Kai Wright: Hey, this is Kai. I want to share something that got my mind churning in an expected way recently. We've of course had a lot of conversations on this show about the Supreme Court and its impact on our society. In those conversations, we have often turned to my friend and colleague, Elie Mystal. He's the justice correspondent for The Nation Magazine and author of the book, Allow Me to Retort: A Black Guy's Guide to the Constitution. He is unapologetic about his belief that the Supreme Court has way too much power and has caused way too much harm to just leave that power unchecked.

Elie is an advocate for the kind of big bold reforms that many liberals and certainly many Democratic elected officials have rejected because they feel like they're too much, too fast, too radical. Anyway, Elie has a new podcast. It's called, Contempt of Court. It's aptly named, and in it, he's breaking down some of these bold ideas that he's got for reigning in the court. I want to share a short episode in which Elie goes deep on one of those ideas that he's brought to our show previously which is packing the court with more justices.

Now, court packing is itself controversial, but Elie's version takes the idea and runs to what at first might sound like an absurdist extreme, but when I hear him out, I'm actually caught off guard by how practical the idea is. How it's really kind of just making the court function, how the rest of the judiciary already functions. Enough from me, coming up, I'm going to let Elie make the case himself, and at some point, we'll have him back on Notes from America to dissect this idea further. After the break, Elie Mystal's court-packing plan.

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Elie Mystal: When most people talk about expanding the Supreme Court, they're talking about adding a few justices, two or four to the bench, but I am not those people. I do not think we should add a few justices to get into an endless tit-for-tat with Mitch McConnell and his federal society forces. I think we should blow the lid clear off this incremental institutionalized motherfucker and add 20 justices.

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Elie Mystal: Welcome to Contempt of Court. I am your host, Elie Mystal, justice correspondent for the Nation. Today, I'd like to tell you about my court expansion plan and explain why adding many justices instead of fewer justices is actually a better reform, fixes more underlying problems for the court, and works out to be less partisan or political than some of the more incremental plans out there. Let's start with the basics. Expanding the number of justices on the Supreme Court can be done with a simple act of Congress, passed the Senate, and signed by the president.

Court expansion does not become easier or harder based on the number of justices you seek to add to the court. From a civics perspective, the process to add two justices to the court is just the same as the process to add 20. Arguably, the rationale is the same too. The current plan supported by some Democrats is to add four justices to the Supreme Court. Their arguments are that the court has gotten woefully out of step with the American people and the elected branches of government, which is true. They argue that the country is a lot bigger now than it was in 1869 when Congress set the number of Supreme Court justices at nine, which is also true.

Basically, all of these arguments flow together into the catchphrase, ''We have 13 circuit Courts of Appeal, and so we should have 13 justices.'' See, back in the day, each Supreme Court justice was responsible for one lower circuit Court of Appeal. Procedurally, appeals from the lower circuits are heard first by the justice responsible for that circuit. Now, we have 13 lower circuit Courts of Appeal, meaning some justices have to oversee more than one. If we expanded the court to 13 justices, we'd get back to a 1:1 ratio for Supreme Court justice per circuit Court of Appeal.

It doesn't actually matter how many circuits each justice presides over because all the justices do is move an appeal from the lower court to the Supreme Court for the full court to consider whether to hear the appeal. Their function is purely clerical. It doesn't matter. One justice could oversee all 13 circuits while the other eight went fishing. Kind of like hazing a rookie on a team, and it wouldn't make a damn bit of a difference in terms of the number of cases the Supreme Court hears. It's just a question of who has to work on Saturdays.

Indeed, I'm not even sure that I want the court to hear more cases.

These people are unelected, and as we'll discuss in future episodes, these people already have too much power. More cases just gives them more opportunities to screw things up. I don't need the court to make more decisions, I need the court to make fewer shitty decisions. For that, I need to reform how the court makes those decisions. For that, I need more people, and I need those people to make their decisions in panels. Those lower courts, those 13 circuit Courts of Appeal, almost all of them operate with more than nine judges. The ninth circuit Court of Appeals has, wait for it, 29 judges.

All the lower courts use what's called a panel system. When they catch a case, three judges are chosen at random from all the judges on the circuit to hear the case. Those three judges then issue a ruling. If the majority of the circuit disagrees, they can vote to rehear the case as a full circuit. The legal jargon here's called, en banc, when the full circuit hears the case. Most of the time, that three-judge panel ruling is the final ruling on the issue with the circuit going en banc only when they believe the three-judge panel got it clearly wrong.

Think about how different it would be if our Supreme Court operated on a panel system. Instead of showing up to court knowing that six conservative justices were against you, or one or two conservative justices that you invited onto your superyacht are guaranteed to hear your case, you literally wouldn't know which justices you'd get on your panel. Even on a 6:3 conservative court, you might draw a panel that was 2:1 liberals, or you might draw Roberts, Kavanaugh, and Barrett instead of Thomas, Alito, and Gorsuch which could make a huge difference.

Either way, you wouldn't know which justices you'd get. Not only does that make a big difference in terms of the appearance of fairness, especially in this time when some justices are openly corrupt, it makes a big difference in terms of what kinds of cases and arguments people would bring to the court. Without knowing which justices they'd get, litigants and Red State attorney generals would have to tailor their arguments to a more center-mass mainstream temperament instead of merely shooting their shot and hoping the arch-conservatives can bully a moderate or two to vote with them.

