Constitutional Law Blog Essay

Rulebooks, Playgrounds, and Endgames: A Constitutional Analysis of the Calabresi-Hirji Judgeship Proposal

Steven Calabresi and Shams Hirji have posted a co-written paper* calling on Congress to legislate a major expansion of the lower federal courts.  The document is remarkable in at least two respects.  First, it showcases the difference between legislation that Congress has the formal authority to enact and legislation that is compatible with the small-c constitution.  If Congress were to enact the Calabresi-Hirji proposal, it would be hard to articulate a rationale on which the courts could strike the resulting law down as unconstitutional.  But it is also clear that the proposal threatens the permanent unraveling of a settlement that has made legitimate judicial review possible for a century and a half.  Second, the document depicts a judiciary that is populated, not by honorable judges who are appointed by Presidents of both parties and who often have good-faith disagreements, but by conservative judges on one hand and, on the other, Democratic-appointed judges who subvert the rule of law.  In the paper’s view, the rule of law itself demands that Democratic appointees not be permitted to exercise judicial power.

In both respects, the proposal suggests a kind of constitutional Armageddon.  It comes to end an era, with the forces of good poised to overwhelm the forces of evil.  Don’t get me wrong here: I’m in favor of good, and I’m less keen on evil.  But somehow I still don’t think that this proposal is a good idea.

I

The Calabresi-Hirji paper is styled a Memorandum to the Senate and the House of Representatives.  It recommends that Congress create, at a minimum, 61 new circuit judgeships (21).  Ideally, however, Congress would create many more, increasing the total number of active circuit judges to something between 2.5 and three times the current number (14).  That would mean creating 250 or 300 new circuit judgeships.

In either its weaker or its stronger form, the proposal would give Republican-appointed judges dominant control of the lower courts.  According to the paper, there are now 90 active Court of Appeals judges appointed by Democratic Presidents and 71 appointed by Republican Presidents, with 11 outstanding vacancies.  If one assumes that President Trump will fill the vacancies, the numbers would soon be 90 and 82, with further variations as judges leave the bench.  At the very least, the Calabresi-Hirji proposal would give the President another 61 circuit positions to fill, thus shifting the balance to 143 appointed by Republican Presidents and 90 by Democratic Presidents—a dramatic change even before further change during the Trump Presidency.  If the paper’s optimal recommendation were implemented, President Trump would have an additional 250 to 300 circuit judgeships to fill.  Trump nominees would be an absolute majority of all circuit judges, and judges appointed by Republican Presidents would account for maybe 80% of the federal appellate bench.

The express motive for the proposal is to change the ideological and/or partisan composition of the judiciary.  Part I of the paper is an Introduction; Part II is called “Undoing President Barack Obama’s Judicial Legacy” (1).  It’s not complicated.  Obama was president for eight years and appointed a lot of judges.  The federal bench is majority-Democratic after Obama’s two terms, as it was majority-Republican after George W. Bush’s.  If matters took their usual course, there might again soon be a Republican-appointed majority, and almost certainly so if Trump were to serve two terms.  But the paper argues against waiting until normal attrition does its work.  In the paper’s view, the judiciary as currently composed is heedless of the rule of law.  More conservative judges are needed quickly so that the rule of law will be restored.

The paper does not present the need to change the ideological composition of the judiciary as the only reason for expanding the federal bench.  It also argues that current caseloads are too heavy, with a range of unfortunate results including the proliferation of cases decided with unpublished opinions.  The claim that caseloads are in fact heavier now than at relevant earlier times is contestable.  But whatever the best view of that issue, this good-government argument is not what animates the proposal.  The paper makes clear that its primary motivation sounds in controlling the judiciary rather than right-sizing it for its workload.

