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John Donvan:

The number nine. It’s a number that represents tremendous power in American law. Nine Supreme Court justices inhabit the highest court in the land. It’s been that way since the days of Ulysses S. Grant, but does it have to be? The Constitution is actually silent on just how many justices there should be. And certainly, since Grant, there have been efforts to add more. Now, advocates on the left are eyeing the bench once again for a possible expansion. They see the Supreme Court as it stands as partisan and out of touch. Those opposed say expansion would prove catastrophic and cast into doubt the court’s very legitimacy. So, in light of the emerging divide, we asked this question. Should we expand the Supreme Court?

Hi, everybody. I’m John Donvan. And yes, that is the debate we are here for today. It is not the first time that court expansion has become part of our political discourse.

Back in 1937, as many of us know, President Roosevelt tried to add a number of justices to support his New Deal program. Congress had to approve that expansion, and Congress did not approve that expansion. But the debate is back now; President Biden has appointed a commission to look at various ways to reform the court, and adding justices, giving us more than the nine we have grown used to, is very much in focus. Given that, we have decided to debate the merits, or not, of adding to the nine. We are doing this in partnership with the Newt and Jo Minow Debate Series at Northwestern Pritzker School of Law. In fact, we would like to welcome the legendary Newt Minow to join us on screen.

Newton Minow:

Welcome to the 2021 Debates at Northwestern Law School with our partner, who runs the best debates in the country. And we’re very glad that you’re able to join us for this important subject, which is the future of the Supreme Court, and whether we should enlarge its membership.

This is a grave, significant issue of great importance to our democracy and our civilization. And we’re eager to hear our debaters. I’m very proud to tell you that three Northwestern law schools alums recreated the presidential debates about 50 years ago. And this is a university that treasures debate, having won more intercollegiate debate tournaments than any other university in the country, we love to debate. And we love this issue. And we welcome you and hope you’ll enjoy and learn from this discussion we’re about to see.

John Donvan:

Newt Minow, thank you so very much. It’s such a pleasure to have you as part of the Intelligence Squared family and to be partnering with you in these debates. And this is Intelligence Squared.

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Okay, everybody, you have a duty to perform here. And that is to be judging the quality of the arguments you hear, telling us which side you feel argued the best; we’re going to ask you to cast a vote on our motion, we should expand the Supreme Court before you’ve even heard the arguments. And then to cast a second vote after you have heard what everyone has to say. And at Intelligence Squared, we name as the winner, the team whose numbers go up the most in percentage point terms between the first and the second vote. The first vote, it’s right now. Here’s what we would like you to do: go to the tab located on the right of your screen that says voting, click on it, and then scroll downward.

The other way to do this is go to iq2vote.org in a browser, iq2vote.org in any web browser on your phone, laptop, however. Either way, you’re going to be getting to a multiple-choice field where you are asked to tell us whether you are for, against, or undecided on the statement, we should expand the Supreme Court. So, one more time, it’s the voting tab, or it’s go to iq2vote.org on a browser. One more thing, we’re going to be keeping this vote open to a broader audience for a week, essentially to let many, many more people hear the arguments and also weigh in on which side they feel argued the best.

All right back again, and it is time to meet our debaters.

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Arguing for the motion we should expand the Supreme Court is Dahlia Lithwick, one of the nation’s most prominent progressive legal commentators and Supreme Court analysts. Her partner, Tamara Brummer, a labor activist and now Director of National Outreach for Demand Justice, one of the leading organizations advocating for court expansion and reform.

Opposing them, Akhil Reed Amar, a constitutional scholar, law professor, and author. He has been cited by Supreme Court justices in more than 40 cases, making him one of the most cited scholars of his generation. His partner, Carter Phillips, is one of the most experienced Supreme Court and appellate lawyers in the country. This debate is conducted in partnership with the Newt and Jo Minow Debate Series at Northwestern Pritzker School of Law.

All right, so here we all are on the screen to get this debate going. I want to thank our four debaters for joining us for this Intelligence Squared U.S. debate. Thanks, everybody, for joining us.

Carter G. Phillips:

It’s great to be here.

Tamara Brummer:

And thank you.

Dahlia Lithwick:

Thanks.

John Donvan:

Okay, now we move on to round one, and round one is comprised of opening statements from each debater in turn. These statements will be four minutes each. Our motion once again is we should expand the Supreme Court. And here to speak first in support of the motion is Tamara Brummer. Tamara, the screen is all yours.

Tamara Brummer:

Thank you so much, John.

And thank you to all my colleagues on the panel today.

So, our democracy is crumbling. And the Supreme Court is the tool of choice for dismantling it. To save our democracy, we must fix our broken Supreme Court by adding seats. I’m not an Ivy League-educated lawyer who dreamed of becoming a Supreme Court clerk. I’m not a constitutional law professor at an elite university, nor am I a reporter who has special access to oral arguments. By training, I’m a labor organizer.

Organizing workers across the country, I’ve learned that if someone with more power than you are telling you to trust the system and keep your head down, they’re probably doing well under the status quo, and you’re probably being screwed. It’s increasingly the story of bosses and workers, thanks to decisions by the Republican majority on the Supreme Court. And today, it’s also the story of the Supreme Court in millions of Americans.

Let’s start with how we got here. Building on decades of work, the Republican party has created an illegitimate six-three supermajority on the court. First, Mitch McConnell and Republicans blocked President Obama’s nomination of Merrick Garland. When Trump’s nominee, Neil Gorsuch, proved too extreme to gain enough votes, Republicans changed the Senate rules to jam through his confirmation anyway. Then they rushed through Brett Kavanaugh despite credible allegations of sexual assault; then, they confirm Amy Coney Barrett in the middle of a presidential election breaking their own precedent.

The Republican supermajority on Supreme Court isn’t only stolen and illegitimate, it’s actively harmful to our rights and our democracy. So, while 79 percent of Americans support the constitutional right to have an abortion, the Supreme Court allowed a Texas law that effectively ended Roe v. Wade, in the state, and has been nearly 90 percent of all abortions there.

A majority of Americans believe in expanding access to the ballot, but the Supreme Court has gutted the Voting Rights Act, and year after year, continues to assault on protections for voters, especially people of color.

