Mike Smith: Welcome to another episode of Frantz Ward’s podcast series, “Shoveling Smoke.” I’m Mike Smith, your host for today’s podcast. As we begin a new year of podcasts, I first wanted to take a minute to thank all of you who have listened to us in our first inaugural year. Chris Koehler and I, as well as the many attorneys at Frantz Ward who have appeared with us, have really enjoyed sharing these episodes with you. In addition, I’m excited to report that “Shoveling Smoke” received a Vega Digital Award in the category of law and legal services. This award recognizes and celebrates digital pioneer excellence in websites, video, mobile, social, animation, marketing, and podcasts. We share this award with Evergreen Podcasts, the podcast company that assisted us with the launch of our podcast, and records and produces “Shoveling Smoke.” A shout out to the Evergreen team for helping us make this podcast an award-winning reality. We decided to ease into 2022 by talking about an issue that keeps cropping up in the media. With the conservative justices of the U.S Supreme Court now in command and control by a 6-3 margin, many Democrats have called for President Biden to expand the number of members of the court, so as to create a more politically balanced, or even a more liberal court. President Biden convened a committee, and most of the committee members recommended against it, but the issue still keeps coming up. We thought it would be interesting to talk about how court packing has been raised throughout the years, to get an idea of how this issue has played out over time, and discuss how this might play out again in the present. Here with me to enlighten us on these issues is my partner and Frantz Ward resident historian, Greg Farkas. Greg is a member of Frantz Ward’s litigation group, focusing his practice on business litigation and insurance coverage issues, as well as spearheading most of the firm’s class action defense work. Greg also has great expertise on the attorney/client privilege, and work/product privilege, and has spoken many times on those subjects. When he is not bailing us out on privilege issues, Greg devotes a lot of his time to legal industry and community endeavors. Greg is chair of the commercial litigation committee of the Ohio Association of Civil Trial Attorneys, and works on several committees for the Defense Research Institute. Greg also has served on boards for Youth Challenge, the Heights Youth Club, and the Boys and Girls Clubs of Cleveland. He’s a graduate of Cleveland Leadership Center’s Cleveland Bridge Builders, class of 2014. On a personal level, Greg’s a voracious reader of history, an avid devote of the NFL draft, and a proud dad of two sons. Hey Greg, thanks for being with us today.

Greg Farkas: Thanks for having me, Mike.

Mike Smith: Before we get going, let’s talk about your NFL draft obsession for a minute. I’ve known you for a long time, and it’s something that’s always been with you. How did you become a devote, and when you did, the draft wasn’t really that big of a deal, was it?

Greg Farkas: No, and I’m actually dating myself here, because my draft involvement predates the internet. At the time, there was very little information out there about the draft. I was an undergraduate at Michigan State. I happened to be living in the football player’s dorm, which was an interesting placement for a political science and econ major. There were players who were interested in, “Where might I be going?” I started following the NFL draft, and at the time, there were only three sources of information. There was Mel Kiper, who was still around, and still had the hair back then. He published a blue book every year, and I have an entire shelf in my library of those blue books still. There was a guy named Joel Buchsbaum, who was five foot four and wore glasses, and never played sports in his life, lived in an apartment with his mother until his death, and filled up legal pads full of information about college football players. One of the few things Art Modell ever did right in his life is that when Joel Buchsbaum passed, Art Modell had a moment of silence for him during the NFL draft, because he was one of the originators in public interest in the draft. Back in the day, without the internet, you would watch games, we would circulate VHS tapes through the mail, and you would come up with your own draft ratings. Now, of course, there’s so much information on the internet, like many areas of society, the problem isn’t finding information, it’s figuring out what information you can trust.

Mike Smith: Man, that’s incredible how it’s evolved over time, as the internet and social media have once again impacted the way we all live, right?

Greg Farkas: Absolutely. At the time, you either did your own work, or you trusted one of a very few number of sources. Now, there are so many sources, you can find a source that’ll essentially support whatever position it is you want to take. Again, like many areas of our culture at the moment

Mike Smith: We’re looking forward to seeing you in Vegas, in the upcoming draft. Let’s move on to court packing. Let’s start with where everybody assumes you should start when you talk about the judicial branch of government, the U.S. Constitution. Does it actually say anything about what the court should look like?