If the paper recommended a big expansion in the judiciary and adduced only the workload issues as their rationale, savvy readers would suspect that shifting partisan control of the lower courts was also probably an important motivation.  In the actual paper, the authors don’t bother to pretend.  One could argue that their candor is praiseworthy.  But however one thinks about that question, the paper’s motivation is entirely out in the open.  This is a proposal to expand the federal judiciary for the purpose of putting people with certain judicial ideologies in control.  It comes as a wolf.

II

Is the proposal constitutional?  It depends on what “constitutional” means.  In one leading conventional sense, a government action is constitutional if it is consistent with the rules laid down in the written Constitution.  In another, an action is constitutional if the courts, acting within normal appropriate behavior for courts within our system, would be wrong to invalidate it.  (These two senses of “constitutional” are not the same, though they overlap substantially in their applications.  The content and legitimacy of the non-overlapping applications is the locus of many contested questions in constitutional theory.)  Measured in these ways, the proposal seems constitutional.

Nothing in the text of the written Constitution prohibits Congress from adjusting the size of the federal judiciary.  On the contrary, Article I, Section 8, clause ix and Article III, Section 1 expressly give Congress the authority to constitute (Article I’s language) and to ordain and establish (that’s Article III) tribunals inferior to the Supreme Court.  The power to make laws necessary and proper for carrying into execution the powers vested in the various departments of the government gives Congress the authority to structure those lower courts, including the power to prescribe the number of judges on each court.  The number of judges now is and always has been set by statute.

A court faced with a challenge to the Calabresi-Hirji proposal would surely begin its analysis by noting those features of the Constitution’s text.  It might also note that as a historical matter, Congress has in the past made changes to the federal judiciary for the purpose of changing who controls that institution.  FDR’s famous court-packing proposal was not the only such venture in American history, and unlike FDR’s attempt, several of the others succeeded.  Between 1801 and 1869, when there were no circuit judgeships to manipulate, Congress enacted statutes changing the size of the Supreme Court on half a dozen occasions.  Each time, the adjustment was intended to affect the Court’s balance of partisan or ideological control.  That early history is a further obstacle to arguing that the Calabresi-Hirji proposal is unconstitutional: it is hard, within the prevailing conventions, to argue that a type of legislation that was enacted half a dozen times early in the history of the Republic is invalid.

In short, if Congress were to enact some form of the Calabresi-Hirji proposal, the enactment would easily be constitutional in the most conventional senses of that term.  It would not contravene any text in the written Constitution, and it would not be subject to invalidation through judicial review.

III

Another sense of “constitutional” is built from the generic term “constitution” with a lower-case c.  In this sense, “the constitution” is the set of rules, norms, institutions, and understandings that make up the government.  It’s how we do things around here.

Part of the small-c American constitution is a way of thinking and talking about the document that we call the Constitution with a big C: the practices of arguing and adjudicating with reference to that document are among the practices that make up our system as a whole.  But our practices regarding the big-C Constitution are only a subset of the small-c constitution.  And, though I will not argue the point here, it seems to me that the big-C Constitution does its work only because the small-c constitution creates conditions in which that work is possible.

In this second sense, the Calabresi-Hirji proposal is flagrantly and dangerously unconstitutional.  It departs from settled norms, and it does so in a way that threatens the continued operation of the system more generally.

For a hundred and fifty years, no Congress has altered the size of the Supreme Court.  When an enormously popular and powerful President proposed doing so eighty years ago, he was rebuffed.  That rebuff further consolidated a norm that had apparently already developed in the previous half-century: it’s not a good idea to mess with the number of judgeships in order to seize ideological control of the judiciary.  No, that wasn’t the norm before 1870.  Before 1870, Congress regularly reached for this tool.  But maybe not everything that happened before 1870 was a good way to do things.  Indeed, we had some trouble with the constitutional system shortly before 1870—the sort of trouble that might prompt reasonable people to think about doing things differently in the future.  And after 1870, this tactic of manipulating the number of judgeships in order to seize control of the judiciary seems to have been left behind.  Not so much that FDR wasn’t tempted, but enough so that even he couldn’t pull it off.

