The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Over the last two years, a debate has arisen on the left over the issue of whether Democrats should try to "pack" the Supreme Court in response to what many see as the GOP's illegitimate appointments of Justices Neil Gorsuch and Brett Kavanaugh. By expanding the size of the Court, advocates hope to add enough liberal justices to reverse the current 5-4 conservative majority on the Court. At least for the moment, Sen. Bernie Sanders is arguably the front-runner for the Democratic nomination for president. That makes his position on this and other issues all the more important.
The good news is that Sanders says he is against court packing, which is a contrast to some other current and former Democratic presidential candidates. The bad news is that his alternative plan is almost equally bad. Sanders appears to understand the downward spiral that conventional court-packing is likely to create:
Court-packing, Sanders told MSNBC's Stephanie Ruhle during an event titled "Our Rights, Our Courts," would produce a kind of death spiral for the Supreme Court.
"We add two more judges. The next guy comes in — maybe a Republican — somebody comes in, you have two more," and before you know it, he said, "you have 87 members of the Supreme Court. And I think that delegitimizes the Court."
To my mind, the big problem here is not just "deligitimization" of the Court, but the risk of gutting judicial review by allowing and party that simultaneously controls the presidency and Congress to immediately fill the Supreme Court with its own political allies, thereby ensuring that their preferred policies would get little or no judicial scrutiny. That is what makes court packing qualitatively different from other political maneuvers the two major parties have resorted to in their ongoing struggle over judicial nominations. While Democrats have every right to respond to GOP nomination "hardball" in kind (and vice versa), court-packing would go far beyond that for reasons well explained by liberal legal scholars Noah Feldman and Neil Siegel.
I. Sanders' "Rotation" Proposal
Still, Sanders understands at least some of the risks likely to be created by court-packing, To avoid them, he proposes a plan under which justices can be "rotated" off the Supreme Court:
But then he suggested another alternative: It may be possible to "rotate judges" off the Supreme Court and onto lower courts.
"A federal judge has a lifetime appointment," Sanders told Ruhle, but the Constitution "doesn't say that lifetime appointment has to got be on the Supreme Court — it's got to be on a federal court."
The Sanders campaign did not respond to a request for comment regarding this proposal.
Instead of adding new justices to the Court, Congress could pass a law removing some of the current justices and transferring them to lower courts (or, alternatively, giving the president the power to do so). Then, the president can appoint new Supreme Court justices who will be more to his or her party's liking. Instead of countering the appointments of Gorsuch and Kavanaugh by creating new Supreme Court seats, this approach would allow Sanders (or some other left-wing president) to simply transfer them to some lower court, and then replace them with liberal justices.
It isn't hard to see how this plan could easily lead to the same sort of spiraling dynamic as court packing. Imagine Sanders gets elected president in 2020 and - with the help of a Democratic Congress - sends Gorsuch and Kavanaugh to judicial purgatory. Perhaps they end up being consigned to a specially created federal court that considers weighty matters such as appeals of tickets issued to vehicles illegally parked on federal government property. Meanwhile, their Supreme Court seats get taken by newly appointed liberal justices.
How would the next GOP president and Congress respond? Most likely they would do the same thing to two (or more) liberal justices. Perhaps Elena Kagan and Sonia Sotomayor end up joining Gorsuch and Kavanaugh as parking ticket court judges. Meanwhile, two new conservative justices take their seats. Of course, the next Democratic president backed by a congressional majority would retaliate in kind, and so on.
The end result would be the neutering of the courts as a check on the power of any president backed by a congressional majority, which is exactly the risk created by conventional court-packing. Indeed, justices would hesitate to get on the bad side of almost any president, for fear that his or her party might gain a majority in the future, and then transfer them to some judicial hell-hole.
The ability to undermine judicial review as a check on government power is the main reason why court-packing is a standard tool of authoritarian populists seeking to undermine liberal democracy, recently used in such countries as Hungary, Turkey, and Venezuela. Sanders' "rotation" proposal can easily be used to achieve the same result by slightly different means.
Of course Democrats could (and likely would) argue that Gorsuch and Kavanaugh are special cases, because the former got a "stolen" seat thanks to the Republicans' blocking of President Obama's nomination of Merrick Garland, and the latter was confirmed by GOP-controlled Senate despite the sexual assault accusation against him. But such "special case" arguments can be made to justify conventional court-packing as well. Neither is likely to persuade Republicans not to retaliate in kind.
I have somewhat more sympathy for complaints about the process that led to Kavanaugh's confirmation than complaints about the "stolen" seat. But, for purposes of predicting the likely reaction to Democrats' adopting Sanders' rotation idea, it doesn't really matter what I think, or what the Democrats themselves think. What matters is whether Republicans (and GOP-leaning independents) will accept the idea that Democrats are entitled to dump Gorsuch and Kavanaugh without risking retaliation in kind. For obvious reasons, such agreement is highly unlikely.
The one way in which Sanders' rotation proposal may be less dangerous than court-packing is that the former is far more likely to be invalidated by the courts, as unconstitutional. As Ian Milhiser of Vox points out in an article otherwise somewhat sympathetic to Sanders' idea, the rotation proposal probably violates the Constitution's requirement that judges "shall hold their offices during good behaviour." Moving a Supreme Court justice to a position that is obviously a different office - albeit still in the judicial branch of government - surely violates this rule, which is generally understood to allow judges to hold their offices for life, absent some sort of egregious wrongdoing on their part.