Greg Farkas: I’ll start with the phrase court packing, which gets some criticism in the literature for being a little bit pejorative. Particularly, proponents of the idea like to refer to it as court expansion. The concept, whatever you want to call it, really does not have a lot of grounding in the text of the constitution. Article Three, which deals with the judiciary, only requires that there be a Supreme Court of the United States. It doesn’t establish a specific number of justices for that court. In fact, Article Three doesn’t even provide for lower courts, unless they’re established by Congress. The only court that’s constitutionally required is the United States Supreme Court. Article Three, which deals most directly with the judiciary, doesn’t address the subject. Most constitutional analysis starts with Article One, and what’s known as, going back to our con law days, the necessary and proper clause. That authorizes Congress to make all laws which shall be necessary and proper for carrying into execution all other powers vested by this constitution in any department. That’s generally, with some exceptions we’ll talk about later, recognized as providing the legislature with the power to establish not only lower courts, but set the number of justices on the U.S. Supreme Court.

Mike Smith: With regard to the number of justices, can you give us a flavor of how that’s gone over time, in terms of the numbers?

Greg Farkas: It’s changed considerably, up until about 150 years ago. Initially, there were six justices on the U.S. Supreme Court, and as difficult as it is to imagine in the current environment, there was difficulty finding people to fill those seats, because it was not considered either a particularly prestigious assignment, nor was it particularly financially lucrative for the justices. In the very early days of the Republic, there were problems filling those seats. Between the founding, 1789, to 1869, the number of justices varied anywhere from five to 10. The lowest number was five, and that was the earliest partisan example of court packing, or court expansion. It was actually a reduction of the original six justices down to five, with the Federalists trying to hamstring Thomas Jefferson, and prevent him from filling one of those vacancies. That only lasted a year, and when Jefferson’s party took control of the Congress, they reset the number to six. The last time the number changed was in 1869, and it was set at nine, and it has been nine ever since.

Mike Smith: In terms of numbers, or how it runs, is there any historical record other than the actual constitution, that gives us some flavor as to how at least the founders thought things were going to happen?

Greg Farkas: There’s a very little original intent as to the number of justices. Again, it’s interesting how much the system has changed from the original constitutional structure, which again, didn’t even provide for district courts, or intermediate appellate courts. Most of the originalist analysis goes back to the interpretation of that necessary and proper clause, and what powers Congress is given to determine what is necessary and proper for the judiciary to function.

Mike Smith: I guess we all know, anybody who has studied history at all, to some degree, knows that things happened in the thirties, where FDR was really considering this seriously. I assume that, at that point in time, there was some study, and some discussion about the constitutionality of expanding the court, or packing the court.

Greg Farkas: Other than that 1801-1802 reduction in the number of justices, the 1937 expansion, and that’s when the term court packing was coined, was really the first controversial change in the size of the court. Prior to 1937, most of the changes were based on the expansion in the number of federal circuit courts in the country. The number of justices was tied to the number of circuits. Each justice was supposed to “ride circuit,” and was responsible for a specific circuit. As the number of those circuits increased, the number of justices increased. Really, that was not controversial, because under both the plain language of the necessary and proper clause, as well as under the original intent of the constitution, it was seen that the number of justices was constitutionally within the power of the legislature and the executive to change. 1937 changed all that. Really, the most interesting document, and the one that’s come to the historical fore again, with the more recent discussions of court expansion, was that there was a 1937 Senate Judiciary Committee report that addressed both the constitutionality and the merits of court packing. It’s interesting to note that the Senate Judiciary Committee at that time was controlled by Roosevelt Democrats. It was not a partisan issue. This was Roosevelt’s own fellow Democrats in the Senate issuing a report as to their thoughts on court packing, and the report was absolutely scathing. Some of the quotes were that it “Applies force to the judiciary, and in its initial and ultimate effect, would undermine the independence of the court. It violates all precedents in the history of our government, and would it itself be a dangerous precedent for the future.” The committee concluded that the proposal was, “Without precedent and without justification. It would subjugate the courts to the will of Congress and the president, and thereby destroy the independence of the judiciary, the only certain shield of individual rights.” That is a quote that came from Roosevelt’s own Democratic Senate. Now that court expansion, or packing, is back in the news, the modern arguments against the constitutionality of the court stem from those concepts that the Senate Democrats raised in 1937.

