Strict Scrutiny - We Need To Talk About Court Expansion

Episode Date: September 3, 2026

How do you solve a problem like SCOTUS? Kate kicks off our Hot Supreme Court Reform September series with the New York Times’ Jamelle Bouie. They dig into the ins and outs of expanding the Court: what the process could look like, the argument for making the entire federal judiciary bigger, and how to avoid an FDR-style fail.Take the Strict Scrutiny survey.New Strict merch available here.You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.comBuy Melissa’s book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern ReaderBuy Leah’s book, Lawless, now out in paperbackFollow us on Instagram, Threads, and BlueskyFor a transcript of an episode of Strict Scrutiny please email [e-mail]

Strict scrutiny is brought to you by Americans United for separation of church and state. It's back to school season. And this year, five million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Yes, you heard that right. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for separation of church and state, are taking the fight to the Supreme Court. and they need you to amplify their voices before the Supreme Court gets its hands on this case. And we all know what the Fifth Circuit did. Obviously, they let Texas get away with all of this.

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She spoke not elegantly, but with unmistently. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet or fall next. Hello and welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Kate Shaw, your lone host for this episode of our special bonus series, which we're calling hot Supreme Court Reform September. And for this installment of our series, I am delighted to be joined by friend of the show, Jamel Bowie, columnist for the New York Times, and probably the person whose columns appear more frequently than anything else in our recurring favorite things segment at the end of every show. It's like we really

shout out your columns so much, Jamel. It's ridiculous. Anyway, we really do. Thank you. Thank you. And welcome to strict scrutiny. It's a pleasure to be here. As I just mentioned, we are doing a series about Supreme Court reform. And our goal in doing that is to try to shift a little bit from general criticism of the court and its decisions and listeners to this podcast know that that is not in short supply on this platform, but to try to move a little bit or to include some conversations with leading thinkers about specific potential reforms to the Supreme Court. And today I want to just ask you about one of the biggest and most controversial potential reforms to the court. And that is court expansion. Maybe we can call it court packing. We'll talk about terminology. But before we get

to that, I want to just stay on the court more generally for a minute. And I'm a minute. And I'm And I do think that people, and maybe a growing number of people, understand that something is deeply wrong with this Supreme Court. There was a Gallup poll in late July that had Supreme Court approval at 33%. Other polls have it in the mid or sometimes high 30s, but all at or near historic lows. And while I do think SCOTUS polling is quite imperfect, the change over time is still quite striking. So, Jamel, I'm curious if you have any theories or thoughts on why the court is polling so badly right now. I think the two immediate things, right, are first that people who identify as Democrats, people who identify as liberals, have gotten very down on the court for reasons I think all listeners know. One interesting wrinkle here is that there are many Republican-leading voters who don't think the court has been favorable enough to Donald Trump. And so that that kind of structures their view, it's also the case that on the right, the political right, they're just like kind of almost a tradition of court hating that charges back half a century.

It's part of the language of the political right in a way that it isn't quite. yet of the political left. And I think that also shapes how Republican-leading voters and conservatives think about the court. Obviously, I think that the conservative complaint here is absurd. The complaint there is that the court isn't partisan enough. And I think that the complaint from Democrats, liberals, independence is much more sound, which is that the court is extremely disruptive in a way that is overturning people's sense of what constitutes sort of like the status quo of American politics in a way that they haven't voted for, the way they haven't given their assent to. You know, voters, it's funny, voters don't necessarily have a firm

sense of the potential consequences of who they put into office. And so when voters elected Donald Trump in 2016, or at least when, you know, 48.1 percent of voters voted for Donald Trump in 2016, there wasn't an expectation that the consequences of that choice would be the end of Roby Wade, right? And it put it was. that was the direct consequence of that choice. And I think that for a lot of voters, they are perturbed by the idea that this institution, which is remote and opaque, you know, most people cannot name more than a handful of members of the court. Most people do not know how the court works. I spent a lot of time talking about the court in various forums. And the level of just baseline knowledge about its basic operations is not that great. the court is this remote, distant institution that every six months they learn has suddenly overturned some right they thought they had. And I think that is driving a lot of the discontent among Americans broadly.

