurated a second reconstruction of the Voting Rights Act of
    1965. That law overrode Supreme Court decisions that had
    interpreted the Constitution to be consistent with all the Jim
    Crow laws that disabled Black people from voting in the South.
        You have the power to continue this legacy and replace
    judicial supremacy with democratic constitutionalism. The
    Constitution says nothing about the Court's power to defy acts
    of Congress, but it explicitly empowers Congress to regulate
    the Court. Your predecessors used that power to curb the
    Court's defiance of Federal statutes, and to override harmful
    constitutional interpretations.
        In fact, nearly everything about the Court can be regulated
    by statute, including the number of justices, where it sits,
    and what it has the power to do. If the current majority of the
    Court is exercising an illegitimate supremacy over Federal law,
    one the Constitution does not grant, and that is being used to
    make Republican governance unviable, then regulating the Court
    is not just legitimate, it is your duty. Thank you very much.
        [The prepared statement of Mr. Bowie follows:]

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        Mr. Issa. Thank you. We will now proceed to the five-minute
    rule. I will ask for unanimous consent at this time to place
    into the record the Judges Act, H.R. 1702, a bill to expand the
    District Courts over a phased-in period. Additionally, I will
    put in H.R. 3422, the Judiciary Act of 2023 to expand the
    court.
        I will put in a news story from 2026, just a few days ago,
    ``Democrats renewed call for U.S. Supreme Court overall after
    the Voting Rights Act decision.'' Without objection, so
    ordered.
        We now proceed to the gentleman from Wisconsin, Mr.
    Fitzgerald, for five minutes.
        Mr. Fitzgerald. Thank you, Chair. Mr. Ross, for the first
    80 years of our Nation's history, the size of the Supreme Court
    changed with some regularity, why was that? Microphone.
    Microphone.
        Mr. Ross. Pardon. The expansion of population, originally
    the justices were chosen largely on geographical grounds, and
    every of course the justices rode circuits, the justices wore
    two hats until 1891. They served as Circuit Court judges, and
    they also served as U.S. Supreme Court Justices. In a smaller
    Nation, there were only four million people in the 1790 census,
    there was less need for a larger Court.
        As the country expanded, as the number of circuits
    expanded, the number increased, but only to nine, from five to
    nine. A maximum of ten, and then only for six years, from 1863
    to 1869 there were ten. Since 1869 we have had nine. That is a
    long history, a century and a half with nine members, and it
    has worked very well so far. In my opinion that ought to be the
    number.
        Mr. Fitzgerald. Well, let me followup then. In 1869, when
    Congress did pass that Judiciary Act, why did they set it at
    nine justices at that point, do you figure?
        Mr. Ross. Well, if the Court divided, that would be five to
    four, if you have ten then the Court could be split, if the
    Court splits, then the lower court decision stands. It is
    generally better to have a decisive decision of the Court. Nine
    permits the Court to divide one way or the other.
        Mr. Fitzgerald. As Ben alluded to a couple times, when
    President Roosevelt tried to unsuccessfully, in 1937, to expand
    the Court to 15 justices, was there any sound logic to this
    expansion that the President was using, or making, or was it
    merely an overreaction to a Supreme Court that had repeatedly
    struck down the New Deal?
        Mr. Ross. Historians are unanimous, or virtually unanimous,
    historians are never unanimous on anything, but about as
    unanimous as they can be that the Court packing plan in 1937
    was politically motivated. The Supreme Court had struck down a
    number of significant New Deal statutes in the previous two
    years, and the Social Security Acts, and the National Labor
    Relations Act were coming up for adjudication before the Court.
        These were the signature legislation of the New Deal, and
    Roosevelt was understandably worried that the Court would
    strike those down. His remedy was to increase the number of
    justices to pack the Court so that the Social Security Acts,
    both the old age pension and the unemployment compensation
    laws, and the National Labor Relations Act, which was hugely
    important at the time of industrial unrest, would be secured.
        Franklin Roosevelt originally claimed that he was doing
    this because the Supreme Court was overworked, and the justices
    were geriatric, there were six of them who were over the age of
    seventy, that is why he chose six, one new justice for every
    justice who was over the age of seventy. The older justices
    were, for the most part, quite vigorous, including Louis
    Brandeis, and Chief Justice Hughes was in the peak of health,
    despite his age, over seventy.
        It was so disingenuous that it was almost laughed at.
    Roosevelt, about a month after he introduced the plan, admitted
    that his motives were frankly political. By the way, the then
    Chair of the House Judiciary Committee, Hatton Sumners, a
    Democrat, opposed Roosevelt's plan from the very first day,
    that is why Roosevelt introduced it in the Senate, rather than
    in the House.
        Mr. Fitzgerald. Very good, thank you. Already this morning
    there has been some attacks on the Supreme Court by some of my
    colleagues on the other side over--well just as a former Clerk,
    Mr. Capozzi, you State in your testimony that if too many come
    to view the Supreme Court as a partisan actor rather than a
    neutral arbitrator of law, the losing parties would be tempted
    to disregard court orders. What would that mean for our
    government as a whole? I know that is a big question.
        Mr. Capozzi. It would mean the end of the rule of law,
    plain and simple.
        Mr. Fitzgerald. Do you think that are there certain
    parameters to criticizing the Court, or is that unacceptable
    beyond the First Amendment?
        Mr. Capozzi. It is perfectly acceptable to criticize the
    Supreme Court, people always have, Presidents from the
    beginning of our country have lost major cases before the
    Supreme Court. President Jefferson frequently criticized
    decisions from the Supreme Court. There is a line between
    criticizing decisions, criticizing their reasoning, and
    attacking the legitimacy, and the independence of the Supreme
    Court itself.
        Mr. Fitzgerald. Very good, I yield back.
        Mr. Issa. The gentleman yields back. We now go to the
    Ranking Member of the Subcommittee, the gentleman from Georgia
    for five minutes.
        Mr. Johnson. Thank you, Mr. Chair. Professor Bowie, the
    Supreme Court's recent decision in Louisiana v. Callais
    represents the culmination of a decades long campaign led in
    part by Chief Justice Roberts to dismantle the Voting Rights
    Act, from Shelby County to Brnovich, and now Callais, there has
    been a systemic, and systematic effort to substitute judicial
    skepticism for Congress' explicit constitutional authority to
    protect the right to vote.
        Professor Bowie, how does the Callais decision compare to
    the Supreme Court's treatment of Reconstruction era
    protections, and the initial passage of the Voting Rights Act?
        Mr. Bowie. It is directly related, because for the first
    century after Congress proposed the 15th Amendment to protect
    the right of people to vote, and to prohibit States from
    violating that right on account of race, the Supreme Court
    interpreted the 15th Amendment to prohibit only laws that it
    thought had the intent of discriminating on the basis of race.
        Applying that test, the Court allowed literacy tests, poll
    taxes, and all sorts of other State laws to effectively
    disenfranchise all Black people, or nearly all in the South.
        When Congress passed the Voting Rights Act in 1965, its
    goal was to overcome those decisions, and instead apply an
    effects test, or something that said when a State law has the
    effect of making it more difficult for people of color or any
    other group to vote on account of their race, then that is
    illegal.
        When the Supreme Court interpreted that law in the 1980s,
    it said that actually what Congress did was apply the same sort
    of intent test, had to prove that a State legislature intended
    to discriminate against Black people. Congress again said no,
    you are getting this wrong. We think the problem is all these
    laws that have the effect of making it more difficult for
    people to vote.
        What happened in the recent decision just a few weeks ago
    is the Court said no, we think what Congress actually did was
    apply this same test that we have applied for generations that
    has had the effect of making it far more difficult for people
    of color to vote, and we are seeing the consequences right now
    as every Southern State considers laws to take away
    representation in Congress that is currently occupied by Black
    or Hispanic representatives.
        Mr. Johnson. Many Americans increasingly view the Court as
    acting less like a neutral judicial body, and more like a
    political institution, advancing a particular ideological
    agenda. When the Court repeatedly invalidates laws enacted
    through the democratic process to expand voting rights and
    representation, does that contribute to a crisis of legitimacy
    of the institution itself?
        Mr. Bowie. It does in the sense that what people expect
    from the Supreme Court is what Congress has asked the Court to
    take an oath to do before anyone can become a justice. Which is
    to apply the law without fear or favor to rich and poor alike.
    When people look at the kinds of rulings coming out of the
    Court that seem to systematically favor one party, or the
    wealthy, or corporations, or any number of people on a pretty
    predictable basis.
        Just knowing kind of what is going on in the case before
    the Court even issues a decision I think does have an effect on
    what people think the Court is in effect doing. I agree with my
    colleagues on this panel that to the extent what people think
    the Court is doing is simply issuing Truth Social posts, then
    no one will take it seriously.