To be sure, the Calabresi-Hirji proposal does not suggest changing the number of Supreme Court Justices.  But it doesn’t need to.  Thanks to last year’s stonewall of Merrick Garland, the Supreme Court already has both a Republican and a conservative majority, as it has had for some time now.  Calabresi and Hirji can accordingly make their proposal without having to take on the additional opposition that they might attract if they were suggesting changing the number of Justices—something that might be a heavier lift both because the idea of nine Justices has lodged deeply in the American mind and because it would more clearly raise the parallel with FDR’s rejected court-packing plan.

Even without proposing to change the size of the Supreme Court, however, the authors must know that they will be understood as recommending an aggressive move, one that might not be in keeping with past practice.  Perhaps in an attempt to avoid that charge of norm-busting, the paper analogizes its proposal to a law that expanded the lower courts in 1978.  That law, codified at 92 Stat. 1629, created 35 new circuit judgeships.  By Calabresi and Hirji’s reckoning, those new judgeships increased the membership of the U.S. Court of Appeals by about 36% (21).  The paper accordingly identifies an increase of 36% as its minimum proposal—that’s where the minimum recommendation of 61 new circuit judges I mentioned earlier comes from.  The rationale, of course, is that if a prior statute increased the number of circuit judges by 36%, nobody can cry foul when such an increase is legislated again.  To be sure, Calabresi and Hirji don’t want Congress to stop there.  A 36% expansion is the minimum expansion they propose—it’s what Congress should do if it doesn’t have the stomach to go beyond the cover this analogy provides.  But if Congress does have the stomach for it, and Calabresi and Hirji clearly hope it does, then it should go much bigger.

I will not spend much time in the weeds of this aspect of the proposal.  The most important things to be said about the paper are in a different and larger register.  But it is still worth going just a bit into the analogy with the 1978 law.  Calabresi and Hirji are correct that Congress in 1978 created 35 new circuit judgeships.  The new appointees were predominantly Democrats: both Houses of the Congress that passed the 1978 bill had Democratic majorities, and Jimmy Carter was the President.  That said, the 1978 bill was different from the current proposal in some notable ways.  Twenty-one of the 35 new circuit judgeships were created in just two circuits: the Fifth and the Ninth.  Population growth in those circuits had been especially steep in the preceding decades, and the Fifth Circuit expansion was a precursor to the division of that Circuit into two separate Circuits under a statute passed two years later.  To be sure, those 21 new judgeships gave President Carter a lot of appointments in the relevant circuits.  But in the entire system outside of those two circuits, the 1978 statute added only 14 circuit judgeships—an average of barely 1.5 positions per circuit.  Again, there’s no doubt that the increased number of judgeships amplified the number of Carter appointees.  But the statute was not a partisan or ideological power play.  In both Houses of Congress, most Republicans supported its passage.  (Or, strictly speaking, we know for sure that that was true in the House, where there was a roll-call vote.  In the Senate, the measure passed by voice vote, which suggests that it wasn’t a highly contested question.)  The point here is just that although it’s true that a prior bill passed by a majority-Democratic Congress and signed by a Democratic President expanded the number of circuit judgeships by 36%, it would be a mistake to infer that that bill, like the one Calabresi and Hirji propose, was an effort to seize ideological control of the lower courts.

I doubt there is any apt precedent for the Calabresi-Hirji proposal at any time since the U.S. Court of Appeals was created in 1891.  One could, however, find a precedent by looking back to Reconstruction.  In 1866, Congress shrank the authorized number of seats on the Supreme Court to seven in order to prevent Andrew Johnson from appointing anyone.  Three years later, after Ulysses S. Grant had taken office, Congress raised the number to nine.  While Calabresi and Hirji have no need to manipulate the size of the Supreme Court, because they already find that institution in friendly hands, they propose to do for circuit judgeships what the Reconstruction Congress did for the Supreme Court.  So yes, what the paper recommends has in essence been done before, but not in 1978.  It was done in the 1860s, at a time when circuit judgeships as we know them did not yet even exist.

