Rivka Weill
There is a deep sense of crisis regarding the US Supreme
Court’s (SCOTUS) legitimacy. President Biden has tasked a Commission with reviewing and
recommending possible reforms to restore the Court’s legitimacy. My argument in
Court
Packing as an Antidote based on an examination of all Supreme Court
nominations and confirmations during a presidential election year is twofold:
(1) There was serious abuse of the appointment process involved in the Senate’s
treatment of the SCOTUS nominations of Judges Merrick Garland and Amy Coney
Barrett. (2) The remedy, by original constitutional design, to this abuse of
the appointment power is to engage in court packing. My Essay forms part of a
special volume on appointments, which the Cardozo Law Review prepared and
submitted to the US Senate ahead of the confirmation vote on Justice Amy Coney
Barrett.
To appoint a US Supreme Court Justice, the President must nominate a candidate. The Senate then considers this nomination and decides whether to confirm it. In March 2016, following the death of the Conservative Justice Antonin Scalia, President Barack Obama nominated Judge Merrick Garland to fill the vacancy. However, the Republican-controlled Senate refused to hold a vote on his candidacy. Republican Senators argued that, at this time of the presidential election year, they must await the election’s results. Fast forward to 2020, when Liberal Justice Ruth Bader Ginsburg died on the eve of the presidential election (September 18). This time, the Republican-controlled Senate rushed to confirm President Trump’s nominee, Judge Amy Coney Barrett, in late October, after millions of Americans had already cast their ballots. How should we treat the fate of these nominations? I suggest that we attempt to hold a principled discussion by envisioning these facts devoid of the names of the political parties and individuals involved. My argument is not predicated on one’s view on the Court’s agenda but rather is a principled argument addressing serious breaches of constitutional norms regarding appointment of SCOTUS candidates during presidential election years that severely compromise the Court’s legitimacy and independence.
The SCOTUS Bipartisan Constitutional Norm
In my Essay, I establish the existence of the “SCOTUS
Bipartisan Constitutional Convention,” or norm, dating back to the establishment
of the Republic. Under the convention, whenever a SCOTUS vacancy occurred, American
presidents always nominated a candidate, even if the vacancy occurred after
elections, and even if they already lost the election. Thus, Presidents Obama
and Trump acted in accordance with American tradition when nominating Garland
and Barrett respectively. At the same time, under the SCOTUS Bipartisan
Convention, the Senate interpreted its “advise and consent” constitutional role
such that it does not confirm a nomination to SCOTUS in a presidential election
year, unless it garners bipartisan consent. Some members of the other party
must support the nomination to attest that the appointment process is legitimate,
and the candidate is suitable. If the nomination cannot muster bipartisan
consent, then it must await the endorsement of an incoming Senate with a fresh
mandate from the people. Thus, Justice Barrett’s appointment based on
Republican support alone in that timing is marred.
The convention applies only in presidential election years, as
the President’s mandate wanes, not midterm elections. I define presidential
elections to include all nominations made within the presidential election’s
calendar year, or all confirmations made within twelve months prior to the
President taking office. This nuanced definition allows to account for the fact
that, over the course of American history, the time of assuming presidential
office changed from March to January with the adoption of the Twentieth
Amendment. The focus on presidential elections is justified because the President
enjoys the power to initiate and set the agenda regarding the SCOTUS appointment
process.
The SCOTUS Bipartisan Convention applies only regarding
SCOTUS nominations because it is the Court of last resort. Its decisions enjoy
the power of stare decisis. The Court de facto makes law, whether
we like it or not. Thus, the stakes are so high that, absent bipartisan
endorsement, it is justified to paralyze the appointment process and await a
new Senate.
To prove the existence of a constitutional convention or
norm, three conditions must be met: (1) Practice - The political actors
acted in conformity with this convention. (2) Rhetoric- The political
actors acknowledged that their behavior is driven by this convention. (3) Rationale
– There is a logic justifying this convention.
