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
Comments
Important post. Many complicated issues here. But, to assume that legislation made by Congress or states, is easier to decipher, well, not really so. The difficulty, is inherent. Whether constitution or otherwise. That is why, the judge is the ultimate legislator. And that is the point in fact. Scholarship or scholars, as praised so well by the respectable author of the post, is only one dimension, but, not the most important one. Rather, experienced professionals, as dictated by the executive order by the way, I quote Sec.2 (b):
” Members of the Commission shall be distinguished constitutional scholars, retired members of the Federal judiciary, or other individuals having experience with and knowledge of the Federal judiciary and the Supreme court of the United states (Supreme court).”
For the rest, we won’t stay young anymore no more….
Thanks
Posted by: El roam | Apr 21, 2021 11:18:03 AM