Now, you can do panels with 9 or 13 justices, but you'd pretty much have to do panels with 29 justices. Overloading the court with justices would essentially force them to adopt the random assignment process used by every other court. That would be good. Sure, litigants could always hope for en banc review where the full partisan makeup of the court could be brought to bear, but getting a majority of 29 justices to overrule a panel decision requires 15 votes. Consider that right now, you only need four votes, a minority of the nine-member court to get the full court to hear a case.

I'm no mathlete, but I'm pretty sure that 15 is just a higher bar. That brings me to my next big point about expanding the court to 29, moderation. Most people say that they do not want the court to be too extreme to either side. Generally, I think that argument is bullocks. I, in fact, do want the court to be extreme in its defense of rights, women's rights, and human rights but maybe I'm weird. If you want the Supreme Court to be a more moderate institution, then you should want as many justices on the Supreme Court as possible. Why? Because cobbling together a 15, 14 majority on a 29-member court will often yield a more moderate decision than a 5, 4 majority on a 9-member court.

I'm not going to lie, the law is complicated and judges are quirky. If you invited five judges off the street over for a barbecue, they wouldn't to be able to agree on whether hotdogs and hamburgers count as sandwiches. It's simply easier to get 5 people to do something extreme than it is to get 15 people. Think about your own life. If you want to hike up a damn mountain, that is an activity for you and a couple of your closest friends. You're not taking 15 people to climb a mountain, that's not even a hike, that's an expedition and you're expecting 1 or 2 of them to be eaten by bears on the way to the top.

If you're organizing an outdoor activity for 15 people, you're going to go to the park and your friends will be expected to bring their own beer. Most likely adding 20 justices would moderate the conservative majority just by putting enough people and personalities in the mix, that it would be harder for them to do their most destructive work. Just think about how the five worst senators you know or the five worst congresspeople you can think of, often don't get their way because they can't even convince other members of their party to go along with their nihilist conservative ride.

Note, I said conservative majority. The astute listener will notice that I have not said that I want to add 20 fire-breathing liberal comrades who will stick it to dust capital for the rest of their lives. No, I believe the benefits of this kind of court expansion are so great panels and the moderation from having more justices trying to cobble together en banc majority opinions that I'd be willing to split the new justices 10 in 10 with conservative choices. A 16, 13 conservative court would just be better than a 6, 3 conservative court even if my guys are still in the minority.

The only litmus test I'd have for this plan is that all 20 have to be objectively pro-democratic self-government. All 20 have to think the Supreme Court has too much power. You give me 20 people who think the court should not be rulers in robes and I'll take my chances. However, there is no objective reason for elected Democrats to be as nice and friendly as I am when adding 20 justices. Off the top, seats should be split 11 to 9 because Mitch McConnell and the Republicans must be made to pay for their shenanigans with the Merrick Garland nomination under Barack Obama.

Republicans stole a seat, Democrats should take it back, full stop. I will take no further questions about this. From there, this is where Democrats could, I don't know, engage in political hardball instead of being saps like always. You see, right now Republicans are dead set against court expansion because they are winning with the court as it is. I can make all of the pro-reform good government arguments under the sun and the Republicans will ignore them because, again, they're winning right now.

If you put forward a bill to add 20 seats, the Republican incentives possibly change, obstruct, and the Democrats push through court expansion on their own and add 20 justices of their own choosing and you end up with people like, well, me on the court or Mitch McConnell could release senators to vote for the plan and Republicans can share in the bounty. It puts a different kind of question to McConnell. Join, get 9 conservative justices and keep a 15, 14 conservative majority on the court, or obstruct, create a 23 to 6 liberal majority on the court, and trust that Republicans will take over the House, Senate, and White House so they can add 20 of their own justices in the future.

Note that McConnell will have to run that whole table while overcoming a super-liberal Supreme Court that restores the Voting Rights Act and strikes down Republican gerrymanders. Good luck, Mitch. My plan wins either way. Either we get a 29-person court that is more moderate, we get a 29-person court that is Uber-liberal, or McConnell does run the table and we end up with a 49-person court or a 69-person court. While Republicans are in control of that bloated body, everybody understands that the court is just a political branch, they're to rubber-stamp the acts of the president who appointed them.

Perhaps then, voters would start voting based on who they want to be in control of that court instead of who they want to have a beer with. The court is either fixed or neutered. It's a win-win. I know 20 is a big number. I know we've all been institutionalized to believe that incremental change is the only change possible and I know it sounds fanciful to ask for 20 when the starting offer from the establishment of the Democratic party, the Republican Party, and President Joe Biden is zero. Like a doctor with poor bedside manner, I'm less interested in people's feelings and more interested in fixing the problem.

If you give me two justices or four justices, I can reverse a number of conservative policies that they've shoved through a Supreme Court that has been illegitimately packed with Republican appointees. If you give me a few justices, I can re-establish a center-left pro-democracy majority, at least until those new justices die at the wrong time under the wrong president, but if you give me 20 justices, I can fix the whole fucking thing.

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Next week, I'll stop talking so much and we'll get into the most popular court reform plan out there, term limits. Contempt of Court is an original series from The Nation with support from The New Press. The show was produced by Babette Thomas and executive produced by Ludwig Hurtado. Our original music was made by Ellington Pete.

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Kai: That was Elie Mystal in his new podcast Contempt of Court. I'm Kai Wright and we will have more Notes from America coming up on Sunday. Talk to you then.

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