Taking Constitutional Conventions Seriously: Biden's SCOTUS Commission and the Futility of Comprehensive SCOTUS Reform

Tomorrow evening at 8 PM Eastern Time, I am joining four other profs (Neysun Mahboubi, Eric Segall, Marin Levy, and Tom Ginsburg) and two journalists (Dahlia Lithwick and Emily Bazelon) to discuss Biden’s SCOTUS Commission on Clubhouse. (If you have an iOS device, sign up for the app and drop in).

It is a little difficult, however, to get very excited about a Commission that most likely will have few consequences for SCOTUS’s future. Section 3(a)(i) of Biden’s Executive Order creating the Commission calls for “an appraisal of the merits and legality of particular reform proposals.” Partisan realities, however, make it unlikely that Biden will have any appetite to act on that “appraisal.” Democratic Party rank-and-file have little interest in comprehensive and non-partisan reforms to weaken the SCOTUS, and purely partisan proposals to “pack” the SCOTUS with Biden appointees are toxic for Senators elected from reddish states like Manchin and Sinema. For Biden, therefore, the Commission’s main value would be to provide political cover for him to do nothing.

The Commission’s probable futility, however, points to a constitutionally interesting fact: The very fact of partisan polarization among SCOTUS’s justices that makes comprehensive reform of SCOTUS desirable also make it impossible. As Ganesh Sitaraman and Dan Epps noted two years ago, the degree to which justices now divide along partisan lines is not only unprecedented but also threatening to the Court’s legitimacy. Those partisan divisions, however, are reinforced by analogous divisions in Congress that will stymie reform legislation. Proposals that overlook this partisan obstacle assume the ladder needed to get out of the hole. Put more technically, such reform proposals suffer from what Eric Posner and Adrian Vermeule have called the “inside/outside fallacy.” Such proposals diagnose a problem from the “outside” the causes of which are ignored by the proposals’ recommended “inside” solutions.

After the jump, I will use the half-century of Republican ascendancy over SCOTUS from 1885 to 1932 to illustrate how partisan distrust blocks comprehensive overhauls of SCOTUS’s powers. The almost half century of GOP ascendancy over SCOTUS suggests that the large-scale changes pressed by Sitaraman & Epps as well by Eric Segall (my co-participant in the Clubhouse event) are practically impossible. Even assuming that the Democrats take over the commanding heights of the Presidency and Congress, rank-and-file Democrat are more likely to train SCOTUS’s cannons on their enemies than spike them. The best one might hope for from Congress, therefore, would be narrowly partisan limits on SCOTUS’s jurisdiction like the Norris-LaGuardia Act.

This does not mean that comprehensive reform is impossible — just that it probably has to come from within SCOTUS itself. Using James Bradley Thayer as an example, I will suggest that the more formalistically inclined profs on the Commission (Caleb Nelson, Will Baude, Tara Leigh Grove, and Michael Ramsey) might play a useful role in nudging Justice Gorsuch to adopt a more Thayerian version of the textual formalism to which he is already prone.

1. How partisan distrust creates constitutional conventions that block comprehensive congressional reform of the SCOTUS.

Democrats are naturally disheartened by the 6-3 margin of GOP control over the Roberts Court. They will not be cheered by the precedent of Republican control between the Fuller and Taft courts. There were, to be sure, four justices appointed by Democratic President Grover Cleveland during this period, including two chief justices (Fuller and White). Grover Cleveland, however, came from the pro-business wing of the Democracy and accordingly chose “Bourbon” Southerners like Lucius Lamar or pro-business New Yorkers like Peckham. The result was that, starting with the Wabash decision in 1886, the SCOTUS aggressively deployed the dormant commerce clause to suppress labor strikes and state regulations supported by farmers and workers.

