Wednesday, October 28, 2020

Is There Time for a Switch in Time?

 by Michael C. Dorf

Joe Biden spent part of yesterday campaigning in Warm Springs, Georgia, which had been the site of a retreat owned by FDR. The NY Times described Biden's speech there as "a let-us-come-together appeal that evoked the sort of common purpose that sustained the country during the Great Depression and World War II and that Mr. Biden said was needed to overcome the coronavirus." Fair enough. But for many people who have been following the news from and about the Supreme Court, reminders of FDR are more likely to evoke his Court-packing plan than his unifying rhetoric.

Biden himself, however, pretty clearly did not intend that message. As I explain in my new Verdict column, the bipartisan commission Biden hopes to create to study potential court reforms is highly unlikely to recommend Court expansion. We can see that from both the way Biden himself has talked about it--"not a fan"--and the nature of the commission--bipartisan and thus extraordinarily unlikely to define the problem the way we Democrats see it: a minority of the country votes for Republicans, who nonetheless control key organs of the federal government because of the unrepresentativeness of the Senate and the Electoral College; they use those organs to block action by Democrats and pack the courts with judges and justices who abet their voter-suppression efforts and partisan gerrymandering to ensure continuing minority rule; lather; rinse; repeat.

To be sure, it is possible to imagine some reforms--especially term limits--garnering bipartisan support. In my column, I urge that any reform should be backed with a substantial and credible threat that if the Court strikes it down, Court expansion will follow automatically. However, I am not optimistic that a recommendation with such teeth will be forthcoming from the commission Biden envisions.

Nonetheless, Biden's bipartisan commission is not necessarily the only word. Although Biden said he will charge his commission with reporting back within 180 days, should Democrats retake the Senate (and thus have any chance of changing the cloture rule and then enacting judicial reform legislation), expect one or more members of Congress to introduce a court reform bill before the 180 days are up. Suppose that both houses of Congress pass a bill expanding the Court's size, stripping it of some jurisdiction, or demoting Justices Thomas, Alito, Kavanaugh, and Barrett to appeals court judges (which might be constitutional, as I discuss in the column). The political pressure on a President Biden to sign the bill before his commission reports would be substantial.

And that leads me to today's question: Assuming, as I discussed last week, that there is something the Roberts Court could do to avoid such a fate, how much time is available for a switch in time?

To be clear, as I have stated in every one of these speculative posts, I am not taking for granted that Biden will win the election or that Democrats will retake the Senate. Nothing is certain, especially in 2020. So vote, vote, vote! I am asking a conditional question. If Democrats control the White House, the House, and the Senate with wide enough margins and the political will to make dramatic changes to the Court's size or jurisdiction, what would it take from the Supreme Court to derail that effort?

One possible answer is nothing. An astute member of Congress who favors dramatic court reform could well think that any show of good faith by the Court should be met with skepticism. Upholding Obamacare? Sure, you're doing that now and in the context of a stupid challenge, but after the midterms or whenever Republicans have a majority in one or the other chamber of Congress, you'll change your tune and strike it down on some other basis. And then you'll overturn Roe. Etc.

Even for my astute cynic, the answer shouldn't be that there is literally nothing the Court could do to avoid dramatic changes. Suppose that on January 20, Justices Gorsuch, Kavanaugh, and Barrett were all to resign from the Court, in belated regret that they owed their appointments to cooperation with a vile narcissist who nearly destroyed the republic. At that point, a President Biden could name three justices and judicial reform would be off the table.

But the prospects of any Republican appointees resigning during a Democratic administration for any reason other than a serious illness (which I do not wish upon anyone) are extraordinarily remote. Realistically, the only plausible switch in time would need to come in litigated cases. As I explained last week, election cases could do part of the job, but a Republican-packed Court that is trying to save its own skin by voting strategically would do so in a way that favors the Republican candidate, so as to head off the prospect of court reform entirely.

However, in the unlikely event that a SCOTUS opinion resolves an election-related dispute in a way that ensures a Biden victory, that decision would go a long way towards heading off the momentum for court reform. Even if, in subsequent cases, the Court reaches very conservative results--as it surely would--a few moderate Democrats who are not fond of Court expansion could point to the election litigation as evidence that the ideological differences of the Justices are non-partisan and don't warrant extreme measures.

The more likely way we would get to a Biden presidency with Democratic control of the House and Senate would be a resounding Democratic victory so large that there is no post-election litigation. In that circumstance, the Court's first best chance to head off judicial reform would be the Affordable Care Act case. It would be possible to have an opinion by January 20. Indeed, it would be easiest to write a short dismissive opinion quickly. One can even imagine something like the following conversation.

Chief Justice Roberts: Clarence, could you and Sam please hurry up with your dissent in California v. Texas?

Justice Thomas: What's the rush, Chief? It's only early January. We don't adjourn until June.

Chief Justice Roberts: Yes, I know, but the Democratic Congress has just convened and as soon as they're done with their $3 trillion COVID bill, they're likely to turn to Court packing. I know you disagree with me about the right outcome here, but I think we can agree that the more time that elapses without a decision, the greater the risk that a Court-packing bill is passed.

Justice Thomas: We'll circulate tomorrow morning!

Would upholding the ACA suffice to undercut Court expansion? It shouldn't, but as Prof Segall suggested on Monday, Senate Democrats may have overplayed their hand during the Barrett confirmation by focusing so much on Obamacare. SCOTUS rejection of the current ACA challenge would demonstrate the most minimal modicum of integrity, but in the face of the dire warnings, it would be widely portrayed as a profile in courage. And because even a couple of Democratic Senators defecting from a Court expansion plan would be enough to sink Court expansion or comparably bold reform, upholding the ACA could be deemed enough.

I want to close with another caveat. I am speaking here in a predictive mode. If any particular court reform measure is justified, that is because of systemic flaws in how our system works and the norm breaking in recent years. A string of very conservative rulings shouldn't make the case for court reform substantially stronger, nor should a string of liberal rulings make the case for court reform weaker, unless there is some reason to think it reflects a permanent change in the thinking of at least two Republican appointees. Because I am at best a reluctant supporter of the bolder court reform proposals, I would welcome such a change. But I'm not holding my breath.