Letter to the Editor 10-30-20

Dear Editor,
Since the passing of Justice Bader Ginsburg, there has been much discussion
about ‘court packing’ on the Supreme Court. It appears that there is
some confusion about what this actually is, and I hope the following words
will provide some clarity.
First, it is important to distinguish court packing from ‘court
expansion.’ Court expansion is self-explanatory—increasing the number of
justices on the court. Changing the size of the Supreme Court is both
constitutional and something that has happened several times before. The
first Supreme Court sat with only six justices (a fun law school trivia
question is to name each of those judges.) The Court was then reduced to
five, increased to six again, then to seven, then nine, then ten, then back
to nine. Through most of 2016, there were only eight justices.
None of these changes in size were made by the President. Under the
Constitution, only Congress—not the President—determines the number of
justices on the Court by passing legislation (see article I section 8).  One
reason that the number of justices have changed is that article III of the
Constitution does not require a specific number of justices. That there are
currently nine justices is only a matter of convention. Some of the changes
in court size have been politically-motivated (see Judiciary Act of 1801 2
Stat 89; Judge Merrick Garland). Another reason that the size of the Court
has changed is to keep up with an increased case load and better supervise
the federal circuit courts (see Tenth Circuit Act 12 Stat 794). As the
Supreme Court’s case load has grown in the past two decades and the number
of federal circuit courts outnumbers the number of justices (the original
idea was that one Supreme Court Justice would supervise one circuit court)
there is a strong efficiency argument to be made for expanding our highest
court.
As for court packing, it may be constitutional.  But it is wrong.  The idea
is to put people on a court mainly because you think they will decide cases
in a way you like rather than administer justice neutrally. It has been
tried before (John Adams’s “midnight judges”; Judicial Circuits Act 14
Stat 209) and one way court packing might happen is like this. First, select
judicial nominees from lists created by special interest groups with whom you
agree that rate potential judges on their political affiliation and
previously expressed views on certain legal topics. Second, appoint over 200
judges to federal court vacancies from those lists. Third, ignore
assessments by the American Bar Association that certain nominees are
unqualified to be judges (because they lack competence and experience) and
the fact that several nominees have never  tried a case in their life
(like, for example, Kathryn Mizelle, current nominee for the US District
Court of Middle Florida, who has only practiced law since 2012 and never
argued a case in court). Fourth, confirm the nominee on party-line votes by
a slim majority of senators (who collectively represent much less than 50% of
the American population (and for whom an even smaller percentage voted)).
Another way to pack the courts is to keep someone you disagree with from
appointing judges.
Of course, it would be silly to think that presidents and their judicial
appointees should not share a basic philosophical approach on the country and
the law. Nor, as Justice Breyer notes, are a judge’s philosophical
positions easily sidelined when deciding cases. The point is, then, to
recognize that the Supreme Court is not apolitical, both in the sense
identified by de Tocqueville (because the justices determine whether laws are
constitutional) and because judicial appointments are made and confirmed in
light of political considerations.
So the question is whether or not we should strive to have a Supreme Court
that is devoid so far as possible from political considerations.
Traditionally, we as a country have answered ‘yes.’ Politicization of
the Supreme Court was once avoided through conscious efforts to compromise in
the Senate and a consensus in favor of moderate views. Sadly, these tools
seem quaint today.
In my view, a less politically-charged Supreme Court and appointment process
is needed to help heal our political fractures and to improve judicial
decision-making in the federal courts. But how can this be achieved? One
option is to leave the federal courts as they are, keep the present Supreme
Court at nine, confirm Judge Coney Barrett, and say that from now on
appointment and confirmation for federal judges must be truly bipartisan.
The problem with this, though, is that it rewards previous bad behavior.
Bipartisanship would also be practically difficult to enforce given that only
a bare majority in the Senate is needed to confirm a justice. This approach
also institutionalizes understandable grievance on the part of Democrats and
produces a strong rightward lean on the court. For those that this does not
bother, the question is, would you say the same thing if the same behavior
had produced a strong leftward lean?
If the answer is no, perhaps it is because now the ‘right kind’ of judges
are on the court, ones that apply the law ‘as it is.’  This is Tracey
Mann’s position on the campaign trail. The first problem is that whether
judges are of the ‘right kind’ is inherently a political question, a
subjective value judgment. It explicitly treats the courts as tools for
bringing about ‘preferred’ social policies rather than dispensing actual
justice. If this is the goal, be upfront about it. But understand that
chasing this approach just reinforces politicization of the federal courts
and prioritizes a political outcome over what should be the goal: impartial
identification and application of the law. Surely if you or I were tried for
a crime or sued for a debt we would not want a judge to decide the case
against us because of some preconception or preference that they had. Why
would we want this in our Supreme Court? The second problem is that
‘applying the law as it is’ is an empty concept. As Judge Coney Barrett
said in her confirmation hearings, there is a diversity of valid views on the
meaning of any Constitutional provision—even among ‘Originalists.’
This is why, for example, Justice Scalia and Justice Thomas disagreed on some
constitutional questions. Which one was not applying the law as it is?
Another option would be to expand the federal courts and the Supreme Court
by, say, two justices and fill the new seats through a bipartisan appointment
and confirmation process. Yes, this would likely result in justices with
somewhat different views than Justices Gorsuch and Kavanaugh. But it would
not erase the rightward lean on the Supreme Court; it would simply move the
Court back towards the center. In the lower courts it would help correct the
lack of qualifications of recent justices. Moreover, it would better allow
for the ‘diversity’ of valid views as to the meaning of the Constitution
to be represented on the Supreme Court. Notably, tricky cases are routinely
heard en banc (before more judges than in a normal case) in the federal
appeals courts because it is thought that a diversity of views leads to
better and fairer decisions. Why would we want to deny this benefit from our
highest court? Of course, there are problems with expanding the Court (e.g.
how do you ensure bipartisanship?).  Plus, a later Congress could expand or
shrink the Court, but they have always had this power and would need to
justify to the public any change in the Court’s size.
But the main point is that, as Justice Sandra Day O’Conner observed, the
Supreme Court’s only weapon is ‘moral authority.’  It ‘is only as
effective as people think it is.’  Because politicization reduces public
trust in the Court, it is time to consider how we move away from the recent
over-politicizing of the federal courts and towards the impartial dispensing
of justice without fear or favor.
Alan JS de Rochefort-Reynolds