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Monday, July 09, 2018

Constitutional Politics, Court Packing, and Judicial Appointments Reform

The following post is by Matthew Seligman, a VAP at Cardozo. It is a short version of his new paper.

In the aftermath of Justice Kennedy’s retirement announcement, several legal scholars have suggested that Democrats should add seats to the Supreme Court when they retake the Presidency and Congress.  Jed Shugerman, for example, advocated expanding the Court to 15 if Trump’s replacement nominee is confirmed, on the ground that no President under investigation for conduct that plausibly could lead to impeachment has appointed a Justice who might rule in his own case.  In addition to that conflict-of-interest principle, Ian Samuel suggests packing the courts in response to prior rounds of Republican hardball—most notably the Republican Senate’s refusal to consider Judge Garland’s nomination to succeed Justice Scalia.  Samuel is aware of the obvious implication of initiating a cycle of retaliatory court packing, as Richard Primus explained in the Harvard Law Review Blog in response to Steven Calabresi and Shams Hirji’s proposal last year that Republicans expand the courts of appeals by dozens or even hundreds of judgeships.  An escalating cycle of packing and re-packing the courts would offer fleeting advantage to one side and then the other (assuming neither side is able to permanently entrench its political dominance).  And the cost would be steep: undermining the legitimacy, public acceptance, and even basic functioning of the courts. 

The irregular Supreme Court appointments process has been a problem for centuries.  Allocating substantial power based on the vagaries of the timing of deaths and retirements is no way to run a constitutional democracy.  And the best solution on offer has been around for decades or more: a term limit on Supreme Court Justices of 18 years, joined with fixing the number of Justices at 9 and a regularized schedule of appointments every 2 years.  The primary problem with this solution, whether it is to be sought by statute or by constitutional amendment, is actually making it happen.  Constitutional amendments are exceedingly challenging to achieve even on issues with lower ideological stakes and when the parties’ willingness to cooperate is much higher than it now is.  A statutory compromise on the judicial appointments process would be extremely challenging in its own right, in part because such a statutory measure could be reversed by a single party in control of Congress and the Presidency.  We live in an era, we are told, of constitutional hardball.  With the continuing collapse of constitutional norms, it seems less likely than ever that the parties could cooperate to solve the problem.  So, it may seem, we are likely to see the initiation and escalation of continuing cycles of court packing.

In a new essay, I argue that this understandable pessimism is a mistake.  I offer the counterintuitive conclusion that in this moment of cratering cooperation, there may be a rare political and legal opportunity to restructure the judicial appointments process for the better and for good.  The readily apparent prospect of imminent court packing changes the game.  Precisely because the threat of endless escalation is now so salient, both parties are positioned to recognize the value of pursuing a long-term solution over securing short-term and ephemeral partisan advantage. 

Here’s how:

Escalation in constitutional hardball predated the present moment, but its inevitability now presents itself to us with perhaps greater clarity than anything that came before.  There was, perhaps, some uncertainty about the opposing sides’ strategies and potential responses in this iterated game when it came to the abolition of the filibuster or with respect to how late in a President’s term the Senate will consider a Supreme Court nominee.  Court packing is different.  Once the cycle of court packing begins, that uncertainty will likely evaporate.  Each party will be certain—or as certain as one can be when it comes to law and politics—that the other party will re-pack the courts with ever greater numbers.  Moreover, unlike other hardball moves like the elimination of the filibuster, court packing admits of no clear limiting principle.  The parties can eliminate the filibuster only once.  But once the parties start packing the courts, there is no natural stopping point.  And both parties know that.

That shift from uncertainty to near-certain knowledge of imminent escalation with no foreseeable stopping point is the unique circumstance that may change the game.  The players now know that the other side’s strategy would be hardball, and that those strategies will inevitably lead to endless escalation—an outcome that is worse for everyone (I assume) than cooperating.  That alters the payoff matrix in a critical respect.  Neither party has any reasonable hope of achieving unilateral dominance through the hardball of court packing, because it knows that the other party will respond by playing the hardball of court packing as well.  Thus, due to the newly shared perception of impossibility of achieving dominance through hardball about the courts, for the first time the parties’ self-interested incentives point to a strategy of binding cooperation.  Accordingly, precisely because the threat of escalation has become so salient and so apparently inevitable, judicial appointments reform through a constitutional amendment may be more attainable than it ever has been before.

Posted by Howard Wasserman on July 9, 2018 at 03:24 PM in Article Spotlight | Permalink


Maybe if the parties were representative of people who felt that they could fundamentally agree on most aspects of how our government should work and whom it should protect, then sure, a few rational people in leadership might come to a compromise which protects both sides' interests and preserves the Court's legitimacy.

But that doesn't describe our politics now. We are in the late stages of a cold civil war. It will have to get worse before it gets better, if indeed it ever does.

Posted by: John | Jul 12, 2018 1:29:36 PM

Some time delays are unconstitutional; army appropriations are limited to two years, for example.

