'Favorite tool of TYRANTS!': Rep. Fitzgerald RIPS Democrats over court packing push at House hearing

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[00:00:00]Court packing proposals are really based on an incorrect factual premise, namely that the Roberts Court is relentlessly partisan and consistently reaches conservative outcomes.

[00:00:11]I think it's also instructive that court packing in other countries has become a favorite tool of tyrannies around the world.

[00:00:19]>> 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 will be tempted to disregard court orders. What would that mean for our government as a whole? I know that's a big question.

[00:00:36]>> It would mean the end of the rule of law, plain and simple.

[00:00:40]>> We now proceed to the gentleman from Wisconsin, Mr. Fitzgerald, for 5 minutes.

[00:00:44]>> Thank you, Chairman. Mr. Ross, for the first 80 years of our nation's history, the size of the Supreme Court changed with some regularity.

[00:00:53]Why was that?

[00:00:56]>> Microphone. Microphone.

[00:01:00]>> Pardon. Yeah, the expansion of population. Originally, every the justices were chosen largely on geographical grounds, and every of course every the justices wrote circuits. You know, the justices wore two hats until 1891. You know, they they served as circuit court judges, and they also they served as US Supreme Court justices. And in a smaller nation, you know, with only 4 million people in the 1790 census, you know, there was less need, you know, for a larger court.

[00:01:29]As the country expanded, you know, as the number of circuits expanded, you know, the the number increased, but only to nine. You know, it went from five to nine, maximum of 10, and then only for you know, six years from 1863 to 1869, there were 10. And since 1869, we've had nine. And so, you know, that's a long history, a century and a half with nine members.

[00:01:52]And it's worked very well so far, and you know, in my opinion, you know, ought to be the number.

[00:01:59]>> Well, let me follow up then. So, when 1869 uh when Congress did pass that Judiciary Act, uh why did they set it at nine justices at that point, do you feel?

[00:02:10]>> uh uh uh if the court divided then that would be you know, five to four. If you have 10 then you know, the court could be split.

[00:02:16]You know, if the court splits and you know, the lower court decision stands, uh but uh it's generally better to have a decisive uh decision of the court. So, you know, you know, nine you know, you permits the court to divide you know, one way or the other.

[00:02:31]>> And as been alluded to a couple times, when uh President Roosevelt tried to unsuccessfully in '37 to expand the court to 15 justices, um was there any sound logic to this expansion that the president was using or making, or was it merely an overreaction to uh to a Supreme Court that had repeatedly struck down the the uh New Deal?

[00:02:56]>> Historians are unanimous in uh or virtually unanimous to the I mean, historians are never unanimous in anything, but you know, about as unanimous as they can be uh that the court-packing plan in 1937 was politically motivated. You know, the Supreme Court had struck down a number of significant New Deal statutes in the previous 2 years, uh and uh the Social Security Acts uh and the National Labor Relations Act were coming up for adjudication before the court. Uh you know, these were the signature you know, legislation of the New Deal, uh and uh Roosevelt was understandably worried that the court would strike those down.

[00:03:34]And so, his remedy, you know, was to increase you know, you know, the number of justices to you know, pack the court, you know, so that the uh Social Security Acts, you know, both the old-age pension and the unemployment compensation uh laws and the National Labor Relations Act, which was hugely important at the time of industrial unrest, uh you would be a secure uh and so you know Franklin Roosevelt originally claimed uh that he was doing this because uh the Supreme Court was overworked and the justices were geriatric. Uh you know there were six of them who were over the age of 70.

[00:04:06]That's why he chose six, and one a new justice for every justice who was over the age of 70. Uh but uh the older justices were for the most part quite vigorous, including you know Louis Brandeis. Uh and uh you know Chief Justice Hughes was in you know peak of health you know despite his his age over 70. Uh and uh so that it was so disingenuous uh that uh you know it was uh you know almost uh laughed at. And so Roosevelt about a month after he introduced the plan admitted uh that his motives were frankly you know political.

[00:04:39]You know you by the way uh the then chair of the House Judiciary Committee, uh Hatton Sumners, uh Democrat, uh opposed Roosevelt's plan from the very first step. You know that's why Roosevelt introduced it in the Senate rather than in the House.

[00:04:54]>> Very good. Thank you.

[00:04:56]Uh so there's already this morning there's been some attacks on the Supreme Court um by some of my colleagues on the other side over um well, just as former clerk 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, uh the losing parties will be tempted to disregard court orders. What would that mean for our government as a whole? I know that's a big question.

