America's Unwritten Constitution: The Precedents and Principles We Live By (58 page)

As soon as the House reached the promised one hundred members in the mid-1790s, two additional dynamics came into play, preventing subsequent shrinkage. First, as new states joined the union, with each state entitled to at least one seat, it was far easier to increase the House size than to deprive an established state of an existing seat. Second, any significant diminution of House size would have required existing House members to agree to a musical-chairs game ensuring that many of them would lose their seats when the music stopped. As the nation’s population increased, it was far more natural for incumbents to vote to maintain House size or to expand the House than to shrink it.
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In keeping with these dynamics, the size of the House has never decreased appreciably from the first census in 1790 to the present day. Ever since 1911, a landmark congressional statute has fixed the permanent size at 435, subject to temporary fluctuation to accommodate singular events, such as the admission of new states.

True, under a strict reading of the written Constitution, nothing prevents Congress from slashing the size of the House in the next decade to
fifty members. But in the real world, everything prevents the Congress from doing so—tradition and trajectory; the structural role and self-image of the House as the larger, proportionate half of Congress; and the obvious incentives of existing House members to preserve their own seats and status. This predictable incentive structure forms part of America’s unwritten Constitution and has operated to prevent a fifty-member House—or a five-thousand-member body, for that matter—from occurring as effectively as if these numerical boundaries had in fact been formally inscribed into the document.
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ALTHOUGH THE WRITTEN RULES
would allow a Supreme Court of nearly any size, the unwritten rules suggest some additional constraints—but only modest ones.

An enormous difference exists between the House of Representatives and the Court: The House has an absolute policy veto on any law that changes its own size, but the Court lacks symmetric control over its own dimensions. In order to stymie any proposed legal change in House size, House members need only say they prefer the status quo. But the Court cannot thwart a change to its own size simply on the ground that the current Court deems the change undesirable. The Court may properly thwart a change only if the change is unconstitutional, and the Constitution, both written and unwritten, is best read as giving Congress considerable authority over the size of the Court.

Article I empowers Congress to make “proper” laws effectuating the powers of “the government of the United States,” including the executive and judicial branches. Thus, in 1789, it was Congress—acting, of course, with bicameral assent and presidential presentment—that legally established that the first Supreme Court would have six members. Over the ensuing decades, it was Congress that episodically modified the Court’s size from a low of five members to a high of ten. And ever since the 1870s, it has been Congress that has kept the Court at its present size of nine.

Today, this magic number might seem to many Americans to be an absolutely fixed feature of America’s unwritten Constitution, unchangeable by ordinary legislative action for ordinary legislative reasons. But in fact, Congress need not treat the number nine as sacrosanct.

True, inertia and congressional inaction for nearly a century and a half strongly support the status quo. But inertia and inaction alone do not add up to constitutional immunity from future legislation. Between 1876 and 1950, Congress enacted no major civil-rights laws, but Congress did not thereby lose its broad powers to act in this domain. The Reconstruction Amendments conferred these broad powers in clear terms, and Congress in fact has repeatedly deployed these powers since 1950 in ways that have profoundly reshaped America. If Congress never lost its power to pass civil-rights laws, how and when did Congress lose its power to pass Courtresizing laws?

True, President Franklin Roosevelt famously tried and failed to monkey with the Court’s size in 1937 when he unsuccessfully attempted to persuade Congress to enact legislation that would have “packed” the Court with several new seats. But civil-rights advocates likewise tried and failed to enact sweeping racial reforms in the FDR era. Surely these advocates retained every right to try again later on, despite their earlier failures, and the same principle applies to post-1937 advocates of judicial reform. Unsuccessful efforts to exercise an explicit power do not always—indeed, do not generally—cause the power to disappear from the document in form or in substance.

The collapse of FDR’s 1937 Court-packing plan did not generate anything closely analogous to the Decision of 1789. In the 1780s, the first Congress passed a series of statutes whose language explicitly glossed an ambiguous constitutional text. In the 1930s, Congress simply declined to adopt FDR’s proposed Court-packing statute. In 1789, all three key legislative actors—the House, the Senate, and the president—reached an express settlement. A century and a half later, politicians agreed to disagree. FDR never conceded any point of constitutional principle, and even many of his opponents admitted that Congress could modify the Court’s size for sincere reasons of judicial administration unrelated to displeasure with the Court’s rulings.
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Many thoughtful lawyers today believe that certain types of legislative assaults on the Court would violate the spirit of separation of powers and judicial independence. But if Congress has a sincere good-government reason for altering the Court’s size, it is hard to see why Congress’s views
should not prevail, even if the Court sincerely disagrees about what size would be best for achieving good government. Article I’s necessary-and-proper clause makes Congress the policymaker on this question and thus to some extent puts the Court at the mercy of Congress.

Even if, in a given instance of resizing the Court, Congress was retaliating against what it perceived as Court abuses—say, a string of dubious rulings and judicial overreaches—the legislature should still prevail. A strong case can be made that the written Constitution was designed precisely to allow Congress to rein in or resize a Court that Congress believes has acted improperly. Over the years, several legal changes in Court size have in fact been made by Congresses who were exquisitely aware of how the changes would likely affect the substantive rulings of the Court. For example, a lame-duck Federalist Congress in 1801 decreased the Court size from six to five in an attempt to deny the incoming president, Thomas Jefferson, an early Court appointment. The next Congress, dominated by Jeffersonians, promptly restored the size to six, so as to re-empower their man. In Jefferson’s second term, he and Congress agreed to expand the Court size to seven, with the full understanding that this increase would give him an additional opportunity to mold the Court. In the late 1860s, history repeated itself. Congressional Republicans hostile to President Johnson, and seeking to limit his appointments power, reduced the size of the Court from ten to seven. Only when Johnson was out of the picture did Congress increase the Court size back to nine, thereby giving President Grant an additional opportunity to move the Court his way.
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Entirely different issues would arise if Congress tried not to resize the Court but to restructure it. Suppose that some future law were to provide that the Court members must generally sit in randomly generated three-justice panels, with the full nine-justice Court authorized to sit en banc and reverse individual panel decisions only in cases of “egregious panel error.”

