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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Signing Off on Discussing Court Reform
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Sunday, October 11, 2020
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.
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Books by Balkinization Bloggers ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |