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Why the Court Should Be Packed
James Brand

President Franklin Roosevelt came clean with Fireside Chat No. 9; he admitted that the Judiciary Reorganization Bill of 1937 was the “court packing” plan everyone knew it to be. He had presented the bill, which would have allowed him to appoint an additional justice to the Supreme Court for every justice over seventy years old, as necessary to allow the elderly and overworked judiciary to handle its case load. When this subterfuge was met with skepticism across the ideological spectrum, President Roosevelt attempted to impress upon the nation the critical need for the Court to support legislation increasing the role of the federal government in economic matters. The United States had just pulled itself out of an economic crisis and the Court was striking down the very solutions that the voters had approved overwhelmingly. Congress and the President needed to take action to save the Court from itself and the nation from the Court.

Even viewed from today, in an era of expanding executive power, Fireside Chat No. 9 is a breathtakingly direct assault on a coordinate branch of the federal government.

Many people believe our current economic crisis finds its nearest American analog in the 1930s, and President Obama is said to face challenges similar to those confronting President Roosevelt. Perhaps it is not surprising that some commentators are calling for a modern-day court­-packing scheme. But what is surprising is that they are right—and it has nothing to do with the economy, the ideological drift of the Court, or the current occupant of the White House.

At least two Supreme Court justices are expected to step down during President Obama’s first term. When they do, choosing their replacements will spark fierce political battles. And no wonder, considering that each new justice will be a powerful political actor who will have almost no external accountability and who could retain office for decades.

The observation that Supreme Court appointments are highly political is nothing new. Just look to Advice and Consent: The Politics of Judicial Appointments by Lee Epstein and Jeffrey Segal (Oxford 2005) for a thorough analysis of the wide range of political forces at work in the appointment process (and a less-than-satisfying account of how political forces affect actual decisions). In this quick read, Epstein and Segal cover a lot of ground around the simple point that judges are political actors. One is never quite sure whether this is a premise or a conclusion, but the ground they cover is fascinating nonetheless. The authors draw on an array of examples to illustrate the political considerations facing the relevant actors—the President, Senators, political parties, legal organizations, interest groups, the appointees themselves—and how these considerations bump up against each other in the process of selecting new justices.

Of course the process is political. It is, in fact, a part of our political system. But Epstein and Segal go further; they provide evidence that individual justices make decisions within a fairly predictable range on the usual conservative/liberal spectrum. We know this, too. The authors steal their own thunder by quoting newspaper editorials from throughout our history making the obvious connection between the political inclinations of the justices and the policy implications of their decisions.

There are still many interesting questions to be asked regarding the effects of ideology on decision-making. Recent scholarship—more in the realm of behavioral science than political science or law—has been yielding intriguing puzzles. Are Judges Political? (Brookings 2006), written by Harvard Law School professor Cass Sunstein (who has been appointed by President Obama to head the Office of Information and Regulatory Affairs) and others, looks at how a judge’s decisions are affected by other judges’ ideologies. Drawing on a large body of decisions by three-judge appellate panels, they find evidence of a “panel effect”—a tempering or amplification of a particular judge’s expected vote depending on the ideologies of the other two judges. There are many potential explanations for this phenomenon, but I raise it to make the same simple point that Epstein and Segal seek to make: Who we pick as judges actually matters.

Although we may not fully understand the “why,” we recognize the importance of an appointee’s outlook, and we try to predict an appointee’s future behavior by inquiries into past behavior, exhaustive interviews, and ideological litmus tests. And then the seemingly intractable battles begin.

The stakes are high, and they are getting higher. Although Epstein and Segal contend that these political considerations have not changed—politics are politics—they admit that the landscape certainly has changed. There has been a marked increase in press attention to the appointment process, with national papers running multiple-page spreads on potential appointees when a vacancy is on the horizon. Add to this the increased involvement of media-savvy interest groups, and the amplified media coverage gets vitriolic.

This increases the risk for political actors. As the public becomes more aware of the choices, and those choices take on ideological overtones, politicians must be cognizant of how the public perceives their stance with respect to the appointees. So in addition to being a very important battle for a very powerful office, judicial nominations become proxy wars for other ideological and partisan battles.

But the stakes don’t need to be this high.

A group of legal experts from across the political spectrum recently sent four proposals to Washington, urging reform of the judicial branch.* Although the Third Branch was created by the Constitution, its actual composition and structure was first articulated by the Judicial Act of 1789 and remains within the control of Congress.

One of these proposals suggests regular appointments of new justices to the Supreme Court. Every two years, a new justice would be appointed. To get around the Constitutional requirement of life tenure for judges, the proposal envisions a continuing but diminished role for justices who don’t retire when their spot comes up for re-appointment.

The experts who are advancing this proposal want to keep the High Court fresh—to make sure that “the Court’s many important policy decisions will reflect the moral and political values of the contemporary citizens they govern.” While this rationale smacks of results-oriented overreaching like President Roosevelt’s, regular appointments would have the beneficial effect of lowering the stakes. This is a move in the right direction, but eighteen years on the Supreme Court followed by “a continuing but diminished role” is still a big deal; the stakes would be lower, but materially so?

This proposal could be effective if combined with an increase in the size of the Supreme Court, diluting individual votes and complicating the overly binary distinctions between party appointments. This would not decrease the importance of the Supreme Court. Unlike President Roosevelt, I am not advocating a “rebalancing” of the branches of government. Rather, I am suggesting that we decrease the importance of any particular justice so that potential compromises are allowed room to develop and the appointment process becomes less of a proxy war for general ideological disagreements.

In order to succeed, such a proposal would need a built-in time delay. This would demonstrate to the minority party that this is not an opportunistic subterfuge like President Roosevelt’s “old age” yarn. Behind a veil of ignorance regarding who would immediately benefit from additional appointments, a debate over the long-term merits of a larger court and regular appointments might have a chance of moving us in the right direction.

 

James Brand studied law at the University of Chicago. He currently practices in Minneapolis.

* A copy of the proposal for reform of the judiciary discussed in this column can be accessed at: http://paulcarrington.com/Four Proposals for a Judiciary Act.htm.

 

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