We need to expand the Supreme Court because Mitch McConnell’s theft of the court’s majority cannot stand. And we need to do it now because the rights and democracy of millions of Americans are at risk if we do not act quickly. Mitch McConnell stole a Supreme Court majority because he thought he could get away with it. And right now, it looks like he’s right. I expect you will hear from the other side today about the risk of expanding the court. Those are important questions, and I look forward to addressing them. But the cost of inaction is a message to Republicans that they can cheat and steal without ever facing any consequences. Inaction already has allowed Republicans to expand their stolen majority to an illegitimate supermajority.

And it’s the Supreme Court that year after year is making it easier and easier for Donald Trump’s Republican party to entrench minority rule with voter suppression and partisan gerrymandering.

There is no question the Supreme Court is working just fine for the people closest to it, the justices, the elite lawyers, and the law professors who win prestige by their proximity to the court. But in a democracy, the Supreme Court isn’t supposed to work for a legal aristocracy, it’s supposed to work for everyone. Far too often, when people like you and me say the Supreme Court is broken, the so-called experts, these lawyers, the law professors, the journalists, and even the justices themselves, tell us to trust the system. So, when the justices gut decades-old protections for voters of color in the south, trust the system. When the justices kill a law that tries to keep billionaires from buying elections, trust the system, y’all. When time and time again they side with corporations over workers, trust the system.

But here’s the deal: the system I trust is democracy. And our Constitution sets up a clear way for the people’s elected representatives in Congress to act to address this crisis by changing the number of seats on the Supreme Court, as it has multiple times throughout history, and to restore balance.

So, again, vote yes to expand the Supreme Court.

John Donvan:

Thank you, Tamara Brummer. Our next speaker will be speaking against the motion. Akhil Reed Amar, the floor is yours.

Akhil Reed Amar:

Thanks so much.

So, the fundamental problem is not a constitutional problem. The number nine doesn’t appear in the document. We haven’t always had nine justices. And the size of the court has changed over the years for various reasons. So, we could do it. But it would be a bad idea because when you change the size of the court for purely partisan advantage, then what goes around comes around, and when the other side comes in is going to try to add.

You add 6, they add 12, then you add 18, and the thing spirals out of control. And that’s just an obvious argument. I’m sure it’s occurred to all of you.

So, how do we think about that? So, first, let me introduce myself since my esteemed colleague talked about her background. I’m a Democrat; I fiercely opposed Donald Trump’s election. I also don’t think that the system can never be improved in any way. Some of you may have heard of the national popular vote interstate compact, a way of getting direct election of the presidency without a constitution amendment. I’m the co-inventor of that. Some of you may be opposed to the filibuster, I am. I’m actually the architect, the father of the so-called nuclear option. And by the way, we democrats did it first, before Mitch McConnell did it for the Supreme Court; we did it and rightly so for the court of appeals judges.

I do believe that the Supreme Court can be improved in its structure. And eight — an idea of justice is serving basically on the front bench for 18 years and then doing a relaxed service thereafter, I think is actually the sweet spot of constitutional reform, I think it could actually get the support of Republicans and Democrats; it won’t unravel. I testified about this before the Biden commission, and I think that’s actually a much more realistic possibility than adding a lot of seats in a way that will cause the system to unravel. And actually, 18 years works particularly well with 9.

So, the argument on the other side is basically that desperate times call for desperate measures, but we’re not in desperate times because it’s actually not true that the Supreme Court is broken, illegitimate basis of that there’s been cheating and stealing going on.

If there were, then maybe you should do something absolutely desperate, although beware my friends, you can make the system worse rather than better, you know. Change isn’t always for good, as anyone who saw four years of Donald Trump should recognize.

I’m one of Merrick Garland’s closer friends in the world. If you go to his office, you’ll actually see copies of my book in his library, and both of his daughters were actually my students. I wanted him confirmed, but that wasn’t stolen. We, democrats, didn’t control the Senate, and you need both the president and the Senate to get stuff through. And we thought we were going to win the presidency in 2016, and if we had then Merrick Garland would have been confirmed. So, this — Mitch McConnell did modify the filibuster rules for Neil Gorsuch. That’s because we Democrats did it first for the D.C. circuit and I’m glad we did.

So, don’t believe, it’s simply not true, as a matter of constitutional law, that the system was rigged or stolen, that there was cheating going on, it’s broken.

And you could make it worse by doing this. I think you will; I think it will spiral out of control, and the one branch of government that is the least dysfunctional right now, less dysfunction than the presidency, less dysfunctional than the House and the Senate, is the judiciary, the Supreme Court. So, don’t mess it up, because you could break it, and will break it if we spiral out of control, as I fear we would with this proposal, which is why almost no serious Democrat, truthfully, on the commission, or in Congress, that mainstream Democrats are not supporting this measure.

John Donvan:

Thank you. Thank you very much, Akhil Amar.

So, you’ve heard the first two opening statements. And next up on the screen, making a statement in support of the motion to expand the Supreme Court, here is Dahlia Lithwick. Dahlia, the screen is yours.

Dahlia Lithwick:

Thank you so much, John, and to my esteemed co-panelists. This is like watching The Harlem Globetrotters, and it’s just a thrill to be here.

You know, as I started to prep for this debate, it occurred to me that, in fact, the Supreme Court was doing the bulk of the work for me in the last couple of weeks. You know, you’ve just heard my opponent suggests that we are not currently in desperate times. I just want to flag for those of you who are not watching the court tick-tock the way we are, that just in the last few weeks, the court reinstated a very controversial Remain in Mexico policy, made constitutionally permissible abortion impossible to achieve for 90 percent of the pregnant people in Texas. All of that was done on its shadow docket. The courts have been happy on the shadow docket to set aside an eviction moratorium. Happy on its shadow docket to change COVID restrictions.

This is all being done unsigned. We don’t quite know what the law is. And this has been done while Justices Barrett and Breyer are taking to the hustings.

They’re spending their time telling us how to think about the Supreme Court, instructing us, as Justice Barrett did just very recently, sitting next to Mitch McConnell, that justices are apolitical, and we need to think about them that way. And, by the way, slagging the press, as she did so, this all feels to me like something of a crisis. And I guess I slightly, slightly push back on the notion we’re not in desperate times. I think the court has done an immense amount of mischief, in secret, and silently, unexplained and unjustified, and at the same time, are stomping around and telling us that we should treat them as though they’re magic. So, in my view, the case sort of made itself this summer.

