Suppose you thought that current proposals for Supreme Court reform were merely politically motivated and ill-advised. How might you react to Jack Balkin’s suggestions (including his earlier discussion)? Specifically, are there plausible constitutional objections to them? (I write “plausible” to signal that I don’t necessarily agree with what follows but that someone skeptical about the proposals might find them not merely plausible but compelling.)
One objection to the basic proposal, described by Jack as involving congressional creation of “two en banc courts,” almost leaps off the page. The Constitution says that there shall be “one supreme Court” but the proposal openly says that there will be two. (A formalist might say that each justice is appointed to the “one” supreme Court and then is assigned to different benches within that Court. A functionalist would be skeptical about that.)
This textual point might be bolstered by suggesting that the Constitution creates two multi-member bodies (the House and the Senate) and assumes that each member will have rights and duties equal to those of every other member, subject only to regulations adopted by the bodies themselves (e.g, the reference to choosing a President pro tem by the Senate). My guess is that in discussions about whether to create a plural executive you’d find the same assumption at work, with people saying that distinctions among those people would have to be made expressly in the Constitution or adopted by the executives themselves.
What about the incentives to retire after a designated number of years? This is a little trickier, but a skeptic might say that those holding office during good behavior can depart from office (other than by dying) only when they are impeached (with the impeachment process determining that that are unfit to serve) or when the office holder herself determines that she is unfit to serve (with a possible qualification for stripping the office holder of responsibilities pursuant to rules adopted by the branch within which the office holder serves [this is to deal with judicial councils, whose powers in this regard were quite contentious when they were created, see the dissents in Chandler v. Judicial Council (1970)]). Congress may adopt statutes designed to ensure that the office holder’s judgment about her own fitness is not influenced by extraneous (that is, unrelated to the issue of fitness) matters, for example by removing financial disincentives to resign or retire. But, the argument would go, it can’t adopt statutes designed to achieve other policy goals, such as by giving judges incentives to retire while they remain, in their own eyes, fit to serve. (I note that this argument wouldn’t be available were Congress to reduce the number of authorized law clerks across the board, not simply for long-serving justices, for example on the ground—which I’ve stressed—that the justices are deciding half as many cases after hearing argument as they used to decide, with more law clerks.)
Again, I don’t think that the foregoing are knock-down arguments against the Balkin proposal, but I also don’t think that they are insubstantial.
I should acknowledge that my views are influenced by two related considerations. (1) It’s difficult to see how politicians have incentives to adopt what I think of as “bells-and-whistles” reform proposals. It’s hard enough to give them political reasons for adopting simple proposals that they can readily explain to their constituents. Adding bells and whistles makes it all the more difficult.
(2) As things currently stand no reform proposals have any realistic possibility of being adopted (except perhaps some statutory proposals for term limits going forward—which again face the “politicians’ incentives” problem). In light of that, it seems to me that those interested in Court reform should come up with the best institutional design they can imagine. If one thinks that such a design involves a term-limited Court, one should try to figure out ab initio what the ideal term would be and not take eighteen years as presumptively correct. That period is obviously designed in response to the fact that the Court currently has nine members but optimal design might lead to a different term length. For what it’s worth, in other nations where constitutional court judges are term-limited eighteen years is at the very high end of choices, with twelve and fifteen being much more common. And, of course, proposals for eighteen year terms implicitly endorse and might even constitutionalize the current size of the Supreme Court, which might not be optimal. Eric Segall’s proposal for a Court with an even number of members, for example, has a decent rationale going for it.