Sunday, November 26, 2017

Some Notes on Court-Packing, Then and Now

Guest Blogger

Neil Siegel

1. My colleague Curt Bradley and I have recently taken a detailed look at the constitutional debate over Democratic President Franklin Delano Roosevelt’s 1937 proposal to pack the Supreme Court. One of the most interesting facets of that episode is the extent to which opponents of the proposal tacked back and forth between arguments sounding in constitutional law and arguments sounding in constitutional convention.

For example, the report of the Senate Judiciary Committee argued that the plan was both an anticonstitutional and an unconstitutional attack on judicial independence. It declared that the plan was “contrary to the spirit of the Constitution” and that “[u]nder the form of the Constitution it seeks to do that which is unconstitutional.” The Committee expanded upon the “constitutional impropriety” of the bill by describing how the American constitutional system functions, and is supposed to function, in practice:

For the protection of the people, for the preservation of the rights of the individual, for the maintenance of the liberties of minorities, for maintaining the checks and balances of our dual system, the three branches of the Government were so constituted that the independent expression of honest difference of opinion could never be restrained in the people’s servants and no one branch could overawe or subjugate the others. That is the American system.

“Constitutionally,” the Committee concluded, “the bill can have no sanction.” It “is in violation of the organic law.”

2. Another noteworthy characteristic of the debate back then is that the issue of Court-packing did not fracture opponents and proponents simply along party lines. The Senate Judiciary Committee, for example, was controlled by the Democrats. Likewise, the disagreement between Richard Primus and Mark Tushnet over how the Democrats should respond to the mistreatment of Chief Judge Merrick Garland or any enactment of the proposal of Steven Calabresi and Shams Hirji to pack the lower federal courts indicates that “Court Packing, The Sequel” is unlikely to divide people simply along party lines.

3. Primus emphasizes the importance of longstanding political norms and constitutional conventions that help sustain the constitutional system by keeping partisanship within reasonable bounds and maintaining social peace. Tushnet responds that such norms and conventions change over time and require continual defense. Primus worries about avoiding a destructive race to the normative bottom in the area of judicial nominations. Tushnet responds that a race to the bottom is the only race there is given the behavior of Republicans, and so Democrats should seek to take partisan advantage when the opportunity again arises.

4. It is hard to disagree with Tushnet’s warnings against unilateral disarmament. Nobody should want to be a “booby,” as he puts it. At the same time, it is worth considering whether packing the Supreme Court in response to the mistreatment of Chief Judge Garland amounts to tit-for-tat or conflict escalation. It is also worth considering whether it is politically wise for Democrats to advocate Court-packing now, when the Republicans are much closer to having the power to do it, and when the Democrats risk yielding the moral high ground by signing off on the idea. Any asserted distinction between Court-packing in response to the Garland episode and Court-packing in response to alleged outrages by Democrats may be too subtle for American constitutional politics.

5. More fundamentally, it is worth considering the extent to which any approach to this issue should factor in the Supreme Court’s value as an institution (partisan warts and all) that is different from the political branches. The irony of Tushnet’s response to Primus’s assessment of Calabresi-Hirji’s proposal is that Tushnet’s response seems, at least to me, in the spirit of the proposal itself: Brass-knuckle partisan warfare is what the game is all about; talk of attempting to sustain institutional legitimacy is for boobies. Again, the Tushnet approach is focused on obtaining maximum advantage as part of a race to the bottom, but it is worth reflecting on whether there are instead ways of promoting a different race.

6. In case it is not already obvious, I myself side with Primus’s perspective, as vulnerable as that orientation may be to realist criticism and cynical acid in current times. Rather than wanting to bring the Court down to the level of Congress, I am trying to imagine a future in which Congress can be brought up from its current, low level of institutional functioning and self-regard. Specifically, I am writing a paper that seeks to develop a restraining role morality for elected officials that is similar in key respects to the judicial role morality that constitutional law scholars have long contributed to developing. It has seemed worthwhile to insist on role restraints for judges notwithstanding the frequency with which judges have failed to live up to normative expectations. We ought to demand the same of politicians notwithstanding realist concerns.

The paper should see the light of day soon.

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