My colleague, Barry Friedman, has argued that the SCOTUS is ultimately answerable to the people. Maybe so, but the mills of popular sovereignty grind slowly. SCOTUS’s radically new suspicion of state law transformed the nation, over the objections of Congress. The Fuller Court’s revival of the “original package” doctrine, for instance, suppressed effective state regulation of liquor, thereby nationalizing the debate over alcoholic beverages. Congress tried to send the question back to state legislatures with the 1890 Wilson Act, but the Fuller and White Courts construed this statute so narrowly as to nullify it. Advocates of prohibition were forced to seek congressional legislation and, eventually, a federal constitutional amendment to control a culturally super-charged issue matter obviously best left with the states. Likewise, the GOP-dominated SCOTUS not only used the Sherman Act to enjoin strikes and boycotts but also sidestepped congressional efforts to curb this judicial crusade against labor in Duplex Printing Press Company v. Deering (1921) by exempting secondary boycotts from section 20 of the Clayton Act.

In theory, Congress could have brought SCOTUS to heel. In practice, partisan divisions prevented Congress from acting. The Democrats controlled all three legislative actors (House, Senate, and President) for only twelve years between the 49th and 73rd Congresses. Mustering a majority to overrule the court or curb its jurisdiction was, therefore, usually impossible. The SCOTUS became, in effect, a fourth legislative actor — but one that, unlike the other three, could act all by itself. Ironically, bicameralism and presentment did not slow the law-making process down but rather sped it up, as checks on the court’s law-making power were stymied by Congress’ and Presidents’ checks upon themselves and each other. SCOTUS’s sweeping preemption of state law may have often been a good thing as a matter of policy: Richard Bensel argues that the Court’s commerce-clause doctrine created a continental-scale free-trade zone ultimately beneficial to national industrialization. But this juristocracy certainly was not a democratically accountable government.

Like the current resurgence of federal judicial power, the almost half-century of judicial rule inspired a wave of research on the motivation and control of federal judges. (Landis and Frankfurter’s Business of the Supreme Court (1928) is the surviving classic from this genre). But gridlock and partisan division frustrated any ambitious program of what Andrea Katz calls “progressive formalism” to curb the SCOTUS. When the 72nd Congress’ combination of -pro-Labor Democrats and progressive Republicans finally overruled Duplex Printing with the Norris-LaGuardia Act in 1932, they made only the most surgical strike on federal judicial supremacy. FDR’s effort five years later to “pack the Court” ended not only in defeat of the effort to add seats to SCOTUS but also, as Jeff Shesol has described, FDR’s ambitious legislative program, as Southern Democrats bolted from his coalition.

Our current batch of proposals comprehensively to re-constitute SCOTUS will likely fare no better. It is hard enough to hold together a coalition in our tripartite legislative process to enact any comprehensive legislation on any topic. Enacting legislation to control SCOTUS is like trying to get a half-nelson on a slippery eel, because SCOTUS ultimately determines what Congress’ handiwork means. Where parties have razor-thin majorities in Congress and justices feel that they have allies in the electorate, there is even the possibility that any radical overhaul will be trimmed back by the Court that is that overhaul’s target.

To justify such a judicially administered haircut, the justices could cite the “small-c” constitution rooted in longstanding conventions that “liquidate” open constitutional questions. They would be correct in rejecting the idea that the written big-C Constitution leaves matters settled by longstanding convention up for congressional grabs. Satamaran and Epps’ idea, for instance, that Congress could replace SCOTUS with bi-weekly rotating panels of circuit judges seems like a professors’ fantasy to me. This is not because the formal written Constitution forecloses such an arrangement. The obstacle is rather that holding together a coalition to reform any institution is a difficult business, and legislators naturally want to take as much of the status quo as a given, to escape the danger that comprehensive reform will spin out of control in unpredictable directions. A relatively small collegial bench with a stable membership is the tradition around which members of both the public and Congress will inevitably rally just to escape the headache of building a new institution from scratch. The avoidance of that headache is the legislative incentive for what Alexander and Schauer call the “settlement function” of Constitutions. Members of Congress, Democrats and Republicans alike stick by most of what is done most of the time not because such conventions are correct but because it is hard to knot together a comprehensive bargain when such conventions are unraveled.

