On courts and constitutions

A couple of months ago we looked at the problem of representation of territories in the United States, with the campaign to make the District of Columbia a state. One of the key factors in this debate was the difference between legislative and constitutional reform.

The US constitution is hard to change. An amendment has to be passed by a two-thirds majority in both houses of Congress, and then ratified by the legislatures in three-quarters of the states. That means that amendments require a large measure of bipartisan support, and even then it takes a lot of time and effort.

Leaving aside the first ten (the Bill of Rights), which were approved as a set, only seventeen amendments have been made in 231 years. Australia, with a different but also onerous procedure, has made eight changes in 119 years, a very similar rate.

That’s not a bad thing. As Peter Brent remarked last year, “A country’s constitution is its legal DNA, and it shouldn’t be altered lightly.” But it creates problems when equally far-reaching changes can be made by other, simpler means.

Any move to give the US territories votes in Congress or in the electoral college requires a constitutional amendment. But making a territory into a state – which of course includes such representation – only requires ordinary legislation. So there’s a huge incentive to pursue that solution, even if in a particular case it makes much less sense.

The same goes for the underlying political problem that has stimulated interest in territory representation: the large structural disadvantage faced by Democrats in the Senate, and through it (to a lesser extent) in the electoral college.

Fixing that directly by, for example, abolishing the electoral college, requires a constitutional amendment. Restructuring the Senate is even harder, because the constitution provides that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate” – so an amendment would require not just three-quarters of the states, but unanimity.

But indirectly achieving the same thing, by subdividing one or more existing Democrat-controlled states, could be done with a simple majority in both houses. California could be carved into eight states and they would still all have more than the current median state population. Proper structural reform of the Senate would be more satisfactory in a host of ways, but is politically impossible.

And now there’s another example with the controversy over the current vacancy on the Supreme Court, following the death earlier this month of Justice Ruth Ginsburg. It’s given the Republican Party the chance to secure a solid conservative majority on the court, and more generally highlighted the difficulty posed by having such a powerful institution based on life tenure.

Life tenure means that replacement is capricious: some presidents may get to make several appointments, others few or none. It also means that judges may stay on the court in the hope of outlasting an uncongenial president, even if they are in poor health or well past their intellectual peak. And it provides an incentive to appoint younger judges, so as to maximise the return they provide, even if they lack an optimal degree of experience.

There’s a fairly high level of consensus among legal experts that the system would be much improved if life tenure was abolished and replaced by long fixed terms (18 years is often mentioned, although 16 would make more sense to align with presidential terms). But the constitution prescribes that the judges “shall hold their Offices during good Behaviour,” so any move to fixed terms would require a constitutional amendment.

Political polarisation means that the chance of reaching agreement on such an amendment is negligible. But a number of other, less satisfactory, approaches to the problem don’t require constitutional change. So if the Democrats win both the presidency and a Senate majority in November, it’s highly likely that they’ll try to do something to overcome what they will see as an unfair situation on the court.

The most obvious thing is to simply add extra judges to the court, which has been done before and poses no constitutional question. Its current size, nine judges, dates from 1869; there is certainly an argument that the growth in its workload since then justifies a couple of extra positions. But it would be highly controversial, especially since the most recent serious attempt to increase the number – by Franklin Roosevelt in 1937 – was undertaken for clearly political motives and failed to pass the Senate.

Nor would the addition of two (or even four) new Democrat-appointed judges do anything to fix the underlying problem created by the combination of life tenure and judicial politicisation. Constitutional amendment would be a much better option. Australia, with remarkably little controversy, took that route in 1977, with both sides supporting a referendum to abolish life tenure for the High Court and substitute a fixed retirement age of 70.

It’s possible that, after several rounds of actual or attempted court-packing by both sides, the American political class will be driven to find some consensus constitutional solution. But at best it will be a long time coming.