So it seems to me that Calabresi and Hirji’s proposal is not constitutional in the small-c sense of the term.  It departs from long-settled norms and understandings about how American government is conducted.

IV

In this part, I focus on two ways in which the paper’s proposal not only departs from but aggressively undermines the existing small-c constitution.  One is at the level of message or worldview.  The other is at the level of practical consequences.  I’ll conclude by saying something about how the two things tie together.

At the level of message or worldview, what’s remarkable about the proposal is something already mentioned: it is entirely open about its partisan and/or ideological motivations.  The authors do not pretend that preventing Democratic-appointed judges from wielding judicial power is something that just happens to flow from administrative reforms made necessary by increased caseloads.  Neutering the Democratic appointees is the reason for acting: “undoing the judicial legacy of President Barack Obama” is straightforwardly described as a “reform” that Congress would achieve by enacting the proposed legislation.

Obviously, prior generations of American politicians did things for the purpose of disabling their political opponents and the appointees of their political opponents.  Finding ways to exercise political power so as to advantage one’s own team is as old as politics.  But, within the normal play of the game, American politicians are not supposed to treat that motivation as the sort of thing one can openly point to in an argument about how a government institution—let alone the specific institution of the courts—should be structured.  It’s what we think people whisper when the public isn’t looking.

That makes a difference.  Just imagine Congress drafting a bill based on the Calabresi-Hirji paper and including the stated rationale in the Whereas clauses: “Whereas President Barack Obama appointed judges, and whereas it is a matter of urgent public interest to prevent those judges from making decisions with the force of law….”  As baldly as possible, the paper depicts Democratic appointees as not the sort of people who should hold office at all.  The underlying premise is that rendering Democratic appointees powerless is no mere partisan project.  It is required as a defense of the rule of law itself.

In this respect, the Calabresi-Hirji proposal might operate from the same perspective as the Senate Republicans’ attitude toward judicial nominations after taking control of the Senate in January 2015.  Everyone remembers what happened to Merrick Garland.  Some people I respect think that the Republican stonewall of his nomination was, in the end, an aggressive move but still fair play in American politics, especially in an election year and with control of the Supreme Court on the line.  No doubt many Republicans in good faith understood it that way.  But pull the lens out a bit.  The Republican refusal to consider Garland (or any other Supreme Court nominee) can reasonably be understood as part of a more comprehensive Republican Party approach to judicial confirmations.  At the level of the Court of Appeals, the Senate confirmed only two Obama nominees in the entire two-year period between the assumption of Republican control in January 2015 and the end of Obama’s term.  Seen in that context, stonewalling Garland does not seem to have been an unusual action arising from the special stakes at issue with the Supreme Court: the Democratic President was not to be allowed to name Court of Appeals judges either.

Similarly, the refusal to consider Garland may not have been an exceptional occurrence that came about because the vacancy arose during an election year.  As 2016 wore on, Republican Senators from McConnell to Cruz to McCain said publicly that if Hillary Clinton won the election, they wouldn’t consider any of her nominees to the Supreme Court.  If one takes what they said seriously—and I do, because it hangs together well with the rest of the related conduct—they planned to use their blocking power to keep the Supreme Court shorthanded indefinitely rather than let Democratic appointees become a majority, even if a Democrat were to be elected President.  The underlying logic, of course, is the same as that of the Calabresi-Hirji proposal.  Democratic-appointed judges are not to be considered a normal part of the system, fit to exercise adjudicative authority because they too are honorable servants of the Constitution, even when they understand the Constitution differently from the way we understand it.  No.  They are to be regarded unfit per se.

