Democratic presidential candidate South Bend, Indiana, Mayor Pete Buttigieg answers questions during a visit to the University of Chicago on October 18, 2019 in Chicago, Illinois.  | Scott Olson/Getty Images

Three big problems with Buttigieg’s plan to end the partisan war over the Supreme Court.

Mayor Pete Buttigieg made a splash early in his presidential bid by suggesting that Democrats may need to resort to court-packing, expanding the Supreme Court from nine justices to 15, in order to undo Republican efforts to gain control of the Supreme Court through constitutional hardball.

Court-packing — a radical but constitutional process where Congress adds additional seats to the Supreme Court — is “no more a departure from norms than what the Republicans did to get the judiciary to the place it is today,” the mayor said last February.

Now, however, Buttigieg tends to emphasize his desire to calm the political war over the judiciary. He still likes to float the idea of adding seats to the Supreme Court, but largely as a way to make the Court less partisan. Rather than thinking of court-packing as a way to fight Republican norm-breaking with similar tactics, Buttigieg presents it as a way to reform the Court into something less driven by politics.

In an interview published last week in Cosmopolitan, Buttigieg seemed to suggest that the end result of his plan, which calls for 15 justices, with five chosen by the other 10, would be “more justices who think for themselves. Justices like Justice Kennedy or Justice Souter.” Kennedy is both the conservative author of the Supreme Court’s Citizens United decision and a moderate on issues like criminal justice or gay rights.

Many people read Buttigieg’s remark as a statement that he would like to see more justices like the conservative Kennedy on the Supreme Court. Sen. Bernie Sanders (I-VT) clapped back on Twitter that he’d “like more justices like Ruth Bader Ginsburg and Sonia Sotomayor.”

Buttigieg’s campaign says that his comments were misunderstood. “The justices I appoint would share our strong progressive values in the mold of Justices like [Ginsburg],” Buttigieg told me in a statement emailed by his campaign.

But in the same statement, he argued that “we need to make serious reforms to the Supreme Court to restore American’s trust in the institution and make it less political.” As possible ways of accomplishing this goal, Buttigieg says he’s “floated several ideas” and is “deliberately keeping some level of open-mindedness.” The 15 justices proposal is an idea he is considering but is not fully committed to.

All of this points to several bigger problems with the 15 justices plan: First, his plan would likely be declared unconstitutional. The Constitution provides that the president “shall have power, by and with the advice and consent of the Senate” to “appoint ambassadors, other public ministers and consuls, [and] judges of the Supreme Court.” Buttigieg wants to transfer the power to appoint five judges of the Supreme Court to other judges.

Second, even if it were constitutional, it’s not clear what all of this is supposed to accomplish. In his statement, Buttigieg says that this proposal may mean centrists “who are more like [Obama Supreme Court nominee Merrick] Garland and Souter” could wind up holding the balance of power on the Court. His remarks to Cosmopolitan do not mean that Buttigieg wants conservatives like Kennedy to control the Court, but they are an admission that something much like a Kennedy Court could be the outcome of Buttigieg’s proposal.

Finally, it’s far from clear that his stated goal — depoliticizing the Court — is even possible. Much of the law, including the Constitution itself, is so vague that it is impossible to pin down one clear meaning. And so judges will have to draw on something beyond the text of the law to answer the most difficult legal questions — which are the very same questions that come before the Supreme Court. In the toughest cases, justices often can’t avoid drawing upon their own values to answer questions where the law does not provide clear answers.

All of which raises a question for Democrats: Is it really worth deploying a nuclear tactic such as court-packing if the end result could be a Supreme Court that is only a few steps to the left of the current one?

Buttigieg’s 15-justice plan would probably be declared unconstitutional

It’s hard to exaggerate just how tough the fight over a court-packing plan would be. Though the Constitution permits Congress to determine how many justices sit on the Supreme Court, that number hasn’t changed since the Grant administration. Shortly after he won his first reelection in a crushing landslide, President Franklin Roosevelt proposed court-packing as a way to deal with a reactionary Supreme Court. Yet, even at the height of his political might, Roosevelt struggled to build support for this plan.

Indeed, many historians mark Roosevelt’s court-packing plan as the hammer that shattered his coalition and left him unable to push a liberal agenda through Congress.

The idea for a 15-member Court, with five Democrats, five Republicans, and five justices selected by the other 10, was first floated by law professors Daniel Epps and Ganesh Sitaraman at Vox, who warned that “without radical reforms to save its legitimacy, the Court may never recover from its transformation into a nakedly partisan institution.”

In a longer article to be published in the Yale Law Journal, Epps and Sitaraman respond to concerns that their proposal unconstitutionally takes the power to appoint justices away from the president.

Yes, they concede, presidents must name federal judges and the Senate must confirm them, but “existing law and practice permits significant flexibility with the movement of Article III judges within the federal judiciary.” As Epps and Sitaraman explain, it’s common for federal district judges (the lowest rank of federal judge) to temporarily sit “by designation” on an appeals court. Appellate judges occasionally oversee a trial. The Foreign Intelligence Surveillance Court is made up entirely of sitting judges who are temporarily appointed to this special court by the Chief Justice.