They just don't like that idea. It strikes them, even if they could not articulate it in these terms, it strikes them as inimical to how they think the American system is supposed to work. Yeah, and I think the disruptiveness is a good way to characterize it. I mean, just back up for a second. Like, I think, I think you're right. You make a good point about the polling, which is that they're strikingly low numbers, but obviously you disaggregate them and it is a combination of, I think, really sound criticism of the court and then some pretty baseless, like they're not Trumpy enough. But regardless like that, this is an institution that is not commanding a lot of support and confidence in the public at large. I think that's a really nice point. But the disruptiveness, I think is all. also critical because I think it's such a mistake to focus on like how many Supreme Court opinions this Supreme Court has overruled. Like that is a metric, but it is a wildly underinclusive one if we're asking about just the disruptiveness of the basic operations of government. I mean, the court thankfully did not, but came very close to upending the way that a lot of states

do mail-in voting in the upcoming midterm elections. Like, it didn't do that. But if it had done that, that would have been wildly disruptive to dozens of states that let people, cast votes by mail and then have those votes counted, even if they arrive a couple of days after the election. And that's not about like overruling a prior precedent. That's just about a court being willing to invite chaos and into elections, I think, in particular, but obviously it goes way beyond elections, destabilizing the way that federal agencies have been able to regulate, you know, pollution of the air and the water, undermining the ability of the education department and the president to give debt relief to student borrowers. I mean, obviously,

the list is long. But I do think that it's kind of united by this disinterest in allowing other institutional players to make important choices and the settled state of affairs in terms of how we do governance to sort of rest if the Supreme Court, and it's often very idiosyncratic conception of like the separation of powers, doesn't like the way things have been going. And I do think there's one other thing in this connects to the kind of disrupting elections and democracy piece, which is that obviously there is wild dissatisfaction for lots of different reasons in kind of how government is working for people. And I think some of it quite justified and some of it less justified. But I do wonder whether in different ways people are beginning to understand that

the court actually is an important player and bears a heavy dose of responsibility in their dissatisfaction with the way government is operating. And I don't know if anecdotally in your conversations about the court, you're seeing that kind of shift in people's minds. But as remote and distant as the Supreme Court is compared to other branches of government, it feels like to a degree the presence of the court in a lot of court choices that people are allowed to make in ways they live their lives is becoming a little bit more evident to people. Does that seem right? No, that seems right. And one of the things I have learned in being a journalist and just like

talking to people, both in my capacity of the journalist and then, you know, in the past, when I would volunteer for campaigns and stuff, and just talk to people. ordinary people don't necessarily have a precise language for describing things. And they will latch on to basically like signifiers that kind of are giddying at what they want to express, even if they can't say it. And so I would say that the signifier for like, I am upset with the court is Citizens United. It is a stand in for someone, there's this unaccountable power that is allowing bad things to happen. You know, legal nerds might say, yeah, you know, citizens United don't really. agree with it, but like, it's hard to see how they could come to a different outcome. Like, legal nerds will have their discussion about the case as a case. But for like the typical person, what Citizens United means is the Supreme Court let billionaires buy our elections. And when you hear people talk about their discontent with the Supreme Court, first words on their lips are Citizens United. Interesting. And I think that kind of captures it, sort of these,

these people who are unaccountable, practically speaking, and also don't feel themselves to be particularly accountable to the democratic process or to ordinary people who feel themselves and who often express this outright, that like they are basically floating above the entire political system as like a guardian council to whom they have no responsibility. I think a lot of voters, a lot of Americans perceive them to be like this. And Citizens United, the sense that there is all this unaccountable money in politics, that's the thing that I think captures the discontent more than anything else, more than honestly even Dobbs. It's Citizens United is on the tip of people's tongues.

That's really interesting. And that's, you know, 16 years. It's, it is really interesting to me how a decision like that has the kind of staying power that it has. And I think you're right that there are people who say like, oh, there's reasonable arguments on both sides of Citizens United. Like, I am definitely not in that camp. Like, I think it was an outrage. And I do think that it's striking and encouraging, actually, that the public has stayed as mad as it has about that opinion, which has a lot to do with the state of our politics today. So, okay, so I've been asking about people's perception of the Supreme Court, and I want to slightly tweak the question now and to ask you kind of how you would characterize if it's different from what we've been

