Three Anti-Partisan Constitutional Conventions for Congress

I’m still drafting my article on “The Anti-Partisan Principle,” but here are three constitutional conventions that I’ve  distilled from the partisan precedents that relate to Congress:

One political party may not: (1) alter the structure of the judiciary in its favor; (2) use its supermajority to purge judges or expel members of Congress who belong to the other party; or (3) seize control of the presidency or the vice-presidency from the other party without winning a presidential election.  This does not mean that these things never happened.  It just means that we think that they are beyond the pale (though legal) now.

The first two concepts are straightforward.  #1 comes from the Repeal of the Judiciary Act of 1801 (the “Midnight Judges”) and the failure of FDR’s Court-packing plan in 1937. #2 draws from the acquittal of Justice Samuel Chase and the way Congress has understood its expulsion/seating power since Reconstruction.

The last one is more surprising (or at least it was to me). The acquittal of Andrew Johnson and the way Congress applied the Twenty-Fifth Amendment during Watergate, though, do stand for the proposition that I’ve stated.

One last thing.  The convention that one party may not alter the structure of the judiciary in its favor becomes ambiguous when there is an opportunity to substantially change the makeup of the judiciary because of some unnatural event.  In other words, if three Supreme Court Justices happen to die in the next two years, few would think that President Obama and Senate Democrats were acting improperly if they nominate and confirm three liberals to replace them.  If, however, those three Justices were killed at the same time by a terrorist attack or a plane crash, I think people would object rather strongly to the same approach by the majority party.

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14 Responses

  1. Orin Kerr says:

    I apologize if this a dumb question, but what makes something a “convention”? Is that just a practice that if deviated from would cause strong objections?

  2. Gerard Magliocca says:

    Right. A widely-shared norm that cannot be enforced in court. The two-term limit on presidents prior to 1940 is another example.

  3. Shag from Brookline says:

    How might Bush v. Gore fit with “conventions”?

    Also, what about the election of 1876?

    As to Gerard’s close:

    ” If, however, those three Justices were killed at the same time by a terrorist attack or a plane crash, I think people would object rather strongly to the same approach by the majority party.”

    how might this “think” apply if the terrorist attack killed, say during Obama’s second term, three (3) liberal Justices?

  4. Orin Kerr says:

    Thanks, interesting. I confess I’m skeptical of the significance of such conventions. With social norms, they are repeated every day and everyone has experience with them; you can see their existence because if you break them, you get a reaction. But to say something is a convention because of 100+ year old historical events that even most constitutional scholars aren’t familiar with seems to stretch the concept a bit too far.

  5. Gerard Magliocca says:


    Well, the examples I’ve given would draw a strong reaction, no? Even if you did not know the origin of the convention.

  6. Gerard Magliocca says:

    To Shaq’s point, I think not altering the partisan balance of the Court would be acceptable, though not in a presidential election year retirement scenario.

  7. Brett Bellmore says:

    Gerard: By that “strong reaction” standard, practically anything which advantages one party over another violates a “convention”, because it will draw a strong reaction from the other. The question is, if a plane crashes into the Supreme Court chambers, and 4 Justices died tomorrow, not whether Republicans would react strongly to Obama nominating 4 liberal Democrats to replace Thomas, Scalia, Kennedy, and Renquist.

    The question is, would Democrats? If not, it isn’t a convention.

  8. Gerard Magliocca says:


    My answer is yes.

  9. Shag from Brookline says:

    Surely Brett’s inclusion of “Renquist [sic]” was a slip of the mind. But let’s go for Brett’s concept of a “convention.”

    To paraphrase Tip O’Neill, “All [or most] politics is loco.”

  10. Orin Kerr says:

    Gerard writes: “Well, the examples I’ve given would draw a strong reaction, no? Even if you did not know the origin of the convention.”

    I don’t know. actually. It depends on the circumstances, and what your terms mean. What is the “structure” of the judiciary? Does that include adding or subtracting seats on influential lower courts? What does it mean to “purge judges”? Does that mean impeaching and removing a few district judges who are recognized as not up to the job or who are not doing it in an unbiased way? What does it mean to “seize control”? If a VP steps down, the President changes parties, and the President appoints a VP from his new party rather than the old one, is that the other party seizing control? And what is the “strong” reaction that you have in mind, from whom, and expressed how?

  11. Orin Kerr says:

    Here’s another example of where I think “conventions” are hard to gauge, and can be hard to say are settled by old examples: Can a President make a recess appointment to the Supreme Court? Based on modern confirmation battles, I would think that this would be considered an extreme move that would really upset a lot of people. But recess appointments to the Supreme Court have been relatively common historically. For example, Eisenhower did it three times, for Chief Justice Warren, Justice Stewart, and Justice Brennan.

  12. Gerard N. Magliocca says:

    All excellent questions that I will answer in the paper. Though in a sense you’re asking about the scope of these conventions, not about their existence.

    As for Supreme Court recess appointments, I suppose we’ll see what Noel Canning says.

  13. Orin Kerr says:

    I’m asking about both, I think. But to the extent that it’s hard to define exactly what it is that would allegedly draw such a negative reaction, it becomes harder to say that there’s a convention about it.

  14. Gerard Magliocca says:

    Well, conventions lack the notice of law. The British Constitution is far harder to define than ours for that reason. That does mean that they have none though. But hopefully I’ll clarify things in subsequent posts.