Tangle - INTERVIEW: The case for 9 justices

Episode Date: January 27, 2023

On today's podcast, we are sitting down with Paul Summers and Steve Rosenthal, two of the men behind the Keep Nine Coalition. Paul is a former Tennessee attorney general and appeals court judge, and Steve is the former attorney general of Virginia. Both men are on a mission to create a constitutional amendment that prescribes the number of Supreme Court justices to nine. Today, we talk about why.The Keep Nine coalition website: https://keepnine.org/Link to transcription: https://www.readtangle.com/You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our podcast is written by Isaac Saul and edited by Zosha Warpeha. Music for the podcast was produced by Diet 75.Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

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From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening. Welcome to the Tangle podcast, the place we get views from across the political spectrum. Some independent thinking without all that hysterical nonsense you find everywhere else. I'm your host, Isaac Saul. And on today's episode, I'm thrilled to be joined by Paul Summers and Steve Rosenthal. Judge Summers is a former Tennessee attorney general and appeals court judge and is the co-chairman of the Keep Nine Coalition. And Steve is a former attorney general of Virginia and also a co-chair of the Keep Nine Coalition. Paul, Steve, thank you guys so much for coming on the show today. I appreciate it.

We appreciate your asking us. Thanks for having us. So there's a lot of meat on the bone here in this conversation. I think, obviously, the Supreme Court has become a really touchy topic in the United States, especially in the last five to 10 years. A lot of different reforms out there, a lot of people calling for changes. I'd love to hear from either of you. Maybe you could just tell us a little bit about how you ended up forming this Keep Nine coalition and what led you guys to sort of getting involved in pushing this amendment and pushing for this, I guess, a lack of reform is what we call it.

About four years ago, 15 former attorneys general, many of whom had argued before the court, converged and they decided that we need to promote a constitutional amendment to set the number of Supreme Court justices at nine. Ironically, the Constitution of 1789 is silent on the number. It can be changed by an act of Congress signed by the president. These 15 former attorneys general were about half and half, half Democrats and half Republicans. It was a completely nonpartisan, bipartisan issue. I got involved, Paul Summers got involved about two years ago when Andy Miller, the former Attorney General of Virginia, along with my friend Steve Rosenthal, who at one time was also the Attorney General of Virginia, called me and asked me, did I want to get involved? And after he sent me the material, I told him, absolutely. That's a good idea. The reason it's so important to set the number is to prevent what

we call court packing. And that is when one political party, whether it be Republicans or whether it be Democrats or another party, gets together and tries to increase or decrease the number of justices so that they will get opinions that they like or that fits their ideology. That is what we call court packing. We don't want that. Our constitutional republic since 1789 has been formulated on three separate and equal branches of government. Article one, the Congress, article two, the president, and article three, the judiciary. The judiciary is completely independent. It should be independent. It should be following the rule of law, that is, that all men and women are created equally and are equal and endowed with certain unalienable rights. And finally, and most importantly, the third branch of government is a checks and balances

of abuse of power by the other two branches. And we need to keep it just like it is for the last 154 years. Steve? I think you've said it all, Paul. The fundamental premise of the organization is we have to maintain the rule of law. Without it, there is no democracy. That is the fundamental underpinning. And we can't do that by allowing a Congress to change the number of justices so they can satisfy what they believe to be the correct posture on any policy. Because what will happen inevitably is that whatever party is in power will then change

the number again to get a majority. And frankly, you can see a reality would be that you may have 30, 31 justices on the Supreme Court after both sides keep increasing the court to maintain a majority. To me, this is pretty simple math. I mean, forget the rule of law, if you want, which is the fundamental premise. But just think about the math. I mean, when one party is dissatisfied, they simply increase the members of the court. And it keeps going back and forth depending on which party is in power. It makes no sense, political, policy, or otherwise. Is there something about the number nine that you guys believe is better than maybe having 15 justices? Or is it just this idea of having Congress expand and contract the number of justices that concerns

you? Or to ask that a different way, if the number had been 15 for the last 100 years, would you be okay with that? Or is there something that you think is more valuable about a smaller court versus a larger court? Well, I would like to quote the late Justice Ruth Bader Ginsburg, who said that nine seems to be a pretty good number. We've had nine for a long time. And I don't think it makes that much difference as to whether it's nine or seven or possibly 11. But what we know is that having a consistent number that cannot change is so imperative and so powerful. We began in 1789 with six, then we had five, then we had six, then we had seven, and then we got up to nine in 1837. Then along came the Civil