Mike Smith: What are the practical objections about expanding the court?

Greg Farkas: There are practical objections, and there are constitutional objections. There are two constitutional objections. The first is that an expansion of the court would undermine the structure of the federal government. Going back to law school 101, or even really high school civics 101, we have the three branches of government. You’ve got the legislature, you’ve got the executive, and you have the judiciary, which is charged with interpreting the laws. The structural argument, going back to that Senate report, is that allowing court expansion would undermine the ability of the Supreme Court to serve as the ultimate interpreter of laws, and the function of judicial review, because the executive and the legislature could, when they disagree with the court, increase the number of justices, to get the impact they want. The other argument on constitutionality goes back to that necessary and proper clause. You have a group of scholars who now argue that it isn’t proper to increase the size of the court to achieve a desired outcome in terms of the court’s results. What’s interesting about the modern debate is, you look at conservative justices, and you talk about originalism, and you talk about reading the plain language of a statute, that would support court expansion. You now have conservatives arguing about what is proper, or the structure of the constitution, and what is the intent of a statute, and arguing positions somewhat different than their normal statutory or constitutional interpretations, to come to the conclusion that it’s not in fact constitutional.

Mike Smith: That’s interesting. You’re starting to see some result-oriented arguments to justify their positions.

Greg Farkas: It almost is a reversal of the normal positions people take, from a purely ideological or partisan perspective. To your point, there’s also a host of practical objections that have been raised to court packing. One of the most important of which is, again, hearkening back to the 1937 Senate report, that there’s a constitutional norm or understanding that, for 150 years, this simply isn’t something that we do. The judiciary is intended to be independent, and changing its composition to get a desired outcome violates the rules of the game. One of the serious challenges that was raised in the recent commission report was, in an era of hyper-partisanship, where a lot of those norms are already being challenged, do we really want to or need to challenge yet another of them at the present time?

Mike Smith: How about some of the other practical objections that are out there?

Greg Farkas: There are two that also come to mind. One, of course, is the infinite regression problem. If you expand the court now to address what’s considered a political imbalance at this point in time, when the dynamics shift, you’ll simply have another expansion to redress the earlier one. Or, going back to the 1801-18 02 controversy, you may have a reduction in the number of justices. Again, coming to that constitutional norm, once you rip this bandaid off, how do you reapply it, to prevent future adjustments to the composition of the court, to achieve whatever outcome is desired by the majority at the time? That also goes to the practical problem of the legitimacy of the court. Non-lawyers already think many judicial outcomes are determined by a person’s political orientation rather than by the rule of law, or precedent. There is a real concern on both levels of the ideological spectrum that allowing for court expansion will exacerbate that concern, and destroy whatever legitimacy the judiciary has. That leads to a third consideration, which is, do we really have a problem that necessitates court expansion at this point in time? It’s interesting, because depending on what polls you look at, the Supreme Court is the most trusted branch of the federal government. Now, that’s perhaps not saying a lot, but from a polling perspective, the court is not necessarily suffering from a crisis of legitimacy that might warrant court expansion. The other interesting facet of this is that when you look at the empirical evidence, and for those Supreme Court nerds out there, I strongly suggest the SCOTUS blog, and the 538 blog. When you look at the actual composition of the Supreme Court decisions, it’s interesting in that, while we popularly perceive a 6-3 conservative super majority, there are arguments based on the actual voting patterns that it’s more like a 3-3-3 conservative block, liberal block, and a slightly conservative block that often votes with the other three. The actual compositions of the decisions, particularly the non hyper-partisan decisions, really is far more nuanced and varied than the public perception is. It really is just a couple of issues, including affirmative action and reproductive rights, that seem to drive this narrative that we have a hopelessly ideologically divided court.

