Saturday, November 25, 2017

Expanding the Judiciary, the Senate Rules, and the Small-c constitution

Mark Tushnet

Discussing on this blog the Calabresi-Hirji proposal to expand the federal judiciary, both David Super and Jack Balkin assert, in Balkin's words, "As David Super has explained, the proposal won't survive the tests for reconciliation, and so it will need 60 votes in the Senate." I think, provisionally but with some modest confidence, that this gets the analysis wrong. Sure, they can't use reconciliation to enact the proposal with a simple majority. But, as I understand things, nothing stands in the way of their adopting a new rule (for laws that would expand the federal judiciary) allowing adoption by a simple majority -- or, put another way, of amending the existing rules (by simple majority) to create a new category of enactments that require only a simple majority. I don't believe that would happen, but that belief doesn't rest on the fact that the existing rules make enactment by a simple majority impossible. (Remember, the Republicans modified the filibuster rule for Supreme Court nominations, by simple majority.)

Balkin also points to Richard Primus's post on the Harvard Law Review blog, in which Primus argues that the proposal is inconsistent with norms currently embedded in the small-c Constitution. I'm a big fan of Primus and of the idea of a small-c Constitution, but here too Primus's argument needs modifying. Any account of a constitution, large or small-c, must have within it an account of constitutional change. We know a lot about changing the large-c Constitution: formal amendments, judicial interpretation, informal Ackermanian amendments. How does the small-c Constitution change? Well, it consists of deeply embedded norms, and the only way to change such norms is to ignore or "breach" them. So, the mere fact that a proposal is inconsistent with existing small-c constitutional norms is not in itself a ground for rejecting it. (We might want to reject it because the existing norm is a good one, but that's different from saying it should be rejected on the ground that it's inconsistent with existing norms.) (I develop this argument in a bit more detail in an article forthcoming, some time, in the Pepperdine Law Review.) Calabresi should be taking as saying, "Of course the proposal is inconsistent with the existing small-c Constitution, but I think that constitution should be changed in this respect." My use of the word "proposal" is designed to suggest that we need an Ackerman-like account of how the small-c Constitution changes -- proposal, followed by something, yada-yada-yada.

In the Pepperdine article I also discuss some implications of Primus's observation that Republicans now hold the view that "competition between Republicans and Democrats is no longer an iterated game in which two rival parties who see each other as legitimate contenders for political power expect to take turns exercising more and less influence within the system." I think that's right, but that it has implications that Primus doesn't recognize (and even explicitly rejects). If you think you're playing an iterated game and your opponent thinks otherwise, you are (to use a technical term) a booby. The strategies you use -- in particular, refraining from tit-for-tat responses -- will be completely ineffective; your opponents will keep on "tatting," playing you for a sucker. As David Pozen and Joey Fishkin argue in a forthcoming article, there may be political reasons for the fact that Democrats continue to treat politics a an iterated game, but among the reasons can't be that it is an iterated game.

That leads me to my final point. Primus points out that the Calabresi-Hirji proposal excludes expansion of the Supreme Court. One reason might be that on their premises there's no need to do so. Another -- not unrelated -- is that they regard the norm against expanding the Supreme Court "to seize control of the judiciary" as stronger than the norm against expanding the lower courts for that reason. Primus envisages an endless cycle of expansions for such political reasons, and offers that prospect as a reason for Democrats to refrain from tit-for-tat strategies. Again, I think this endorses unilateral disarmament.

My current hobby-horse is the small-c norm setting the Court's size at nine. I think -- really, I do think this -- that Democrats should be thinking about the possibility of expanding the Court's size to 11 as soon as they get the chance (if they ever do). The rationale is not (on the surface) to "seize control of the judiciary." Rather, it is to un-do the Republicans' theft of the Garland seat. (You have to expand to 11 to un-do the Gorsuch appointment and put in place a Garland-substitute.) It is a tit-for-tat strategy, but so what? Primus says that tit-for-tat would lead to a loss of "a hefty share of whatever legitimacy [the federal courts] still retained as an adjudicative body." For me, the baseline here is already quite low.

Does anyone seriously think that Republicans  treat 5-4 liberal decisions as having any legitimacy at all? Consider their reaction to the two Obamacare decisions. (Of course, they would surely regard 6-5 liberal decisions by an expanded Supreme Court as entirely illegitimate. OTOH, why shouldn't Democrats have the same reaction to 5-4 conservative decisions with Gorsuch in the majority?) I like Dahlia Lithwick's observation that news articles reporting Supreme Court decisions should say, "In an opinion written by Justice Neil Gorsuch (R-Colorado)...." The view held by many of my Democratic-leaning academic colleagues, that there is still enough legitimacy left to worry about a further loss, seems to me a triumph of hope over experience.

 The Democratic proposal for changing the small-c constitutional norm about the Court's size would be an offer of a new norm -- "You can't steal a Supreme Court seat and expect to get away with." Seems like a good new norm to me.

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