        The Court's power comes from the idea that what the
    justices are doing is different from what you are all doing as
    politicians. When all the evidence, and all the public
    information about the Court suggests that actually the same
    kinds of policy decisions are happening on the bench that are
    happening in Congress, it becomes very difficult to treat the
    Court as a different kind of institution than your esteemed
    body.
        Mr. Johnson. Thank you. If the Court continues to narrow
    Congress' ability to protect voting rights under the
    Reconstruction amendments, what does that mean for the balance
    of powers as envisioned by our Constitution, and for the future
    of multiracial democracy in this country?
        Mr. Bowie. The Constitution is ours to interpret as
    Americans. It is a document for all of us, and people have
    marched in protest and died in order for the Constitution to
    reflect that we are a democracy, we should protect the ability
    of all of us who can vote to do so, and that we should not
    tolerate laws that make it more difficult for people to access
    the ballot.
        When the Supreme Court interprets the Constitution to say
    that this kind of rule is not constitutional, that the 15th
    Amendment, when it specifically empowers Congress to adopt
    appropriate legislation, but that a law as fundamental as the
    Voting Rights Act is not appropriate, that is a misreading of
    the document that we do not have to accept.
        Because if we do, the consequence is going to be the end of
    our ability to govern ourselves, and the end of our ability to
    enact voting protections.
        Mr. Johnson. Thank you, with that, I yield back.
        Mr. Issa. The gentleman yields back. With that, we
    recognize the Chair of the Full Committee, Chair Jordan.
        Chair Jordan. Their argument is the Court is too political,
    so let us let the political body add four new seats. That is
    one of the dumbest things I have ever heard, but that is the
    arguments the Democrats are making, and their witness is
    articulating. It makes no sense. That is why we need to keep
    the Court at nine.
        I will yield to the former Attorney General from the great
    State of Kansas the remainder of my time.
        Mr. Schmidt. Thank you, Mr. Chair. I appreciate the Chair
    and the Chair convening this hearing. I am sitting here
    listening to this today, I was musing about something I often
    think about when there is no point in debating it, and that is
    what things in Independence Hall would have been like all those
    years ago if we had all had cameras, cell phones, and social
    media, where every statement is calibrated for consumption by a
    particular audience somewhere not in this room.
        This is one of those heavy issues that is not solely about
    the issues of the day. This is one of those questions that is
    about, to paraphrase the professor, how we choose to govern
    ourselves. The discussions we are having here aren't materially
    different in nature than the ones they had in Independence Hall
    about how you balance out the decisionmaking, and who does
    what.
        The difference is we have come to focus on looking at this
    through a lens of the issues of the day, not a lens of how we
    should structure our self-determination. Our history is one
    that when we have attempted to do that before, when we have
    erred in looking at these important structural questions
    through the issue of the day, we have so far rejected that
    notion.
        I would like to on that point go back to what we have
    referenced many times, but not talked a lot about today, which
    is the failed effort to pack the Court by expanding its numbers
    in the Roosevelt Administration in 1937 I believe it was.
        Remember the context of that time, it has been mentioned by
    Professor Ross and others about the Court overturning a number
    of--modifying and reversing its view in some cases on the
    appropriate limitations on the constitutional powers of
    Congress to act in the economic space in particular.
        Remember what was happening politically. Less than a year
    before there had been a Presidential election in this country,
    and Franklin Roosevelt was re-elected, and these issues were
    central in that election. I wasn't alive then, but it is a
    little personal for me, the Republican nominee for President
    that year was Alf Landon, he is from my little home town of
    about 9,000 people.
        He was the only Republican Governor re-elected in the
    country in 1934, which is why he became our nominee in 1936,
    and he lost in a landslide. In fact, he only carried Maine and
    Vermont, he didn't even carry Kansas. Roosevelt had a mandate
    we might say, and yet he overreached. It took a bipartisan
    Majority to say notwithstanding that clear message from the
    people and notwithstanding the power of the Presidency, we are
    going to defend the structure of this democracy, and of this
    Court.
        As has been mentioned, the Chair of the House Judiciary
    Committee at the time, a Democrat, didn't favor packing the
    Court. Ultimately, when it came to a vote in the Senate, the
    Democrat led Senate Judiciary Committee said they don't favor
    the packing of the Court. The U.S. Senate, which was a Majority
    Democrat at the time, voted overwhelmingly, it was 70 to
    something, not to adopt a Court packing plan.
        What is happening in this room today, and in our politics
    today is different. It is different because for some reason we
    seem incapable of having what I would believe to be a more
    reasoned bipartisan or a partisan nonpartisan discussion about
    how we want our Supreme Court to function, and what its
    appropriate role is.
        I won't read all the statements, they have been entered
    into the record, but right now at this moment in our history it
    is my friends on the other side who seem intent because they
    don't like the direction the Court is headed to pack it with
    new members. I suppose those of us on the more conservative
    side could have made the same argument for many years after the
    Roosevelt courts because we didn't like a lot of those
    decisions.
        We, for the most part, didn't as vociferously argue about
    just fundamentally changing the structure. I want to return to
    just a couple of questions here that have been touched on
    before. Can any of you tell me, let me start, Professor Ross,
    you have addressed this, Mr. Capozzi, let me ask you, and Mr.
    Schaerr, and then Mr. Bowie.
        Let us assume that a Court expansion plan is adopted in
    some form, what is the limiting principle that will limit its
    further expansion in the future if we succumb again to the
    political passions of the moment? Mr. Capozzi?
        Mr. Ross. I don't think that there is any limit. That is
    one of the fatal flaws of the proposal. If one President packed
    the Court, then the next President could pack the Court, and it
    would just be a never ending cyclical process and end up with
    potentially hundreds of Supreme Court Justices.
        Mr. Schmidt. Thank you, Mr. Ross. Mr. Capozzi?
        Mr. Capozzi. The only limit would be what each side can get
    away with.
        Mr. Schmidt. Mr. Schaerr?
        Mr. Schaerr. There is no limit.
        Mr. Schmidt. Professor, what is the limiting principle?
        Mr. Bowie. The role of the Court is an important question
    as you have laid out, and the role is not to be this
    undemocratic super weapon in the middle of our democracy. The
    role is not to try to put as many of our--
        Mr. Schmidt. Is there a limiting principle if we expand it
    today because one side is mad, do we expand it tomorrow because
    somebody else is? What is the limiting principle?
        Mr. Bowie. Putting justices on the Court for their own sake
    is not a good idea, nor is changing the size of the Court
    simply because nine is a better number than eight, or ten is a
    better number than nine.
        Mr. Schmidt. Thank you, Professor, I yield back, I am out
    of time.
        Mr. Issa. I appreciate that, the gentleman yields back. We
    now go to the Ranking Member of the Full Committee, the
    gentleman from Maryland for his questions.
        Mr. Raskin. Thank you, Mr. Chair, and thank you, Mr.
    Schmidt, for those thoughtful comments. One of the things you
    say is we should be talking about how the Supreme Court should
    function, and is it consistent with the Constitution, and the
    rule of law? Let us talk about the shadow docket, and what is
    actually going on in the Supreme Court today.
        When Trump's policies, whether it is an attempt to directly
    nullify the first sentence of the 14th Amendment, which
    establishes birthright citizenship, or his attempt to usurp the
    spending powers of Congress are challenged, he is losing 60
    percent of the time in the District Courts he has lost, 57
    percent of the time in the Federal Circuit Courts.
        Then, it gets up to the Supreme Court, and its shadow
    docket, and there he has won 84 percent of the time. He goes
    from losing 40 percent of the time to winning more than 80
    percent of the time when it gets up into the Supreme Court.
    Now, obviously, we would disagree about substance, those who
    want to go with Trump, and say that he can nullify birthright
    citizenship in the country, just going to disagree about that,
    fine.
        What about the shadow docket, and how it operates? Nobody
    has uttered a word about what that does to undermine the
    legitimacy of the Court. We have hundred-page opinions,
    authoritative, magisterial opinions being written by District
    Court judges, or panels, Circuit Court judges that are being
    overturned with one sentence or one paragraph in the shadow
    docket.
        Is that legitimate, or is that illegitimate? Maybe we can
    just go down the line, Mr. Schaerr?
        Mr. Schaerr. In general, it is legitimate, every Appellate
    Court has the authority to stay a decision of a lower court--
        Mr. Raskin. OK, Mr. Ross, do you think it is legitimate,
    what is taking place with the shadow docket?
        Mr. Ross. I share your concern about the shadow docket; I
    am troubled by it too. I don't think criticism of the shadow
    docket provides any justification for Court packing--
        Mr. Raskin. Is it legitimate or illegitimate, I am just
    asking whether it is legitimate or illegitimate.
        Mr. Ross. I don't think it is illegitimate.
        Mr. Raskin. OK, Mr. Capozzi?