I could sit down now, but I just want to add two quick, quick observations to those really trenchant points raised by my colleague. And the first is, and I think she flicked at this, but I want to say it really explicitly, the Supreme Court is, in essence, at this moment, a privilege machine.

It is people with jurists who went largely to one of two law schools; all of them came up through a very, very narrow system of how they were selected and what their prior job experience was. Amazingly, it’s staffed by law clerks who are deeply connected to prominent lawyers, professors, oral advocates, and the justices themselves; everyone in the family is bound up with the family.

And I want to just pause to say I have inordinate respect for the institution of the court. I’ve been covering it for 20 years; I have, as my colleague tweaked me slightly, had access to the justices, to the cocktail parties. I’ve seen the magic happen with all the jazz hands that come with it. And I am here to tell you that despite my immense respect for the court, it is absolutely not the case that the court looks like or responds to the exigent lives of Americans today.

And so, I just want to echo my partner; it cannot be the case that the only people entitled to have strong opinions on this matter are the people who have a vested interest in preserving the status quo.

The second point I want to make, and this is really essential, is that I believe that at this moment in time, the court is actually a democracy breaking machine. That we have seen the rise of authoritarianism, we have seen the rise of Republican state legislatures arrogating power to themselves, arrogating now the power to set aside election results, to change the way we count ballots. So much of this has been blessed by the Supreme Court, so much of it, from Brnovich to Shelby County, has been explicitly permitted.

And so, when you ask yourself whether you want to vote with us or vote with our opposition, I would just suggest that whether we are in desperate times is in the eye of the beholder.

And in my eyes, what the court has wrought and is poised to wreak upon democracy itself, is not something that can wait for commissions, and long, long discursions by very smart people who may or may not be impacted by the consequences. Thank you so much.

John Donvan:

Thank you, Dahlia Lithwick. Our final opening statement comes from Carter Phillips. Carter, it’s your turn.

Carter G. Phillips:

Thank you, John. I appreciate it. It’s wonderful to be on this panel.

As I suppose one of those who’ve been privileged up to this point in my life, I will plead guilty [laughs] to some fondness for how the court has operated in the past and at least some sense that there is something to be said for a structure that has been in place since 1869, and therefore, obviously, it would take at least a pretty clear piece of evidence that that system is fundamentally broken, if you’re going to make a very significant change in how the court operates.

And I don’t dispute what either Dahlia or Tamara have said about the problems that have arisen with the court, some decisions that people disagree with, the shadow docket, the fact that Judge Garland did not end up on the Supreme Court. But those are not problems that are created by the number nine. Those are problems that are created because the Senate operated the way the Senate did. You can agree or disagree with it. But those are rules that apply across the board. The shadow docket is something that can be dealt with by Congress; it can force the court to go through a different procedure, it can limit the authority of the court to act in a particular way if it chooses to do so.

It seems to me that the problems that you identify are not problems that necessarily get fixed by simply adding four new justices. I don’t know what the argument is for doing that other than you don’t like particular decisions.

The downside, of course, of changing it to 13 justices is, at least as a practical matter, that’s a very fundamental change in the dynamic of how that institution would operate. It’s never had that many individuals on the court. It’s candidly difficult enough, as somebody who once upon a time, clerked at that court and knows what it takes to get to five. And now you have to get to seven? And after you lose power in the next election, and the Republicans come back and add two more, to get to nine? You are talking about an extraordinarily complicated process.

If we were sitting in a situation where the court was up against it in terms of being able to do the work, you might say, well, then let’s bring in more bodies in order to achieve that. That’s not the problem. Or it’s only deciding 70 cases this term, compared to 155 to 160, 40 years ago, when I was clerking.

And so, there’s no real argument for increasing the numbers. What there are arguments about are for fixing problems directly, if there are, in fact, problems. But adding four extra justices is not something that’s going to move you in that direction. And so, what I would urge the audience to realize is packing the court wasn’t right in the 1930s, packing the court is not right today. There are other solutions. I don’t have any problem with term limits. I don’t have any problem with other approaches to trying to rein in a court if people are concerned about it. You can even play with the court’s jurisdiction to some extent. But I don’t think the answer is ever going to be just adding more bodies because that’s a never-ending cycle. You can’t stop that once you go down that path. Because you can’t, at least without a constitutional amendment, you’re not going to be able to start going bodies off that court, given that they have life tenure.

So, it’s a one-way ratchet. It’s not the right answer to this problem; you should vote no against the resolution.

John Donvan:

Thank you very much, Carter Phillips.

And that concludes round one of this Intelligence Squared U.S. debate. Now, we move on to round two, and round two is a conversation among the four debaters. They can address questions to one another, but they’ll also be taking questions from me. They can even break in on each other if it feels like the right thing to do.

But I want to just observe what I heard in the opening statements, as Dahlia put it, and this is true in a lot of the debates we do, we have a sort of eyes-of-the-beholder situation. So, the two debaters who are arguing that we should expand the Supreme Court are making a very strong case that the current court, and we’re really talking about the current court, not the institution as existed since it’s had nine justices, since the middle of the 19th century, but right now, 2021, the current court is a danger to democracy, that it is breaking democracy, that the redress to that is to change the composition by adding people primarily because of the kinds of decisions, interactions, and some suggestions of internecine behavior that this court is undertaking at the present day.

And that that’s an emergency and that that’s the quickest way to address the situation where the court is making these decisions that they say are threatening to the democracy.

Their opponents are saying, there is really no emergency, that no rules really were broken, that expanding the number nine would have unintended, but somewhat predictably negative consequences, such as starting a tit for tat race of expanding the court every time a new party takes over the White House and the Congress, and are also making the case that it would interfere with the dynamics of the court that had worked for more than a century and it would take a long time to figure that out, and that that’s not the institution that needs to be looked at in terms of who gets to be selected for the court. So, there’s a lot to talk about there.

But I want to go back to you, Tamara, and ask you since your opponents are making the case that your dissatisfaction, they seem to be saying, is essentially a partisan dissatisfaction, you don’t like the decisions coming out of the court.

You don’t want any more of those types of decisions to be coming, so you want to add four justices. And my question is, I just want to make sure I’m not presuming, you would want to add four justices who would be likely to vote the other way. So, you’re looking to add votes for the policies that you would prefer. Am I correct about that?