talking about, what is so wrong with the Supreme Court today? Because I do think that that seems important to identifying what any effort at reform should be trying to address. So like, what are the key kind of pathologies or problems with the court that any court reform should be targeting? There's a piece from about four years ago, nearly four years ago, by Mark Lemley called the Imperial Supreme Court, which has really been my touchstone for thinking about this. I remember reading this and being like, yeah, this is, this captures the dynamic that I think is most problematic. And the argument of the piece, basically, is that the aim of the currents of the Roberts Court, like what the Roberts Court has been doing primarily is accumulating power for itself,

accumulating the power basically to make exceptions and to decide. And so when you begin to look at various rulings, and Trump v. U.S. comes after this, but Trump v.S. is a very good example. The headline of Trump v.S. is the Supreme Court has created this criminal immunity for the presidency as it relates to the president's core duties. But the thing about that, right, is that Roberts never quite says what that constitutes, what constitutes an official act, what constitutes an unofficial act. What are the exact limits of the core duties of the presidency?

He provides an outline, but it's not specific. It's not exact. It has a lot of room for discretion. And that room for discretion is room for the court, right? It's room for the Supreme Court to decide what it thinks. much more explicit than that is even the major questions doctrine, which to my mind just really seems like a vibes base, I don't know, seems like that you shouldn't be able to do that kind of doctrine. And you see this again and again, the court not actually laying down clear standards for

lower courts to follow that if the clear standards were there, lower courts could make their decisions without intervention from the Supreme Court. What you see is the court laying out vague doctrines that it can then intervene on a case-by-case basis when it decides that a lower court does not behave in exactly the way it wants it to. The use of the shadow docket is, again, part of this, this accumulation of authority within the court. And so that really structures my sense of what is to be done. And it goes back to a point I made earlier, but the basic lack of democratic accountability the court has. Obviously, the Supreme Court is one of the, you know, principal counter-majoritarian institutions of the American system. But the extent to which it remains

responsive to the political process, responsive to sort of like democratic need, waxes and wanes throughout history. And there are times when the court is actually quite responsive to what's happening on the ground, in times when it's very remote and unresponsive to what's happening on the ground. And I think that part of the reform agenda has to be done with an eye towards kind of how do you democratize the court or how do you just make the court more democratically responsive? How do you how do you break up its own authority relative to the rest of the federal judiciary and as well rest of the political system to kind of bring it back down from 30,000 feet and as a live player within the political system? Some of that is discretionary

choices, right? If I were, you know, advising a president about, here's my ambition, not if I were president, if I were advising a president about who to put it on the court, I would look for a long-time legislator. I would look for a former governor, someone with previous high-level legislative or executive experience whose decisions on the court might then defer more to the political process in a way that this court full of, you know, elite lawyers just does not instillard. instinctually elite lawyers and executive branch lawyers just instinctively does not do. I would be, you know, I think we should have court expansion. That's, that's in, if I'm being honest, a very narrowly political thing. Like, I just do think the process by which the Republican majority

was assembled is like rife with illegitimacy, you know, a minoritarian president appointing three justices. One of those justices being appointed in the process that basically should have like broke the confirmation process for a year. The fact that the Republican majority of the Senate set down a rule, no confirmations in an election year, and then promptly dropped that rule when they had a chance to do a confirmation election rule. All those things, it's just like not fair play, right? And another way put it, it's hardball. And I do think that hardball is, is appropriate in response. But if I'm thinking big picture about just rejiggering the court's relationship to the political system, and the court's relationship to the larger federal judiciary,

my reforms would look like first a much larger expansion over a longer time horizon with term limits and staggered additions. So it's not like, you know, let's say you're doubling or tripling the size of the court, 27. It wouldn't be 18 new members immediately, right? It would be four new members. immediately. And then every president after that gets a set number of per term, a set number of appointments. And so it's still responsive to the political process. And with term limits, none of these appointments are permanent. So you can try to game the system. And as a parenthetical, I think part of the thing that perturbs me the most about the current structure of the court is that it can be gamed, right? It can be turned into a thing where you just permanently lock it. And I think part of the thing,

an authority for the duration. And I think that's just corrosive to democracy, which is a system predicated basically on the idea that you can always lose, or rather, no win is permanent, no defeat is permanent, right? And the prospect of permanent victories, if they become possible, is a really distorting thing in a political system, like a democratic system. So eliminating the chance for permanent victories, introducing more randomness into the process, into the structure, I think actually fixes a lot of problems. If you have this 27-member court built over the course of what, like five presidential terms. So first of all, no one knows who's going to have the, be able to really construct it.