This assumption that Democratic-appointed judges are unfit per se can explain what would otherwise be one of the most puzzling aspects of the proposal—that is, the paper’s seeming unconcern with provoking a judgeship arms race that could make the federal judiciary both unworkable and obviously partisan.

Suppose the proposal passed.  What do we imagine would happen when Democrats next exercised unified control of the elected branches?  Quite obviously they’d enact a bill expanding the lower courts by whatever amount was necessary to swing control right back.  Calabresi and Hirji’s optimal number of Court of Appeals judges is in the neighborhood of 450, with 80% or more of them Republican appointees.  If Democrats in the next cycle responded by creating a similar imbalance in the other direction, the number of appellate judgeships would exceed two thousand.  And so on into the next round.  Before long, an en banc circuit court might be larger than the House of Representatives.  It’s an absurdity as a practical matter.

What’s more, there’s no way that the Democrats in the next cycle would stop at the Court of Appeals.  Having been on the short end of the prior power grab, it’s entirely foreseeable that a Democratic reprisal in the next round would also expand the size of the Supreme Court.  And why not?  The Court has had a conservative majority for decades, and it presently retains that majority because the Republicans categorically refused to let the Democrats appoint someone—anyone—when a seat opened.  With the Calabresi-Hirji experience behind them, it would be remarkable for the Democrats in the next round not to go all the way.  And somewhere in this cycle of judicial spoils, the federal courts would lose a hefty share of whatever legitimacy they still retained as an adjudicative body whose relationship to electoral politics is, though traceable, a matter of some remove.

Calabresi and Hirji can foresee this chain of events as easily as I can.  So why would they make such a proposal, knowing that whatever control of the judiciary they managed to achieve would last only until the political worm turned, and that the net result after a couple of cycles would be the mess I have just described?

I do not know the authors personally, and I do not pretend to know their actual states of mind on this question.  But here’s a perspective that would render the paper’s recommendation sensible to someone who understood that the Democrats could play the same game when they came back into power.  It’s this: We don’t think in terms of the Democrats one day coming back into power.  We are building for a world in which they never exercise power.  And if the Democrats do return to power, then the Republic won’t be worth saving anyway.  In other words, competition between Republicans and Democrats is no longer an iterated game in which two rival parties who see each other as legitimate contenders for political power expect to take turns exercising more and less influence within the system.  It’s the last round, and it’s a fight to the finish.

That’s not the way that the major political parties thought of each other for most of the last century and a half.  It is the way that many Democratic-Republicans thought about Federalists in 1801, when the first bill monkeying with the size of the Supreme Court was enacted.  With certain nuances, it’s also not far from the way most Republicans thought about most Democrats in the 1860s, when the last such bill was enacted, not long after most Democrats responded to the election of a Republican President by taking up arms against the Union.  So not to put too fine a point on it: Yes, it’s true that early in the history of the Republic, Congress altered the size of the Supreme Court several times in order to shift partisan control.  But it’s also true that the America in which those things occurred was an America in which political parties often saw each other not as legitimate rivals but as threats to the Republic—and, not coincidentally, an America on the road to civil war, or cleaning up after one.

One of the nice things about living in post-Reconstruction America has been that conflict between the major political parties has not escalated all the way to the point of ultimate crisis.  I’d like us to keep that going.

*                      *                      *

There’s a popular approach that treats the Constitution like a rulebook.  The text describes permitted moves and prohibited ones.  As long as you stay within the permitted moves, you’re playing the game properly.  There’s little doubt that, conceived on that model, Congress has the authority to enact the Calabresi-Hirji proposal.

But the rulebook approach is a dangerously inadequate way to think about constitutional law.  A more helpful analogy might go like this: Constitutional government is like playground basketball.  If you care too much about winning this round and not enough about respecting your rival in the spirit of the game, pretty soon there might not be a game at all.

* This link has been updated. Readers were originally linked to the SSRN page where the Calabresi-Hirji paper could be found. However, the paper has been temporarily removed from SSRN as described here.