The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In recent months, prominent legal scholars on both sides of the political spectrum have proposed court-packing plans, or at least urged reconsideration of the longstanding political norm against court-packing. If such ideas take hold, it will be a very dangerous development.
In a controversial new paper styled as a memo to Congress, famed conservative legal scholar Steven Calabresi and attorney Shams Hirji argue for a massive expansion of the federal judiciary. They advocate that, at a minimum, Congress should add 61 new federal appellate circuit court judges (36% more than the current number), and 200 new district court (trial) judges (almost 30% more than the current figure). They also argue that Congress should replace 158 administrative law judges currently selected by executive branch administrative agencies with standard life-tenured judges appointed by the President and confirmed by the Senate.
This would be a massive expansion of the federal judiciary, the largest in decades. While most of the Calabresi-Hirji paper is devoted to nonpartisan justifications for expanding the size of the federal courts (such as the growth in case loads), the authors also clearly state that one of their goals is "Undoing President Barack Obama's Judicial Legacy." Thus, it is not unfair to conclude that court-packing is a major objective of their proposal, even if it is not the only one.
As Calabresi and Hirji recognize, implementing their proposal while the GOP controls the White House and the Senate would transform a Democratic majority among lower court federal judges into a Republican one. Moreover, they clearly hope to have the proposal enacted as quickly as possible, before Democrats get a chance to retake control of Congress in the 2018 election. For that reason, they argue that their plan can be adopted by means of the "reconciliation" process, which is not susceptible to filibuster by Senate Democrats (David Super argues that they are wrong about this).
Because of this court-packing aspect, the Calabresi-Hirji plan has drawn predictable outrage from liberal critics such as Linda Greenhouse, Dahlia Lithwick, and (more insightfully), University of Michigan law Professor Richard Primus.
Steve Calabresi is not, however, the first prominent legal scholar to challenge the norm against court-packing this year. Back in July, Harvard Law Professor Mark Tushnet (who stands at the opposite end of the political spectrum from Calabresi) urged Democrats to consider "expanding the Supreme Court to eleven (or more)" when they get the chance. Tushnet has doubled down on this idea in a recent blog post commenting on the Calabresi-Hirji plan. The ostensible rationale for Tushnet's proposal is retaliation for the GOP's "theft" of the Supreme Court seat to which Barack Obama nominated Merrick Garland, but which eventually went to Neil Gorsuch after the GOP-controlled Senate refused to hold hearings on the nomination. But in his most recent post on this subject, Tushnet notes—with admirable candor—that "[t]he rationale is not (on the surface) to 'seize control of the judiciary'" (emphasis added). That, of course, suggests that "seizing control" is a major part of the rationale beneath the surface.
So far, Tushnet's idea has not attracted as much attention as the Calabresi-Hirji plan. But that could easily change—and likely will if the latter gains significant political traction.
All of this newfound interest in court-packing raises the question of whether there is any reason to oppose the idea, other than short-term political self-interest. It is likely no accident that nearly all of the criticism of Calabresi's proposal has come from liberal Democrats who dislike the idea of vastly expanding the percentage of Republicans in the judiciary.
As Richard Primus recognizes in the most thoughtful critique of the Calabresi-Hirji paper, court-packing does not violate the text of the Constitution. He points out that Congress successfully packed the Supreme Court several times in the nineteenth century.
But since the late 1800s, a strong political norm against court-packing has emerged. And both political parties have largely followed it. In 1937, the highly popular Democratic President Franklin D. Roosevelt famously sought to pack the Supreme Court in order to reverse judicial decisions invalidating many of his New Deal programs. That effort was blocked in Congress, in part through the efforts of senators of his own party, led by Montana Senator Burton Wheeler.
The mere fact that a political norm exists doesn't mean it should be continued. Some norms cause more harm than good. But the norm against court-packing justified by more than just tradition. Court-packing is a menace to the role of judicial review as a check on the power of political majorities. If either the Republicans (per the Calabresi-Hirji plan) or the Democrats (following Tushnet's ideas) succeed in packing the courts, the opposing party is sure to do exactly the same thing the next time they control the White House and both Houses of Congress. This is even more likely if court-packing can be enacted through the reconciliation process (as Calabresi and Hirj argue), and thus requires only a narrow Senate majority to pass.
Ending the norm against court-packing ensures that the judiciary will not serve as an effective check on the other branches of government at the very time when it is most likely to be needed: when one party holds both Congress and the presidency, and can thereby push through its agenda with relatively little opposition. Especially in a highly polarized era like our own, it is precisely at such times that the ruling party is especially likely to violate constitutional constraints on its power in order to score victories against the hated opposition.
This is precisely the outcome we should strive to avoid. As Burton Wheeler put it in a speech attacking FDR's court-packing plan:
Create now a political court to echo the ideas of the Executive and you have created a weapon. A weapon which, in the hands of another President in times of war or other hysteria, could well be an instrument of destruction. A weapon that can cut down those guaranties of liberty written into your great document by the blood of your forefathers and that can extinguish your right of liberty, of speech, of thought, of action, and of religion. A weapon whose use is only dictated by the conscience of the wielder.