But second, at a court that large, you can begin to do, you know, instead of the whole court hearing cases, panels of justices hear cases, randomly selected from amongst the members. And that, again, introduces kind of this element of chance that becomes much harder to game. And I think that's important. Yeah. Wait, so let me, let me pause one sec. So that's, no, so that's, you're literally like speaking our love language, which is like, let's do all of the reforms and to situate this a little bit. Okay, so in terms of the problem to be addressed through these reforms, I think that you kind of touched on all the key issues of it. There is both too much power, vague doctrines that reserve enormous discretion to the court, that these pro-presidency decisions are hugely consequential in what they hand to the president, but also in what they reserve for the court, both as the ultimate. arbiter of the extent of congressional control over the president. But also I do feel like there's this subtle way that the pro-presidency decisions by just announcing that any government actor can stand outside the law, like also implicitly announce that the court stands outside of legal checks. Like they're, you know, it's both and. And that kind of the imperative here is to democratize

the court to limit some of this unchecked power to break up the authority as compared to both the lower courts and the other branches of government, and that there needs to be an approach that has a lot of different components. And we sort of talked about talking about expansion, but I think you're exactly right to say the way to think about expansion is not as a one-off. We're going to put four more justices on the court right now because you need to fix the current court because it will never let anything good stand and because, you know, it's sort of illegitimate in its current constitution because maybe of the appointment of both Gorsuch at the beginning of and bear it at the end of the first Trump term, but that that actually just has to be part of a larger reform conversation.

I mean, I actually think a way, so maybe the Trump one experience is part of the story, but I also think the kind of critical reason that there needs to be expansion at the beginning of rolling in kind of a growing court with term limits is that I just don't know that the court has currently constituted. would permit other kinds of reforms, both to the court itself and other kinds of pro-democracy reforms that are critical to solving some of the most pressing problems with our democracy. Like, I'm just not sure these nine justices would allow that. So I gather, so say you have four justices appointed immediately and then phased in additional appointments, whether it's two or four for each successive presidency, and then also term limits so you don't have a growing court that becomes enormous, although I'm not sure that would be

so bad. Our court is kind of small in comparison to other kind of comparable democracies. And you could do panels of this sort that you were just alluding to. Strict scrutiny is brought to you by three-day blinds. Does listening to what's going on in the world make you want to live in a cave? Same. And three-day blinds can help you build your own little cave in the privacy of your home or office. There's a better way to buy blinds, shades, shutters, and drapery. And it's called three-day blinds. They are the leading manufacturer of high-quality custom window treatments in the United States. And right now, if you use my URL, 3dayblinds.com slash strict, they are running a buy-one, get-1 50% off deal. We can shop for almost anything at home.

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in question, some of these reform proposals have constitutional objections that can be raised to them, right? Term limits is obviously, in some ways, the one that people think is the envious constitutionally. Size is not, right? Like, the Supreme Court is created by the Constitution, but the Constitution says literally not a word about the size of the court. That's just a creature of ordinary statute. So a statute currently sets the size at nine. It could set it at some smaller number or some larger number. it's been six, it's been five, it's been ten, it's now been nine for 150-ish years. But this part of any reform proposal should not be remotely constitutionally suspect. Statute could change the size of the court. So I want to talk in a little bit more detail about that, but actually I said at the beginning,

I wanted to talk about nomenclature and I forgot to come back to that. So I just kind of want to ask if growing the court is part of a reform agenda, like what do you think is the most constructive way to kind of describe that as a court expansion, court packing, expanding, embigening. Like what should we call it? What do you call it when you think about it? Yeah, I mean, I've been calling it court expansion. And I haven't been calling it Supreme Court expansion. I really have been calling it court expansion because the other part of this, for me,

is just a larger expansion in the entire federal judiciary. This is a bit of a hobby horse of mine. But the last major expansion of the whole judiciary was in 1979. The United States had about 220 million people, right? We have a third more people. The U.S. Judicial Conference is always complaining about the fact that there are too many cases. It takes too long for things to make their make its way through the process. Many Americans, they have to wait for years for cases to be heard.

