Signing Off on Discussing Court Reform

Mark Tushnet

I’m getting bored with detailed discussions of Supreme Court reform/expansion/packing. (And if I’m getting bored, I can imagine how other people feel!) Trying to step back from details, which will come up only as illustrations, I make a few points here. As always, this sort of discussion has to be preceded with the observation that it rests on the assumption, as yet unproven, of a Democratic trifecta in 2021 (probably along with some sort of filibuster reform).

(1) It simply foolish to contend that you’ve come up with a solution that’s invulnerable to constitutional challenge. No proposal that I’ve yet seen can simply be enacted as a statute that’s guaranteed to survive constitutional assaults. Statutory term limits with prospective effect only bump up against the appointments clause of Article II, which can be read to distinguish between appointments to the Supreme Court and appointments to other federal courts. Jack Balkin’s proposal bumps up against the requirement that there be “one” Supreme Court (on which see the next paragraph) and against the contention that it requires that one read the exceptions clause to mean that something that eliminates every category of appellate jurisdiction is an exception to the appellate jurisdiction. (If one wants a cf. cite here, cf. Justice Scalia’s opinion for the Court in MCI Telecommunications v. AT & T, 512 U.S. 218 (1994), which holds that a “modification” of something means changing it incrementally or moderately.) Targeted or general jurisdiction-stripping provisions also bump up against the exceptions clause and substantive constitutional provisions, as explored in excruciating detail in the enormous literature on jurisdiction-stripping (in addition to being far more difficult to draft than proponents acknowledge). Even Court expansion/packing bumps up against the claim that since 1937 (or earlier, depending on how one wants to do the analysis), there’s been an enforceable convention that the Court’s size can’t be changed without a relatively pure “good government” reason, unpolluted by the desire to alter outcomes.

What we need are assessments of the constitutional arguments, not flat assertions on the order of “it can be implemented by ordinary legislation.” My assessment is that all the changes should survive constitutional challenge – and that the constitutional argument against Court expansion/packing is the weakest of the lot. (The “should” here is doing a lot of work; a full-scale assessment would have to take into account the proposition that – assuming that standing and other justiciability obstacles can be overcome – the statutes and the Constitution would be interpreted by the unreformed Court. So, for example, can we be sure that the unreformed Court would adopt the kind of purely formalist interpretation of the word “one” that Balkin’s proposal requires?) But, a proposal that doesn’t address potential constitutional objections isn’t a serious one.

(2) A lot of the discussion lists short- and long-term costs and benefits. The “downward spiral of retaliation/57 justices/delegitimating the Court” rhetoric is a list of assertedly long-term costs, for example. Proponents of Court expansion/packing acknowledge the short-term political costs but emphasize short-term benefits from Court decisions that are assumed to be different after Court expansion than they would have been without it.

What’s missing from all the discussions (except mine!) is any consideration of probabilities and a calculation of the net of costs and benefits taking those probabilities into account. To take an obvious example: If Court expansion occurs in 2021, it can’t be undone until 2025 unless Republicans win veto-proof majorities in both houses of Congress in 2023. What’s the probability of that? And what’s the probability that one effect of Court expansion might be to allow Democrats to enact statutes, both voting-related and otherwise, that would increase the likelihood that they’ll retain the trifecta in 2024? And, on the claimed benefits side, what’s the probability that the “reformed” Court will actually deliver those benefits, both short- and long-term? On the long-term side, there’s the Moyn-Doerfler argument that some forms of Court reform might actually exacerbate the problem of making the Court central in our politics. Again, what’s the probability of that outcome – as compared to the probability that the changes will delegitimate the Court?

Frankly, I won’t take seriously anyone who simply offers “downward spiral” as an argument against Court reform.

But wait, there’s more, though this one’s quite old hat and really boring. It’s generally assumed that delegitimating the Court is a bad thing (for progressives). The reasons offered are, again a list of good things the Court has been able to do (or to get away with) because of its legitimacy. It’s been clear for a long time – forever, in my view – that you’ve got to do a pretty complicated calculation of the costs of having a Court able to draw upon a “legitimacy” resource before you can say anything sensible about whether delegitimating the Court is good or bad. There’s Brown and the Watergate Tapes Case and Obergefell on one side and Shelby County and Citizens United on the other. You’ve got to explain your assessment of the net before I’ll take your list seriously.

I’d also like to know what you think a fully legitimated Court would do in a world where Congress could have but didn’t reform the Court. That is, what national legislation that you can imagine (within what time horizon?) would such a Court invalidate? Is it going to advance a progressive agenda on its own by, for example, holding limited expansions of health care unconstitutionally narrow? Again, this gets really complicated. You have to worry about what limits a delegitimated Court could put on what you think is an aggressive president, of course, but also about the limits a fully legitimated one would put on what you think is a properly assertive one. The same goes for review of state and local legislation; there you have to talk about the possibility of congressional legislation to preempt bad stuff – freed of the constraint of City of Boerne v. Flores.

You have to do all this, of course, only if you’re actually taking seriously the proposals you’re making and those you’re criticizing.

(3) Finally, what’s the point of these discussions right now? Pretty clearly, it’s to widen the Overton window. We can see from Republican rhetoric that they don’t want it to open even a crack – not surprising: Having gained control of the Court and the lower courts, they don’t want court reform of any sort. In fact, I’m pretty sure that they will describe every proposed reform as Court-packing. (If so, my view is that it’s better to be hanged for a sheep as for a lamb.) For people who think that the Court needs reform, I doubt that proposing to open the Overton window a little bit but not too much is a good strategy. But, once the Overton window has been opened pretty wide, I’ll leave to the politicians to figure out what to do.