As an abstract textual matter, this hypothetical statute might pass muster. Although the Constitution does require that “one supreme Court” must exist, Court members need not always sit en banc with each other in order to truly form one Court. Today, each federal appellate court ordinarily sits in three-judge panels, with only rare en banc sittings, yet virtually
no one says that this fact means that each of these courts is not really a court. Many a court at the Founding likewise did not invariably sit en banc.

Nevertheless, it is easy enough to read the Article III words “one supreme Court” to mean that the justices must tightly cohere into one highly unified and centralized entity. Ever since 1789, Congress has in fact structured the Court in just this way, as a judicial body that virtually always acts en banc. Here, custom plausibly glosses a text, and the combination of text and custom may well have created a constitutional norm that would prevent Congress from radically decentralizing the Court.

Analogously, nothing in the text of Article III requires that the justices issue written majority opinions of the Court, and prior to John Marshall the Court did not routinely produce institutional writings of this sort. But in the two centuries since Marshall, actual Court practice may well have created a soft obligation on the part of the justices to try, wherever possible, to achieve these sorts of formal institutional statements, precisely because that is what Americans have come to expect of “
one
supreme Court” (emphasis added).
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In sum, where customary practice attaches to and helps define a specific constitutional word or phrase, a strong synergy arises between America’s written and unwritten Constitution. Whereas the venerable practices of official Court opinions and routine en banc sittings easily attach to the phrase “one supreme Court,” the familiar number nine has no comparable clause to which it can comfortably adhere. Nor does the Constitution give the decision about Court size to the Court itself and thereby create a strong incentive structure that might limit the imaginable options. The long-standing tradition of a Supreme Court with exactly nine seats thus forms a rather weak aspect of America’s current unwritten Constitution—a tradition doubtless cherished by the justices and many of the Court’s admirers, but a tradition ultimately entrusted to other branches to maintain or modify as they see fit.

MULTI-MEMBER INSTITUTIONS,
such as the House, the Senate, and the Court, can do nothing—nothing at all!—unless certain basic social-choice rules are in place within these institutions. Crucially, there must exist master
rules that determine how many votes within each institution will suffice to achieve certain results. Yet the written Constitution does not textually specify the master voting rule that operates inside these three chambers. Happily, two centuries of actual practice make clear that the bedrock constitutional principle within each is simple majority rule.

Some senators today, however, think otherwise. They think that the Senate’s current filibuster system cannot be abolished by a simple majority vote. They should think again, for they have misread America’s Constitution, written and unwritten. To see why, let’s first canvass the internal voting rules and deliberation protocols that apply within the Supreme Court and the House of Representatives and then use the evidence and insights generated by this canvass to analyze the modern Senate filibuster.

THE CONSTITUTION EXPLICITLY PROVIDES
for a chief justice, but does not specify his role, except as the official who chairs presidential impeachment trials. Perhaps the chief’s most important Court role, established by Court tradition, involves his power to assign opinions. Whenever he finds himself in the initial majority after oral argument, he decides which justice shall take the lead in trying to compose an opinion on behalf of the Court. Of course, he may opt to assign the opinion to himself, as John Marshall did in most important cases of his day, and as Earl Warren did in landmark cases such as
Brown v. Board of Education
and
Reynolds v. Sims
.

Thanks to the necessary-and-proper clause, Congress has also vested the chief justice with sundry administrative and supervisory responsibilities for the federal judiciary as a whole—but none of these congressional statutes has done much to clarify the chief’s authority within the Supreme Court itself. And although Congress has defined the jurisdiction of the Court and has enacted various rules of evidence and procedure for litigants who come before the justices, federal lawmakers have opted to leave a great deal of the internal protocol among the justices to be worked out by the justices themselves.
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But by what voting rule? Although the written Constitution left the matter unspecified, four interrelated factors pointed to simple majority rule as the master norm among the justices, at least in the absence of some contrary protocol prescribed by Congress.

First, majority rule has unique mathematical properties that make it the
obvious answer. When an uneven number of voters (or justices) are deciding between two simple alternatives, such as whether to affirm or reverse a lower-court decision or whether to rule for the plaintiff or the defendant in a trial situation, there is always an alternative that commands the support of a majority, but there might be no alternative that enjoys more than majority support.

Second, anyone who had studied John Locke’s canonical
Second Treatise of Government
—as had most of the leading American revolutionaries—knew that majority rule was considered the natural default principle of all assemblies. In Locke’s words: “[I]n assemblies impowered to act by positive laws, where no number is set by that positive law which impowers them, the act of the majority passes for the act of the whole and, of course, determines, as having by the law of nature and reason the power of the whole.”
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Other Founding-era authorities said the same thing. Building on this broad tradition, Thomas Jefferson’s mid-1780s booklet
Notes on the State of Virginia
declared that “
Lex majoris partis
[is] founded in common law as well as common right. It is the natural law of every assembly of men, whose numbers are not fixed by any other law.” In written remarks read aloud to the Philadelphia Convention, Benjamin Franklin described majority rule as “the Common Practice of Assemblies in all Countries and Ages.” None of his fellow delegates said otherwise.
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