War. And the Civil War created a situation where Abraham Lincoln, a Republican, decided that the Dred Scott decision, which was rendered in 1857, was not a good law. And so he increased the number to 10. Then he got assassinated in 1865. His successor, the vice president, was a Democrat. And so then Congress reduced it to seven so that Andrew Johnson couldn't have any appointments. Then Ulysses S. Grant, after the Civil War, was elected. And in 1869, he increased it back to nine. It's been nine ever since. We want a system that we can have credibility in. Judges are not supposed to and do not, believe it or not. Judges don't pay any attention to polls or politics or ideology. They are interested in

the rule of law and the Constitution of the United States, and they're supposed to be there. Politicians, senators, House of Representatives, the president. They run for election either two, four, or six years. They are politicians. They pay attention to polls and politics. Judges are not supposed to do that. That's not their calling. They're supposed to be the checks and balances on abuse of power by the other branches. What do you say? I mean, I'm sure you guys have heard this argument a lot because I know it's certainly a common argument that I've seen is that court packings already happening that, you know, you look at what Mitch McConnell did with the appointment of Merrick Garland and refusing to hold a vote on him and then sort of setting this precedent that it was

the end of a presidency and we should wait. And then Donald Trump's in office and Ruth Bader Ginsburg dies and Senate Republicans rush to appoint her replacement. I mean, from a, I guess there are a lot of liberals out there whose perspective is the kind of dirty tricks and the court packings happening already. I'd be curious how you guys respond to that argument. What do you say when you run into that? Number one, there are elections every two years for Congress, some for senators, some for congressmen and women. If you want to change the policy, get out and vote, number one. Number two, a lot of this has reached its peak because of the overturning of Roe versus Wade. Whether you agree or disagree with that,

what a lot of people I talk to fail to recognize is the watershed decision that Roe versus Wade was in the first place. And that everybody back then could have said the same thing, let's pack the court, we've got to get rid of this. That didn't happen. And it didn't happen because of the respect for the rule of law. You may disagree with the court's decisions, but that doesn't mean you change the court, except through the appointment and advice and consent of the Senate appointed by the president. That has worked, and it has worked beautifully for, as Paul said, what, 154 years. Paul? or as Paul said, what, 154 years. Paul? Yes, I agree 100% with what you said, Steve. Let's talk about two or three Supreme Court cases. Let's go back to, I think it was 1896, Plessy v. Ferguson, which was an opinion that was an 8-1 opinion by the United States Supreme

Court. And in Plessy v. Ferguson, they said that separate but equal is constitutional. Separate but equal is constitutional. Then in 1954, we had another case that came down the track, and that was called Brown v. Board of Education. It was a 9-0 opinion written by Chief Justice Warren Berger. And that opinion said that separate but equal is not constitutional. It's unconstitutional. And that created the equality that we so are revered to today. Let's take another case, Roe versus Wade.

Roe versus Wade, 1973, a 7-2 decision, which basically said that despite what other states had done, they created a federal constitutional right to abortion. In 2022, in Dobbs versus Jackson Medical Hospital, a 5-4 opinion or a 6-3 opinion, depending upon how you look at it, they said that we were wrong in Roe versus Wade. And although we are abolishing abortion at the federal level, we are sending the issue back to the 50 states for them to decide based on the 10th Amendment. Now, that's the kind of Supreme Court, whether you like the Dobbs decision or don't, we want a Supreme Court that doesn't pay any attention to politics or ideology polls or whatever may be happening right there. We want them to analyze the Constitution. That's

all we're trying to do. Our constitutional amendment that we are proposing, and we are a grassroots organization, but fortunately, we've got a Republican House of Representatives member, Dusty Johnson, from South Dakota. He's sponsored in the House. The first time it was sponsored in 2020 was a Democrat, Colin Peterson from Minnesota. So this is a completely bipartisan, nonpartisan group. We want to pass a 13-word amendment that says the Supreme Court of the United States shall be composed of nine justices, just like it has been since 1869. What's the reception been like to the amendment proposal? I imagine there's a good deal of support and opposition probably across party lines,

frankly. I mean, certainly from some Democrats, I imagine you run into opposition. But yeah, how is that looking for you guys? I mean, where do you feel like the momentum is right now? Well, we're trying to educate people, both Democrats and Republicans, on the importance of the non-partisanship of the proposed constitutional amendment. We're trying to get them to understand. Frankly, we're trying to get them to read the Constitution every once in a while to appreciate the fact that we have a third separate and equal branch of government that is a checks and balances on abuse of power that follows the rule of law and that is completely independent of the other two branches. We don't want, as my colleague Stephen just said, we don't want some little grandchild on Thanksgiving Day to come up and ask his or her granddaddy, granddaddy, why do we have 32 members on the United States Supreme Court?