Tamara Brummer:

Well, I want to — I thank you for that question. I would back up a little bit and say that the point is that about we don’t like the decisions that are coming out. It’s not about a partisan line. What I believe in is that the decisions that are coming out are a problem and are dismantling our democracy. And I think that that goes across party lines, a Democrat, Republican, Libertarian, whatever, that you believe in the foundations of our democracy; the cases that the Supreme Court has decided on, the decisions that have come out, have dismantled these tools that have made our democracy more robust.

So, what we need to do is be able to add back those tools, and this current court in this configuration cannot do that.

John Donvan:

So, let me circle back to the question. But do you want to add votes? I’m talking about justices in this case as being votes. And —

Tamara Brummer:

Yes.

John Donvan:

— maybe that’s a little bit too crude, but —

Tamara Brummer:

[laughs].

John Donvan:

— votes for a decision, one way or the other, you would want to add votes that would not have allowed, for example, Citizens United or, or the recent decision that was made or non-decision that was made in regard to the Texas abortion bill. You would want to have counters to the justices who voted?

Tamara Brummer:

We want balance, it’s about balance to the seats. Right? So, I understand this thing about we want votes, right, there’s this court now, it has a supermajority, and it has a certain amount of votes. This is really about bringing back balance, because the cases that we’re seeing that are being decided that are ones that are chipping away at our democracy are coming across partisan lines. Right?

And so, if that’s how we appoint people to the court, then we need to make sure that the court is rebalanced so that we can have a fair shot and have a fair discussion about the issues that are facing our democracy, and this current configuration doesn’t allow for that.

John Donvan:

Okay, normally, I’d go to the other side for an immediate response, but first I want to go to Dahlia and flesh out just one more part of your position that I think would be interesting to people who are watching the debate. Which is what is the profile of the four justices that you would want to add? What do we know about them? What would you want them to be?

Dahlia Lithwick:

If I could just front-load your question with an answer to a question that I think is buried in there? And I know, that’s the most like, this is —

John Donvan:

I’m not sure what the question is, but I do want to hear it. So, go for it.

Dahlia Lithwick:

No, the first thing Carter and Professor Amar will tell you, the first thing you learn in law school is don’t fight the hypothetical, and I’m about to fight it. But I think I just want to slightly shift your question and say this; we’re positing what Tamara and I are suggesting as though court-packing would be a thing that would begin tomorrow.

And what I want to be really clear about, and I think it was embedded in what both of us said in our openings, is that court packing, the shift in the structure of the court, the expansion and contraction of the court, happened in 2016, when a seat was held open for almost a year. It happened again in 2020, when a justice was rushed onto the court in violation of the Senate’s own new rule about not seating someone in a presidential election. So, the idea that we want to do a new thing that has never been done before or not been done since the New Deal, I think, is actually kind of predicated on a false assumption. I think we have to start with the assumption that the side of the size of the court, as Akhil said earlier, has never been sacrosanct. It’s changed multiple times in history; it’s been 6, it’s been 10.

But that what we’re not asking for is for four liberal votes to do away with Citizens United or to reverse Brnovich. What we, I think, are saying is that there was a lengthy period of time when the Supreme Court did not have nine justices, it had eight and a very lengthy — a very truncated period of time when it might have had eight but suddenly had nine while voting had started in the election. So, this isn’t about — with all due respect to Carter, you know, we don’t like certain outcomes. This is a court that has functionally been packed. It’s been packed for years. And now the question is, I think how we would reframe it, is unpacking it, and unpacking it requires balance. It doesn’t require a profile. I’m not asking for four Elena Kagan’s, although that might be fun. It would certainly mean great writing. But what I am saying is the presumption that what had happened since 2016, when Justice Scalia died, wasn’t court packing, I think, sets this off on a really, very false basis.

John Donvan:

Okay, well, I did hear you say that you don’t want to just appoint four liberal justices, and I hear what you’re saying is that what you’re trying to do is redress what you consider a sort of already terribly distorted series of actions that have resulted in the court we have now, that’s where the emergency is. Okay, your two opponents have been very patient in my letting your side have two turns in a row. So, I want to go to Akhil, to let you to respond to some of — let him respond to some of what you’re saying.

Akhil Reed Amar:

So, let’s talk Turkey. This will not happen. And I’ll give you four-to-one odds if you want to take a vote, make a bet. No mainstream democrat, who matters, from Joe Biden to any of the almost none of the Democratic senators is in favor of this. None of the Republican senators is in favor of this. So, since it was mentioned, you know, about in the eye of the beholder. What we’re getting is actually a very radical and extreme view.

And you’re not going — and even if it passed, somehow, Joe Manchin is the swing voter in the Senate, he’s not going to confirm the kind of folks that you would want to undo all this stuff. So, it’s just, let’s be honest, this is pie in the sky craziness, truthfully, for being, if we’re talking Turkey, just about whether you’re going to get what you want, which is —

John Donvan:

Well, Akhil, let me break in for a moment because at Intelligence Squared, we tend to set aside arguments that rely on this is what the public wants, or this is what might happen when we’re actually trying to look at the principle of the argument that is being that’s being made. And you got to it at the very end of your comment, after you’re talking about Joe Manchin, that it’s, you know, you’re calling it crazy as to be radically extreme. So —

Akhil Reed Amar:

Right, and there are — look, because I believe in democracy, and I actually believe that there’s often truth in the middle, and this isn’t in the middle. And that’s actually information and evidence about America and the system and where we are today.

Here’s more evidence about the system. No State supreme court has 13, or 17, or 29, or 137, which is what we’re going to end up with if it spirals out of control. Even if you thought the times were desperate, the question is whether this actually improves the system or makes it worse; we believe, on our side, it makes it worse. And in fact, we think that there’s a better way, both Carter and I, of fixed the thing, which would be 18 years, which actually is key to the number 9, and once you move off of 9, there’s a relationship between 18 years and 9 justices. There would be a new person every two years but makes it worse.

John Donvan:

You are brushing aside sort of the core of the argument they’re making by just saying that it’s crazy. And I —

Akhil Reed Amar:

Because it is crazy.

John Donvan:

And I respect that that’s your opinion.

Akhil Reed Amar:

That’s what I actually believe.

John Donvan:

I totally respect that you believe that. I totally respect that you believe that.

But what we like to do in these debates is actually to explore the merits of the ideas that are put on before we label them crazy. And so, you’re saying that these are not desperate times; your opponents are saying this really is different and a desperate time.