        Mr. Capozzi. It is legitimate, it has been around for a
    long time. You look at the stay of execution litigation going
    back decades--
        Mr. Raskin. OK, thank you. Mr. Bowie, what about you?
        Mr. Bowie. I don't think it is legitimate, in part because
    of the damage that it is doing to the Court's credibility, as
    well as to our country. We have a Court right now that is
    issuing decisions without the benefit of argument, without the
    benefit--
        Mr. Raskin. That really is Truth Social, meet the Supreme
    Court, we will send you one sentence and overturn an entire
    analysis. The legitimacy of the rule of law depends on the
    character of the analysis that is given to the legal question.
    Nobody has taken me up on my invitation to discuss the
    legitimacy or the illegitimacy of the Court based on what
    Senator McConnell did.
        Is there anybody who would argue that what he did was
    legitimate in saying we will not even have a hearing on
    President Obama's nominee, Merrick Garland, and we will not
    have any votes 11 months before the election, but we will rush
    through the nominee to take Justice Ginsberg's seat. Anybody
    want to argue that this is legitimate?
        Mr. Schaerr. I will certainly take you up on the first part
    of that. When McConnell did that, he announced that he was
    applying the pre-existing Biden rule, which is that we don't
    consider new Supreme Court nominees during an election year. I
    agree that the Amy Coney Barrett hearing was an exception to
    that, but--
        Mr. Raskin. OK, anybody else wants to defend the legitimacy
    of what Senator McConnell did, and would anybody agree with me
    that this is a form of Court packing? Just as much as the
    mythical Court packing that we are denouncing today, since I am
    not aware of any proposal on the table.
        Mr. Capozzi. It is fundamentally different, the Senate
    plays a role in our separation of powers, it has to check and
    balance the President, the people that are in the Senate
    matter. If they don't want to confirm a Justice of the Supreme
    Court, they don't have to--
        Mr. Raskin. If the Senate does it, it is OK, it is just you
    don't want a President nominating, but of course if a President
    nominated under a new law, then that would be legitimate,
    wouldn't it?
        Mr. Capozzi. It is a different thing when the Senate plays
    its constitutionally--
        Mr. Raskin. Do you know how many times we have changed the
    number of people in the Supreme Court?
        Mr. Capozzi. It has been almost 160 years since it
    happened.
        Mr. Raskin. No, it has happened six different times, a
    total of eight times.
        Mr. Issa. Ending in 1869 is the last time.
        Mr. Raskin. Yes. Right, well in any event it has changed
    numerous times throughout our history, there is nothing
    remotely illegitimate about it; it is not frozen in the
    Constitution, would you agree?
        Mr. Capozzi. I agree, it is not frozen in the Constitution,
    but we have a tradition dating back to 1869--
        Mr. Raskin. All right, but in any event, I don't know why
    we went off on this numerical thing, because that is not what
    this is really about, the question is about the legitimacy of a
    Court that is demolishing the voting rights of the people.
    Essentially overruling democracy at every turn.
        I wonder, Professor Bowie, in the time remaining, if you
    could discuss what it means for the Supreme Court to intervene
    in elections like in Bush v. Gore, or like with the Voting
    Rights Act in a way that undermines the people's ability to
    govern?
        Mr. Bowie. Well, one thing to speak about in terms of the
    1869 precedent that keeps coming up, is in 1866 Congress passed
    the Civil Rights Act to guarantee citizenship to all people
    born in this country. They feared that President Johnson was
    going to appoint justices to the Court that were going to try
    to overrule that law, which has become foundational for our
    democracy.
        Congress changed the number of justices; it reduced the
    size of the Court to prevent the President from appointing new
    justices.
        Mr. Raskin. Thank you, I yield back, Mr. Chair.
        Mr. Issa. Thank you. For the Ranking Member, apparently
    Congressman Green did put in a Court expansion in this
    Congress, and there were ones in the last Congress, would you
    join with me in a discharge petition to do that immediately?
        Mr. Raskin. The fact that I have not heard of it tells you
    exactly how much political traction it has. Look, there are a
    lot of things we should do in terms of Supreme Court ethics--
        Mr. Issa. The question is, do you support that it--
        Mr. Raskin. I have never seen it; you would have to--
        Mr. Issa. If I drop one today, will you cosponsor it for
    this Congress?
        Mr. Raskin. Cosponsor what?
        Mr. Issa. An expansion of the Court pursuant to what you
    had in the last Congress?
        Mr. Raskin. We haven't had a single hearing about it. If
    you have a hearing about it then we can analyze it. We have got
    to take this seriously, right? I honestly don't even know what
    his proposal is.
        Mr. Issa. Why don't I just take the one that you had when
    you were in the Majority, and present it?
        Mr. Raskin. Well, I am interested in term limits of 18
    years, the vast majority of the American people support term
    limits for justices, and if they want to stay on the Court as a
    District judge or an Appeals Court judge, that is consistent
    with--
        Mr. Issa. It is a constitutional change, you would--
        Mr. Raskin. No, it is not, if they stay on the Court as a
    District judge or a Circuit Court judge, that is consistent
    with the command of life tenure. I am interested in term limits
    for Members of Congress. We can look at the question of whether
    every Federal Circuit should be represented on the Supreme
    Court, which was the whole original idea behind it, that is
    what Circuit riding is all about.
        Mr. Issa. Do you really mean to say for Members of
    Congress?
        Mr. Raskin. For the Supreme Court.
        Mr. Issa. OK, just checking.
        Mr. Raskin. I am actually for that, I am actually for that.
        Mr. Issa. Just checking, after you and I have been here the
    past the six years.
        Mr. Raskin. It was a Freudian slip, I am actually not
    opposed to term limits.
        Mr. Issa. The longer I stay, the more in favor of that I
    am, including in this term. I thank the gentleman from the
    colloquy. With that we go to the gentleman from Virginia, Mr.
    Cline.
        Mr. Cline. Thank you, Mr. Chair. This hearing is very
    important, especially when, and I appreciate the consistency of
    the Ranking Member, or the attempt thereof, the importance of
    consistency when talking about judicial decisions, when you
    have judicial decisions that may not comport with your
    understanding of the Constitution, that somehow democracy is
    being overturned.
        That was the rhetoric that was just used by the Ranking
    Member, and it is offensive to me.
        Mr. Raskin. Would the gentleman yield for just a second?
        Mr. Cline. I will not. Well, yes, for a second.
        Mr. Raskin. I actually wrote a book with that title, which
    I will give to you, called ``Overruling Democracy,'' the
    Supreme Court v. The American People about Bush v. Gore, and
    Right-wing judicial--
        Mr. Cline. I appreciate that the gentleman is being
    consistent with the book that he wrote. It is equally
    frustrating to see that in not all cases do you have,
    especially in the shadow docket, you have examples where they
    did not rule in favor of a conservative philosophy, if you look
    at just the Mifepristone ruling last week, or this week.
        Mr. Raskin. If you would yield for one second?
        Mr. Cline. I will yield.
        Mr. Raskin. There have been 27 cases in the shadow docket,
    and Donald Trump has won 25 of them. You may have identified
    one of the two that he didn't win.
        Mr. Cline. I understand that. One of the things I want to
    talk about is just because you agree with the decision a court
    makes shouldn't determine whether or not democracy is being
    upheld or overturned. It is going down a road that is very
    destructive, and I want to talk about what is happening in
    Virginia.
        Because in Virginia right now we have a destructive path
    that is being pursued by the Majority in our legislature. Now,
    we are one of two States where the legislature actually
    appoints the judiciary, so you have a somewhat convoluted
    process that actually doesn't work as efficiently as some other
    States.
        Mr. Capozzi, you may be aware that Virginia Democrats
    passed a redistricting amendment through a procedurally flawed
    process. The Virginia Supreme Court struck that process down as
    a violation of the Virginia Constitution. Undeterred by their
    State court loss, Democratic Attorney General Jay Jones
    appealed to the U.S. Supreme Court.
        Although in his filing it indicated he was appealing to the
    Supreme Court of Virginia again, and it was ``Virgnia,'' and it
    was ``Sentator,'' but there were a lot of misspellings. He
    appealed to the U.S. Supreme Court despite raising no Federal
    claims, and was denied. Rather than accept that, Senate
    Majority Leader Scott Surovell took to X to spin the ruling,
    claiming that only one justice had weighed in.
        In fact, the denial itself stated quote, ``The application
    for stay presented to the Chief Justice, and by him referred to
    the Court is denied.'' No noted dissents, not even from the
    three Democrat appointed justices. Yet, Democrats immediately
    attacked quote, ``Far right extremists on the Supreme Court.''
    Quickly used the unanimous rejection to continue their campaign
    against the Court's conservative justices.
        Mr. Capozzi, how damaging is it to the rule of law when
    political actors use a legally correct unanimous court ruling
    as a pretext for attacking judicial legitimacy?
