Democrats v USSC: The Constitutionality of Court-packing

By: Jasmit De Saffel

The Asper Centre’s first Constitutional Roundtable of the year transported the room two years ahead into a hypothetical future where the Democrats have won the U.S. 2020 election. In a world where the Democrats control Congress and the White House, how would they navigate a Supreme Court standing in ideological opposition to them?

This is the question explored in a draft chapter of Professor Mark Tushnet’s upcoming book, written for a general audience, which was the focus of this Roundtable presentation. Distinguished visiting Professor Tushnet also gave this year’s Wright lecture at the University of Toronto Faculty of Law and is the William Nelson Cromwell Professor of Law at Harvard Law School. He is a leading scholar of U.S. constitutional law and legal history. Professor Tushnet was joined by Professor Yasmin Dawood as a discussant. Professor Dawood is the Canada Research Chair in Democracy, Constitutionalism, and Electoral Law, and an Associate Professor at the University of Toronto Faculty of Law.

Professor Tushnet’s book posits that 2020 will be a turning point in the American political and constitutional landscape, one that could take either a “Trumpist” path or one more strongly socially democratic than recent Democratic leaders have taken. He discussed the obstacle the US Supreme Court (USSC) will pose to the Democrats if they do manage to win and try to implement socially democratic policies and programs. In particular, Professor Tushnet focused on court-packing as a potential response to this inevitable resistance from the judiciary that the Democrats should seriously consider.

Court-packing refers to increasing the size of the bench, a practice that is not technically unconstitutional in the United States. The two objections elaborated on in the discourse were that there is a constitutional convention against court-packing and that doing so would reduce the legitimacy of the USSC.

The constitutional convention argument is based on President Roosevelt’s failed attempt to court-pack in 1937 and the lack of attempts to do so by any subsequent administration. The thought is that there has thus been a constitutional convention against court-packing in place since the early 20th century. Professor Tushnet contends that there is not enough evidence to call this a convention, as one failed attempt in 1937 is insufficient to ground a constitutional convention. He argues that it is problematic to ascribe decisions made by past administrations to a normative idea like a constitutional norm, as there are a multiplicity of reasons and motivations for an administration to make the decisions they do. He suggests that there has simply been a practice of non-expansion because there has been no need to court-pack, until now.

The legitimacy of the Court argument holds that changing the composition of the Court with the express purpose of altering outcomes will undermine the belief that the court is engaged in legal interpretation, and thereby deprive the judiciary of its legitimacy. If the definition of legitimacy is deference to decisions simply because they emanate from the Court, the question asked was whether the court even has legitimacy. Additionally, Presidential appointments to the judiciary have already blurred the law/politics distinction. So, would a slight further reduction in legitimacy even matter? Professor Tushnet expressed the view that the public observing USSC decisions with a more critical eye would be a good thing for democracy.

The final concern raised by Professor Dawood was the potential “constitutional hardball” that would ensue following a decision by the Democrats to court-pack. As Prof Dawood explained, constitutional hardball (a term which Prof Tushnet already wrote about several years ago) is played when politicians make claims or act in ways that are not technically constitutional but go against established norms and practices. It is seen as unfair for undermining the public’s understanding of the constitutional system. The concern is that if the Democrats do court-pack, the Republicans will retaliate when they have power again, essentially spiraling into a “tit-for-tat” battle. Professor Tushnet pointed out that hardball/tit-for-tat is actually the preferred strategy in game theory. It is how to escape the Prisoner’s Dilemma equilibrium and get back “on course.” This game of hardball is exactly what has been going on in the conflicts over the last few USSC appointments. On a practical note, hardball can only be played when the reigning party controls all of Congress and the White House, which is not likely to happen very fast after the next regime change. Professor Tushnet argues that elected politicians do not make such long-term decisions and will not care about the repercussions for their decisions in 4/8/12 years.

Overall, the Roundtable discussion involved a lot of speculation, as court-packing is only relevant in the scenario where the Democrats win Congress and the White House in 2020. In these uncertain times that could very well not be the outcome of the election. Nevertheless, Professor Tushnet raises an important point and suggests a potential tactic Democrats could use to combat a bench that is not likely going to be amenable to their policy agenda. The Roundtable presented a fascinating glimpse into the constitutional questions being raised by our neighbours to the south.