It is, you know, if we have a constitutional right to a speedy trial, the bottlenecks in the current system challenge that right. They make it so that that right isn't really being something that people can expect, especially if they lack resources. So I've been thinking about this as the Supreme Court expansion is actually being subordinate to a larger expansion in the entire federal judiciary for very technocratic reasons. We just need more judges. We need more judges. We need more courts to do more things. Now, on the political level, there's like advantages to this, right? If what you want to do, for example, is dilute the influence of Donald Trump on the federal judiciary, then expanding the size of the judiciary by a third would do it, right?

Expanding, you know, creating new circuits. Several circuits already are enormous. Split them up and make them new circuits. And you can do a thing, right, where you say, well, for every circuit, there has to be two justices associated with it. So that gives you kind of a peg for your overall court expansion, Supreme Court expansion. But the idea here, for political reasons, is actually the state to the public, Like, this isn't, everyone knows this is somewhat about the politics of the court, but this is also about your ability to exercise your rights in the court of law.

Your ability to get a speedy trial, your ability to have a judge here your case. And we need to alleviate the bottlenecks. And so, vastly expanding the number of judges across the board allows us to do that. And, I mean, the funny thing is, is that, like, plenty of people have. thoughts about Supreme Court expansion, not a single person thinks about larger federal judiciary expansion. Like, it's not politically salient anyway. And it might actually be the more significant reform, because as we're experiencing right now, it is the trial courts that have been the most effective institutional barrier to authoritarian consolidation. And I think it's important

recognizing that to bolster the trial courts. The other aspect of this is that I think one of the problems with the Supreme Court is it just doesn't hear enough cases. Like, I think part of the reason why you get the justices sort of, like, musing about their Baroque theories is that they just, like, have too much time on their hands. And so a larger court, more judges on lower courts might mean more churn, more cases with the Supreme Court to handle instead of 60 a year, 120 a year. And that may, I think that would have, I think it would be good. I think it'd be good for the Supreme Court. There's like an idle hands are the devil's play thing argument here. Absolutely. I think it would be good to have them much more focused on kind of ordinary work, ordinary legal work.

Yes, right. That's churning through the system rather than we have- Creating rules for the ages, like as I think they're doing in the immunity case. Which I mean, just, just this is, I feel like this is, you know, obviously we're progressives here. But this really speaks to my own kind of like conservative disposition. It's like, what do you mean rulings for the ages? Like, who do you think you are? Totally.

Right? Like no one elected you. No. You happen to make the right, you make the right friends at the right time. Yes. Like that's why you're there. And so show some humility. They have none. Show some recognition that you are a servant of the public and not some kind of, you know, judicial wizard. It's for the same reason. I'm going to ramble in here. It's for the same reason where I think that their papers should be the property of the United States. It should be released on the end of their term. Like, no hoarding papers, none of this. It's not yours. It belongs to the public. Some kind of, you know, a judicial records act as an appendage to like a big package of Supreme

Court reforms, I think, would be totally appropriate. Yeah, people just might not realize that unlike the Presidential Records Act, which Trump obviously thinks is unconstitutional, but which does set forth the principle that the papers, the official papers of the presidency are the property of the public and that subject to complex statutory regime like go into the national archives and are ultimately accessible to the public in various ways. We don't have that for the courts. Like the justices have complete control over whether they provide their papers, the Library of Congress, or some other place or literally set them a blaze if they choose. Like it's wild. And so, and that that is intolerable. And I think it's right. It is just a

small but really significant example of the kind of hubris that we see on display. Like they think that they cannot be regulated the way other institutional actors can. And they're just officials who serve in government, like so many officials who serve in the executive branch and the legislative branch. And they have, of course, like, distinct kinds of authorities, but they don't view themselves as fundamentally public servants. And that's an enormous problem. And I think that's why at a high level, just reasserting political control over an institution that has attempted to basically like slip the bonds of all political controls in really dangerous ways is critical. And so I do like the idea of court expansion and a package that the court is part of. I wonder whether you worry about packaging it that way about the potential

historical parallels to, you know, in 1937 when FDR famously proposes and then pursues and ultimately doesn't get this court packing plan through Congress, one of the justifications given is that, well, the justices are overworked, and so we need to put more justices on the court. And, like, that was not the justification. The reason that FDR wanted to change the court was because it was striking down critical new deal legislation. And so, and I wonder, I don't, I have such mixed feelings about how to understand that historical episode.