        Mr. Capozzi. Yes, just to clarify, a decision like that
    would have been referred to the full Supreme Court. It wasn't
    just a single justice, all nine justices agreed that this
    appeal lacks merit, and most intelligent observers in the
    Supreme Court bar agreed that this was a borderline frivolous
    appeal. It presented only a question of State law.
        At minimum, I would encourage people not to attack the
    Supreme Court when they unanimously reject a frivolous appeal.
        Mr. Cline. Mr. Schaerr, Court packing isn't just a Federal
    ambition, after the Virginia Supreme Court struck down the
    State's redistricting map, Democrats floated the idea
    encouraged by alleged phone conversations with Federal
    Democrats, slashing the mandatory retirement age for its
    justices from 75 to 54 to purge the entire bench.
        Virginia delegate Dan Helmer went further, publicly vowing
    to remove Justice Kelsey, who wrote the opinion, from the bench
    when he is up for reappointment this coming year. For a party
    that has made no kings its rallying cry, isn't threatening a
    justice by name and purging an entire bench a rather
    dictatorial definition of democracy?
        Mr. Schaerr. Absolutely, Mr. Cline, and it is a move
    reminiscent of the authoritarians that we discussed earlier,
    like Robert Mugabe in Zimbabwe, and Hugo Chavez in Venezuela.
    That is the kind of stuff they did to their judiciaries to try
    to get them in line with their programs.
        Mr. Cline. Agreed, I appreciate the comments of the
    gentleman. I yield back.
        Mr. Issa. The gentleman yields back. We now go to the
    gentlelady from California, Ms. Lofgren.
        Ms. Lofgren. Mr. Chair, with all due respect, keep hearing
    about how Court packing is the greatest threat facing the
    judiciary and the rule of law, but I don't think that is the
    crisis facing the Court right now. The real crisis is a growing
    ethics and corruption problem at the Supreme Court, and it is
    one that Congress can actually do something about.
        Unfortunately, my time does not allow me to list every
    undisclosed luxury trip, private jet flight, billionaire-funded
    vacation, yacht excursion, and lavish gift uncovered so far,
    but the scale is staggering. According to Fix the Court,
    Justice Clarence Thomas alone reportedly received more than 100
    gifts worth over 2.4 million dollars.
        While all his fellow justices combined received gifts worth
    only 248,000 dollars over the same period, a 20-year period.
    Here are just a few examples Justice Thomas reportedly
    accepted. Luxury vacations on a billionaire's super yacht in
    Indonesia that ProPublica estimated likely exceeded half a
    million dollars.
        More than two decades of repeated private jet flights on
    billionaire-owned aircraft, including trips on a Bombardier
    Global 5000, and even a private Boeing 737, with some
    individual flights estimated in the tens of thousands to over
    100,000 dollars. At least 26 private jet flights and eight
    helicopter trips identified by investigators.
        Annual stays at an exclusive, private Adirondacks resort,
    where nearby rooms can cost more than 2,000 dollars a night.
    Luxury resort stays in Florida and Jamaica, VIP sky box access,
    and luxury suite tickets to major sporting events, trips to
    Bohemian Grove, private school tuition payments for a child he
    was raising, and real estate transactions involving property
    tied to his family.
        According to Fix the Court, Justice Alito accepted
    approximately 170,000 dollars in gifts over the same period,
    including private jet transportation to a luxury Alaska fishing
    lodge, expensive lodging, and fishing accommodations tied to
    billionaire Paul Singer, and gifts that the Senate Judiciary
    Committee concluded should have been disclosed under Federal
    law.
        Now, Americans watching at home understand that this is
    wrong. Billionaires should not be getting the kind of
    undisclosed access and luxury relationship with Supreme Court
    Justices. Let me ask you this, Professor Bowie, yes or no, do
    you believe these kinds of gifts and luxury travel arrangements
    undermine confidence in the Court?
        Mr. Bowie. Yes.
        Ms. Lofgren. Thank you. Mr. Chair, I would ask unanimous
    consent to put into the record a CNBC article on Justice
    Thomas' acceptance of gifts, two ProPublica articles on the
    same topic, a Senate Judiciary Committee press release, and an
    additional article from ProPublica.
        Mr. Issa. Without objection, so ordered.
        Ms. Lofgren. I will yield the balance of my time to the
    Ranking Member.
        Mr. Raskin. Thank you kindly, Ms. Lofgren. Just picking up
    on that point, there is a 50-dollar gift ban that applies to
    all of us in Congress, and to the Executive Branch as well.
    Would you agree that it would enhance the independence of the
    Court, from not just congressional and Presidential attacks,
    but special interest domination, to apply a 50-dollar gift ban
    to the Supreme Court Justices? Professor Bowie, if you would go
    first?
        Mr. Bowie. Yes, I will just note that Congress has already
    passed laws that prohibit justices from taking bribes. Congress
    has also passed laws that require the justices to recuse from
    cases in which their impartiality may be reasonably questioned.
        Mr. Raskin. Yes. Attorney General Capozzi, do you agree
    that a 50-dollar gift ban should apply to all three branches,
    not just two?
        Mr. Capozzi. I am skeptical that such a ban is needed for
    the Supreme Court, but at the same time, I don't have strong
    opposition to such a proposal.
        Mr. Raskin. OK, Mr. Ross?
        Mr. Ross. I would agree with the solicitor general.
        Mr. Raskin. OK, and Mr. Schaerr?
        Mr. Schaerr. Well, there is a fundamental difference
    between Members of Congress and Supreme Court Justices in this
    regard. When you are a Member of Congress, just about every
    person in your district, and elsewhere in the country is a
    potential supplicant for your services, and your assistance.
    When you are in the Supreme Court, you are only dealing with a
    relatively limited number of cases with people who have direct
    interests in your work.
        It is certainly appropriate, and I know Justice Thomas, and
    he is scrupulous about avoiding accepting gifts from anybody
    who has business before the Supreme Court--
        Mr. Raskin. Really, well we need to have a hearing on that
    then. Because we have a completely different point of view on
    that point, but don't you think just in terms of public
    perception, it would be much better not to believe that
    justices could be compromised by virtue of receiving gifts from
    people who appear before them? After all, they have no binding
    ethics code now.
        They are the only Supreme Court in America that doesn't
    have a binding ethics code. Without a binding ethics code, we
    are leaving it up to them to decide.
        Mr. Schaerr. I don't think it would affect the reality of
    their independence. It might affect the public's perception of
    their independence; it would take away a talking point.
        Mr. Raskin. Do you think it is OK for a billionaire to pay
    for Clarence Thomas' nephew's private school tuition, that is
    OK?
        Mr. Schaerr. If the billionaire doesn't have any business
    before Justice Thomas, there is nothing wrong with that.
        Mr. Raskin. When, if he does, you would agree that is
    wrong? If he does have business before the Court, you would
    agree that is wrong?
        Mr. Schaerr. If he has concrete business before the Court,
    then that would be a different matter, and I am confident in
    that situation, Justice Thomas would recuse from cases that
    involved him.
        Mr. Raskin. You are?
        Mr. Schaerr. Yes.
        Mr. Raskin. OK, what about a situation where somebody with
    potential business before the Court--
        Mr. Issa. I ask unanimous consent that the gentlelady to
    have an additional thirty seconds, without objection.
        Mr. Raskin. Just to complete this point--
        Ms. Lofgren. Reclaiming my time, if I may say also, that
    you can have a pecuniary interest before the Court, but many of
    these billionaires have philosophical points of view that is
    before the Court, and that is why they are paying off the
    justices. I yield back.
        Mr. Raskin. Then, just to complete that question, so if
    Justice Thomas or any justice were to get a free recreational
    vehicle from somebody who has an interest in the work of the
    Court, do you think that would be legitimate, or do you think
    that they should be held to the same standard we are, a 50-
    dollar gift ban, somebody can take you out for lunch.
        Mr. Schaerr. If they have a concrete business interest
    before the Court, then yes, it would be inappropriate for
    Justice Thomas to accept that kind of a gift, and then sit on a
    case that involves that--
        Mr. Raskin. What if they have a general business before--
        Mr. Schaerr. I am sorry?
        Mr. Raskin. What if they have a general business interest
    before the Court?
        Mr. Schaerr. Well, I don't--
        Mr. Raskin. See, we don't get into that in Congress. We
    basically say we are going to cut it off at the pass, none of
    us are going to be compromised in that way--
        Mr. Schaerr. That is true--
        Mr. Issa. OK, I apologize, but I am going to close this
    off, because Mr. Gooden is next. I will say to the gentlelady,
    and to the gentleman, that although I can't support the full
    bill that was offered earlier this year on forcing a set, I
    would be happy to entertain discussion between our staff and,
    individually, the Members on trying to harmonize some aspect of
    what is nonreimbursable between us.
