Strengthening Constitutional Self-Government

No Left Turns

Pack the Court?

Jean Edward Smith has an op-ed in today’s New York Times. The point is this: The Supreme Court today is controlled by an "ideological agenda" (that is, not Smith’s), so, the solution is to pack the Court. It has been done throughout our history, argues Smith. Amusing. Smith is an excellent writer, wrote a couple of fine biographies (Marshall, Grant, and FDR is just now out), and I like him. And his liberal honesty is refreshing, I must say. Needless to say, I disagree. Smith: "If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two."

Discussions - 15 Comments

It's good to be reminded that the Const. doesn't determine the size of the Court and the so "Court-packing" is a const. means available to Congress that it might use in defense of its interpretation of the Congress. I sure wish Republicans had at least talked about a little when they had control of Congress.

This would be a gross violation of the separation-of-powers principle, even though technically constitutional. The effrontery, the arrogance, of this recommended Democratic tactic is breathtaking. At this point, nothing that is called for (or attempted) on the liberal side should surprise us.
But it should be used to educate, meaning to shock, the public. If the Democratic Congress did packed the Court, it wouldn't be to "defend" its "interpretation of Congress." It would be to continue imposing judicial tyranny on the country. The only institutionally motivated court-packing would be the action of nearly unanimous majorities in Congress. Smith, whether likeable or not and whether he's written fine biographies or not, is proposing that prior presidential elections and the appointments that resulted from them, confirmed by Congress, be nullified by a (perhaps) temporary Democratic regime. This is not how our system is supposed to work.

Would anyone care to explain or speculate on why the Framers pointedly left this question open and did not peg the size of the Supreme Court in the Constitution? And note per Smith's article that a number of the Framers themselves played this game in the early years.

The Founders didn't think anyone would try to pack the court. They were wise and prudent men, not gods, and didn't foresee everything. I seem to remember an essay claiming the judicial branch would cause the least amount of trouble . . .

I was going to post a comment on this, but Peter beat me to it. Having met (and liked) Prof. Smith, I was certain when I read this that it was deadpan satire, that he was goading liberals into making a collossal political blunder. He can't with straight face tell us that today's "conservative" court is going against "popular" ideas (oh yeah--affirmative action--that's real popular with the public), while the Warren Court was merely enacting "popular" ideas. This is the kind of thing that gives contemporary liberalism its bad name.

Peter, I hope you will blog separately on this closely related issue, but let me raise it here. Sen. Specter is saying that he intends to re-examine the confirmation testimony of Roberts and Alito to see if their actions in court match what they told the Senate.(at Politico:

I dispute the propriety and value of these extended confirmation hearings because they imply incorrectly that the Senate has some right to carry out precisely the kind of post-facto review of "commitments" he is planning.

In this regard, there is a solid, official Senate document updated periodically [the 2002 version is 108th Congress DOCUMENT ! SENATE " 2d Session No. 108–17], titled "Constitution of the US: Analysis and Interpretation."
That Senate publication has included a pretty definitive statement that Senate confirmations are absolute up or down, and cannot be "conditioned" on any requirement by Senators. The current version reads as follows [on pp. 542-3]: "The fact that the power of nomination belongs
to the President alone prevents the Senate from attaching
conditions to its approval of an appointment, such as it may do to
its approval of a treaty. In the words of an early opinion of the Attorney
General: 'The Senate cannot originate an appointment. Its
constitutional action is confined to the simple affirmation or rejection
of the President’s nominations, and such nominations fail
whenever it rejects them. The Senate may suggest conditions and
limitations to the President, but it cannot vary those submitted by
him, for no appointment can be made except on his nomination,
agreed to without qualifications or alteration.’ This view is
borne out by early opinion, as well as by the record of practice
under the Constitution."

I'd like to see some discussion of this whole matter of confirmations: whether judicial nominees should appear to answer questions at all, and the extent to which they should be expected to "rule" consistently with their so-called "promises," in Specter's language.

I contend that they should not appear at all. No Supreme Court nominee ever went before the Senate until Felix Frankfurter in the 1930s. Even into the 1960s, nominees hardly said more than their name and background. The notion of grilling them on their constitutional views is a very recent development. Commitments made in these hearings by their very nature cannot always be followed even if a Justice wants to. Moreover Specter's examination assumes that the Justices should not even hear arguments since they ought not allow themselves to be persuaded. One even wonders under these circumstances what kind of moral obligation there is on nominees to explain views candidly to the Senate that they may find themselves unable to act upon on the bench.

Let's avoid the obvious fact of Specter's refusal to follow his own commitment on judicial appointments to Bush, Santorum, and other Republicans in his 2004 re-election campaign.

