16th April 2021
Over in the United States there is a discussion about ‘court-packing’.
In particular, the question is about the new president should seek to nominate additional justices to the supreme court.
Some liberals and progressives are aggrieved at the current composition of the court.
A number of justices were nominated by Republican presidents who had not won a majority of the popular vote.
The Republican majority in the senate delayed one vote on a nomination and then rushed through another, with no regard to political consistency.
From a liberal and progressive perspective, these grievances are well-made.
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But.
From a constitutionalist perspective, there was nothing unconstitutional in a (Republican) president nominating new justices and a (Republican) senate deciding when to have the votes.
Both the delayed vote and the rushed confirmation were politically distasteful and discrediting.
But they were not unconstitutional.
Conservatives, however, should not take too much heart from this – as there is also nothing inherently unconstitutional about a president seeking to add justices.
This is because the constitution (though not federal legislation) is silent on the maximum number of supreme court justices.
If the Republican shenanigans about the appointment of supreme court justices was within the scope of the constitution, so may be any attempt to add new justices.
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A more fundamental question is about the role of the supreme court.
On the issue of abortion, for example, liberals and progressives have long depended on supreme court jurisprudence, especially Roe v Wade.
Yet it would be better and more sustainable to have fundamental rights sets out in legislation, rather than on the fragile basis of supreme court decisions.
A conservative majority on the supreme court is only as illiberal as the questions that will come before it.
If liberal and progressive policies are promoted and implemented by the route of legislation rather than litigation, then a conservative majority on the supreme court is less of a concern.
Liberal and progressive policies are always better secured by means of legislation rather than by court rulings.
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It should always be possible in a democratic society for one law (whether legislated or made by judges) to be varied or replaced (except in the case of fundamental human rights). I agree that it is better to go down the legislative route. Otherwise there will be a temptation to keep increasing the size of the Supreme Court to ensure a favourable outcome. And it could end up as large as… the House of Lords
The number of Supreme Court Justices was based on the number of Circuit Courts of Appeal. There are now 13 Courts of Appeal. The logic of the situation is that there should be 13 Justices.
The bigger problem is that the Supreme Court since the days of John Marshall has been a partisan political body.
As far as I know, there are only 2 countries where abortion was legalised, not by the legislature, but by the Courts: the US and Switzerland (where the Courts invented something they called the « Legal Termination of Pregnancy » whereas abortion remained illegal).
This anomaly was finally corrected about 20 years ago when the Penal Code was amended to allow abortions in the first 12 weeks.
They will never be able to pass a constitutional amendment on abortion – requiring a 3/4 approval of the state legislatures – which are uniformly dominated (via very dubious “gerrymandering”) by Republicans.
Another problem, of course, is the domination of the Senate by Republicans because rural Republican-voting states – Wyoming is an extreme example with more cows than people – have the same number of US senators as the much more populous New Yerk and California.
And that’s not going to change any time soon as the constitution’s article 5 relating to amendments specifically forbids altering the composition of the Senate.
1. Both are technically ok.
But while manipulating the nomination process is distasteful, it is not inherently cheating.
Whereas “packing the court” as a direct mean to get the court you like can reasonably be seen as using power to eviscerate the court independence.
Similar to appointing 2,000 “appropriate members” to the Lords.
2. Very correct about abortion.
The more one defers to the court (due to unwillingness to solve problems the democratic way), the wider the court involvement.
This is bad in so many ways.
It unbalanced the court – legislature balance, in a way that was never planned.
It turns the courts political.
Poisons the court selection process, by adding too much heft on the nominations, which would be done more neutrally had the court decisions not been so charged.
Eventually, it weakens the court authority and threatens the rule of law in general.
A number of recent blogs implicitly and explicitly raise the thorny issue – “how can the community – whatever that is – stop the powerful from exercising illegitimate power?”. It’s an important and increasingly pressing question … but one without an answer?
In principle this seems right, though I was uncertain about the strength of the conclusions re legislation, and the interaction of a written constitution and legislation.
If the role of the supreme court is to interpret the constitutionality of legislation, then the latter is vulnerable to changing attitudes within the court. There is no limit to the questions that can come before it — and, arguably, the important illiberality (illiberalism?) turns up in the answers rather than the questions (of course these may very well be prompted by the same).
Reservations about a written constitution seem relevant. It does appear, from the US example, that a written constitution invites or at least provides an encouraging basis for legal challenges — where the politics of the supreme court are as important as those of the legislature — in a way that the UK patchwork does not. Is this an advantage or disadvantage for the UK?
“Yet it would be better and more sustainable to have fundamental rights sets out in legislation, rather than on the fragile basis of supreme court decisions.”
I don’t think is quite right. The right to abortion is theoretically set out in the Constitution, which is inherently less “fragile” than legislation. In fact, the core right to abortion found in Roe has lasted more than 50 years, which is considerably longer than federal legislation to legalize or ban abortion would likely have lasted without being reversed (assuming, for the sake of argument, that such legislation would not have been struck down by the courts as unconstitutional). Not that fragile at all, really.
The problem with Roe and its progeny is not that they are decisions by the Supreme Court, but that the court’s reasoning for finding a right to abortion in the text of the Constitution is so unconvincing to anyone who is not already invested in it (I say that as someone who is in favour of legal abortion on policy grounds).
In 1937 in the US, Franklin Roosevelt tried to pack the supreme court with his Judicial Procedures Reform Bill. The court was preventing his economic reforms on grounds we would find surprising today. This bill would allow him to appoint an additional justice for every one over 70.
In principle, he had majorities to impose his will after the 1936 landslide. But fortunately, sufficient in his own party saw the long term problem of court packing – something we cannot take for granted today. They delayed the bill. The court started taking a different line, and FDR was soon able to appoint a few justices under the old rules. So his “problem” went away, and the bill went away too.
Close shave for American rule of law.