Our own time obviously features both war and hysteria. And, to put it mildly, few of our current political leaders are notable for their high-minded consciences.
Calabresi and Hirji argue that their plan is not a true break with political precedent, because it would merely expand the federal judiciary to the same extent as a 1978 bill enacted by a Democratic congressional majority under Democratic President Jimmy Carter. I think this 1978 analogy founders for reasons well summarized by Richard Primus:
[T]he 1978 bill was different from the current proposal in some notable ways. Twenty-one of the 35 new circuit judgeships were created in just two circuits: the Fifth and the Ninth. Population growth in those circuits had been especially steep in the preceding decades, and the Fifth Circuit expansion was a precursor to the division of that Circuit into two separate Circuits under a statute passed two years later…. In both Houses of Congress, most Republicans supported its passage. (Or, strictly speaking, we know for sure that that was true in the House, where there was a roll-call vote. In the Senate, the measure passed by voice vote, which suggests that it wasn't a highly contested question.) The point here is just that although it's true that a prior bill passed by a majority-Democratic Congress and signed by a Democratic President expanded the number of circuit judgeships by 36%, it would be a mistake to infer that that bill, like the one Calabresi and Hirji propose, was an effort to seize ideological control of the lower courts.
I would add that, in 1978, Democratic and Republican appointees were not nearly as polarized on constitutional issues as they are today. Republicans had much less to fear and Democrats less to gain from passage of the 1978 bill than Republicans would likely gain from passing the Calabresi-Hirji plan today, or Democrats from pushing through the Tushnet proposal after an electoral victory in 2020.
Unlike most of the other opponents of the Calabresi-Hirj proposal, I think Trump's judicial nominees so far have been pretty good. Despite a few clunkers, they have, on the whole, been much better than I expected, and some are even outstanding. Judicial nominees are among the few bright spots, from my standpoint, of an otherwise terrible administration. I still fear that Trump may, over time, begin to make appointments on the basis of his own horrendous agenda on constitutional issues, instead of farming out judicial selection to the conservative legal establishment, as he has mostly done so far. But it is also quite possible that Trump will stay the course, even if presented with the temptation of the massive court-packing opportunity created by the Calabresi-Hirj proposal.
Regardless, the case against court-packing does not depend on the proclivities of any one president. As James Madison famously warned us: "Enlightened statesmen will not always be at the helm." Indeed, dangerously unenlightened politicians are all too common. The norm against court-packing is an important bulwark against their depredations—and those of the political majorities who put them in power.
UPDATE: Calabresi and Hirji have responded to some of their critics here and here. I continue to find their case unpersuasive. They rely heavily on the 1978 analogy, but without dealing adequately with its flaws (especially the point that the 1978 bill had broad bipartisan support and occurred at a time when the ideological gap between GOP and Democratic judicial nominees was much smaller than it is today). Also unavailing is their effort to justify their proposal as a response to the Democrats' filibustering and otherwise blocking various GOP judicial nominees. The Democrats' sins in that regard have already been "punished" by the GOP Senate's similar actions under Obama, most notably blocking the Merrick Garland Supreme Court appointment.
Moreover, there is no meaningful comparison between blocking individual nominees and large-scale court-packing. Only the latter can massively reshape the federal judiciary at one fell swoop, and neuter judicial checks on the policies of the party in power. And while there is no established political norm against blocking individual nominees (both parties use such tactics routinely), there is one against court-packing.
UPDATE #2: Legal scholar Josh Blackman offers a detailed critique of the Calabresi-Hirj plan in the National Review. As Josh points out, one of the reasons why Calabresi's proposal has gotten so much attention is that—in addition to being a famous legal scholar, he is also a co-founder of the Federalist Society. But, Blackman notes, reporters and commentators should not assume that the proposal has "monolithic" support from the Society or right of center legal circles generally. Blackman himself is also a prominent Federalist Society member. For what it is worth, I too am a member of both the Society and two of its executive committees (including, most relevantly, the Executive Committee on Federalism and Separation of Powers). This is not to say that my views somehow represent an official Federalist Society viewpoint (the organization does not in fact have official positions on such issues), or even that I am anywhere near as prominent a member of the organization as Calabresi is. Like Blackman, I merely wish to note that Calabresi's proposal is far from universally supported by Federalist Society members or by conservative and libertarian lawyers and legal scholars.
UPDATE #3: The original version of this post identified Shams Hirji as a law student (which is how he is listed on the SSRN site for the Calabresi-Hirji article). However, I have since learned that he graduated in May 2017, and is now a practicing lawyer. I apologize for the mistake, which has now been corrected.
UPDATE #4 (December 5, 2017): The Calabresi-Hirji paper discussed in this post has been removed from SSRN. The authors indicate that they have taken it down in order to in order to "make some revisions in light of the extensive comments generated by the paper." They expect that "[a] revised version should be back up within a few weeks."