WEBVTT X-TIMESTAMP-MAP=MPEGTS:900000,LOCAL:00:00:00.000 00:00:00.900 --> 00:00:06.120 In 1937 President Roosevelt had a problem. A majority on the 00:00:06.120 --> 00:00:10.620 Supreme Court led by these guys. The conservative wing known as 00:00:10.620 --> 00:00:14.250 the Four Horsemen had spent the previous year striking down many 00:00:14.250 --> 00:00:18.330 of the laws passed as part of Roosevelt's New Deal. So FDR 00:00:18.330 --> 00:00:22.680 decided his next reform would be the court itself for each 00:00:22.680 --> 00:00:26.100 justice over the age of 70. And there were I think six of them 00:00:26.100 --> 00:00:29.670 at the time. He would add a new justice to the court. That 00:00:29.670 --> 00:00:33.330 meant he was going to massively transform the court and put on 00:00:33.330 --> 00:00:37.260 loyalists to him. Congress overwhelmingly voted down his 00:00:37.260 --> 00:00:40.260 proposal and no president has tried to increase the number of 00:00:40.260 --> 00:00:44.580 justices on the court since. But what does the constitution say 00:00:45.990 --> 00:00:49.140 when drafting the Constitution. The framers knew the new 00:00:49.140 --> 00:00:52.410 country needed a Supreme Court to weigh in on legal challenges 00:00:52.410 --> 00:00:55.770 to the nation's laws but they didn't know exactly to what extent 00:00:55.800 --> 00:00:58.350 it would provide a constitutional check on Congress and the 00:00:58.350 --> 00:01:02.910 executive branch. In fact it wasn't until 1883 in Marbury vs. 00:01:02.910 --> 00:01:06.000 Madison that the court first ruled a government action 00:01:06.060 --> 00:01:09.450 unconstitutional officially establishing the active judicial 00:01:09.450 --> 00:01:13.290 review. So in the beginning the framers kept the details about 00:01:13.290 --> 00:01:16.560 what the court should look like. Pretty vague Article 2 of the 00:01:16.560 --> 00:01:19.830 Constitution gives the president the power to nominate a justice 00:01:20.070 --> 00:01:23.730 and the Senate the ability to confirm him or her. And Article 3 00:01:23.850 --> 00:01:27.990 which establishes the judiciary says only that justices hold 00:01:27.990 --> 00:01:31.350 their offices during good behavior. We'll get back to what this 00:01:31.350 --> 00:01:35.070 means later and that they get a salary that can't be diminished 00:01:35.070 --> 00:01:38.850 . That's it. They left all the other details up to Congress . 00:01:39.570 --> 00:01:43.380 The size of the Supreme Court is actually up to Congress to 00:01:43.380 --> 00:01:46.830 specify by law that actual number is not in the Constitution . 00:01:47.310 --> 00:01:50.580 Noah Feldman literally wrote the book that law students used to 00:01:50.580 --> 00:01:54.180 learn constitutional law. He says the framers wanted to give 00:01:54.180 --> 00:01:57.630 Congress the flexibility to shape the court in response to the 00:01:57.630 --> 00:02:01.230 needs of a growing nation. The Judiciary Act of 1789 one of the 00:02:01.230 --> 00:02:04.950 first important laws that was passed specified the size of the 00:02:04.950 --> 00:02:07.460 Supreme Court and they actually started with six justices at the 00:02:07.460 --> 00:02:07.710 time . 00:02:08.910 --> 00:02:11.970 From nearly the beginning. Politics played a role in shaping 00:02:11.970 --> 00:02:15.570 the size of the court. During his lame duck session President 00:02:15.570 --> 00:02:18.900 John Adams signed a law bringing the court down to five justices 00:02:18.900 --> 00:02:22.770 . The following year Thomas Jefferson who felt the move was an 00:02:22.770 --> 00:02:26.390 attempt to limit his power signed legislation to reverse Adams 00:02:26.460 --> 00:02:30.120 law before it could go into effect over the next six years . 00:02:30.240 --> 00:02:32.970 Congress largely tied the number of justices on the Supreme 00:02:32.970 --> 00:02:35.760 Court to the number of circuit courts in the rapidly growing 00:02:35.760 --> 00:02:40.410 country. In 1863 with the creation of the Tenth Circuit the 00:02:40.410 --> 00:02:44.310 court got its tenth justice. But in the wake of Abraham 00:02:44.310 --> 00:02:47.460 Lincoln's assassination Congress trimmed the court to seven 00:02:47.460 --> 00:02:51.060 justices to prevent President Andrew Johnson from loading it 00:02:51.060 --> 00:02:54.720 with Southern Democrats. A few years later the new Republican 00:02:54.720 --> 00:02:58.830 president Ulysses S. Grant set the number back to nine under the 00:02:58.830 --> 00:03:04.800 Judiciary Act of 1869. That's where things stood until FDR . 00:03:05.720 --> 00:03:11.250 But we cannot use constitution a destiny where the personal 00:03:11.320 --> 00:03:14.280 judgement of a few men will be . 00:03:15.330 --> 00:03:21.450 The future would deny us the necessary means dealing with the 00:03:21.450 --> 00:03:21.870 present . 