Thus, Epps and Sitaraman argue, if a federal trial judge can be temporarily appointed to sit on an appeals court without having to be renominated and confirmed, why couldn’t the Supreme Court invite other sitting federal judges to sit on the Supreme Court itself — at least on a temporary basis?

It’s an entirely plausible argument, but there are two potential problems with it, one constitutional and one political.

The constitutional problem is that the Constitution also provides that “the judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Thus, the Supreme Court is created by the Constitution itself while the lower courts are created by Congress.

Because lower courts are congressional creations, Congress has broad authority to define the jurisdiction of those courts and the roles of their judges. That includes the power to say that judges of one lower court are allowed to sometimes sit on other lower courts.

But it is less clear that Congress has the same power to say that someone confirmed to sit on an entity created by Congress may also sit on an entity created by the Constitution. Again, the power to define the duties of lower court judges flows from Congress’ power to create lower courts in whatever configuration it chooses. But Congress does not have this same degree of control over the Supreme Court.

Which brings us to the political problem with Epps and Sitaraman’s argument. If I were a judge, I don’t know if I’d agree with them that their proposal is constitutional. I think there are good arguments on both sides of this question. But I’m also not the person they need to convince.

The person they need to convince is probably Chief Justice Roberts, who, as the median justice, is arguably the most powerful person in the country right now. Roberts would have to give that power up in order to become one of 15 voices if Epps and Sitaraman’s proposal were implemented. And Roberts’s four Republican colleagues would potentially have to give up their majority to uphold the 15-justice proposal.

That’s a pretty powerful incentive for five members of the Supreme Court to declare this proposal unconstitutional if they can articulate any plausible reason to do so.

Justice Kennedy is really, really, really conservative.

But let’s assume for a moment that the 15 justice plan is enacted and that it does not run into constitutional trouble. The central feature of this plan is that the justices who control the balance of power on the Supreme Court will be chosen by their colleagues. We have no way of knowing who would be selected under such an arrangement, but Buttigieg concedes that the justices in the middle could look a lot like Justice Kennedy.

Buttigieg, in other words, could convince Congress to do something even FDR could not accomplish — and the end result would be a Court that is still very conservative. Would that even be worth it?

Justice Kennedy is one of the most conservative justices of the last three generations. He didn’t just author the Citizens United decision. He joined the Court’s decision striking down much of the Voting Rights Act. He voted to install George W. Bush as president. And he voted to repeal the entire Affordable Care Act.

Between 2006, when Justice Sandra Day O’Connor stepped down as the Court’s “swing” justice, and 2018, when Kennedy left the Court himself, Kennedy was the swing vote and did sometimes vote with the Court’s liberal minority on a handful of high-profile issues. He was a moderate on gay rights and wrote most of the Court’s most important decisions in this space, including the marriage equality decision in Obergefell v. Hodges (2015). He occasionally voted with the liberals on abortion as well, such as when he voted in 2016 to strike down a Texas law that would have closed most of the abortion clinics in that state. He also sometimes cast liberal votes on the death penalty.

Still, on the overwhelming majority of issues that reached the Court during his tenure, Kennedy was a reliable conservative. As law professor David Cohen noted in 2013, Kennedy thus far had “voted to strike down only one of the 21 abortion restrictions.” Kennedy often voted in favor of gay rights, but he was much less sympathetic to trans plaintiffs.

Kennedy wrote the Citizens United decision allowing corporations to spend unlimited money influencing elections. He would have struck down Obamacare in its entirety. He joined a 2018 opinion seeking to defund many public-sector unions. He joined a raft of decisions limiting the right to vote. He voted to uphold Trump’s travel ban targeting majority Muslim nations. He allowed religious conservatives to deny birth control coverage to their employees. He voted for Bush in Bush v. Gore.

A 2010 study by the Constitutional Accountability Center looked at every case where the United States Chamber of Commerce — the leading lobbying group for big business — filed a brief in the Supreme Court and how often each justice voted for the Chamber’s preferred position. It found that Kennedy was only slightly less friendly to business interests than his fellow conservatives, and was significantly friendlier than his liberal colleagues.

 Constitutional Accountability Center

Buttigieg concedes that Kennedy is the sort of justice who could control the balance of power under his 15-justice plan. Which raises an obvious question: Why take on a political fight as difficult and as norm-shattering as a court-packing fight if the end result could be a Supreme Court that is only slightly more liberal than the current one?

There is no such thing as a non-political Supreme Court

Buttigieg’s core concern is that he does not want the Court to become a “political body.”

But the Court’s always been a political body and it always will be. The Court’s pro-slavery decision in Dred Scott v. Sandford was a political decision — a failed attempt to, in one scholar’s words, “reassure the South that its continued adherence to the Union would not mean that it was disabled from protecting its institution of slavery.” Similarly, in the first third of the twentieth century, a conservative Supreme Court routinely struck down progressive labor legislation based on fabricated legal theories that had little, if any, textual basis in the Constitution.