[00:05:27]>> It would mean the end of the rule of law, plain and simple.

[00:05:31]>> Do you think that uh there are certain uh are there certain parameters to criticizing the court or is that uh unacceptable beyond the first amendment?

[00:05:42]>> I think it's perfectly acceptable to criticize the Supreme Court. People always have. Um presidents from the beginning of our country have lost major cases before the Supreme Court.

[00:05:52]President Jefferson frequently criticized decisions from the Supreme Court. Um I think there's a line between criticizing decisions, criticizing their reasoning, and attacking the legitimacy and the independence of the Supreme Court itself.

[00:06:06]>> Very good. I yield back.

[00:06:08]>> Mr. Shearer.

[00:06:11]>> Good morning uh Chairman Issa, Ranking Member Johnson, Chairman Jordan, Ranking Member Raskin, um and distinguished members of the subcommittee, thank you for this opportunity uh to address recent proposals for packing the US 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.

[00:06:31]Uh in 1983, a well-known Democratic politician uh Senator Joe Biden pointedly referred to Franklin Roosevelt's 1937 attempt at packing the Supreme Court as {quote} a terrible mistake and a boneheaded idea.

[00:06:49]Um so let me offer five reasons uh why that remains true today, in addition to those that have been mentioned by my my esteemed colleagues here on the panel.

[00:06:58]Uh 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.

[00:07:11]Now, uh we've heard already today about uh about a a handful of decision decisions that people on the left don't uh don't like. We've heard about Citizens United, which recognized First Amendment limitations on the government government's ability to curb or regulate political speech. Uh people on the left are also concerned about Dobbs, which we've heard about and and uh and the recent Supreme Court decision in Louisiana versus Calais, which some people claim gutted the Voting Rights Act. Uh but in fact, and I'll 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.

[00:08:02]Another example of that phenomenon and is the 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. And then there there was the Bostock decision, which extended Title VII's protections against non-discrimination to gay and lesbian and transgender people.

[00:08:23]And don't forget the Supreme Court's earlier decision in NFIB versus Sebelius, which upheld the individual mandate uh that was the heart of Obamacare. Each of those decisions was uh was excoriated by by folks on the right. Um uh but and and they were as a political matter and a policy matter, they were big wins for uh for progressives.

[00:08:46]Um and so the claim that the Roberts Court is somehow in the pocket of conservatives or Republicans just doesn't withstand analysis of the facts.

[00:08:57]Um Second, uh current uh proposals rest on an unrealistic predictive judgment about new justices' voting powers. Uh or voting likely voting patterns. In Roe v.

[00:09:11]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 uh in Roe v. Wade came from Justice Byron White, who had been appointed by uh by President Kennedy.

[00:09:27]Um and we've all seen examples of where Supreme Court justices uh vote against the wishes of the president who who appointed them. And so, even adding four more justices to the Supreme Court is by no means any guarantee that it that the shift would that the court would shift more towards a progressive uh priorities.

[00:09:46]Um Third, as has been mentioned, uh court-packing proposals really ignore the incentives of the other side once they regain gain power. Uh if if Democrats have a trifecta in the in the next election and are able to expand the the Supreme Court to 13, uh does anybody think that the the Republicans are going to stand still for that and not do the same thing the next time there's a Republican trifecta? And before long, uh the only venue in Washington, D.C.

[00:10:16]that'll be large enough to accommodate the Supreme Court's uh conferences, their private conferences, will be the new White House Ballroom.

[00:10:24]Um and I don't think that's in anybody's interest.

[00:10:27]Um >> You you're assuming that there will be one.

[00:10:31]>> I'm assuming that. I'm not advocating for it, but I'm assuming it. Uh number four, court-packing proposals distract from the more important work of building political and legislative coalitions. Um and and I think that's illustrated by some of the recent court decisions that we've discussed today. If you look at the Calais 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 uh 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 uh to do what progressives would like and require majority-minority districts, uh my guess is that that decision would come out very differently. Um Dobbs is another example. Uh 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 once did.

[00:11:38]Um number five uh we other panels 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 ballast or a counterweight to to the other branches of the government. They can correct the the mistakes that the other branches occasionally make. I think it's also instructive that court-packing uh in other countries has become a favorite tool of tyrannies around the world like Robert Mugabe in Zimbabwe, um Victor Orban in uh in in Hungary, and Hugo Chavez in Venezuela. And so there are many reasons to reject the the current court-packing proposals. Thank you.