        As you know, the Senate, you pay for a first-class seat if
    you want to fly on that aircraft, while the House has
    prohibition. I would be happy to work with the Minority on
    trying to set a cap on how much could be received as a gift,
    versus how much would have to be reimbursed. I believe that is
    certainly middle ground that we could look into doing this
    Congress.
        Mr. Raskin. I would welcome that, thank you, Mr. Chair.
        Mr. Issa. OK, look forward to it. With that, we go to the
    gentleman from Texas for his time.
        Mr. Gooden. Mr. Ross, you were speaking earlier, I believe
    with the Ranking Member, about the number of times that the
    number of Supreme Court Justices has changed. When was the last
    time we changed the makeup of the Supreme Court, when was that?
        Mr. Ross. In 1869.
        Mr. Gooden. In 1869, and I believe it was 1863 that the
    Emancipation Proclamation came out. What I am hearing is that
    Democrats want to go back to slavery era politics with respect
    to the Supreme Court makeup. One of the arguments is, well, it
    has been done several times, but you just said it has been no
    time since 1869. Six years after the Emancipation Proclamation
    is when Congress stopped playing games with the makeup of the
    Supreme Court.
        Now, Democrats are defending this idea. Fortunately, some
    are well, some are not living, but some were not quite
    outrageous. In 2019, Justice Ruth Bader Ginsberg stated,

            I think it was a bad idea when President Franklin Roosevelt
            tried and failed to pack the Court, and if anything, it would
            make the Court look partisan.

        In 2021, Justice Stephen Breyer remarked during a Harvard
    Law School speech that,

            Packing the Court would be a structural alteration that would
            result in eroding trust in the judiciary.

    More recently, in September 2021, Justice Breyer again
    criticized packing the Court. President Joe Biden expressed
    skepticism about Court packing proposals during his Senate
    tenure in 1983. When speaking about FDR's proposal, he called
    it a bonehead idea.
        Former President Biden's own Presidential commission on the
    Supreme Court expressed hesitation in 2021, the commissioners
    noted that court expansion is likely to undermine rather than
    enhance the Supreme Court's legitimacy and its role in the
    constitutional system. I really appreciate my Republican
    colleagues for not pushing this slavery era idea that was last
    successful during the slavery days that I think we are trying
    to move past.
        I yield the balance of my time to the Chair, Mr. Jordan.
        Chair Jordan. Thank you. Mr. Capozzi, if you don't like
    what the Court is doing, and you would like it changed, how do
    you do it?
        Mr. Capozzi. Well, you can ask the Supreme Court to
    reconsider its decisions, that is something the Supreme Court
    has done from time to time.
        Chair Jordan. In a more broad way how do you do it?
        Mr. Capozzi. Well, you can take your case to the public,
    you can buildup a record of opposition you can advocate for
    change. The conservative legal movement did that after Roe v.
    Wade for example.
        Chair Jordan. Yes, you go make the argument, and you win
    elections, right? You win the White House, you have a Majority
    in the Senate, that is how the Courts figure it out, straight
    from the Constitution. No, they don't want that. They don't
    want that because a Republican is in the White House, and
    you've got to nominate people, and you have Republicans in the
    Senate who control the Senate, and they got to confirm them.
        That is how the process of law, we don't like that. One
    point they are saying, it is too political, but there is a
    political process to it as well, that is how it works, you have
    got to go winning elections. Do you believe leaking the Dobbs
    decision was designed to undermine and change the Court's
    decision, Mr. Schaerr?
        Mr. Schaerr. It certainly appears to have been done with
    that intent. It was an attempt to try to get one or two of the
    justices who ended up in the majority on Dobbs to back away. It
    didn't work--
        Chair Jordan. Thank goodness it didn't work.
        Mr. Schaerr. Thank heavens.
        Chair Jordan. I think it was an effort to intimidate the
    Court. Do you think so, Mr. Ross, Professor Ross, do you think
    that was the case?
        Mr. Ross. I would agree with that.
        Chair Jordan. Yes, it was wrong, it was bad, right? We
    don't want that to happen again; it should have never happened
    before, do you agree, Mr. Capozzi?
        Mr. Capozzi. I was a clerk when the leak happened, I am not
    going to discuss details of the leak, but I will say that it
    was a cowardly act, and I hope it never happens again.
        Chair Jordan. Yes, do you agree with that, Mr. Bowie?
        Mr. Bowie. I don't really have a strong opinion about the
    leak; I was not a clerk on the Court at the time.
        Chair Jordan. Good thing or bad thing?
        Mr. Bowie. That more publicity for what the Court does
    would be good, but I think that sacrificing one's ethics is not
    good, no.
        Chair Jordan. Just yes or no, is it a good thing to leak a
    decision before it is final, before the Court has actually
    weighed in, is that a good thing or bad thing?
        Mr. Bowie. I don't think it is good for anyone to sacrifice
    their ethical responsibilities.
        Chair Jordan. OK, by the way, why don't we know who leaked
    the Dobbs opinion? Mr. Capozzi, you were there. Why don't we
    know that?
        Mr. Capozzi. I am going to respectfully decline to answer
    that question.
        Chair Jordan. Yes, I am not asking if you do know it, I am
    just saying, why don't we know that? Mr. Schaerr, why don't we
    know that?
        Mr. Schaerr. I believe there was an investigation done by
    the--
        Chair Jordan. I know there was an investigation done by the
    Court.
        Mr. Schaerr. It was inconclusive.
        Chair Jordan. Yes, amazing, they couldn't figure it out.
    Mr. Ross, do you any thoughts on that?
        Mr. Ross. I really don't know.
        Chair Jordan. All right, I yield back.
        Mr. Issa. The gentleman yields back. We now go to the
    gentlelady from Florida, Ms. Lee.
        Ms. Lee. Thank you, Mr. Chair. As a former judge, I
    understand that the legitimacy of the judiciary does not depend
    on whether people agree with every decision. It depends on
    whether judges interpret and apply the law independently,
    without political intimidation, threats to their safety, or
    pressure to deliver preferred opinions.
        Today we are seeing increasing efforts, we are hearing them
    today, to delegitimize the Court through Court packing
    proposals, spurious personal attacks on justices, and
    criticisms of judicial philosophies like originalism simply
    because some disagree with outcomes in particular cases. An
    independent judiciary cannot function if judges are treated
    like politicians whenever they issue an unpopular opinion.
        Baseless, unfounded allegations impugning the ethics of
    judges and justices, incoherent attacks on principled
    application of judicial philosophy, and failure to appreciate
    that a disciplined adherence to the laws and the Constitution
    as written is actually the hallmark of a good and successful
    judge.
        On that note, Mr. Schaerr, I would like to discuss one
    thing that concerns me about modern discourse surrounding the
    judiciary is the growing expectation that judges should reach
    politically preferred outcomes rather than faithfully apply the
    law. Critics sometimes today portray originalism as if it is
    some sort of political project to achieve conservative
    outcomes.
        At its core, isn't originalism actually about judicial
    restraint requiring judges to interpret the Constitution as
    written, as opposed to applying their personal preferences?
        Mr. Schaerr. Yes, I was a law clerk to Justice Scalia, and
    I had several experiences with him where he felt like the
    Constitution, or a given statute, required a result that he
    didn't like as a policy matter. The very first opinion that I
    helped him write as a new justice was an opinion sustaining a
    Fourth Amendment objection to the admission of certain evidence
    in a trial.
        He sided with the liberal justices on that issue because he
    felt that is what the Constitution required. The morning after
    that opinion came out, there was an editorial in The Wall
    Street Journal that said we wonder whether President Reagan has
    made a mistake in putting Justice Scalia on the Court. We saw
    that in several different areas, so to me that is the hallmark
    of a good judge.
        Is he or she willing to follow the law as written, even if
    it leads to places that the judge disagrees with as a policy
    matter, that is judging in my view.
        Ms. Lee. That is exactly right, and I can tell you I shared
    that very same experience on the bench, that at times
    personally as a jurist you don't want the outcome that the law
    tells you that you must reach. That is actually something, tell
    me about that distinction between being a judge and essentially
    policymaking, reaching that decision which maybe you as a
    person would like.
        Tell me why it is so important that our judges are able to
    make that distinction, and apply the law as it is written, and
    is that part of our very system, as we would learn in eighth-
    grade American history of checks and balances?
        Mr. Schaerr. Yes, I agree, that is an essential part of our
    system. I go back to the Chief Justice's decision in the
    Obamacare case, and he was excoriated for that decision by
    conservatives. He believed, persuasively explained in his
    opinion that the individual mandate that was kind of at the
    heart of Obamacare could properly be considered as a tax.
