Matthew Seligman (Cardozo School of Law) has posted Constitutional Politics, Court Packing, and Judicial Appointments Reform on SSRN. Here is the abstract:
The idea of court packing has arisen from its long slumber. With Justice Kennedy’s retirement and probable replacement with a new Justice appointed by President Trump, Republican Presidents will have appointed five of the nine Supreme Court Justices. This despite the fact that Democratic candidates have won the popular vote in six of the last seven Presidential elections. That apparent disparity between the allocation of judicial power and the democratic will of most Americans poses a potential challenge to the legitimacy of the judiciary. That has in turn prompted recent calls for Democrats to add seats to the Supreme Court when they return to power. This Essay examines the constitutional politics of the appointments process in an era of rising partisanship and constitutional hardball through the lens of game theory. It offers the counterintuitive conclusion that in this moment of cratering cooperation and collapsing constitutional norms, there may be a rare political and legal opportunity to restructure the judicial appointments process for the better and for good. The present constitutional moment provides a unique opening to solve the problem permanently through the perennial reform proposal: judicial term limits with regularized appointments. This Essay’s unique contribution is a pathway to its adoption that connects a constitutional amendment to current gestures towards court packing. By presenting the possibility—or, it can sometimes seem, inevitability—of a long-term cycle of escalation in view of the dynamics of an iterated game with known strategies, it seeks to reframe the discussion away from winning an adversarial game and toward changing the rules of that game to be more cooperative. The Essay analyzes the constitutional politics of judicial appointments as two games: the Prisoners' Dilemma and the Hawk-Dove Game. In either game, both parties are positioned to recognize the value of pursuing a long-term solution over securing short-term advantage precisely because the threat of escalation is now so salient. A constitutional amendment reforming the judicial appointments process has never been easy, and it will not be now. It would be naïve to suggest otherwise. But it has also never been more needed, and for that reason has never been more attainable.