Tuesday, November 28, 2017

More on Court-Packing: The Idaho Workaround

Richard Primus

Over at the Harvard Law Review’s new blog, I have a short essay about the court-packing plan that Steven Calabresi and Shams Hirji recently proposed.  The bottom line of my essay is that the Calabresi-Hirji proposal is big-C constitutional and small-c anti-constitutional.  It’s within Congress’s formal authority to enact, but it rests on a view of partisan conflict as death struggle rather than as competition between legitimate alternatives within a constitutional order, and if enacted, it could crash the system. 

Further specification of that idea is the work of that other essay.  So if you have the time and interest to read both that post and this one, read that one first.  And there have been several thoughtful posts on this blog and elsewhere since I posted my essay, from multiple points of view.  Readers interested in a broad conversation could read Jack Balkin, Mark Tushnet, Ilya Somin, Josh Blackman, Neil Siegel, and David Super, as well as a response to my initial essay from Calabresi and Hirji themselves.  I particularly recommend the Calabresi-Hirji response.

A predictive note: My sense, for what it is worth, is that Congress is unlikely to pass Calabresi-Hirji (though more moderate expansions of the judiciary are more conceivable).  That’s not because I think the procedural rules of the Senate guarantee that such a proposal couldn’t be enacted without sixty votes: Calabresi-Hirji is what Tushnet calls constitutional hardball, and when hardball is the game it’s a mistake to put too much stock in procedural rules that are subject to manipulation or modification.  My reason for suspecting it won’t happen is about the merits.  If I were guessing, I’d guess that there are enough Republicans who would oppose the idea, whether for reasons of principle or prudence or both (and yes, one might challenge the dichotomy), that Calabresi-Hirji could not get through Congress.  To be sure, I could be wrong: two years ago I was confident that the Republican Party would not nominate Donald Trump, so I recognize that my sense that Calabresi-Hirji won’t be enacted could be yet another instance of my own remaining naivete.  Still, as of today I think it unlikely.  But even if we knew for certain that the proposal would not be adopted, it would still be well worth discussing.  The fact that it can be proposed at all by a player as prominent and consequential as Calabresi is itself a salient fact about the state of constitutional discourse, and constitutional conflict, at the present moment.    

On that understanding, I want to use this post to go deeper into one part of the analysis I presented in my prior essay: the question of how the Democrats would respond the next time they had unified control of the elected branches, were Calabresi-Hirji to be enacted now.  Again, the point here isn’t prediction, unless I’m wrong about whether Calabresi-Hirji is going to be enacted.  Instead, I want to use Calabresi-Hirji to offer thoughts about two important and related subjects in constitutional theory.  One is the nature of constitutional hardball.  The other is the relationship between the written Constitution and the set of norms that might be called the small-c constitution—including, in the end, the way that intuitions about the latter shape what we think the former says.

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Calabresi-Hirji would create scads of new judgeships on the lower federal courts, to which President Trump would appoint conservatives.  If the proposal were implemented in its strong form, the judiciary would soon be about 80% Republican-appointed.  The straightforward form of Democratic retaliation during the next period of unified Democratic government would to be create yet more judgeships, so that Democratic appointees would outnumber their Republican counterparts.  Within a few cycles there would be thousands of federal appellate judges, with each side deciding that making the judiciary yet more absurdly large was better than letting the other side win. 

But a future Democratic Congress could also retaliate in many other ways.  The retaliations I have in mind are forms of constitutional hardball: they proceed on the assumption that any move consistent with the written Constitution is an acceptable way to advance one’s partisan or ideological interests, whether or not the move is consistent with long-settled norms or the spirit of fair play.  Calabresi-Hirji itself is constitutional hardball. 

The big point about hardball is this: People who play hardball sometimes make the mistake of thinking that they are playing for the win or to avoid the intolerable.  Within the first way of thinking, what makes it justifiable rather than recklessly imprudent to depart from settled norms and play hardball is the prospect of beating one’s opponent soundly enough that one does not need to worry about retaliation.  Having been dealt the defeat in question, the opponent is now incapacitated and out of moves.  But once the game is hardball, the chances are that the other side does still have a move to make.  Or many moves.  Because the essence of constitutional hardball is disregard for convention and fair play, and without convention and fair play, a whole lot of things are possible.  Within the second way of thinking—where hardball is an attempt to avoid the intolerable—the idea is that the status quo isn’t worth preserving, so there’s no point in preserving existing norms.  But one who sets out on this road should think about where things are likely to land after the next round of escalations.  Because again, more escalations will usually be possible, including increasingly wild ones.

Here’s an example of something a future Congress might do to retaliate for Calabresi-Hirji other than create hundreds of new judgeships for a Democratic President to fill.  It involves a minor adjustment to the jurisdiction of the Tenth Circuit.

The Tenth Circuit today includes the District of Wyoming, and at present the District of Wyoming includes fifty square miles that lie within the state of Idaho (because the boundary of the District tracks the boundary of Yellowstone National Park, and a small part of Yellowstone is in Idaho).  Now imagine that in 2021 a Democratic Congress passes a bill removing that sliver of Idaho from the District of Wyoming and constitutes those fifty squares miles as its own district, to be called the Eastern District of Idaho.  (In gratitude for his work in calling attention to problems potentially arising from the District of Wyoming’s extending into Idaho, Congress names the law creating Idaho’s new Eastern District after Brian Kalt.)  Congress also creates the U.S. Court of Appeals for the Twelfth Circuit, with jurisdiction to review cases decided in, and only in, the Eastern District of Idaho.  And to staff the Eastern District of Idaho and the Twelfth Circuit, Congress creates hundreds of judgeships, to which it assigns…all federal judges appointed between 2017 and 2020.  And maybe even those appointed between 2001 and 2008.