2. Will SCOTUS curb itself? How the Commission might promote the Thayerian uses of constitutional formalism

Any congressional curb on SCOTUS will, therefore, likely be modest and marginal, regardless of the theoretical powers that Article I confers on Congress to reinvent judicial institutions. But that fact of practical settlement through constitutional convention does not mean that Biden’s Supreme Court Commission cannot offer some useful and potentially court-curbing analysis.

The Commission enjoys one advantage that could give it practical influence: It contains fpur law professors — Professors Will Baude, Caleb Nelson, Michael Ramsey, and Tara Leigh Grove — who enjoy extraordinarily high reputations for their meticulous scholarship in what might be loosely called the formalist key. Baude and Nelson, in particular, have built reputations on the care with which they have investigated constitutional text and history (in that order) to derive apolitical conclusions about, in particular, limits on federal judicial power. Their views might conceivably carry weight with any justice — say, Justice Gorsuch — who prides themselves on apolitical fidelity to written text.

Might they nudge Justice Gorsuch into incorporating into his textualism and originalism a bit more humility and uncertainty? If they did, then their influence would bear an analogy to James Bradley Thayer’s 1893 essay “The Origin and Scope of the American Doctrine of Constitutional Law” in making respectable to the legal establishment the idea of judicial deference to legislation.

As Professor G. Edward White has noted, Thayer sat at the center of the legal and cultural establishment of New England: An antebellum Whig and Unitarian with close ties to the Metaphysical Club, he was the very model of the respectable Boston Brahmin. He was, in particular, offended by the common accusation that federal judges wielded legislative power against workers out of class bias: In response to Left economist Richard Ely’s accusation to this effect, Thayer wrote in 1891 that “[i]t is a pity to publish in a foreign review such crude observations as these.” Thayer’s 1891 essay against Ely was a defense of the power of judges against the accusation that judges acted legislatively, by emphasizing that “the true question for the judges is not what their own opinion of the true interpretation of the Constitution is, but what view of it is reasonably permissible.” Observing in 1891 that “judges often recognize this, but also they often fail to recognize it,” Thayer wrote his 1893 essay as a sequel, cashing out in greater detail why judicial power was legitimately judicial.

Thayer, in other words, was a voice of respectability to whom respectably conservative Republican or Bourbon Democratic judges might listen. In a politically polarized era when justices feared that property was under attack from mobs of socialists and anarchists, judicial deference needed such respectable and indeed conservative credentials. Thayer’s essay was written, after all, in the same year that Justice David Brewer gave a speech denouncing “the movement of coercion” that threatened to deprive the wealthy of their property. Attacking trade unions for interfering with contractual freedom, Brewer proclaimed that it was “the unvarying law, that the wealth of a community will be in the hands of a few.” Only an unelected court could safeguard those besieged plutocrats from the mob! Holding such views, Brewer was not likely to be impressed with wholesale attacks on judicial power. But an essay by a Boston Brahmin who was offended by the crudity of socialist Richard Ely? That was the perfect vehicle by which to convey Thayer’s message of judicial caution.

Would Baude, Nelson, Ramsey, and Grove convey a similar message to Justice Gorsuch? Thayerism is hardly hard-wired into textualism and originalism: In theory, formalism lets the textual and historical chips fall where they may: Maybe judicial deference just is not where the chips fall. The case for formalism, however, may rests in part on the idea that courts’ legitimacy depends on an especially clear connection between positive, written law and judicial decrees. Where that clarity is missing because the originalist sources are in conflict, then this premise suggests that judicial deference is the formalists’ virtue. Any rule of recognition that cannot be easily recognized is a pretty weak basis for positivism, and formalism (i.e., originalism with the Constitution, textualism with statutes) is just positivism laced with a lot of grammar and history. Where that grammar and history are hard to decipher, why not then defer to the most easily recognized rule of law -- legislation enacted by Congress or the states?

I will not guess at the odds that the Commission will unanimously warn SCOTUS about the threat posed to its legitimacy by its obviously partisan divisions. Nor will I guess at whether the Commission will urge neo-Thayerism as a way to achieve greater unity and legitimacy. I am, however, reasonably confident that the chances of Gorsuch’s (and Robert’s) heeding a such a message and curbing the Court from within seem higher than the odds of Congress’ doing so from without.