Mike Smith: That’s interesting, and you really think about it, the one guy who comes to mind in that respect is Justice Gorsuch. Everybody thinks that he is going to be on the conservative side of things, but if you look at some of his opinions, like his decision about the rights of Native Americans, and how he came to write the opinion that gave them expansive rights, or gave them back expansive rights, that’s not something I think the typical conservative group would’ve expected.

Greg Farkas: No, that’s an excellent example, because he’s popularly perceived as being one of the three reliable conservative votes. Another interesting example is Roberts, who obviously, in the Affordable Care Act decision, provided the fifth vote to maintain that. Justice Kavanaugh, again considered conservative, in the 2018 October Supreme Court term, he voted as often with Justice Kagan, at roughly approximately 80%, as he did with Gorsuch. There’s a wide variety of voting patterns, and again, on issues that are not hyper-partisan, it’s a far more varied mix of opinions than, if you ask the general public, that they would believe exist.

Mike Smith: Yeah. Have any of the justices actually weighed in on the court packing thought?

Greg Farkas: Again, defying the ideological perspective that’s put on this, Justice Ginsburg, in 2019, spoke out strongly against court packing. She not only referenced the 1937 controversy, but she raised the concern about judicial review, and the supremacy of the judiciary, that if you allow court expansion because you’re dissatisfied with the court’s results, you really do undercut the court’s role as the final arbiter of what is constitutional or not. Even justice Breyer, whose upcoming retirement has brought these issues back to the fore, he spoke out in 2021, and said essentially that you are going to reinforce the view that all of us vote Republican, or vote Democrat. He argued that not only is that not the case, but that is even going to worsen the existing problems we have getting justices confirmed, because it’ll be viewed as a purely ideological process. As recently as 20 years ago, that was not the case. Justice Scalia received over 90 votes for confirmation, which is unimaginable today. Justice Ginsburg received over 90 votes for confirmation, again, completely unimaginable. That is one of those constitutional norms that we have lost, as things have become more partisan, question whether judicial expansion is going to make that trend even worse.

Mike Smith: Yeah, that’s a good point. Has the Biden Commission, or has anybody considered alternatives to the expansion, or the court packing idea?

Greg Farkas: That was one very useful role of the commission, is that it didn’t just look at court expansion, but it looked at a number of alternatives for court reform. One was term limits, the notion that rather than a lifetime appointment, we have a lengthy, 18 years is what was mooted, term for each justice. Now, they noted a number of problems with that, including the fact that is one issue that is addressed in Article Three, and trying to impose term limits probably would require a constitutional amendment, which appears very unlikely in the current environment. They also looked at a mandatory retirement age for justices, but that also has concerns. Number one, there are age discrimination nuances to it. Number two, it also won’t necessarily address, if you view it as an ideological diversity problem, a mandatory retirement age would not necessarily address that, depending on who is in office when someone has to retire. Finally, a retirement age really would worsen the existing trend of appointing someone younger and younger and younger, so that your appointee is on the court as long as possible. There’s a real concern that we are getting justices with lesser and lesser track records, not only to try and get them through a confirmation process, but also because frankly, we want a young person that’s going to be there forever.

Mike Smith: It sounds like if you had term limits, the confirmation hearings would be ad infinitum. They would just be going on all the time.

Greg Farkas: Absolutely, particularly if there’s an attempt to nominate someone where the Senate is in control of the other party. Without it being addressed in a constitutional amendment, the opposing party in control of the Senate could basically run the clock on that person’s “Term.”

Mike Smith: Right. We’ve talked a lot about the Biden Commission itself. Other than what we’ve already talked about, did they come up with any other conclusions or recommendations?

Greg Farkas: One thing that they did address was what I would call nonpartisan options to improve the quality of the court. They looked at issues, for example, as the lack of a mechanism to address conflicts of interest. Right now, a justice may recuse themself, but there’s no real formal process for determining if there’s a conflict of interest that would necessitate a justice should recuse themself. Another issue they looked at is the transparency of the court, making video available, addressing the so-called shadow docket, where decisions are reached without formal opinions, or without a lot of transparency into how the court got to that. One of the things that came out of this process that I thought was a very useful perspective for looking at this, assume that you actually agree with the decisions the court’s reaching. What would you do to still make the court better? If your basis for reform is simply that you don’t like the decisions, there’s a strong likelihood that when the majority shifts in the political spectrum, you are going to get reform the other way, to get decisions that the other part likes. Even if you like the decisions, what is it the court could do better? The commission did offer some interesting suggestions on how you could reach that outcome.