        For that reason, he decided well, we then should defer to
    Congress' judgment, even though we hate the policy outcome. He
    decided we should defer to Congress' judgment on this matter
    because what they did is within their authority. To me that is
    also the hallmark of a good judge. To be willing to defer to
    this body, even when you disagree as a matter of policy,
    because--
        Ms. Lee. One final question, because this is important as
    we sit and we listen to our justices, and their ethics being
    impugned with baseless and spurious allegations. Isn't it also
    correct that they cannot respond; that judges cannot call a
    press conference, that they cannot speak publicly, that they
    have no opportunity to come out and say to the American people
    actually this is blatantly false. I did none of these things.
    The allegations that are being made are completely untrue.
    Isn't it correct that judges and justices cannot do that for
    themselves?
        Mr. Schaerr. It is very difficult for them to be able to
    respond to those kinds of personal attacks, correct.
        Ms. Lee. Thank you, Mr. Chair, I yield back.
        Mr. Issa. The gentlelady yields back. I now ask unanimous
    consent to place in the record the ruling of Judge John Bates,
    an appointee of President George W. Bush, who ruled against
    George W. Bush in the Harriet Miers case, and the outcome, and
    ruling of Amy Berman Jackson, a Obama appointee who ruled
    against Obama in that case. Without objection, so ordered.
        Mr. Raskin. Then, Mr. Chair, can I add one too?
        Mr. Issa. Absolutely, it is tit for tat. What do you have?
        Mr. Raskin. It is a unanimous consent just answering the
    last point about how justices cannot speak out. This is an oped
    by Justice Samuel Alito in The Wall Street Journal, ProPublica
    misleads its readers, June 20, 2023.
        Mr. Issa. Without objection, so ordered. With that we go to
    the gentleman from South Carolina, Mr. Fry.
        Mr. Fry. Thank you, Mr. Chair. Justice Ruth Bader Ginsburg
    stated,

            It was a bad idea when President Franklin Roosevelt tried to
            pack the court, and that if anything would make the Court look
            partisan, it would be that.

    Justice Breyer said that,

            It would be a structural alteration, and it would erode public
            trust if we packed the Court.

        What goes around comes around, and if the Democrats can do
    it, the Republicans can do it. Even our former President while
    he was in the Senate, Joe Biden admonished FDR, and said it was
    a boneheaded idea to consider packing the Court. We now find
    ourselves in this curious position where political thought
    leaders on the other side are actively engaged in this idea
    that packing the Court would solve the Nation's problems.
        We have heard from James Carville, ``If we win, don't talk
    about it, we are just going to go pack the Court.'' Kamala
    Harris, in her intellectual stamina, said the same thing a
    couple weeks ago. That is a dangerous move. Mr. Ross, what is
    the most accurate historical lesson of FDR's 1937 Court packing
    plan, what do you think that would be?
        Mr. Ross. The bipartisan opposition is perhaps the most
    important lesson, as has been pointed out earlier. Roosevelt
    had recently been elected with an enormous landslide; he
    carried 46 out of the then 48 States, he had more than 60
    percent of the popular vote, he had assembled one of the most
    powerful political coalitions in the Nation's history.
        He thought he was invincible, he thought that the Court
    packing plan would naturally have to sail thorough Congress,
    which at that point it was overwhelmingly Democratic, the
    Democrats won unprecedented majorities in the 1936 elections
    that re-elected Roosevelt himself. How Roosevelt was stunned
    when his plan encountered immediate and significant opposition,
    which eventually sunk it.
        The reason was that Americans' low persuasions recognized
    that this was an attack on the independence of the Court
    itself. If I could give an example, Gutzom Borglum, who was the
    Mount Rushmore sculptor, was a political on everything except
    race, and he was outraged by the Supreme Court's recent
    decisions striking down New Deal regulatory legislation.
        He wrote a letter to Senator Norris of Nebraska urging him
    to vote against the Court packing plan, because he said it
    would interfere with the independence of the Court. He was, at
    that time, engaged in sculpting the faces on Mount Rushmore. He
    said that, ``If the Court packing plan passed, he would throw
    down his chisel and wouldn't go back to Mount Rushmore to
    finish carving those faces.''
        Because he thought that the packing of the Court would make
    a mockery of what those four Presidents stood for. Again, this
    was across the board, and that is the most important lesson.
        Mr. Fry. Let us play an exercise. If FDR had been
    successful in altering the structure of the Supreme Court, what
    do you think the ramifications would have been at the time, and
    then moving forward?
        Mr. Ross. Well, the immediate ramifications wouldn't have
    been all that great, because although Roosevelt lost the
    battle, he won the war because of deaths and resignations of
    the justices during the next few years. Within a few years,
    Roosevelt had a Court that was overwhelmingly supportive of his
    proregulatory legislation. Though, if the packing itself had
    occurred, it wouldn't have changed the outcome of the cases
    that much, because the Court shifted its positions fairly
    rapidly anyway.
        The long-term effect would have been the same effect as if
    it would have happened if it occurred today, which would be an
    erosion of judicial independence, and a diminution of public
    respect for the Court. Of course, the prospect of ever-
    increasing numbers on the Court. A bigger and bigger Court,
    subsequent Presidents pack the Court on their own.
        Mr. Fry. Or contractions, right? We could have taken, I
    guess Congress could have taken the same approach as Virginia,
    right? That they are trying to do, we don't agree with the
    opinion, so we are just going to sunset you all, right?
        Mr. Ross. Yes, right.
        Mr. Fry. Do you think, Mr. Schaerr, that expanding the
    number of justices would heal some sort of partisan divide in
    this country?
        Mr. Schaerr. Not at all.
        Mr. Fry. Expand on that for a minute. How would that not
    fix what I am hearing on the Left right now, which is that
    there is an illegitimate court, and it is dangerous, and what
    they are doing is undemocratic, so we can fix it by adding four
    new justices. How would that not heal the partisan divide?
        Mr. Schaerr. Well, actually it would undermine what really
    needs to be done to heal those divides. That is because it
    distracts from the more important projects, as we discussed
    earlier, of building the political coalitions that allow you to
    achieve your legislative objectives. We have talked earlier
    about the Voting Rights Act for example, and people are
    complaining about who the Supreme Court quote, ``Gutted the
    Voting Rights Act,'' well, they didn't do that at all.
        This body could amend the Voting Rights Act, and if this
    body wants to impose majority-minority districts on the
    country, or various places in the country, that is something
    that this body can do. My guess is that the Supreme Court would
    probably sustain that. For just about every one of the problems
    that we have discussed, there is a legislative solution that
    requires persuading voters, and then winning elections, and
    then--
        Mr. Fry. Then doing it.
        Mr. Schaerr. Then doing it, yes.
        Mr. Fry. Thank you. Mr. Chair, I see my time is expired,
    and I yield back, sir.
        Mr. Issa. Good use of your time, though. We now go to the
    gentleman from Washington for his time.
        Mr. Baumgartner. Thank you, Mr. Chair, and thank you
    gentlemen, for coming for this important hearing. I am going to
    ask for some concise answers to these questions. There are a
    number of things I would like to cover. Can a court be
    unpacked? Could the legislature vote to remove members of the
    Supreme Court? We will go down the line. If they can add, can
    they subtract?
        Mr. Schaerr. They have subtracted once before; I am not
    sure it would be constitutional to subtract in a way that would
    require sitting justices to resign.
        Mr. Baumgartner. You think yes, with some caveats?
        Mr. Schaerr. Correct.
        Mr. Baumgartner. Mr. Ross?
        Mr. Ross. I agree, I don't think that sitting justices
    could be removed, but clearly the Constitution permits the size
    of the Court to be reduced. There should be one Supreme Court,
    and it says there is a Chief Justice. Theoretically, I guess
    you could have two or three associate justices. I don't think
    there is any constitutional obstacle as long as it's
    prospective rather than retrospective.
        Mr. Baumgartner. Very good.
        Mr. Capozzi. You could phase a seat out; you just couldn't
    force a sitting justice off the bench.
        Mr. Baumgartner. OK.
        Mr. Bowie. Well, that is right, Congress can change the
    number of justices, the justices sit for good behavior. What
    good behavior means is also the subject of Federal law, so if
    justices are doing things that Congress regard as unethical,
    corrupt, or undemocratic, then Congress can do something about
    it--
        Mr. Baumgartner. Very good, so that is a yes. As a way of
    background, when I was in our State Senate in Washington State,
    our State had originally started with five Supreme Court
    Justices, the Court had been packed up to nine for political
    reasons, people wanted different cases. We have elected Supreme
    Court Justices, they are politicians, just as I am, and this
    body is.
        What our teacher's union discovered is that they could put
    significant financial resources into judicial elections, and
    then get some rulings on mandatory spending on education. That
    was when our State legislature thought the Supreme Court was
    over its skis. I sponsored a piece of legislation to actually
    shrink it back from nine to seven.