If the Roberts Court is as activist, power mad, and dismissive of precedent as Prof. Smith claims, what would prevent it from inventing a reason to declare unconstitutional any law increasing the size of the Court?

Dennis shows the logical extension of the tyranny of the committes of Congress over constitutional government.

Cindy's brief note (comment 7) is wonderful!

But, Dennis and others, isn't Smith's proposal a consequence of Republican proposals (e.g., Bork) to have Court members serve for terms or even be elected?

How do we distinguish between, say, Rossum's proposal to have Congress limit circuit court appeals, as they can (even Leonard Levy had to admit Ralph had it right), and Smith's proposal? Of course Steve has the goods on Smith's silly idea that the democratic consensus is with the Dems. On the contrary, the courts are possibly the weakest part of the Dem agenda--for some reason Bush never chose to exploit this weakness, trying to hide behind Miers, etc.

Cindy's comment is funny and deep. Its deep thought is that judicial restraint is a joke if it's basely solely on the Court's self-restraint. The Court needs to be restrained by the constitutional means at the disposal of the other two branches. Court-packing, the Constitution is crystal clear, is one of them. I agree with everything dennis says. Confirmation is an up or down vote. Justices can't be held accountable for opinions they express in confirmation hearings. They might actually be open-mined enough to change their minds, based on what the Constitution actually says. There's no const. impediment to detailed confirmation hearings, but their recent invention certainly wasn't progress. Steve H. is right, court-packing in our time as a threat will help the more populist Republicans, just as it helped the Democrats in FDR's time. So thanks to the Democratic author for reminding us of it as a perfectly legitimate const. weapon.

9: Professor Lawler, this ignores political realities, does it not? Republicans in Congress, especially the Senate, will never have the guts to do any of this, or more than a small sliver of it. The Democrats, however, might. Anything they do to tamper with the judicial branch -- even if legitimate in terms of political philosophy -- will be tailored in order to continue the imposition of the Harvard Law School Constitution on the American people. It will further the erosion of democracy, let alone traditional values. It seems to me that public (as distinct from seminar) advocacy of these means of court-curbing has a strong tendency to legitimate what the liberal mentors of the Democratic Congress are now thinking of doing, and what we may in fact see if a Democrat is elected president. It might be gratifying in theoretical terms, granted. But really, so what?

To Ken M (8): In reply to your question, I don’t dispute the constitutional power of Congress to pack the Court. In fact I have long argued that Republican Presidents such as Bush should do a little “court rattling” a la FDR. THE great problem with the judiciary which has gone on for decades now is that the courts believe themselves to be independent of any challenge from the elected branches. I don’t even think it would have taken much pressure from a serious Republican President to get the Justices to “retreat to the Constitution” (in Robert Jackson’s formulation).
I am completely with Steve Hayward and others that it would be a big political error for the Dems to take up Smith’s idea…provided the GOP Presidential candidate understood the constitutional structure better than President Bush does. It is a CONSISTENT policy for the GOP to (1) insist on continuing to appoint Justices who interpret rather than make up the Constitution, and (2) to threaten to block evidently unconstitutional decisions, or rather, strictly speaking, the consequences of unconstitutional holdings behind those decisions.
Republicans are flaccid in this judicial business. They have never moved away from the 1937 model, when conservatives defended the Court against FDR’s determination to force them to accept the New Deal. Many Republicans actually think FDR lost that battle! In fact the Court itself simply surrendered, and before the end of his Administration, FDR did get to appoint 7 of the Justices – in every way he won that fight.
Our conservatives think mistakenly that Americans rushed to defend the institution of the Supreme Court in the Court-packing proposal, which is why the Democratic Congress never enacted it. But American voters don’t tend to think abstractly; the political issue at stake is central to the “institutional” question. Thus, had Justice Owen Roberts not gone over to the pro-New Deal members to form a 5 man majority for FDR just as the President unveiled his Court-packing plan, it’s a cinch that it would have passed.
So the Court IS indeed the weakest of the 3 branches because it can be changed when necessary by the elected branches, which is why the Justices cannot compel the country to swallow its radical agenda forever.

To Andrew (4): I very much doubt the Framers didn’t think about Court-packing. It was precisely the easy manipulation of the judiciary by the King and Parliament that they sought to prevent by making the Supreme Court the head of an independent and co-equal branch. Moreover, consider the great care those “demi-gods” (so Jefferson said) took to prevent Senate-packing by including an unalterable provision requiring only 2 Senators from each state. In other words, they knew what they were doing when they left the door open to changing the number of Justices when it was necessary to do so without fixing the number constitutionally.
I think you refer to Federalist 78 speaking of the judiciary as “beyond comparison the weakest of the three branches of power” and again as “the least dangerous.” But why is this? Because “it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches.” It is less dangerous principally when the other branches are prepared to counter the Court by the many instruments and devices they, but not the courts, have available to them as lawmakers and executives.