Some delays are clearly bad. The "urban growth boundaries" in the Pacific NW would probably never gotten voter approval originally, considering how subsequent attempts to strengthen them have been rejected, had voters been able to forsee the effects. Pushing tax hikes into the out years is budget legerdemain, but doing that also gives people time to adjust behavior so it won't generate much revenue. (If the tax is intended to influence behavior, like a Pigouvian carbon tax, then that effect is intentional.) Ordinary citizens can't understand budget bills without expert interpretation anyhow, and out-year taxation is no worse than a thousand other dishonest budget gambits. I doubt anyone who cared about the budget was fooled by PPACA's gaming of CBO projections.

Some are delays entirely prudent. I don't think many would find fault with the the 22nd amendment exempting Truman. Fewer would defend the importation of slaves, and Congress wouldn't have gotten the power to ban that without a time delay. Phase-ins are common in the tax code and in environmental law (e.g. CFC phase-out).

So yeah, time-delayed legislation can be abused, but can also be helpful. I don't see a universal rule here. In the SCOTUS case, it helps to not know who will be prez and who will control the Senate when the change takes effect, so you aren't forcing politicians to act against self-interest (never likely to happen). If we had an amendment for congressional term-limits with a 50-year delay passed when the idea was popular in the 80's, we would be almost there now.

Posted by: M. Rad. | Jul 12, 2018 1:22:40 AM

"Also, an amendment (or statutory reform) may be easier to pass if given a (e.g. 20 year) time delay; it worked in 1808, y'know."

Yes, but do time-delayed laws cause corruption? If so, they violate the law for the same reason that campaign-finance-contributions that cause corruption violate the law.

So let's say that time-delayed laws don't affect one's chances of re-election because people don't associate the negative effects of the law with you. Well then you're willing to pass any law, whether it's good or not, because you don't have to accept the consequences of your actions (not being re-elected).

What we need is an amendment that bans time-delayed laws, time-delayed health-care mandates, and time-delayed taxes. Everything must go into effect right away so people associate the consequences of the laws, mandates, and taxes with those currently in power who voted to approve them.

Posted by: Hufflepuff | Jul 10, 2018 9:02:17 PM

A less drastic reform that doesn't require amendment is to just let the size of the court vary and appoint justices on a fixed schedule. That cuts the magnitude of the political shock in half, since appointments and retirements will occur separately. Also, an amendment (or statutory reform) may be easier to pass if given a (e.g. 20 year) time delay; it worked in 1808, y'know.

Posted by: M. Rad. | Jul 10, 2018 8:03:14 PM

Good news: I found actual footage of a president trying to convince a Supreme Court Justice to retire and then conspiring with him to name a replacement.


Posted by: YesterdayIKilledAMammoth | Jul 10, 2018 7:34:00 PM

Rather than setting term limits for Supreme Court justices, we should consider setting a mandatory retirement age of 75 for all confirmed after the passage of the amendment. There has always been a problem with justices staying on beyond their physical or mental ability to do the job but with the Court now used as a permanent weapon by both parties, we have had justices refuse to resign (think Douglas, Marshall) because they didn't want to give up their seat to a president of the other party.

Posted by: PaulB | Jul 10, 2018 11:09:32 AM

"I don't see how stripping a judge of his authority to hear and decide cases is consistent with holding their offices during good behavior."

Let's say you put 18-teaching-limits on professors. After 18 years, they'd still get their salary, and they were still expected to do research and write journal articles (to receive that salary), they just couldn't teach classes anymore--to make sure that students were exposed to different professors than their parents.

You'd have no problem with that, right? What's the difference?

Posted by: Mr. Chips | Jul 10, 2018 5:38:03 AM

We could also have 12-year senate term limits, so that by the time the next nominee was up for a vote, no one who'd voted on the last set of nominees would be present.

Posted by: Garlandia | Jul 10, 2018 5:32:26 AM

I don't see how stripping a judge of his authority to hear and decide cases is consistent with holding their offices during good behavior. There is nothing to their offices other than hearing and deciding cases. Also, Congress apparently din't think they could force appellate judges to take senior status; they left it up to the judge to decide for himself whether he would take senior status.

Posted by: Biff | Jul 9, 2018 11:54:02 PM

The Carrington Plan for 18-year term limits could be done by statute, certainly if done prospectively and perhaps (although it's closer) even if done retroactively. Justices would not be removed from the Court after 18 years, so they still hold their seat during good behaviour. But only the 9 junior-most Justices hear and decide cases (unless recusals, etc.).

Posted by: Howard Wasserman | Jul 9, 2018 6:34:46 PM

I'm just clarifying: I am not advocating court packing. Thanks.

Posted by: Jed Shugerman | Jul 9, 2018 5:46:35 PM

What do you mean, "whether it is to be sought by statute or by constitutional amendment?" The only part of this plan that can be done via statute is setting the number of justices at 9. And, not only can that be changed whenever there is unified government, that is not reform at all. The number of justices is already set, by statute, at 9.

Posted by: Biff | Jul 9, 2018 4:40:09 PM

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