At the other end of the political spectrum, the Supreme Court did not suddenly start caring about black civil rights in the 1950s and 1960s because the text of the Constitution changed — the 14th Amendment’s equality provisions were ratified in 1868. It did so because the justices in the ’50s and ’60s were more sympathetic to pleas for racial justice than their predecessors.

The Constitution is utterly riddled with vague phrases that judges can interpret in all kinds of ways. What are the “privileges or immunities of citizens of the United States?” When is a search or seizure “unreasonable?” Which punishments are “cruel and unusual?” If someone is about to be denied “liberty,” how much “process” is “due?” What’s a “public use” of private property? What’s the “general welfare of the United States?”

This vagueness necessarily invites judges to import their own values into the Constitution. Because the text of the law often doesn’t provide an answer to difficult legal questions, judges have to find the answer somewhere.

As future President Obama said in his speech explaining why he would not vote to confirm Chief Justice Roberts, “while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court … what matters on the Supreme Court is those 5 percent of cases that are truly difficult.” In those cases, the “last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

One issue particularly dear to Mayor Buttigieg provides an example: “I can’t help but remember,” Buttigieg told Cosmopolitan, “that my marriage only exists by the grace of a single vote” in the Supreme Court. He’s referring to the Court’s 5-4 decision in Obergefell, the marriage equality decision.

One issue that was raised, if not entirely resolved, in Obergefell is the question of whether governmental discrimination on the basis of sexual orientation is subject to “heightened scrutiny” by federal courts. The 14th Amendment provides that no state may “deny to any person within its jurisdiction the equal protection of the laws,” but that amendment’s never been read to require the government to treat everyone with total equality — and for good reason.

The government may, for example, discriminate against unqualified job applicants and in favor of qualified ones when it is making hiring decisions. It may discriminate against murderers and in favor of non-murderers when deciding who to lock up. And it may discriminate against rich people and in favor of poor people when deciding who to provide with welfare benefits. Governments cannot function unless they can draw reasonable distinctions.

And yet, the 14th Amendment clearly prohibits some forms of discrimination. The way the Supreme Court has resolved this dilemma in the past is that it’s interpreted the amendment to prohibit types of discrimination that are similar in character to racism. As the Court put it in a 1985 opinion, courts must cast a particularly skeptical eye on discrimination against groups that have historically been subject to discrimination that bears “no relation to ability to perform or contribute to society

The thing about this inquiry, however, is that it unavoidably contains a subjective element. Someone steeped in religious rhetoric about the sinfulness of homosexuality will answer the question of whether anti-gay discrimination is rooted in irrationality differently than someone with progressive values who regularly interacts with gay friends and colleagues. A judge whose friends and family routinely express anti-gay views is likely to be reluctant to join an opinion suggesting that their own loved ones are similar in character to racists.

The reason it took nearly 150 years, from the day the 14th Amendment was ratified, for the Supreme Court to say that same-sex marriage is protected by the Constitution isn’t that the text of the Constitution changed; it’s that the values of the men and women who sat on the Supreme Court in 2015 were different from the values of their predecessors.

The United States does a particularly bad job of picking judges and justices. We give that power to a partisan president and a partisan Senate. That’s a good way to ensure that judges are chosen that are loyal to one party or the other’s political agenda.

I’ve argued that the United States would be better off if it used a merit selection commission similar to the ones used in Great Britain or in many US states — though, realistically, this kind of reform is a pipe dream because it would require a constitutional amendment to achieve.

But no matter how we pick our judges, politics will unavoidably intrude into judicial decisions. There is no plausible method of choosing judges that could have produced a decision like Obergefell in, say, 1950, because the cause of gay political equality had not advanced far enough in 1950 to produce a bench that shared the values of the queer rights movement.

Republicans — or, at least, the Republican leaders who think most about judicial appointments — are smart enough to understand all of this. There’s a reason why they fought so hard to keep Merrick Garland off the Supreme Court. They knew that the difference between a centrist like Garland and an archconservative like Neil Gorsuch is tremendous, and that whoever took that seat on the Supreme Court could shape our politics for a generation.

And Republicans are also smart enough to know that, if Buttigieg can pack the Court to make it less partisan, a Republican president and Congress can pack it again later to give it a solid Republican majority.

Court-packing is the strongest and most dangerous weapon that Congress can employ against a rogue judiciary. It is possible to imagine circumstances where this weapon would need to be deployed, such as if the Court’s Republican majority so completely dismantled America’s voting rights laws that Democrats would be unable to compete for the White House or for control of Congress.

But if this weapon ever is used, we should have no illusions that it can be used to depoliticize the judiciary. The courts are inherently political. And a norm-shattering fight over court-packing will only escalate the battle over who controls them.

Author: Ian Millhiser

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