There is one such power, mentioned discreetly by Publius, that should be taken to heart today. Explaining that the judiciary has neither Force nor Will but only judgment, he adds: “it…must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” What this means is that the President, not the judges, has the power to enforce OR REFUSE TO ENFORCE a court’s judgment. That is an invaluable check when Presidents recognize that they have equal authority or equal duty to decide what the Constitution means. At least in cases where the courts are egregiously mistaken, Publius contemplates that such judgments may not be enforced. I believe that a President or candidate who even hinted that he took that discretionary power seriously and would not enforce an evidently unconstitutional decision – let’s say, the absurd decision barring public school students from praying at football games – he would be overwhelmingly supported by citizens, and would send the courts an unmistakable signal that the days of unchallenged judicial activism are over.

That kind of executive discretion is indeed to be exercised sparingly and prudently, but our commenters should recognize that ultimately this is a political question, subject to the give and take of the ongoing debate among parties and candidates. Most conservatives are flaccid on the Court because they still think, mistakenly, that all they can do to get the Court back to the Constitution is either name better Justices or amend the Constitution to clean up the Court’s decisional messes. This is unfortunate since on the substance of the issues the Courts have mishandled, Americans are largely with us and not with the radicals.

11: The problem with the nullification strategy you suggest is that if conservatives legitimize this in the public mind, it will be that much easier for the liberals to pull off. Conservatives simply won't do this on a national scale. Repeat: IT WILL NOT HAPPEN. But the liberals might. Nullification at the local level is another matter. The liberals already do this, so there's no reason we shouldn't. But to suggest a national delegitimization of the Supreme Court is a dangerous undertaking. I much prefer what I assume is the Roberts strategy: Cutting down liberal precedents gradually until, over a period of years, there's nothing left of them. I believe this is the only politically feasible way to restore any semblance of the true Constitution. Anything else will engender a great backlash. It is counterproductive to talk about Smith's court-packing proposal as anything but an ACLU, Democratic power grab. Anything the right does of this sort -- albeit in the defense of the true Constitution, not in furtherance of the ACLU/Harvard Law School Constitution -- just scares voters and encourages the left, the only people who might actually do these things. On our side, it's just talk. But dangerous talk.

To David (11): Let me suggest a common sense principle: any procedure conservatives can think up liberals can think up too on their own. They won't hesitate to take all the suggestions I have made and use them for their own liberal ends merely because we conservatives haven't done so. I don't worry much about teaching the left anything they haven't figured out themselves, so I don't worry that my talking about refusing to enforce unconstitutional decision will teach liberal Presidents to do so. Indeed it is mostly conservatives who refuse to think much about the powers they have to challenge the courts who need to be taught.
By the way, Sen. Schumer just said tonight that he and his fellow Dems will block EVERY Bush judicial nominee from now on. This makes it imperative for Bush to revive another power that hasn't been used since Ike was President: recess nominate Supreme Court Justices along with lower federal judges if the Senate remains obstreperous. Yes, I'd take that to the people in Nov. 2008, and if the GOP keeps the WH and retakes the Senate, those recess appointments can be made permanent. If not, nothing lost anyway.
This is a struggle over politics, which means, a struggle over who rules. In that struggle every CONSTITUTIONAL power at the command of President Bush and conservatives in Congress must be marshalled in order to defend self-government.

I am all for recess appointments. I'm all for bold appointments. I'm all for tough rhetoric. And I'd love to see nominees talk back to Murderer's Row (the Dems on the Judiciary Committee). I'd also like a limited amount of nullification at the local level, especially in regard to the Establishment Clause. I'm against attempts to curb the Supreme Court's jurisdiction, to pack the Court, or to refuse to enforce Court decisions at the federal level (though I'm less sure of that last one). The reason isn't that I'm afraid of giving the ACLUers an idea. It should go without saying that they can figure all these tactics out on their own. My beef is that talking about them favorably in public is dangerous. Because such talk legitimizes what the Dems may well end up doing, and what the GOP will never have the guts to do. Again, our best bet, by far, for restoring the Constitution is to gradually whittle down the obnoxious precedents, not to take more radical action. Roe, for example, should not be overturned. Nor should a Republican president and Congress try to overturn Roe by packing the Court with a reliable Roe opponent. Better it should die a death of a thousand cuts. Not a thousand, certainly -- quicker than that -- but you get my drift.

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