And Carter, you haven’t had a crack at that yet, but I want to ask you, again, before we get on to solutions, and the number 18, et cetera, just to look at the merits of the arguments. Because I thought I heard you saying, you know what, the system isn’t broken, the system worked, it had outcomes that certain people don’t like, but the solution is to win elections, as opposed to recompose the court. So, I just wanted you to respond to the desperate times argument, that there’s something about this court that represents an emergency, and a kind of packing already.

Carter G. Phillips:

Right, John. So, there are two things about this, first of all. Okay? I mean, I know that from Dahlia’s perspective, as a media person, you know, the focus is going to be on a handful of cases.

And I understand that, but the reality is, the Supreme Court doesn’t decide just a handful of cases; it decides, on a good day, and good years, 80-90 cases, of which Dahlia doesn’t care about at least 85 of them. And it does an extraordinarily good job. And if you start to play with the system, as it operates today, it will do a less effective job at the run-of-the-mill kinds of cases. So, that’s one. That’s the downside of that particular solution.

But two, even with respect to the point of it being broken, you know, it’s a snapshot in time. I’m not saying that there aren’t ways to improve it. But you’re making a fundamental change in the institution. And you’re going to have to show me more than that, ultimately, you’re not — you’re just — that there’s more there than that you’re just dissatisfied with a few outcomes in a few cases.

You know, the truth is the court has historically been anti-democratic. That’s actually been a very good thing.

And so, I don’t think trying to make it more democratic — and that’s with a little D — is going to help it in terms of its overall mission and the role that it has to play. At the end of the day, we’re going to have to live with the fact that elections count. And if the wrong people get elected, and they want to manipulate the court to some extent, they’re going to have the opportunity to do that.

The solution to that is, over time, obviously, political winds change, and there’s a focus there as well. But even more fundamentally than that, the issues that are important will change. And what you really want are the nine of the best people you can get to analyze these legal issues. I’m not saying that the background of these nine necessarily makes them the best for that —

John Donvan:

Yeah. All right —

Carter G. Phillips:

— has historically had a broader —

John Donvan:

Tamara, you look like you’re trying to jump in there, so why don’t you go forth?

Carter G. Phillips:

— [unintelligible].

Tamara Brummer:

No, I think — thank you, Carter.

My question would be, it’s like you made the statement that elections matter. But we’re seeing that the Supreme Court is chipping away at our ability to even vote in said elections. We’re seeing that in gerrymandering; we’re seeing that in the pay to play in our politics. Elections do matter for all of us. But the way the Supreme Court is acting right now, that it means that only a few of us get to participate in these elections. So, then a handful of us get to vote, then that handful gets to decide the Supreme Court and everything else in our country. So, there’s this like, small minority, that holds a lot of the power that gets to dictate all these things because elections do matter, but you don’t let everyone vote. So, my question is — so then with that, then the question becomes some cases the Supreme Court gets wrong and some cases they, quote-unquote, “Get right.” How do we weigh the cases that they get wrong that had the most impact on most of us?

Carter G. Phillips:

Well, if I were — I mean, obviously, the issues that have the most impact, or at least get the most publicity, obviously, are worth focusing on. I don’t dispute that.

But the problem to me is most of those are still fixable by Congress.

Tamara Brummer:

But the question becomes — that’s very true, we’ll pass another Voting Rights Act, right. We’ve watched this court strip away the Voting Rights Act; they gave black people the full franchise to vote. So, democracy is new in our country relatively for most of us. You’ve then just said the Supreme Court has said that that’s not an issue anymore. But we’re seeing actively that states across the country are implementing anti-voter laws right now. And our — then we’re supposed to go back to the same Supreme Court and be like, hey, hey, hey, let’s start over again. That’s the question that we’re up against.

Carter G. Phillips:

No, I think the question is — well, one of the questions is going to be which is the better institution to sort out these issues? Is it the Congress, or is it the court? And I think the court would probably say, look, if Congress wants to step in and exercise its Section 5, Article — 14th Amendment —

Tamara Brummer:

I don’t —

Carter G. Phillips:

— powers —

Tamara Brummer:

I think that’s fair.

Carter G. Phillips:

— that’s fully available to it.

Tamara Brummer:

I think that that’s just a privilege that most of us do not have.

Like, we can’t afford to keep waiting for this other body that is the least democratic, we all acknowledge that, to keep deciding on the democracy of our country without even real checks and balances.

John Donvan:

Dahlia?

Tamara Brummer:

By adding these —

John Donvan:

I’m sorry, Tamara. I saw Dahlia was trying to jump in; I just want to give her a shot.

Dahlia Lithwick:

I just want to amplify something that Tamara is saying that I think is really important. I’m so glad that Carter makes the point that historically, you know, the court has this anti majoritarian counter, majoritarian checking function. And I think that’s really true. And I think that we just tend to intuitively think that’s a good thing. You know, we have a malapportioned Senate that also has a counter-majoritarian tendency; we have the electoral college that also functions to undermine majorities. We have the filibuster, as we’ve been discussing, that functions to undermine majorities. And I just want to be very, very clear, I think Tamara’s point is when you are talking about voting rights, and by the way, when you are talking about a Supreme Court that in the November election leading up to the 2020 election, some of those justices, sometimes in dicta, sometimes in footnote, we’re talking about throwing out validly cast ballots, that’s suppressing the vote.

And when the Supreme Court says, oh, voter fraud, this is the thing, you know, people are terrified of it, and there’s no evidence of voter fraud, that’s suppressing the vote. So, I just want to be really clear that when we talk about all the counter majoritarian checks that I’ve listed, they don’t often help democracy. Typically, they have helped slaveholders and the wealthy, and when they are being deployed to do that, that’s not democracy working.

John Donvan:

Let me bring Akhil, please.

Akhil Reed Amar:

So, my opponents basically have done two things. They’ve changed the debate from whether we like the Supreme Court, and maybe we don’t, to whether we should adopt a genuinely radical idea that may very well destroy the Supreme Court and the American system.

And that’s not the topic. Yours is a very impressive audience, and they want them to keep the eye on the ball. The question is not whether we like the current Supreme Court, the question is whether this radical idea is actually — which is the motion is going to be adopted. And I’m going to show you it’s radical by asking them some very simple questions. One, please name all the major political figures who support you on this topic. Does Joe Biden, does Chuck Schumer, does Amy Klobuchar, who are the people who actually count? And second, please name all the State supreme courts in America that have more than nine, if it’s such a great idea. And show me all the states, because America actually learned from states. This is a big idea of Louis Brandeis, states as laboratories of experimentation. Show me the states where this has been done and done well, that gave me reassurance that this actually could be a sensible proposal.