So I guess I guess I'll just, you know, sometimes we think, well, FDR failed. He didn't impact the court. Sometimes we think, well, he ultimately succeeded because he got the court to blink and stop striking down this new deal legislation. But then the counter argument to that counter argument is like maybe it was a failure because ultimately the court was still in control. The court said, all right, we will change course, but we are still the ultimate deciders. We're just going to hand down more defensible decisions. And we didn't fundamentally recalibrate power that shifted it away from the Supreme Court and two elected officials in ways that we are still kind of like seeing the effects of.

So I guess I'm curious, you know, you're a student of history. Like what you make of that historical episode? As far as the politics of it, I think it's important to recognize there that it was somewhat abrupt, right? It was there are several rulings and quick succession that are frustrating the New Deal agenda. And then FDR, who has not run on court expansion, who has not talked much about the Supreme Court, something like, oh, well, they're overworked. And we need to do something about that. It was just an unconvincing rationale for what was clearly a power move.

I think, and the other part of it as well is that, you know, this is has to be understood in terms of FDR's own force of personality, force of will, efforts to sort of consolidate more of government within the executive branch. And for me at least, I think one has to think of court reform not as a way of getting rid of impediments to the presidency, but as a way of dealing with potential impediments to Congress being able to act, right? Congress being able to legislate on behalf of, the people who put them there. And part of my larger vision, you might say, for post-Trump reform, is beginning to reassert the primacy of Congress in leading the government. And that's everything from bolstering Congress's capacity to make policy, bolstering Congress's ability to do investigations, right, sort of decentralizing power within Congress itself. You know, I've read proposals about beginning to think about basically moving the administrative state. into the legislature as a way of getting around current Supreme Court doctrine, but also, again, to bolster Congress's ability to make law and to act. And so for me, court reform is ought to be

considered part of a larger democratization process, not so much executive aggrandizement here. But the other thing, I mentioned the U.S. Judicial Conference earlier because, in fact, they talk about being overworked. Yeah. Like, it actually isn't the case here of Democrats saying, oh, look how hard they're working and they need more. It much more, it's the judges themselves. It's John Roberts himself writing about the barriers to timely judicial work in the current judiciary. So for me, it's just sort of, let's take that serious. Let's take the complaints of the judges themselves seriously and provide them with relief.

And relief necessarily takes the form of just, more people. And there's also, I mean, there are all kind of other reforms you can, that fall under this. So there's, you know, the immigration courts, which are not Article III courts, are right, are rife with problems. You're currently filled with a bunch of people who shouldn't be there adjudicating cases. Make the immigration courts article three courts, right? Sort of like bring them under the auspices of the federal judiciary with the proper confirmation process in the whole nine yard. But there's all this stuff, like just, again, technocratic reform Yeah.

That is clearly needed. And I think you can, I don't know how you think about it. You can either smuggle that into Supreme Court reform or smuggle Supreme Court reform into that. Like, you know, but I do think that the judges themselves are actually providing the rationale for doing this. Yeah. And I think you're right. That's a really important distinction from the kind of FDR episode. And I'm not sure which way the smuggling runs or if it's even smuggling at all.

Like if I think, I think that situating it in a larger. court expansion, federal court expansion that is not just a Supreme Court expansion effort that also has a lot of other components. I think seems both really smart and maybe good politics, but also like good governance and like it's really nice when those things all align. Like, that would be great. It does feel like this is the kind of thing that, again, all of these reforms that we're talking about are creatures of statute. Like none of these are remotely constitutionally questionable. So all this could be done through ordinary legislation. It would maybe mean, probably mean of killing the filibuster and then passing this kind of thing through the ordinary

legislative process. I guess a question I have is some or maybe many components of, say, a big reform package of legislation. I could imagine this Supreme Court perceiving as threats to its authority because that is fundamentally what they would be and finding ways to strike down some or all of a reform package that we might imagine. And I guess how do you think about whether that should inform thinking about how to put together a package? I mean, this is a fundamental problem. This is a court that has not acknowledged checks on its own power and is unlikely to look favorably on efforts to check it afresh.