In my Essay, I examined all 42
SCOTUS nominations/confirmations conducted during presidential elections years
prior to Justice
Barrett. Judge Garland is the only case in which the Senate did not hold any
type of vote on the candidacy when the nomination was done before June 15th of
a presidential election year. The June 15th cut-off date aligns with
congressional treatment of the presidential transition process more generally.
Thus, the Presidential Transition Act requires the sitting
President to establish a Transition Coordinating Council at least six months
before the presidential election. This Council is responsible for preparing the
executive branch and presidential hopefuls for the possible transition of power
following elections.
Senators often vote differently on procedural rather than
substantive matters. Thus, we do not know whether Garland would have been
confirmed had the Senate held a vote on his SCOTUS candidacy. By preventing a
vote, the Republican Senators escaped accountability. They did not pay a
political price for opposing a candidate, considered a moderate. Nor did they
risk the possibility that Garland would have been confirmed on the merits.
Similarly, except for the appointment of Justice Peter
Daniel in 1841, in the build up to the Civil War, no appointment violated the
SCOTUS Bipartisan Convention until Barrett’s. Barrett was confirmed in October
2020 based on Republican Senators’ support alone. Thus, the Senate had twice in
recent years treated SCOTUS nominations in presidential election years in a way
that violated the convention. In both cases, the Senate’s actions amounted to
an illegitimate transfer of appointment power from one President to another.
At the time, Republicans argued that Barrett’s differential
treatment is justified, because Garland was nominated when control of the
government was divided (Democratic President, Republican Senate) whereas
Barrett was confirmed in a united government scenario (Republican President and
Senate). However, according to the SCOTUS Bipartisan Convention, SCOTUS
appointments during presidential election years are, in fact, more justified
during a divided government. In a divided government situation, in which the
Presidency and Senate are controlled by different political parties, no
confirmation may de facto be done without bipartisan consent.
As for rhetoric, the political actors have been speaking the
convention’s language since the US’ establishment. In the first transition of
power from Federalists to Anti-Federalists in 1800, President Jefferson
famously denounced the outgoing President Adams’ midnight appointments of
judges. Jefferson viewed the appointments as unfair and non-democratic. Yet, he
did not criticize President Adams’ SCOTUS appointments, including Chief Justice
Marshall’s, because they were done with bipartisan consent. The Framers of the
Constitution understood that presidential transition times call for
presidential restraint, yet bipartisan endorsement may legitimize even SCOTUS
appointments. In the 20th century, Senators recognized the SCOTUS Bipartisan
Convention as the “Thurmond Rule” in the 1960s or the “Biden Rule” in the
1990s. This was an acknowledged convention even when violated. In the case of
Peter Daniel, the Whigs boycotted the vote to express its illegitimacy, since
the vote was done mere days before a President from the other party took
office.
Further, this convention is grounded in solid, principled
rationales: (1) Democracy – During presidential election times, it is
important to enable the people to have their say on such a critical,
irreversible, act in the life of the nation, unless both parties endorse the
appointment as legitimate. (2) Agency – The incentive to dictate the public’s
life, even after Presidents leave office, is the greatest during presidential
election years. What better way to do it than appoint Supreme Court Justices?
The Senate’s practice of obtaining bipartisan support for
SCOTUS confirmations on presidential election years cannot be attributed to the
effects of the filibuster, rather than the SCOTUS Bipartisan Convention. Supposedly,
if you need two-thirds majority or 60% to overcome a filibuster through a
cloture vote, it is difficult for a single party to whip up the needed vote
count and this explains the need for bipartisan consent. However, for most of
US history, until 1949, there wasn’t even a cloture rule regarding SCOTUS
appointments. Yet, it seems that there was no utilization of the filibuster against
SCOTUS confirmations until the confirmation battle over Justice Abe Fortas’
nomination for Chief Justice in 1968, after the cloture’s establishment.
Rather, throughout US history, though there were contested appointments during
presidential election times, they required bipartisan support to pass.
Furthermore, the filibuster mechanism and the SCOTUS Bipartisan Convention aim
to achieve different objectives. The filibuster is intended to enable the
minority to have a voice and is most effective near elections, when it can
become a veto rather than a delaying mechanism. The SCOTUS Bipartisan
Convention, on the other hand, is intended to protect the incoming majority,
not the existing minority. The convention was thus effective throughout the
entire presidential election year, not just near elections.