I will not try to assess the constitutional issue in detail here. But I would add that any legal challenges to the "rotation" of justices off the Supreme Court will themselves be considered by the courts. And judges will have obvious incentives to rule in a way that prevents the president and Congress from seizing the authority to send them to the judicial doghouse whenever they issue decisions that the party in power disapproves of. Even if the specific justices who the president seeks to remove are recused from the case, the remaining justices are unlikely to uphold a plan that will predictably place their own positions in jeopardy in the future.
By contrast, conventional court-packing is pretty obviously constitutional. The Constitution does not establish a set number of justices for the Supreme Court (or any court), and Congress can (and in the nineteenth century actually did) change their number at will. Court-packing is constrained only by political norms against it, norms which may now be eroding.
But even though it is unlikely to survive legal challenge, it is premature to say that Sanders' rotation plan is harmless. Should Sanders (or some other president) make a priority of enacting this plan, and a Democratic Congress goes along with it, a judicial decision invalidating the plan could lead to an ominous confrontation between branches of government. Would Sanders - who has a history of admiring authoritarian socialist regimes - simply accept the courts' decision, or would he claim it was illegitimate and not entitled to obedience? If he chose the latter path, it would at the very least create a very dangerous situation, in which the Supreme Court might suffer a "crisis of legitimacy" from which it would be difficult to recover.
II. A Rotation "Lottery"?
Ian Milhiser suggests a somewhat different version of the rotation proposal - first conceived by legal scholars Daniel Epps and Ganesh Sitaraman - could pass constitutional muster:
In an influential paper published in the Yale Law Journal, law professors Daniel Epps and Ganesh Sitaraman suggest two ways to restructure the Supreme Court in the hopes of depoliticizing it. One of their proposals, which former South Bend, Indiana Mayor Pete Buttigieg often touts on the campaign trail, is to expand the Supreme Court to 15 justices and implement a nonpartisan selection method for five of those justices.
Epps and Sitaraman's other proposal is a "Supreme Court lottery."
It works like this: Every one of the 179 active circuit judges would receive a promotion to associate justice of the Supreme Court. For the most part, this promotion wouldn't change their day-to-day work very much — they'd continue to hear cases on their current court, and they'd continue to do more or less the same work they've been doing as circuit judges.
But there would be a catch. Under Epps and Sitaraman's lottery proposal, "the Supreme Court would hear cases as a panel of nine, randomly selected from all the Justices" — meaning that this panel would be randomly selected from among the nine current justices plus the 179 new justices. Epps and Sitaraman would also reshuffle this panel very frequently….
The advantage of this "lottery" proposal is that it might be constitutional. Barring extraordinary events, Congress cannot strip a sitting justice of their "office," but it can give the same office to a whole bunch of additional people. Under the lottery proposal, Gorsuch would remain an associate justice of the Supreme Court. He'd just have 179 new colleagues.
I am skeptical of the constitutionality of this idea, too. Milhiser himself notes that a judgeship in which the justices have the same status as the 179 circuit judges and only a less than 5% chance of getting to vote on any given case, may not really be the same "office" as a Supreme Court seat is today. The lottery proposal also has a variety of potential practical flaws, such as the danger of wild swings in precedent as a more conservative panel reverses the decision of a recent liberal predecessor and vice versa. Circuit courts, which also sit in randomly selected panels, control such tendencies by allowing appeals to the full "en banc"circuit. But it is hard to imagine an en banc procedure in which 188 justices sit on a case.
Another problem with the lottery approach is that, it too, is subject to spiraling escalation. If Democrats enacted a law creating a lottery that includes the 179 circuit judges because they see this pool as more likely to make decisions they like than the current nine Supreme Court justices, what's to prevent Republicans from expanding the pool to include some group of lawyers who are likely to be more conservative? Democrats could then retaliate by changing the pool to be more liberal, and so on.
Pete Buttigieg's plan to increase the size of the Court to 15 and require it to be ideologically balanced may be less risky than either rotation or lottery because it could potentially block future escalation by permanently fixing the size of the Court. In my view, the enactment of his plan would require a constitutional amendment. If, on the other hand, if it could be done by ordinary legislation (as Epps and Sitaraman claim), it too could lead to dangerous escalation. I may have more to say about the Buttigieg proposal in future posts.
Of course, both the Sanders rotation plan and court-packing might seem attractive to those who believe that neutering judicial review is a feature rather than a bug, or at least think that a neutered Court is better than one with a conservative majority. I do not have the space to address these claims in this post, which is already quite long. But I have taken them on elsewhere, including here and here.
Noah Feldman and Neil Siegel are far from the only left-of-center critics of court-packing. A good many others oppose it, as well. Hopefully, they will recognize that Sanders' rotation plan creates similar risks.
And, lest I be accused of opposing court-packing only when politically convenient, I will take this opportunity to point out that I have some beefs of my own, with the current conservative majority. Perhaps more importantly, the current round of debates over court-packing began in 2017 when prominent conservative legal scholar Steve Calabresi and his coauthor Shams Hirji proposed a plan for Republicans to pack the lower federal courts. I opposed that plan for the same reasons as I now object to Democratic court-packing proposals, and other ideas likely to have a similar impact. The Calabresi-Hirji plan ultimately came to nought; but something like it could easily gain traction in the future, if the norm against court-packing is broken.