This move would be a flagrant foul as measured by the uncodified understandings of the small-c constitution.  It would as a practical matter strip President Trump’s judicial appointees (and, in the stronger form, those of President George W. Bush) of all meaningful authority.  Nobody lives in the Eastern District of Idaho.  But it’s hard to think of a reason why such a reorganization would violate the written Constitution.  Congress has authority to constitute, ordain, and establish lower courts.  That authority extends to the creation and also the elimination of judgeships.  Congress can’t remove sitting judges from office except by impeachment, but judges do not have vested rights to their existing jurisdictions.  Congress divested sitting Fifth Circuit judges of large parts of their jurisdiction when it divided the Fifth Circuit into two Circuits.  There’s no big-C reason Congress couldn’t make a Circuit smaller and smaller until it had no practical significance.  I know of no statutory barrier to Congress’s directing a sitting judge to take his or her gavel elsewhere, and if there is one I’m not thinking of, it can be statutorily amended.  Congress can’t reduce the judges’ salaries, but nothing in the written Constitution provides that Congress cannot reduce, or otherwise alter, judges’ geographical jurisdictions. 

A Congress that enacted a “reform” like the one I’m describing would obviously be disrespecting conventions of mutual respect and fair play that are necessary to keep the constitutional system going.  Just as a Congress that enacted Calabresi-Hirji would. 

The point is this: Calabresi-Hirji is a defection from a shared convention of self-limitation.  Such a defection can make sense to rational and self-interested actors who think that the status quo is unacceptable, or who think that their rivals will never get a chance to retaliate, either because those rivals will never win enough elections to control Congress and the Presidency or because the Constitution doesn’t afford any tools for successful retaliation even to a party that does control the elected branches.  But there may be no such thing as an escalation that cannot be countered within the limits of the written Constitution, so long as one exercises a little bit of creativity.  One defection from a shared convention of self-limitation can always be seen and raised by another.  And a world in which an escalation like Calabresi-Hirji provokes retaliatory escalations is not a world in which either constitution—big-C or small-c—is doing the work that we all need it to do.

One further step.  My assertion that the big-C Constitution permits the Idaho workaround I described is an assertion about the prevailing understanding of the big-C Constitution as I write in 2017—as is my statement that the big-C Constitution permits Calabresi-Hirji.  But understandings of the text, and, therefore, understandings of the prohibitions of the big-C Constitution, are not static.  Under the pressure of a felt need to block a governmental action that judges believe to be a terrible thing, judges (and other constitutional interpreters) sometimes in good faith come to understand the text of the written Constitution in ways that would have surprised earlier judges—or even those same judges earlier in their careers.  In the middle of the twentieth century, when elite tolerance for official racism waned, judges began applying equal protection doctrine against the federal government, despite the fact that courts a generation earlier had confidently dismissed equal protection claims against federal defendants on the ground that neither the Fifth Amendment nor any other constitutional clause applicable to the federal government required equal protection.  Similarly, I suspect that the idea of an action-inaction distinction under the Commerce Clause was a product of an intense intuition among many judges and academic commentators that something in the Constitution must prohibit the Affordable Care Act’s individual mandate.  In each case, judicial decisionmakers eventually came to see something new in the text.  (I assume good faith in each example, and I bracket, for each example, both the question of whether the changed reading was legally proper and the question of what the legal-propriety question means.)

So I cannot say with complete confidence that a future judiciary confronting the Idaho workaround would say “Gosh, we understand that people think there’s something wrong with this, but we the courts have no warrant to countermand it, because it violates nothing in the Constitution.”  It is also possible that future judges would read something in the Constitution to prohibit the Idaho workaround. 

It is hard to know in advance just how such a reading of the Constitution would go.  The possibility that such a reading would emerge, however, would be no smaller if the judiciary at the relevant time were overwhelmingly staffed by Trump nominees unenthusiastic about exercising judicial authority only over the Eastern District of Idaho.  And we can be certain that many of the legal academy’s most brilliant and creative advocates would exert themselves to identify reasons why this or that clause of the Constitution, properly understood, forbade the retaliatory workaround.  Whether the best of those efforts would be enough to produce something the judiciary would endorse is something we cannot know for certain in advance.

So, knowing that this possibility of a changed reading was out there, the Democratic Congress drafting the Kalt Act might take one further step.  It might expand the Supreme Court to thirteen seats, thus giving the sitting Democratic President the opportunity to make four appointments and vastly reducing the likelihood that an innovative textual reading would doom the Idaho workaround in court.

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In some games, the formal rules constitute a closed system with no risk of self-destruction.  There is no move that a player can make within the game of chess that will render chess unplayable afterwards.  Constitutional law is not that kind of game.  It is, instead, a game in which some moves are both formally permissible and destructive of the enterprise.  In my own preferred analogy: constitutional law is like playground basketball.  If you care too much about winning and not enough about respecting your rival in the spirit of the game, pretty soon there might not be a game at all.

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