Court Packing as a Remedy
Supposedly, the political actors intentionally left this
matter in the care of a constitutional norm. The voters may sanction Senators,
who breached the norm, by ousting them from office. However, the norm is
otherwise not enforceable. This perception relies on scholars’ understanding of
the writings of the most renowned British constitutional scholar of the
nineteenth century, Introduction
to the Study of the Law of the Constitution, by Albert Venn
Dicey. However, I contend
that Dicey never intended elections to serve as the only enforcement mechanism of
constitutional conventions. Rather, he intended that another constitutional
body would enforce the norm on the breaching constitutional actor. He
suggested, for example, that the Crown enforce constitutional norms on a
breaching Upper House. My argument is that, applying Dicey’s logic, since the
Senate breached its constitutional norm to enforce the SCOTUS Bipartisan Constitutional
Convention regarding Garland and Barrett, the enforcement mechanism is that
Congress as a whole, exercising its legislative function, will enact a statute
to enlarge the Court’s size. This way appointment power will be used to
neutralize the effects of its misuse.
Court packing is justified not just as a logical
countermeasure. It is the antidote to a partisan takeover of SCOTUS by original
constitutional design. The Framers of the Constitution intentionally did not
set the size of the Court. They left Congress, by statute, to set the number of
Justices. When President Adams reduced the number of Justices to affect the
Court’s ideology and prevent Jefferson from exercising the appointment power,
Congress undid his act. The Framers were aware of the existence of this
constitutional weapon/remedy (depending on one’s viewpoint) from the very
start. They resorted to court packing and did not question whether this act is
constitutional, the way they debated the First Bank.
In fact, I believe that the Framers would not have allowed
unchecked life-tenure for Justices, if not for the availability of court
packing. They were familiar with court packing based on the UK’s experience. In
the early 1700s, Queen Anne packed the Upper House of the British Parliament to
enable the passage of the Treaty of Utrecht, which enlarged inter alia
the American colonies’ territory. The Framers treated this Utrecht Treaty as a model
treaty on how to conduct foreign affairs. They surely knew how Queen Anne secured
the ratification of this treaty at home. Moreover, as the Founders seceded with
the Declaration of Independence, they enumerated their grievances against King
George the Third, while King George was busy creating peers/Lords at home to
pass legislation.
Why would packing the UK’s House of Lords (“Lords”) be
relevant to SCOTUS court packing? After all, it would seem that the US Senate,
rather than SCOTUS, is the equivalent constitutional body to the Lords. The
answer is that, during this period, the Lords fulfilled two functions: They
were simultaneously a second legislative chamber and the highest Court in the
land. Moreover, they
exercised judicial review over primary legislation as a second legislative
body, rather than as a court, to avoid accusations that what they allowed in
their capacity as a legislative body, they later undid as a judicial body. The
Framers were fully aware of this dual nature of the Lords. To avoid imposing these
conflicting roles on SCOTUS, they decided not to make SCOTUS also a second
legislative chamber. They further opted not to allow the President to pack the
Court, the way the Crown may do in the UK. Rather, they entrusted Congress with
this unconventional weapon/remedy. Yet, they left court packing available as a check
on unelected judicial power.
We live in historical times. The SCOTUS appointment process was seriously compromised twice in recent years. To restore SCOTUS’ legitimacy, Congress needs to enact court packing, preferably with bipartisan consent. In contrast to FDR’s failed court packing plan, which was prompted by dissatisfaction with particular judicial rulings, this time action is needed to neutralize a partisan takeover of the Court that has occurred. Thus, such court packing would not constitute a threat to judicial independence like FDR’s plan but would rather provide a way to restore it.
Rivka Weill is Professor at Harry Radzyner Faculty of Law, Reichman University (formerly IDC). You can reach her by e-mail at rweill@idc.ac.il.This blog post is based on her essay, Court Packing as an Antidote, 42 Cardozo L. Rev. 2705 (2021).