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.
* * *
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.
* * *
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.