Jasmit De Saffel is this year’s Asper Centre’s work-study student and a 1L JD candidate at UTLaw.

Constitutional Roundtable with Akis Psykgas

by Ryan Howes

On January 31, 2018, the Asper Centre Constitutional Roundtable Series hosted Athanasios (Akis) Psygkas, Lecturer in Law at University of Bristol and Visiting Scholar at the University of Toronto. His presentation was titled: “The hydraulics of constitutional claims: Four models of democratic constitutionalism and same-sex marriage.” Professor Brenda Cossman, Director of the Bonham Centre for Sexual Diversity Studies, joined as discussant.

There are many actors involved in constitutional interpretation. Psygkas identified a bottom-up process of constitutional evolution wherein multiple actors raise claims with constitutional implications. To articulate this “hydraulics” process, he conducted a case study of the legal recognition of same-sex marriage in four countries: the US, Spain, the UK, and Ireland.

In Obergefell v Hodges, the US Supreme Court held that the Fourteenth Amendment of the US Constitution requires state to issue marriage licenses to same-sex couples. The decision focused on liberty. Justice Kennedy, writing for the majority, provided a list of social actors (“central institutions in American life”) that contributed to the evolving debate of constitutional interpretation regarding same-sex marriage and argued that this debate had now reached a stage of deliberative maturity that permitted the Court to channel this into constitutional law.

In Spain, same-sex marriage was recognized through the legislature, beginning first at the regional level before being formalized in national legislation. In further contrast to the US, the petitions that were put forth in support of legalizing same-sex marriage focused on equality, not liberty. When challenged, the Spanish Constitutional Court stated that it cannot remain “aloof from social reality” and cited statistics concerning Spanish attitudes toward same-sex marriage in making its decision to recognize same-sex marriage.

In the UK, the process to recognize same-sex marriage was largely legislative and proceeded in stages. First, homosexual activity was decriminalized for persons over 21 years of age in 1967. But this provoked some backlash: legislation prohibiting promotion of homosexuality remained in place until 2003. Civil partnerships were created in 2004, which permitted homosexual couples legal recognition. Formal recognition of same-sex marriage came into effect in 2014. Throughout these stages, there was no electoral manifesto concerning same-sex marriage; rather, the process occurred organically through public consultations and hearings at the committee stage of the legislative process. The debate continues in Northern Ireland, where a married, English same-sex couple is challenging the state’s refusal to recognize their marriage.

The Republic of Ireland has direct citizen involvement in constitutional change through referendums, especially when change concerns fundamental laws, like constitutional amendments. The consensus in Ireland, however, had long been against recognizing same-sex marriage. This social attitude had influenced how politicians and the judiciary interpreted relevant legislation and articles of the Irish Constitution, especially Article 41, which concerns family. In 2013, a referendum on same-sex marriage was conducted and by a 62% approval vote brought the 34th Amendment of the Irish Constitution into existence, granting same-sex marriage legal recognition.

Each of these four examples demonstrate the varied systems and means through which social actors influence constitutional interpretation and change. The predominate direction of influence was bottom-up.

Professor Cossman argued that in Canada same-sex marriage recognition was a predominantly court-centric process, with Charter dialogue dominating the arguments. Parliament responded to Supreme Court of Canada (SCC) rulings by changing legislation. This process began with the SCC ruling that the common law definition of marriage as between one man and one woman violated section 15 of the Charter (Halpern v Canada). The Same-Sex Marriage Reference soon followed in 2004. This appears to be an exception to the hydraulics process that Psygkas observed in the four countries discussed. Although there were many activist groups active at this time, the Canadian experience of recognizing same-same marriage appears to have been more of a top-down process and did not exemplify the same hydraulics process Psygkas observed elsewhere. The SCC interpreted the Charter and Parliament followed. Invariably, some bottom-up processes were at play in the Canadian same-sex marriage debate: our Charter is young and reflects Canadian values, and our judges are, after all, from the citizenry.

Psygkas argued that the driving force in this “hydraulics” process is a bottom-up demand for a specific constitutional position within complex institutional structures; the exact form it takes varies depending on the constitution and the institutions present. What implications does this have for when we observe social backlashes or rising sentiments that we perceive to be moving our society in the wrong direction? Current political preoccupations with the so-called “populist” wave are perhaps an instance of this process.

Ryan Howes is a JD Candidate at the Faculty of Law and is the Asper Centre work-study student.