        I had the Supreme Court Justices drawing straws at high
    noon on January 1st, which is a legal remedy in our State, but
    it was undetermined, so actually my bill is studied in law
    schools in Washington State; fortunately, we didn't get the
    opportunity. Broader point I just wanted to make on this is
    packing the Court, and really, its evil twin of adding States
    for political purposes are probably the most dangerous and
    destabilizing things that this body could consider for the
    future of the Republic.
        It really will be a recipe for potential civil war in this
    country. By background, I spent some time doing
    counterinsurgency during the Iraq surge, and used to teach
    counterinsurgency to the U.S. military, and you think about our
    own Nation, why did we rebel? Why did people not feel they had
    a voice in the legitimate political process? We actually look
    at the foundation of American, what we teach in
    counterinsurgency, and population-centric counterinsurgency.
        It is based on two principles, that people feel they have
    an effective government, and that they have a legitimate
    government. What Court packing will do is take a game of Chutes
    and Ladders in politics, where you win elections, you lose
    elections, but it is a game that everybody understands, and it
    will turn it, midstream for political purposes into Battleship.
        That is something I do not think in this highly polarized
    political environment that the American people will
    countenance. It is extremely risky to talk about packing the
    Court, adding the States, because you want political outcomes.
    Each and every time somebody is disgruntled with the political
    process, and talks about it in a way that delegitimizes the
    Supreme Court, who are not elected, it is not like at the State
    level.
        It really, really is a dangerous thing for the future of
    the Republic. I just wanted to make that statement. I only have
    about a minute left.
        I am going to yield to the good gentleman from Kansas if he
    would like my time.
        Mr. Schmidt. Thank you to my friend from Washington, and I
    would just say the baseball metaphor, calling balls and
    strikes, as Justice Roberts famously said in his confirmation
    hearing, nobody here has actually talked about what this
    hearing, I believe, is supposed to be about, other than our
    witnesses. Nobody has defended the idea that we ought to expand
    the number of justices on the Supreme Court.
        We have had an airing of the grievances, just as you have
    people complaining about the umpire all the time, but nobody is
    defending the idea that I have heard, that the remedy to the
    grievances is you have a three judge panel metaphorically of
    umpires behind home plate because more gets you a better
    outcome.
        There has been plenty of complaining from one party right
    now, including the Minority leader of this House, sitting
    Members of this House, the last Presidential nominee of the
    other party suggesting that Court packing by expanding ought to
    be a remedy to be considered. That has never been a good idea.
        I would simply ask our panelists in whatever time the Chair
    allows them to respond, what is wrong with allowing the people
    of this country, through the constitutional amendment process,
    to decide whether that specific remedy ought to be allowed or
    taken off the table, what is wrong with that?
        Mr. Issa. Briefly, any responses?
        Mr. Schaerr. I don't think anything is wrong with that; it
    seems like a good idea to me.
        Mr. Ross. I don't think that the constitutional amendment
    process is necessarily the best way to handle this issue.
        Mr. Capozzi. I would support an amendment to fix the number
    of seats on the Supreme Court at nine.
        Mr. Bowie. Justice Robert Jackson was asked this question,
    and his answer was it is the responsibility of Congress to see
    that the Court is an instrumentality in the maintenance of a
    just and constitutional government, and that it does not become
    an instrumentality for the defeat of constitutional government.
    He testified about that in 1937 when he was asked in a hearing
    like this one about whether Court packing was an appropriate
    remedy.
        Mr. Issa. I thank all the gentlemen. We now go to the
    gentleman from California for his questioning.
        Mr. Kiley. Thank you, Mr. Chair. Court packing is, of
    course, a really bad idea. Mainly because it seeks to change
    our institutions for the purpose of short-term political gain
    by one side or another. Then, it is very short-sighted, because
    when you change the institution, that has a lot of downstream
    consequences that you can't predict.
        It makes just our overall system not really function when
    you don't have a stable institutional foundation for our
    political battles to play out. We don't just see this with
    proposals to pack the Court. We see it with this redistricting
    war that is going on, where in one State or another a party has
    control of the legislature, so rather than trying to win
    congressional seats by persuading people that their party has
    the right views, they say let us move the lines around, and
    give ourselves a structural advantage.
        I saw it all the time when I was in the State legislature
    in California. If they didn't have the votes in the Committee,
    they would just remove people from the Committee or add people
    to the Committee. We see it here when the House rules, if they
    aren't convenient in a given circumstance, the rules just get
    waived or suspended.
        Then, on the other side of the coin, as the Chair
    mentioned, we had a bill, the Judges Act, that actually
    instituted some needed institutional changes by giving us more
    District Court judges to hear claims when they have this huge
    back log so people actually get access to justice, and it had
    broad bipartisan support, but then suddenly it was vetoed
    because of the perceived short-term political consequences.
        I guess my question for our esteemed panel here, for anyone
    that would want to weigh in, is how do we more assure that our
    institutions are insulated from the currents of short-term
    politics?
        Mr. Capozzi. One thing that I will say is it is helpful
    what the Supreme Court just did in the Callais decision. That
    has been mischaracterized quite a bit during the hearing today.
    The Supreme Court said that it is a statutory interpretation
    case, but the Court strongly suggested that the Constitution
    also requires this, you can't discriminate against individuals
    on the basis of race during redistricting.
        For decades, some States were forced to intentionally sort
    voters on the basis of race to maximize political advantage for
    one political party. The fact that we don't have to do that
    anymore, we don't have to discriminate on the basis of race in
    redistricting, is a good step forward.
        Mr. Kiley. Professor Bowie?
        Mr. Bowie. I would just like to say you all on the panel
    are Members of Congress, you took an oath to support the
    Constitution, and I trust your judgment that you can determine
    what counts as appropriate legislation for enforcing the
    Constitution. If you think the Voting Rights Act needs to be
    updated for our modern time, you can amend the Voting Rights
    Act, you can make it better.
        We did not elect a Supreme Court to do that job for you. We
    did not vote for justices to override your interpretation of
    what the Constitution means. We have never as a country been
    asked should the Supreme Court have this role of putting itself
    above you all. It disrespects your oaths if the Court takes
    your words that you have taken responsibility to enact into
    legislation, and say actually, you are wrong.
        Mr. Kiley. Surely part of this, and maybe you are agreeing
    with me, that it is the fault of Congress for relinquishing its
    constitutional authority. Like, if you look at, let us just
    take the last two Presidents, we had a decision in the Biden
    Administration, the Supreme Court struck down the student loan
    scheme, of course, we just had the tariff decision with this
    President.
        Congress could have easily reclaimed its own authority on
    either count before the Court stepped in, it just chose not to,
    right?
        Mr. Bowie. Frankly, my job is not to tell you how to do
    yours, but that said, you do have the responsibility to
    interpret the Constitution. I trust that you can do justice to
    that responsibility. When you think that the law needs to be
    updated, it is your job, not someone else's, and especially not
    someone who the American people have not chosen to decide what
    does the Constitution mean.
        How do we give effect to its guarantees of freedom and
    equality rather than letting someone who no one has chosen
    taken that away from us?
        Mr. Kiley. Yes, there is clearly a very important role for
    the Courts in our system, in maintaining the Constitution, in
    defending the Constitution, and upholding its principles. That
    Congress has, over time, relinquished more and more of its
    authority, both to administrative agencies and to the courts.
    Maybe we are saying the same thing, but in different words.
        That there is a responsibility for Congress to reclaim some
    of that authority, and in particular, we are the house, we are
    the people's house, closest to the people. That our system
    works better when more policymaking happens here, and can take
    into account the views of folks all across the country.
        Mr. Bowie. That is absolutely true. One of the reasons why
    Congress is feeling so disabled is because there are past
    Supreme Court decisions that have taken away your ability to
    police the President, your ability to prevent corruption, and
    your ability to ensure that Americans can vote. As long as we
    continue to have this system in which you are not in charge of
    the laws that you pass, then it is difficult for the American
    people to, in an election, to discern for ourselves what kind
    of country we want to live under.
        Mr. Kiley. Thanks very much, I yield back.
        Mr. Issa. I am recognizing myself now. Professor Ross,
    Congress does have--did I miss someone? OK, appropriately, I go
    last because I have the least to say, but I learn the most from
    these. Professor Ross, briefly, isn't one of Congress'
    authorities the right to limit what can be considered by the
    Court? Isn't that already a power that we can use if we want
    essentially decisions of Congress to stand?
        Mr. Ross. Yes, in many statutory interpretation cases, the
    Supreme Court has invited, indeed almost begged Congress to
    offer a contrary interpretation. The Court can often only guess
    what Congress intends, and so it doesn't say that it is having
    the last word in statutory interpretation cases. It is saying
    that this is the way we interpret the Constitution, and if
    Congress disagrees, Congress is perfectly free to enact a
    statute that reaches a different conclusion.