And yet that is exactly why it's so important that it be checked. So I guess I'm curious how we should think about and game around the possibility. that this court might just try to say no. I don't, that's such a good question. I mean, my immediate inclination is kind of the say, oh, we'll let them, you know? Yeah. If a Democratic Congress, you know, 53 senators, they make a carve out to the filibuster to allow for judicial reform and pass a big judicial reform package.

And it's signed by the president. And then through some convoluted process, I mean, who would even have standing? here, right? Like, but there's some convoluted process, you know, the Supreme Court says, oh, we don't think this is constitutional. Let's have that political battle, you know? I think that that's not a political battle the Supreme Court's going to win. Just, just, just kind of, they don't have the people, right? It's, it's one thing to go after, you know, doctrine to establish by previous courts. It is still another thing. It's one thing even to go after executive actions. It's something very different to begin striking down the duly past acts of Congress,

especially ones done to regulate you. That, I think, would be beyond the pale for many Americans and would expose the court to a much worse backlash than I think it's able to handle. But beyond that, I suppose, you know, in passing the legislation, Congress can just make an explicit constitutional claim, right? Just to say, we are doing this under our authority in Article three. We are doing this in accordance with previous Congresses, whose authority to do that has never been questioned, right? Recognizing that, as you pointed out, Kate, that basically everything about the Supreme Court other than the fact that it exists is structured by statute. Its ability to handle its own docket, its size, its building, it's clerks, it's, you know,

everything is established by statute. That is, that's just how it's been. That's how it's been since the Judiciary Act of 7th and 89, right? And so I think this should be a place for Congress to begin asserting its own Constitution authority explicitly, saying that this is a power we have under every possible reading of a Constitution says that we can do this. Past Congress has done it. Nothing about that has changed. And then you can go in and add this is not judiciable.

Yeah. Yeah, that's right. To strip the court's ability to even decide cases challenging Congress's authority to legislate in the way that it would be doing here. And I also really like that the kind of well, then let's have that political fight response because I think that that seems exactly right. And that that just seems like it should emboldened policymakers, Hill staffers, members of Congress to be ambitious and then and to know that like this has this court has been lawless in some instances and there's no guaranteeing that it would not be lawless here, especially when its own kind of

skin is in the game in this way. And that's not. a reason to trim your sales in terms of what you're trying to achieve legislatively. So I really, really like that. Maybe one last question is, I guess how much do you think, Jamel, candidates for Congress right now in the midterm election cycle, once we're past that, we'll be already probably well into the, or it's going to come fast the next presidential election cycle. How much should candidates for the highest offices be talking about the Supreme Court and court reform right now? I think they should be talking about it a lot, but that's another way to say I think that people like actual voters need to be asking them about it, right?

Like this is voters ask candidates about their plans for health care, about their plans for affording a house, foreign college, all these things. Voters should also be asking candidates about their plan for the Supreme Court, about their plan for the federal judiciary. If a candidate for your house seat, your Senate,

a Senate seat for the presidency, if it's primary season, and they show up in your town to do a town hall or forum, you should be asking them. What is your plan for this? I really think that, I do not think we should have any expectation that candidates for office, unless they themselves already have this ambition, are going to be open about this, we want to talk about it because it smacks of controversy.

And politicians don't like that. So I do think it's up to voters to grill them. It's up for people like us, right? Like if we are in a position to be interviewing candidates, to be speaking to candidates on camera, to ask straight up, what do you think about this? What is your plan for this? Do you support Supreme Court expansion just straight up and kind of force it onto the agenda and make it something that lawmakers have to respond to? If lawmakers get the sense that their voters want this to happen, that changes the calculation. It doesn't mean you get everything that you want, but it does

mean that everyone kind of feels that you have to do something. And that's the first part of winning the battle. Indeed. All right. Well, having these conversations is our effort to do our small part in making that reality. So, Jamel, but we really appreciate you taking the time to talk to me today. Thank you so much for coming on. I thank you so much for having me. Strict scrutiny is a crooked media production. Our show is produced by Melody Raoul and Michael Goldsmith. Music by Eddie Cooper. Our team includes Matt DeGroote, Ben Hethko, Johanah Case, Kenny Moffat, Adam Lippert, and Eric Schute. Our production staff is proudly unionized with the Writers Guild of America East.