Mike Smith: Can you give us a couple of them?

Greg Farkas: One is a mechanism for more formally looking at conflicts, and the concern that a justice might not find grounds to recuse themself, but that in a controversial issue, or an issue where an impartial fact finder might find an appearance of impropriety, there really is no mechanism to take that person out of that particular vote. The other issue that did come up was the transparency of the shadow docket. That is an issue that’s gotten some increased attention as decisions were made on some of the COVID restrictions and mandates without the benefit of formal briefing. There was an argument that, at the very least, you should formalize the process for making a decision on that expedited shadow docket, rather than doing it through full briefing and oral argument. The other recommendation that I think is coming is the notion that we really should be videotaping these, and making the arguments, not just the transcripts, but video and the actual recording of the arguments available to the public. That just seems like an idea whose time has come.

Mike Smith: Sounds like the focus is on transparency, in a lot of ways.

Greg Farkas: I think it’s transparency, and I think there was a recognition that the notion of court expansion, or the other alternatives to change the ideological composition of the court, are controversial on all sides of the ideological spectrum, as I think the comments by Ginsburg and Brier indicate. It’s not just people who are in the majority right now that have a concern about changing the composition of the court. There’s a legitimate concern that’ll undermine the court’s legitimacy, and it’ll set future precedent. While the commission was not able to come up with recommendations on court expansion or term limits, they were able to reach agreement on more, I would say conservative, not in an ideological sense, but conservative and practical reforms that might address concerns about court legitimacy.

Mike Smith: Good stuff, interesting. I think we’re about out of time Greg, but at the end, we always ask our guests if they have two or three takeaway thoughts that they’d like to give our guests before we sign off. I’ll turn it over to you on that.

Greg Farkas: I would say first, it’s interesting that it reverses the normal ideological and interpretive arguments. I think the majority position would be that expanding the court is probably constitutional, that the plain language and original intent favor the ability of the legislature and the executive to alter the number of justices. There are arguments to the contrary, but I think the majority position would be, it’s constitutional. Number two, I think the majority position would also be that there are strong, practical, and legitimacy arguments to make against expanding the court, and that court expansion is not a Republican versus Democrat issue. There are folks on all parts of the spectrum that have real concerns about what the impact of expansion would be on the judiciary. Finally, I’d go back to that notion of, what reforms would make sense, even if you agree with how the court is currently ruling? Focusing on ways that we can make the court more legitimate, and also, and this is a hard ask in the current ideological environment, how can we reduce the perception of partisanship, and facilitate the nomination and confirmation process so that we don’t have these ideological divides that create the perception that everything the court does is based on Republicans versus Democrats?

Mike Smith: Greg, I really appreciate you being here today. This was a really fascinating topic, and hopefully, we can have you on as a guest in the future, and maybe we even do an NFL draft special. We appreciate it.

Greg Farkas: Thank you very much post combine, and once we have some free agency behind us, I’m happy to address team needs, and likely first round targets for anyone who wants to ask about their team.

Mike Smith: Okay, that sounds great. To recap, our three takeaways from today’s discussion: first, if they wanted to change the number of the justices, it would probably withstand a constitutional challenge. However, there are a lot of practical reasons against it, so it’s probably not going to happen, given where things stand today, and based on those practical reasons not to do it. Finally, the real focus should be on really sustaining and ensuring the legitimacy of the court, and trying to see what can be done to get rid of the partisanship that is threatening it, or has invaded it to some extent already. That wraps up another episode of “Shoveling Smoke.” Thanks again for checking in with us, and we hope you listen in next time. “Shoveling Smoke” is a production of Evergreen Podcasts. Our producer and audio engineer is Sean Rule-Hoffman. Thanks for listening.