Supreme Court Reform Redux

Mark Tushnet

Suppose you thought that current proposals for Supreme Court reform were merely politically motivated and ill-advised. How might you react to Jack Balkin’s suggestions (including his earlier discussion)? Specifically, are there plausible constitutional objections to them? (I write “plausible” to signal that I don’t necessarily agree with what follows but that someone skeptical about the proposals might find them not merely plausible but compelling.) 

One objection to the basic proposal, described by Jack as involving congressional creation of “two en banc courts,” almost leaps off the page. The Constitution says that there shall be “one supreme Court” but the proposal openly says that there will be two. (A formalist might say that each justice is appointed to the “one” supreme Court and then is assigned to different benches within that Court. A functionalist would be skeptical about that.) 

This textual point might be bolstered by suggesting that the Constitution creates two multi-member bodies (the House and the Senate) and assumes that each member will have rights and duties equal to those of every other member, subject only to regulations adopted by the bodies themselves (e.g, the reference to choosing a President pro tem by the Senate). My guess is that in discussions about whether to create a plural executive you’d find the same assumption at work, with people saying that distinctions among those people would have to be made expressly in the Constitution or adopted by the executives themselves.

Again, I don’t think that the foregoing are knock-down arguments against the Balkin proposal, but I also don’t think that they are insubstantial. 

I should acknowledge that my views are influenced by two related considerations. (1) It’s difficult to see how politicians have incentives to adopt what I think of as “bells-and-whistles” reform proposals. It’s hard enough to give them political reasons for adopting simple proposals that they can readily explain to their constituents. Adding bells and whistles makes it all the more difficult. 

(2) As things currently stand no reform proposals have any realistic possibility of being adopted (except perhaps some statutory proposals for term limits going forward—which again face the “politicians’ incentives” problem). In light of that, it seems to me that those interested in Court reform should come up with the best institutional design they can imagine. If one thinks that such a design involves a term-limited Court, one should try to figure out ab initio what the ideal term would be and not take eighteen years as presumptively correct. That period is obviously designed in response to the fact that the Court currently has nine members but optimal design might lead to a different term length. For what it’s worth, in other nations where constitutional court judges are term-limited eighteen years is at the very high end of choices, with twelve and fifteen being much more common. And, of course, proposals for eighteen year terms implicitly endorse and might even constitutionalize the current size of the Supreme Court, which might not be optimal. Eric Segall’s proposal for a Court with an even number of members, for example, has a decent rationale going for it.