Wednesday, July 05, 2017

"For a Generation"?

Mark Tushnet

According to Paul Booth in the American Prospect, "The Republican power stranglehold is tightening. The Supreme Court is theirs, for a generation." This displays a lack of political imagination. Suppose Democrats regain control of the Presidency and Congress after the 2020 elections. (Bear with me on that assumption.) One item on their legislative agenda might be expanding the Supreme Court to eleven (or more). It's worth having a discussion about whether that's a good idea.

I simply note two arguments about this suggestion I've heard that aren't good ones. (1) "Don't give the Republicans any ideas while they still control Congress and the Presidency." They already know about the strategy of manipulating court size for political reasons -- they tried it in North Carolina. It didn't work (or hasn't worked yet), but saying that legislation can change the size of appellate courts isn't telling Republicans anything they don't know.

(2) "That would set off a cycle of tit-for-tat retaliation once Republicans are in a position to expand the Court's size, as they inevitably will be." I have an article forthcoming in the Pepperdine Law Review explaining why this game-theoretical claim probably isn't a good one (in condensed form: this isn't an iterated game with the same players interacting over time; and succeeding episodes in which court-expansion might become an issue aren't necessarily part of the game that I'm suggesting might be played in 2021).

A good argument would be that trying to expand the Court's size would produce a bloody political battle in which Democratic success is hardly assured, and both success and failure are likely to impose real political costs on Democrats who propose expanding the Court's size. Maybe -- but (also maybe) the argument that they stole Merrick Garland's seat and all we're doing is undoing that theft would be politically effective.

[The Pepperdine article's tentative title is "Constitutional Conventions," and it's obviously of a piece with my earlier article on "Constitutional Hardball."]

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