We don't want that. We want to keep it like it's been. We want to keep a third and separate branch of government state? I think you've said it all. You know, the opposition, frankly, I think depends on the most recent decisions of the Supreme Court. And it'll go back and forth. Roe versus Wade, the overturning of Roe versus Wade happened to be probably one of the more momentous decisions. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+.

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for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at FluCellVax.ca. But then again, Roe versus Wade itself was a momentous decision. Plessy versus Ferguson was a momentous decision. The court has stayed at nine justices. the politics out of the court, which you would not have if every four years or every eight years, depending on the party in power, they could add to the court because they don't like a previous decision. You know, when a party is in power, when a party is in the first two branches, Article I and Article II, the legislative and the executive branches, that's called a unified government, a unified government. And that's when they have the opportunity to change the law. They could increase or decrease the number of justices as they saw fit. Interestingly enough, since 1857, we've had a unified government 48 different times.

Of those 48 different times, 23 of those events were, they were Democrat unifications, and 25 of those times, the Republicans have been in power. So it's just as likely as not for either party to, if they don't like an opinion, if they don't agree with an opinion, if they are part of the unification party, they can change the law and they can increase. The last time we had an attempt to pack the court was in 1937. FDR, who was powerful, he was a Democrat. He was powerful. He had won re-election twice. He proposed because he could, because several of his New Deal pieces of legislation didn't manage constitutional muster. He decided that he was going to try to pack the court

and to increase the number from nine to 15. He failed miserably. He failed miserably, and thank goodness he did. But the point is this. It could happen to either party, depending on what's relevant in the news today. We don't want it to be like that. We want to maintain our constitutional republic of checks and balances that we've had since 1789. so i'll i'll show my cards here a little bit and just say that i'm i'm actually on uh on your guy's side about this i've written about this issue in my newsletter a little bit and have criticized the concept of packing or expanding the court for a lot of the reasons that you've brought up here. But one thing I do want to push back on or sort of get your response to is the idea that preventing the expansion or retraction of the court would keep politics out of the court. I think a lot of Americans would say politics are already in the court and in the

process. And, you know, the whole spectacle of placing a justice on the Supreme Court has already been politicized, you know, not just by the actions of the Senate in, you know, delaying votes or pushing people through really quickly, or President Biden coming out and saying he's going to nominate a person of a certain sex or demographic when he has an opportunity with an opening on the court. I mean, I think all of that stuff has contributed to it, but also just the fact that a lot of court watchers, court journalists, a case comes before the Supreme Court today, and they can basically predict what the ruling on the court's going to be based on

the composition of the justices, which to me says we have a pretty good idea of their ideology and, you know, conservative liberal leanings. And we're pretty much very rarely surprised about how the court goes. I'm wondering how you respond to that, because I think that's an argument that kind of resonates with me, despite agreeing with your position here. I don't think many people out there predicted what Chief Justice Roberts would do with Obamacare. I think that was a surprise to a lot of people. But it goes to the point. The court tries to draw the balance that is needed. Now, are there hardliners on the court? Of course there are.

There are hardliners in life. And if you put a human being on the court, it's possible you're going to get a hardliner. But with all the objections and woes about what it's like now from those who oppose this. Can you imagine what it would be like if there were no limits on the number of justices on the court? It's unimaginable if you have 30 or 40 justices on the court. Think about the hardliners on that one. So, I mean, my answer to that is history is important. Non-justices have worked for 154 years, and you can see what a mess it would be if you double, triple, or even quadruple that number simply because you don't like a particular decision or a particular way that the court has been going for a couple of years. And again, I would go back and say, I think Chief Justice Roberts' saving, if you will,

of Obamacare is a perfect example of that. Paul? I couldn't agree with you more. Another way to look at it is this. How many of the opinions that the Supreme Court writes per year, and there are about 150 or so opinions that they write per year, do you hear about in the news? Number one. Number two, they have about seven, a minimum of 7,000 applications for permission to appeal yearly in the United States Supreme Court. They render about 150 opinions. That's less than 2%

of the total number of applications for permission to appeal. Every one of those 150 or so opinions are important to somebody. Some of them make the news. Most of them do not make the news. make the news. Most of them do not make the news. Another concept, too, is, well, we don't ever see a unanimous opinion or a plurality opinion. That's not true. That's not true at all. Since 2008, there have been a minimum of at least 36% of the total of opinions that have been written have been plurality opinion. That's 9-0 or 8-1 or something of that nature. But the point is this, how many times do we get upset by one or two opinions? It's not worth changing the whole system because of one or two opinions that one party, one group of people don't like versus another group of people don't like. I'm curious, you know, aside from expanding the court,