        Mr. Issa. Just to followup, in the Chevron decision, to a
    certain extent, the Court just gave Congress back a tremendous
    amount of power that for years we didn't have.
        Mr. Ross. Yes.
        Mr. Issa. Thank you. Professor Bowie, one quick question, I
    authored a bill, I put it on the record, to expand the Court
    significantly, about 10 percent more District Court judges. It
    phased them in over more than a decade so that no one Congress,
    and certainly no one President, would do that. Would you
    support this expansion of the Court as vigorously if, in fact,
    there was a strong possibility that it would be balanced in its
    expansion?
        Mr. Bowie. I am sorry I haven't read this bill, but I will
    agree with the principle behind it that yes, to make the court
    less partisan would be a great thing, to have your decisions
    take effect--
        Mr. Issa. OK, just for argument's sake, since none of these
    Court packing bills originating from the House did that, they
    all gave immediately, and gave it during a time in which the
    President of their party was in power. I would say in part of
    our closing that very clearly, this is Congress trying to get
    an outcome for their President, rather than trying to enhance
    the Court.
        Would anyone doubt that, considering they didn't give that
    same consideration that Mr. Nadler and I did with our
    bipartisan bills to expand the Court? Mr. Schaerr?
        Mr. Schaerr. I don't disagree with that, but I am not very
    familiar with the bills that you are talking about.
        Mr. Issa. Well, right now we are still trying to get that
    expansion of the Court phased in overtime.
        Mr. Schaerr. You are talking about an expansion of the
    number of lower-court judges, right?
        Mr. Issa. District Court, to meet the caseload that many
    have opined about here. There are 179 or so Appellate judges
    spread over 11 regular circuits and two special circuits. That
    comes out to be about 16 to one if you evened out the
    Districts, if the First Circuit wasn't just six and so on, and
    that is not including the two special circuits; it is 20 to one
    if you include those.
        When you look at that ratio, my question to each of you is
    as people talk about expanding the high court, the court that
    must make a decision for it to be universally the law of the
    land, or to fail to take a case to make it essentially
    sustained, or denied at a lower court, should we in the future
    when we are having this debate consider those 179 judges that
    did not exist at the origination of our country, and the
    earlier days of the court moving up and down?
        Mr. Capozzi. My personal view is that the only Federal
    judges that are overworked in our system are District Court
    judges. Congress should create more District Court positions,
    Congress should also consider expanding the number of staff. It
    doesn't make any sense to me that District Court judges can
    hire fewer law clerks than Court of Appeals judges, they are
    the ones who need them more.
        Mr. Ross. I strongly agree with what Mr. Capozzi has said.
        Mr. Schaerr. Same here, as do I.
        Mr. Issa. Professor, have you looked at the caseload of the
    District versus the Appellate, and the role relative to the
    Supreme Court? Because we have talked extensively about the
    expansion, yes or no of the Court, but not about the total
    number of judges, the caseload, and what they do.
        Mr. Bowie. No, I agree with the principle, and one of the
    things that Congress used to do is require Supreme Court
    Justices to ride as District Court judges, as Circuit judges,
    to ease the caseload of trial courts. That is one option
    available to Congress right now. If the Supreme Court is under
    worked, but District Courts are over worked, then you can enact
    legislation to require the justices to spend their time as
    District judges.
        Mr. Issa. Or even serving on Appellate. My time is
    expiring, but since there is no one else seeking, I will take
    just another minute. I have been generous with both sides, I
    think. This has been a serious but partisan discussion, no
    question at all. It is an important issue. I am going to ask a
    question to each of you as scholars in your area. There was a
    lot of discussion about the vacancy of the Courts and the
    filling of them.
        Should we, in fact, have a system that allows for there
    never to be a vacancy in the court, meaning we certainly could
    create a high court, but we could have a process where an
    Appellate Court, through some process, became the designate to
    fill a temporary or permanent vacancy, or even an alternate to
    the Court that would step in when there was a vacancy.
        Is the idea that there should never be events like the
    Ranking Member talked about, through a process that would
    ensure that we always have a full court. Professor, I would
    opine to you that that would potentially even include that idea
    that this alternate would serve whenever a justice has to
    recuse themselves.
        Mr. Bowie. Yes, I believe the Ranking Member of the
    Subcommittee has introduced legislation that would give
    Presidents a regular appointment schedule so that vacancies
    would be more predictable, less likely to lead to the sort of
    partisan campaigns around nominations, and otherwise ensure
    that if the Court is doing its job then we can--
        Mr. Issa. I included recusals because currently if there is
    a recusal, the Court goes from nine to eight, or nine to seven,
    whatever the recusal is. There have been very few refusals, but
    there have been certainly plenty of cases in which there was a
    case for recusal, but that person did not recuse, and perhaps
    because the Court would be without that vote.
        Mr. Bowie. Absolutely, and to be honest, if anything, that
    is a sign that perhaps the number of concurrent justices is not
    the number that it should be. For an individual recusal to have
    that kind of effect, and therefore there are no refusals, if
    anything, that is a sign that refusals need to be easier to do
    so that justices--
        Mr. Issa. Right, but in any lower court, a recusal simply
    means that a different judge steps in, there is not a lack of--
    a three-judge panel doesn't become a two-judge panel if there
    is a recusal. Mr. Capozzi?
        Mr. Capozzi. There is a statutory process for if there are
    not enough justices to have a quorum on the Supreme Court. You
    can look at the Alcoa case, it is from 1939, where the Second
    Circuit had to hear a case in lieu of the Supreme Court. I
    would oppose the proposals that you suggested, Mr. Chair.
        The power to appoint justices is tremendously important; we
    need checks and balances in our system, and we shouldn't weaken
    the Senate's role in checking the President on the appointment
    of justices.
        Mr. Issa. Professor Ross?
        Mr. Ross. I agree with Mr. Capozzi.
        Mr. Issa. You get the closing opinion because I am well
    past my time.
        Mr. Schaerr. Well, I would say there is also not a great
    need for that a process in the Supreme Court, because it is not
    really a disaster if a single justice has to recuse, then the
    number of justices who are sitting on the case is eight rather
    than nine. Generally, they are going to be able to decide the
    case without splitting four to four. That happens once in a
    while, but not enough, to make it the kind of problem that
    requires a solution.
        Chair Jordan. Mr. Chair?
        Mr. Issa. The Chair recognizes the Chair of the Full
    Committee.
        Chair Jordan. Just one quick question, I am just curious
    what the panel thinks, why don't we just add four justices now,
    if 13 circuits, we need to go to nine to 13 as the Ranking
    Member of the Full Committee suggested at the start of the
    hearing, why wouldn't we just add them now if we are going to
    add them? What do you think of that, just maybe go down the
    line.
        Mr. Capozzi. The first rule of justice is what is good for
    the goose is good for the gander, I oppose doing that now, just
    as I would oppose doing it under a different President.
        Chair Jordan. That is where I am at, totally agree. It
    seems to me if we are going to do it, and 13 is some important
    number that we have got to get to base on the number of
    circuits, then we should, if we are going to do four, do it
    now. Mr. Bowie, would you support doing that, doing four? You
    said if Congress thinks it is the right thing to do we should
    go for it, so if it is the right thing to do can we go for it
    now?
        Mr. Bowie. Well, I agree with the principle, it is in your
    prerogative, you have the prerogative to determine how the
    Supreme Court works. The Court did not descend from on high in
    its current form in the palace across the street. It is your
    job to determine what kind of court--
        Chair Jordan. You would have no problem with us doing it
    now?
        Mr. Bowie. Look, I disagree with many of the policies that
    come out of Congress right now, but I really have faith in your
    ability to live up to your office, and I think that you have
    the authority to determine what kind of justice we want to see
    in this country.
        Chair Jordan. OK, that is great. I know what Professor
    Ross, and Mr. Schaerr's answer is as well, which is where I am
    out.
        Mr. Ross. Again, I would oppose any expansion of the Court.
        Chair Jordan. I am there too, OK. Thanks guys. I yield back
    to the Chair, thank you for the hearing.
        Mr. Issa. I want to thank all our witnesses today, this
    concludes today's hearing. Pursuant to Committee rules, all
    Members will have five legislative days in which to submit
    written questions for the witnesses, and additional materials
    for the record. For all of you what that means is within five
    days additional questions will be forwarded. Would all of you
    agree within a short period of time so we can close the record,
    that you would attempt to respond to them?
        All witnesses answered in the affirmative, so without
    objection, that is ordered. Without objection, we stand
    adjourned.
        [Whereupon, at 12:22 p.m., the Subcommittee was adjourned.]

        All materials submitted for the record by Members of the
    Subcommittee on Courts, Intellectual Property, and the Internet
    can
    be found at: https://docs.house.gov/Committee/Calendar/ByEvent.
    aspx?EventID=119310.

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