Akhil Reed Amar Gives Talk on the Supreme Court at Roosevelt House
By Lydia Liebman
Recently, Professor Akhil Reed Amar gave a compelling talk at the Roosevelt House titled “Filling the Court: From Midnight Judges to Court Packing to Garland, Gorsuch, and Kavanaugh. Amar, Sterling Professor of Law and Political Science, Yale University, is considered one of the country’s pre-eminent constitutional scholars. He has taught at Yale University for over 30 years and counts several prominent figures as his students including senators Chris Coons and Cory Booker as well as Justice Brett Kavanaugh.
In his informative talk, which was given around the time of the controversial Kavanaugh hearings, Amar discussed the history of filling vacancies on the Supreme Court, which were often politically motivated. He talked at length about the historical significance of “transformative presidents” and how they shaped the court. He highlighted the great confrontations including Marbury v. Madison, Abraham Lincoln v. Roger Taney, Franklin D. Roosevelt’s court packing plan and Obama’s fight about Obamacare in the face of a basically “Reagan court”. The relationship between the executive and the judiciary has been, according to Amar, often fraught with controversy and conflict.
He spent some time discussing the process of picking judges and replenishing the judiciary. “The constitution makes the process of judicial selection very political and then it provides judicial independence through tenure thereafter,” he said. He then went on to highlight the history of judicial appointments starting with George Washington’s decision to appoint all Federalists to the first Supreme Court, to John Adams’ attempt to pack the lower federal courts and reduce the number of Supreme Court seats from six to five, followed by Thomas Jefferson’s attempt to unpack the court by repealing the expansion of the judiciary. Interestingly, Amar explained, Roosevelt, who was elected primarily to “fix things”, was unable to make an impact on the court during his first term because there were no retirements on the court. FDR attempted to grow the court to 10 seats, but was jammed. In response, he nominates Justice Hugo Black, who made a huge impact on transforming American constitutional law.
“When you jam a president, he may find ways of jamming you back,” he said. He explained the nature of the appointments game, which does have an advantage toward the president. He expressed his opinion on the Merrick Garland case and said that while he is a Democrat, he does not believe that the seat was “stolen”, as many Democrats claim. “Democrats won the presidency in 2012, but Republicans won the senate in 2014. If you don’t win the senate along with the presidency, it’s not clear that you’re going to get your picks,” he said.
After giving historical context, Amar took a number of questions. He was asked his opinion on whether judges should have political experience or a political background, his thoughts on the Kavanaugh debacle, and Trump’s court picks. One particularly interesting question regarded the current state of affairs and why the Supreme Court nomination process seems to be more divisive than ever. “Was it always like this?” asked an audience member. Amar gave some historical context, which showed that most presidents have generally elected justices that resemble their own political party. However, in these modern times, intense political polarization has added to the divisiveness, as has “the rise of primaries and Twitter”. The discussion was highly enlightening and educational; every seat was filled. #