John Donvan:

Let me use your question, Akhil, to pivot in a new direction in this conversation, and I’m not abandoning your point. But up till now, I’ve been asking you and Chris [sic] to respond to your opponent’s argument that the court is broken and acting in an anti-democratic way; the two of you have made a different argument about the impracticality of this, you have talked about starting a tit for tat war between the parties after one is elected, another one is elected, they keep adding the numbers they need to get their programs through. That sounds like a very, very bad problem to have, and it also sounds like a very, very possible, even probable scenario. So, I want to take to Tamara and Dahlia, whichever, or both of you, would like to take on that critique of the whole idea of expanding the number of justices now.

Dahlia Lithwick:

So, you’re asking us to just answer the pragmatic problems for a moment?

John Donvan:

Yeah, because I think that that’s a real — it’s a central part of your opponent’s argument. And I think it’s one that a lot of people out there would have the same question of.

Dahlia Lithwick:

Well, I’ll take a crack, and then I’m going to let Tamara land the plane, but I think I would just say this. You know, statutory fixes, we’re going to, you know, add some term limits and hope that that is something that this court, which is by the way out there telling us that they’re not partisan, because they’re made of unicorns and magic, they’re going to bless, like statutory changes to the court. I don’t know; I guess it’s pragmatic. Is it effective? I don’t think so. But more pointedly, I just want to really be very, very clear with Akhil about this. I just think the idea that something as radical, pie in the sky, you know, hasn’t been tried before, sober, serious, people are not talking about it — only you two nut cases here today, I think, is an argument that can be deployed about, you know, so many things about constitutional democracy, including the Voting Rights Act that Tamara’s talked about, including so many things are radical and pie in the sky.

And I just think that saying something is off the table because it is the only viable solution that we find ourselves able to have in a moment in which the court has the jurisdiction to set aside so many of the pragmatic fixes, I think, is unfair to dismiss it, as you know, laughable, because serious people aren’t talking about it. And then the very final thing I’ll say, and I do want Tamara to talk about, you know, this, the tit for tat problem, because I think that is a genuine critique. But I will say this; I think that the fact that people aren’t talking about it doesn’t suggest that it’s a crazy idea. I think it suggests that we think about the court in very, very pernicious or raculer [spelled phonetically] ways that really, really need to be debunked and disabused. That’s why we’re having this conversation today.

John Donvan:

All right. So, Tamara, that airplane is still up there —

Tamara Brummer:

[laughs] We’re going to build it, and fly it, and land it, John. Okay?

John Donvan:

[laughs] All right.

Tamara Brummer:

[laughs] No, but you know what, I think to this point, though, I would feel — I think we’re starting at different points of where we’re at in this country. Like, I don’t think it’s radical that we need a real solution to the stripping away of our most basic rights. Like, I don’t think it’s radical. I don’t think it’s radical that when people in Texas can no longer get an abortion, which we thought — that we’ve said that that’s unconstitutional right, that you have access to control your body, and the Supreme Court said, “eeh, eeh, eeh”, not here. That, to me, feels like a radical decision by the Supreme Court. And the response to that needs to be equal. I think that, you know, reform measures, absolutely. We can all agree that we need to reform our Supreme Court. But there’s also like levels in which we can do this. Right? The issue, right here, right now, is that, and I think Dahlia agrees with this, that the crisis that we’re facing is not this theoretical tit for tat. They had one bad decision on the Voting Rights Act, but they got transgender rights right. Right? Like, those — that means that all things are being equal.

But what I’m telling you is that that same transgender person who you’ve now given access to the bathroom, will I have the same access to the ballot? And to me, that is a problem. Right? And so, it’s not a tit for tat; it’s really about bringing back a balance. We need to rebalance our courts because what we’re seeing is that the decisions that are being made only benefit us on one side and not the other.

John Donvan:

I’m sorry to be the hardnosed moderator on this one, but I’m not —

Tamara Brummer:

You’re just doing your job.

John Donvan:

I’m hearing the answer to the question. So, I’m going to quote somebody that —

Tamara Brummer:

[laughs].

John Donvan:

— I’m sure at least two of our — maybe three, I don’t know, senator, that you may not be very fond of, Mitch McConnell, talking about this, predicted basically. He said “court backing by either party would guarantee retribution when the Senate and the White House next changed hands. The escalation would not end; our independent judiciary would spiral into one more partisan battleground.” Before you get to the part where you say it’s already a partisan battleground, I just want to — I don’t want to abandon this question because it does seem very, as I said, plausible, I’ll put it; that this would become a dynamic every time the power changes hands in the legislature and the executive branch, that there would be more additions to the court.

And —

Akhil Reed Amar:

John, if I could just jump in on this very point. Because just to repeat, I am the architect of the nuclear option, filibuster reform, and I got the Democrats to do it first. And I knew that when we did it first, the Republicans would do it in turn. And I thought that was a good thing because I believe in majority rule in the Senate —

John Donvan:

So, you didn’t think that was a crazy idea?

Akhil Reed Amar:

I did not, and so Dahlia is wrong when she actually says, oh, you just don’t like actually new ideas. No, I like new, good ideas, that I actually have thought through, like direct popular election for the president because it works for governors; but this doesn’t work at the state level, they haven’t told us a single state that has 13, or 17, or 173 —

John Donvan:

Because we get that there are none. So, it’s a rhetorical point that I think you have made.

Akhil Reed Amar:

Well, that’s a big thing.

John Donvan:

I agree it’s a big thing. But you’ve made the point; I just don’t want to spend too much time on the same territory.

Akhil Reed Amar:

And on unicorns and magical thinking, they’re the ones who are engaging in this because they’re not even going to get — even if they got the law that they wanted, they wouldn’t get the magical justices that they want because of the swing of the voter in the United States Senate is named Joe Manchin. So, we just do not live in a world where you’re magically going to wave a wand and get 4, or 6, or 23 of the folks that you want on the court.

John Donvan:

Okay, I want to bring Carter back into the conversation. And I feel I’ve given your opponent’s two to three chances to refute or to address the issue of the tit for tat, and I don’t think that we’ve heard it. So, I don’t know if you’re conceding that point, but I want to move; you’re not conceding the point? Well, I want to let Carter just go where he wants to go with this.