there are a lot of other reform ideas out there. I mean, probably one of the most popular is term limits. I've seen people argue for 18-year term limits on Supreme Court justices. If we're accepting your amendment, let's say you guys get this amendment passed in Congress that locks in nine justices, do you think that there's a need for other reforms to the court? Do you find any other potential reforms to the court as being interesting or worthwhile to explore? We're trying to keep it simple. We're operating on, as I see you smiling, so you probably know what I'm about to say. That's the KISS method. Keep it simple, stupid. We have a 13-word amendment, and that's all we're concentrating on. We're not trying to

embellish it. We're not trying to change it. We have a 13 word amendment that would crystallize the Supreme Court and would make it basically, there would be almost not an impossibility, but close to an impossibility for them to ever change it. It's a firewall against court packing, which is what we do not want to happen in this constitutional republic. Steve? The word other reforms or the phrase other reforms for the Supreme Court, that's not where we are. We're not trying to reform the Supreme Court. We're trying to keep it as it was formed and as it has been formed for a century and a half. We're not advocating for any particular reforms. I mean, the Supreme Court is the Supreme Court.

If folks disagree with policies, that's what the voting booth is for, the elected representatives who agree with your policies. We're not looking at reforms, and we don't view this constitutional amendment as a reform. We view it as putting in place what is already there. I'm curious, given where you guys are at in this process, I know it sounds like you sort of think of this moment as being a moment to kind of educate people about why this is important and what the risks are. Passing a constitutional amendment, as I'm sure you know, I mean, Paul, you seem like quite the history buff. It's not something that happens very often. I'd be curious, how do you guys feel about your odds on getting this through and why

do you feel that way? Well, it's very interesting that you asked that question. You know, in 1789, when they ratified the Constitution, as part of the compromise, 12 amendments were proposed called the Bill of Rights. Those 12 amendments were submitted to the states to be ratified. And two years later, those 10 Bill of Rights were ratified. The final Bill of Rights, the 12th Amendment, which was not ratified in 1791, two years after 1789, it took about 200 years to ever get ratified. And that was a constitutional amendment that basically says that if Congress raises their pay, they can't get paid until the next Congress takes effect. That took 200 years. So I don't think it's going to take us 200 years to get this passed, but every journey starts with its first step. And we right now, this grassroots coalition to preserve the independence of the Supreme Court, right now we have over 200 members of Congress, which basically support or have filed a bill, either co-sponsor or support the bill.

We've got over 1,000 state officials that support the bill. Every journey starts with its first step. We're not giving up. And I'm at that age and stage, and I can't speak for my colleague, Steve, but I'm at that age and stage where I don't get involved in anything anymore, unless it's time well spent. And gentlemen, I think this is time well spent. He's speaking for me. Well, Paul, Steve, I appreciate you guys giving us some of your time today. If people are interested in keeping up with some of your work or they want to get involved somehow, what's the best way for them to do that?

I'm glad you asked me that question. I appreciate it. Our executive director is a man whose name is Roman, R-O-M-A-N, like Roman, Roman Buehler. There's a man whose name is Roman, R-O-M-A-N, like Roman, Roman Buehler. The website is www.keep9, that's spelled out, keep9.org. Our email is leaders at keep9.org. And our phone number, if you want to call and talk to Roman or you want to talk to Steve or want to talk to me, it's 202-255-5000. We welcome any calls. We also have a grassroots virtual call every Wednesday night at nine o'clock Eastern time,

eight o'clock Central time, which you're welcome to get on. But we need your help. We're trying to do the right thing. It's completely nonpartisan and it really makes a difference. All right, Paul, Steve, thank you guys so much for the time. I'll be keeping my eyes on you and as things progress, maybe we'll bring you back on for a call sometime. Thank you so much. Thank you so much, Isaac. Have a good one. You too. See you, Steve. Bye-bye. See you, Paul. Okay, buddy. Bye-bye. See you, Paul. Okay, buddy. Our podcast is written by me, Isaac Saul, and edited by Zosia Warpea. Our script is edited by Sean Brady, Ari Weitzman, and Bailey Saul.

Shout-out to our interns, Audrey Moorhead and Watkins Kelly, and our social media manager, Magdalena Vakova, who created our podcast logo. Music for the podcast was produced by Diet75. For more from Tangle, check out our website at www.tangle.com. We'll be right back. More festive, less frantic. Get deals for every occasion with DoorDash. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+.

The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages 6 months and older, Thank you.