00:03:23.190 --> 00:03:25.830 After ISE court packing then ran into two major problems. The 00:03:25.830 --> 00:03:28.950 first was that the sitting justices including the moderate and 00:03:28.950 --> 00:03:31.830 liberal justices were deeply opposed to it because they thought 00:03:31.830 --> 00:03:35.100 it would do legitimate the institution. The second is that lots 00:03:35.100 --> 00:03:38.370 of Democrats especially in the Senate were sensitive to the 00:03:38.370 --> 00:03:41.700 charge that Roosevelt was basically trying to make himself a 00:03:41.700 --> 00:03:44.070 dictator. The Democrats already controlled the House and the 00:03:44.070 --> 00:03:47.250 Senate and they controlled the presidency and they also 00:03:47.250 --> 00:03:49.140 controlled the Supreme Court. There would be no check on his 00:03:49.140 --> 00:03:54.180 power at all. I shall not be a party to breaking down the 00:03:54.180 --> 00:03:58.200 checks and balances of the Constitution. This is more power 00:03:58.650 --> 00:04:02.880 than a good man could run or a bad man should have. Roosevelt's 00:04:02.880 --> 00:04:06.150 plan was defeated in Congress but that doesn't mean his gambit 00:04:06.150 --> 00:04:09.690 was a failure on the next round of challenges to the new deal 00:04:09.720 --> 00:04:12.870 that made it to the court. Justice Owen Roberts left the four 00:04:12.870 --> 00:04:16.350 horsemen and voted with the court's liberal wing. While Roberts 00:04:16.350 --> 00:04:19.859 never explained his change. Some historians speculate he was 00:04:19.860 --> 00:04:24.570 swayed by FDR as attempt. The so-called switch in time that 00:04:24.570 --> 00:04:28.680 saved nine was the ultimate compromise. It kept the Supreme 00:04:28.680 --> 00:04:32.730 Court intact and saved the agenda of an ambitious president. No 00:04:32.730 --> 00:04:36.210 president has tried to change the size of the court since it's 00:04:36.210 --> 00:04:40.800 really really really hard to pack the court. Don't take up a 00:04:40.800 --> 00:04:43.890 plan to do court packing unless you have a lot of confidence 00:04:44.160 --> 00:04:47.640 that you have the votes in advance to get it done. It's just 00:04:47.730 --> 00:04:51.300 extremely hard to do. One big problem with expanding the court 00:04:51.630 --> 00:04:54.390 is that there's nothing stopping the next president and Congress 00:04:54.420 --> 00:04:57.930 from doing the same. Then the next president adds more and the 00:04:57.930 --> 00:05:01.570 next president after that. Before long the Supreme Court starts 00:05:01.570 --> 00:05:04.760 to look like this. Now your honor . 00:05:06.920 --> 00:05:07.580 Sure . 00:05:11.680 --> 00:05:14.830 So what other options do presidents in Congress have to alter 00:05:14.830 --> 00:05:18.370 the makeup of the court. One idea is term limits for justices . 00:05:18.850 --> 00:05:22.660 There's just one problem that line from the Constitution the one 00:05:22.660 --> 00:05:25.750 that says judges shall hold their office during good behavior . 00:05:26.410 --> 00:05:29.410 It doesn't say it directly but good behavior has always been 00:05:29.410 --> 00:05:32.620 interpreted to mean that judges would serve for life unless they 00:05:32.620 --> 00:05:35.800 were impeached. The idea was that a justice should be 00:05:35.800 --> 00:05:39.460 independent and insulated from political pressure. The problem 00:05:39.580 --> 00:05:43.300 is that it's made Supreme Court nominations rare and now they're 00:05:43.300 --> 00:05:47.080 highly politically charged. One proposal gaining traction is to 00:05:47.080 --> 00:05:51.010 create 18 year term limits for Supreme Court justices staggered 00:05:51.010 --> 00:05:54.760 . So a new justice is confirmed every two years. Proponents say 00:05:54.760 --> 00:05:58.120 this could work by giving the retiring justice senior status and 00:05:58.120 --> 00:06:01.630 rotating them to a lower court. In fact three members of 00:06:01.630 --> 00:06:04.630 Congress have introduced legislation that would do just that . 00:06:05.140 --> 00:06:10.180 But Noah Feldman has his doubts. To my mind that represents a 00:06:10.180 --> 00:06:15.760 very problematic and doubtful reading of the Constitution and of 00:06:15.760 --> 00:06:18.760 its intent. It doesn't seem to be consistent with our tradition 00:06:19.060 --> 00:06:22.420 of how we've come to understand Supreme Court tenure . 00:06:23.020 --> 00:06:26.590 Ultimately the best approach might just be the old fashioned one 00:06:26.590 --> 00:06:31.720 . Wait until a seat opens up. It's very hard to use ordinary 00:06:31.720 --> 00:06:35.500 statutory reforms to change an institution that has its roots in 00:06:35.500 --> 00:06:39.130 the constitution. If you ask me is there a mechanism of reform 00:06:39.130 --> 00:06:42.280 that stands out as simple and easy and that wouldn't break the 00:06:42.280 --> 00:06:46.120 institutional capacity of the court. I don't see one at the 00:06:46.120 --> 00:06:46.570 moment .