Carter G. Phillips:

I guess the one thing I would respond to, at least part of what they’ve argued, in terms of, you know, needing a radical solution, and because it’s a radical circumstance.

I guess the question I have is, so if you were really looking for a radical solution, then it seems to me what you would do is you would go after the individual justices who we believe who have essentially violated their oaths of office and have behaved in a way that’s unacceptable from your perspective. So, I guess what I don’t understand is why do you want to mess with the whole institution if what your real concern is with two or three individual justices? It would seem to me much more sensible from your perspective if you’re going to — if we don’t care about the practical reality of it, you ought to say, well, we don’t think this is good behavior within the meaning of what Article 3 allows, and these people should be ousted on that basis. And then you can have the people put in to solve that problem, if that’s what you really think the problem is. What I am continuing to be concerned about is you’re talking about just essentially scrapping the institution and the way it works and has operated and serves the entire needs of the entire country on a wide range of issues. And to do that, because there are two or three people, or a handful of cases, again, with which you disagree.

I mean, Dahlia, you say, well, I’m not saying I just want to get four Elena Kagan’s. But the truth is that is exactly what you want. You’re want four — I mean, it doesn’t have to be Elena, it could be, you know, they could be male Elena’s, that’s fine. But I mean, the truth is, that’s what you want. You want four people who are going to think in a particular way, and I get that. But, you know, then just wait for the — then win the elections.

John Donvan:

Both of your opponents have denied that that’s actually their goal. And I want to — it’s a little bit revisiting that topic, but I want to give either of them a chance to explain that position.

Dahlia Lithwick:

Well, I’ll just say quickly that I no more want four Elena Kagan’s, then I thought it was appropriate to put up only people who had pledged to overturn Roe v. Wade. In other words, you know, we have litmus tests, and we have worked off a list that was outsourced, and we know exactly what the — at least the three Trump justices were selected to do.

So, the notion that, you know, it’s all balls and strikes all the way down and, you know, they’re pure of heart, I think it just cuts both ways. I do really want to answer the tit for tat problem, and all I can say is this. The idea that it could get really bad elides the fact that it’s already really bad. To coin a phrase, like, tit happens, sorry. But I really think like the bad stuff has happened. It is happening under our noses. And the idea that we’ll like wait around and workshop it, and in 22 years, we can really fix this. When we are seeing states encroaching this minute on the right to vote, this minute, gerrymandered districts, this minute, ending union power in this country, and saying, the bad stuff, we’ll wait because the bad stuff could really happen if this plan comes into effect. Friends, I don’t know what world we are living in, but at least where Tamara and I —

Carter G. Phillips:

[inaudible] let me at least deal with one of those issues.

Because if you’re talking about gerrymandering, are you talking about political gerrymandering, or are you talk about racial gerrymandering?

Dahlia Lithwick:

Well, we can talk about whatever the court continues to sign off on or to say that it has no jurisdiction to hear.

Carter G. Phillips:

Well, I mean, on the political gerrymandering side, I mean, that’s the court, in some sense, blessing democracy because that’s the way the state has decided to structure those things, and the courts stayed out of it. Why? Because it doesn’t think it’s as competent to decide those kinds of questions. I don’t think the court has walked away from racial gerrymandering; it’s continued to enforce Section 2. And so, I mean, I don’t think it’s fair to just sort of the throw in and say, [unintelligible], but now I have three or four more; we can look at them each individually and see whether or not they really amount to enough, again, to fundamentally change how the institution operates. And we don’t know, as Akhil has said. If we had some evidence from other sources that said that kind of a system works, I get that, but we don’t.

John Donvan:

And that concludes round two of this Intelligence Squared U.S. debate. And here’s where we are. We are about to hear brief closing statements from each debater in turn; these statements will be two minutes each. This is their last chance to try to persuade you to vote for their side, because right after this you will be asked to vote for a second time. And again, your votes will decide our winner. So, let’s move on to round three and our closing statements on the resolution we should expand the Supreme Court. Making her closing statement, here is Dahlia Lithwick.

Dahlia Lithwick:

Thank you so much to John and to my esteemed colleagues. This was bracing and incredibly, incredibly interesting.

And my colleague and I have talked, I think, at great length about the perils of why not, the perils of wait and see, the perils of hoping this just works out. And that vote suppression doesn’t end the right to vote in this country in the coming years.

The last thing I want to say, and I think this is really, really important. We think so much and have throughout this debate about the need for public confidence in the court, not just the pragmatic questions about can you do it with 13 justices, can you do it with too many justices, maybe the workload isn’t there, but public confidence. And I want to submit to you all today the public confidence isn’t something that bounces back when the court intervenes in elections days and weeks before the presidential election. Public confidence does not bounce back when women in Texas cannot terminate their pregnancies, although they’re allowed to.

Public confidence does not bounce back because the justices go on television and tell us that we have to believe that they’re above politics. Public confidence is earned. And the court is doing a dismal, dismal job of earning our public confidence. And at minimum, I would urge you to vote for this resolution because to fail to have the conversation that we keep hearing is so pie in the sky is to absolutely exceed that business as usual is just fine with us. Business, as usual, is not okay. Thank you so much.

John Donvan:

Thank you very much, Dahlia. And again, the resolution is we should expand the Supreme Court, and here to make his closing statement against that resolution, here once again, is Akhil Reed Amar.

Akhil Reed Amar:

Yes, that is the resolution, and they keep changing the topic to whether you like the Supreme Court, which is not the question; you can really dislike the Supreme Court and yet believe that this change will make things worse, which it will.

So, the issue is not — this — the resolution, not do we love the current Supreme Court Justices, and in particular the sixth justice in the majority. The issue is whether this idea actually makes us better or worse as a constitutional system. And I say, ooh, they haven’t come close to showing you it makes it better. What they have done is given you a brilliant rhetorical tour de force. And I absolutely adore Dahlia’s command of language, I love reading her stuff because she’s so clever and so brilliant. “Tit happens,” what an amazing, you know, thing to pull out of your hat. But she has another amazing phrase, you know, about unicorns and magic. But my friend, she and her colleagues are the ones who have engaged in magical thinking because they’re just magically assuming that they wave their wands, Wingardium Leviosa or something, and you get four of the justices that you would love now on the court with no repercussions.

