E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I’m getting bored with detailed discussions of Supreme Court
reform/expansion/packing. (And if I’m getting bored, I can imagine how
other people feel!) Trying to step back from details, which will come up only
as illustrations, I make a few points here. As always, this sort of discussion
has to be preceded with the observation that it rests on the assumption, as yet
unproven, of a Democratic trifecta in 2021 (probably along with some sort of
filibuster reform).
(1) It simply foolish to contend that you’ve come up with a
solution that’s invulnerable to constitutional challenge. No proposal that
I’ve yet seen can simply be enacted as a statute that’s guaranteed to survive
constitutional assaults. Statutory term limits with prospective effect only
bump up against the appointments clause of Article II, which can be read to distinguish
between appointments to the Supreme Court and appointments to other federal
courts. Jack Balkin’s proposal bumps up against the requirement that there be “one”
Supreme Court (on which see the next paragraph) and against the contention that
it requires that one read the exceptions clause to mean that something that
eliminates every category of appellate jurisdiction is an exception to the
appellate jurisdiction. (If one wants a cf. cite here, cf. Justice Scalia’s
opinion for the Court in MCI Telecommunications v. AT & T, 512 U.S. 218
(1994), which holds that a “modification” of something means changing it incrementally
or moderately.) Targeted or general jurisdiction-stripping provisions also bump
up against the exceptions clause and substantive constitutional provisions, as explored in excruciating detail in the enormous literature on jurisdiction-stripping (in addition to being far more difficult to
draft than proponents acknowledge). Even Court expansion/packing bumps up
against the claim that since 1937 (or earlier, depending on how one wants to do
the analysis), there’s been an enforceable convention that the Court’s size can’t
be changed without a relatively pure “good government” reason, unpolluted by
the desire to alter outcomes.
What we need are assessments of the constitutional
arguments, not flat assertions on the order of “it can be implemented by
ordinary legislation.” My assessment is that all the changes should
survive constitutional challenge – and that the constitutional argument against
Court expansion/packing is the weakest of the lot. (The “should” here is doing
a lot of work; a full-scale assessment would have to take into account the
proposition that – assuming that standing and other justiciability obstacles
can be overcome – the statutes and the Constitution would be interpreted by the
unreformed Court. So, for example, can we be sure that the unreformed Court
would adopt the kind of purely formalist interpretation of the word “one” that
Balkin’s proposal requires?) But, a proposal that doesn’t address potential
constitutional objections isn’t a serious one.
(2) A lot of the discussion lists short- and long-term costs
and benefits. The “downward spiral of retaliation/57 justices/delegitimating
the Court” rhetoric is a list of assertedly long-term costs, for example.
Proponents of Court expansion/packing acknowledge the short-term political
costs but emphasize short-term benefits from Court decisions that are assumed
to be different after Court expansion than they would have been without it.
What’s missing from all the discussions (except mine!) is
any consideration of probabilities and a calculation of the net of costs and
benefits taking those probabilities into account. To take an obvious example:
If Court expansion occurs in 2021, it can’t be undone until 2025 unless Republicans
win veto-proof majorities in both houses of Congress in 2023. What’s the probability of
that? And what’s the probability that one effect of Court expansion might be to
allow Democrats to enact statutes, both voting-related and otherwise, that
would increase the likelihood that they’ll retain the trifecta in 2024? And,
on the claimed benefits side, what’s the probability that the “reformed” Court
will actually deliver those benefits, both short- and long-term? On the
long-term side, there’s the Moyn-Doerfler argument that some forms of Court
reform might actually exacerbate the problem of making the Court central in our
politics. Again, what’s the probability of that outcome – as compared to the
probability that the changes will delegitimate the Court?
Frankly, I won’t take seriously anyone who simply offers “downward
spiral” as an argument against Court reform.
But wait, there’s more, though this one’s quite old hat and
really boring. It’s generally assumed that delegitimating the Court is a bad
thing (for progressives). The reasons offered are, again a list of good things
the Court has been able to do (or to get away with) because of its legitimacy.
It’s been clear for a long time – forever, in my view – that you’ve got to do a
pretty complicated calculation of the costs of having a Court able to draw upon
a “legitimacy” resource before you can say anything sensible about whether delegitimating
the Court is good or bad. There’s Brown and the Watergate Tapes Case and
Obergefell on one side and Shelby County and Citizens United
on the other. You’ve got to explain your assessment of the net before I’ll take
your list seriously.
I’d also like to know what you think a fully legitimated
Court would do in a world where Congress could have but didn’t reform the Court.
That is, what national legislation that you can imagine (within what time
horizon?) would such a Court invalidate? Is it going to advance a progressive
agenda on its own by, for example, holding limited expansions of health care
unconstitutionally narrow? Again, this gets really complicated. You have to
worry about what limits a delegitimated Court could put on what you think is an
aggressive president, of course, but also about the limits a fully legitimated
one would put on what you think is a properly assertive one. The same goes for review
of state and local legislation; there you have to talk about the possibility of
congressional legislation to preempt bad stuff – freed of the constraint of City
of Boerne v. Flores.
You have to do all this, of course, only if you’re actually
taking seriously the proposals you’re making and those you’re criticizing.
(3) Finally, what’s the point of these discussions right
now? Pretty clearly, it’s to widen the Overton window. We can see from Republican
rhetoric that they don’t want it to open even a crack – not surprising: Having
gained control of the Court and the lower courts, they don’t want court reform
of any sort. In fact, I’m pretty sure that they will describe every
proposed reform as Court-packing. (If so, my view is that it’s better to be
hanged for a sheep as for a lamb.) For people who think that the Court needs
reform, I doubt that proposing to open the Overton window a little bit but not
too much is a good strategy. But, once the Overton window has been opened
pretty wide, I’ll leave to the politicians to figure out what to do.