Professor Laurence Tribe and Ganesh Sitaraman express a great deal of skepticism about Mark Stern’s dismantling of the 5-5-5 judicial reform option that many of the 2020 candidates are embracing, (here and here), but the Tribe/Sitaraman defense of 5-5-5 doesn’t make sense.
Professor Tribe observes that Stern is wrong in saying that 5-5-5 is “clearly” unconstitutional because, according to Tribe, citing Sitaraman/Epps, 5-5-5 “may” be unconstitutional. This is a distinction without a difference, because the Roberts Court will almost certainly strike down 5-5-5 whether or not it is clearly unconstitutional. This is a huge, fatal flaw in the 5-5-5 plan because 5-5-5 will not survive judicial review and hence will not be implemented.
To get around this fatal flaw, Professor Sitaraman and his co-author Professor Daniel Epps answer that 5-5-5 could survive judicial review if Congress added a legislative provision mandating that if 5-5-5 is struck down, then the Court would be packed. But that’s not how politics works. If the Democrats spend the next two years eviscerating court packing while celebrating 5-5-5, the new President and Congress will neither have nor find the political will to include packing in a 5-5-5 bill.
And, there are other problems with 5-5-5: (1) Republicans may game the system by declining to vote for so-called moderate justices, which would trigger the closure of SCOTUS, thus allowing conservative appellate courts to have the final word on cases. By the time Trump leaves office, almost all circuits will lean right; (2) Republicans would almost certainly respond to 5-5-5 by packing the court; (3) Therefore, 5-5-5 won’t improve the quality of jurisprudence while it is in effect because extreme appellate decisions will prevail, and then Republicans will pack the court as soon as they can and we will return to extreme SCOTUS decisions; (4) 5-5-5 is so esoteric and in the weeds that a mass political movement probably cannot be built around it; (5) The plan depends on the assumption that there are “moderate” judges that both sides could agree on for the final five. But Republican judges who come through the Federalist Society pipeline are not moderate. Democratic moderates like Merrick Garland aren’t acceptable to Republicans. So who, exactly, will these five moderate judges be?
Finally, there’s a tactical point to make about negotiating strategy. If the judicial reform goal is 5-5-5 or some other ostensibly neutral option such as term limits or appellate rotation, then progressives need to line up behind a stronger option with the expectation of retreating to the compromise/fall-back position if and when necessary. By leading off with proposal like 5-5-5 as our opening bid, we all but ensure that the eventual reform that is adopted will be milquetoast.
If If Sitaraman/Epps were correct, then we would not need to reform the Court in the first place. In other words, the kind of moderate, serious, non-partisan SCOTUS they imagine — one that would reasonably consider the constitutionality of a reform measure aimed at curbing judicial overreach — does not exist because the Court has been hijacked. This line of argumentation from Sitaraman/Epps is an academic exercise in a world of political power masquerading as jurisprudence. So the kind of reform we need must not be vulnerable to review by the very courts we are trying to change. 5-5-5 is completely vulnerable. Court packing is not. So the point is not just that 5-5-5 can’t be implemented. It’s that the very Court we are working to repair would prevent it from being implemented. So we need a better and stronger solution.
There’s a lot at stake in the national conversation about judicial reform, because the Roberts Court is highly unlikely to allow Congress to restore democracy by, for example, banning voter suppression, dark money, and/or gerrymandering. The Court has been a key player in the rigging of the system in the first place, and there is no reason to think that Roberts et. al. will judge attempts to un-rig it fairly. With so much on the line, it is arguably irresponsible to peddle judicial reform options that look good on paper, but that cannot work in practice.