And that can’t happen because the current Senators are actually in the middle, Joe Manchin. And so, the justice — even if you could get this law through, you’d get justices that are very different than the ones that they think are just going to magically undo all the bad things that have happened. What will happen is the system is likely to unravel because we won’t get tit for tat. Tit happens, we’ll get double tit for tat, triple tit for tat, because that’s what Republicans will do if the fundamental rules that have been in place for a very long time are changed by our side.

John Donvan:

Thank you very much, Akhil.

And our next speaker will be arguing again for the motion to expand the Supreme Court. Here is Tamara Brummer.

Tamara Brummer:

Thank you again, John. And thank you for — thank you to our colleagues today. This is really fun. This was exciting. It’s a really, really good way to like sharpen our sword.

I think that the biggest thing is that we’re starting from two different starting points. Dahlia and I believe that this system is broken, and the Supreme Court is a part of this broken system. When I was writing and thinking about this conversation, Nina Simone’s “Mississippi Goddamn” was really ringing in my ear. And she wrote that song in 1963, in the aftermath of the 16th Street bombing in Birmingham where four little black girls were killed in a bombing. And then, earlier that year, Medgar Evers, a Mississippi civil rights activist, was murdered in front of his home. She wrote the song as a protest anthem to a movement and to a generation that was fighting for the fundamental right to be full citizens in this country. And while four little black girls were murdered by a white supremacist, the powers that be told people that they should just go slow. You’re being too radical; you want freedom? [laughs] That’s absurd.

Thankfully, in 1965, the United States got its shit together, if I can say that, got ourselves together, and voted the Voting Rights Act.

John Donvan:

Not on NPR. But —

[laughter]

Tamara Brummer:

Oh. Okay, bleep that beep. No, we got our stuff together and passed this Voting Rights Act. And so, then there was full citizenship, I would say for most — for many Americans. But in 2021, the Supreme Court has said once again, slow down. So, here we are, we’re facing very different Americans — America, excuse me, than our — my counterparts on the other side. They’re arguing about how we need to uphold this institution, and what I’m telling you and what Dahlia is telling you and what millions of Americans are telling you is that the system is broken and that we have every right to fix it. And we can fix it by adding seats. And do you know who can’t wait for us to add seats, or who can’t tell us that we’re being too radical? Is that the people in Texas who no longer have access to an abortion, to the millions of Americans who are facing eviction in the midst of a global pandemic, they cannot wait; they’re not too radical for change.

And so, I implore you to vote yes, add seats to the Supreme Court because our democracy demands it.

John Donvan:

And getting the last word in the debate, proper with our argument, his argument, against the resolution that we should expand the Supreme Court. Here is Carter Phillips.

Carter G. Phillips:

Thank you. It’s been a pleasure to be with all of you. This has been quite an extraordinary conversation and one I’ve enjoyed being a part of.

Let me start off by I do agree, we probably come at this issue from very different vantage points. There’s a part of me that thinks we wouldn’t even be having this debate if Merrick Garland ended up being confirmed on the Supreme Court because even with the rest of the appointments that played through, there would be enough of a balance that a lot of the things we were complaining about. So, the idea that essentially one bad mistake would cause us to revamp the entirety of the U.S. Supreme Court is, to my mind, a bit of throwing out the baby with the bathwater; I just think that’s the fundamental mistake here.

The other side of it is, when you’re talking about democracy being broken, I still think it is hard to imagine that the Supreme Court will be the ultimate solution to most problems with democracy. For better or worse, the Constitution puts that authority in the Congress and with the president. In part because they are supposed to be closer to the people; they are, in fact, elected by at least some portion of the people; and I realize you can game the system in ways that manipulate those outcomes. But I don’t think, again, that the answer to that is to change the fundamental approach of how the Supreme Court operates. And to risk, I think Akhil quite rightly says, is ultimately the destruction of that court as an institution; the notion that we are going to enhance public confidence in the Supreme Court by turning it into a ping pong match every two years or every four years seems to me to be completely without — unacceptable.

And so, my hope is that everyone would vote no on the idea of packing the court.

John Donvan:

Thank you, Carter Phillips.

And that concludes round three of our Intelligence Squared U.S. debate. And now it is time to learn which side you, who are watching, feel has argued most persuasively; it’s time for our second vote. Again, it’s going to be the team that changes the most minds between the first and the second vote that will be declared our winner; it’s going to be the same thing as before; click on the voting tab and scroll down. Or, if you are doing it on a browser, go back to iq2vote.org. The same thing as before to cast your first vote, go to I-Q, the number 2, vote.org; you’re going to face the same choices, for, against, or undecided.

And as I mentioned earlier, we’re going to be keeping the vote open for a week and inviting a much broader public to watch the debate, weigh the arguments, and also join in the vote.

On October 8, we will announce the winner on our website, iq2us.org.

Now, I want to say back to our four debaters. I so appreciate and so congratulate you for the way that you conducted this debate. There was obviously a very sharp disagreement about the fundamental question and not a lot of common space on that, and yet you all addressed one another civilly and with respect and with information, sharing and swapping, you may even at the margins have persuaded each other that you were a little bit right about this or a little bit right about that. But it was that kind of conversation, and it’s what we aspire to at Intelligence Squared. So, I want to just, personally, on behalf of our organization, thank all four of you for taking the risk of debating in public and for doing it the way that you did it. So, thank you all for joining us at Intelligence Squared.

Carter G. Phillips:

It’s been a real privilege. Thank you.

Tamara Brummer:

Thanks for having us.

John Donvan:

I also want to say this; I want to thank all of you who took the time to watch this debate; the fact that you’re here, the fact that you’re willing to listen to both sides, again hits the very target that we set out to hit an Intelligence Squared, which is to get people to listen to each other, to hear each other, by going through, paradoxically, the exercise of a debate. We’ve been doing this since 2006. We’ve now done more than 200 debates, many of them, most of them as sharp and as focused as this one, and they’re all available on our website. And I’d like to encourage you to go check them out on our website. We’re also a nonprofit; we put these debates out for free to the world. And we could definitely use your support and if you would like to support us again, go to our website, iq2us.org.

I also want to give a big thank you again to our partners at the Newt and Jo Minow Debate Series at Northwestern Pritzker School of Law. Every few years, we team up with them for some of our best debates ever.

And now, we go to the live roundtable portion of the program. Just wait one moment for your screen to refresh, and you will have the opportunity to ask questions of the debaters.

See you in a moment.

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