A comparison of American and Argentine politics
I am a native of Argentina who has been teaching mini-courses at Notre Dame Law School for the last ten years. My first article for this newspaper was titled “An Argentine Perspective on the New Pope.” I have written ten articles for the Rover since, but never again did I offer an Argentine perspective. In the wake of President Joe Biden’s creation of a “Commission on the Supreme Court of the United States” (Executive Order of 9 April 2021), I shall provide in this column a comparative approach, for which I will adopt once more my dormant Argentine perspective.
The Argentine Constitution of 1853 is the third oldest democratic constitution in the world. It was molded after the U.S. Constitution. They both establish a Supreme Court to top the Federal Judiciary and leave in the hands of Congress the determination by law of the number of Justices of the Court. The number has varied a bit through the years in both countries, but the historically prevailing and current number of members are nine in the U.S. and five in Argentina.
When the current President of Argentina, Alberto Fernández, took office in 2019 he faced a situation not altogether different from the one faced now by President Joe Biden: Fernández’s predecessor, Mauricio Macri, had been able (with the assistance of the Senate) to fill two vacancies in the Supreme Court. Hence, two fifths of the Court with which president Fernández would have to coexist had been appointed by a political adversary. (The other three had been previously appointed by different presidents of Fernandez’s own party).
Several members of President Fernández’s party suggested that the right thing to do was to expand the size of the Supreme Court. During his campaign, Biden went back and forth about this same issue, as he also faces a Supreme Court one third of whose members have been appointed by President Trump. He has avoided the topic since taking office, perhaps out of respect for the late Justice Ruth Bader Ginsburg, who famously stated, shortly before she died in 2020, that under the circumstances, to expand the Court “would be… one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.”
Even as President Biden was unveiling his plan of creating a commission to study the reform of the Supreme Court, Justice Breyer, another democratic appointment and the oldest member of the Supreme Court, addressed this problem. In “The Scalia lecture” (a lecture title that I found rather extraordinarily ironic, given what follows) Justice Breyer shared his view that “structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”
Chapeau!, Justices Ginsburg and Breyer. Now let us go back to Argentina. What did my President do with the situation he faced in 2019? He created a commission to study the reform of the Supreme Court — just what president Biden did last week. This is a well-known bureaucratic technique: send the itchy matter to some multi-member advisory body to try to garner moral support with the general public and then, if you do garner it, go ahead and send a bill to try to get Congress’ approval. Of course, for this to make sense, the report of such a commission ought to be along the lines of the president’s preference. After three months of work, the Argentine commission, composed of 11 members, issued a thick volume of conclusions. The report was so massive and so full of concurring and dissenting views of the members that the issue of the expansion of the Supreme Court got lost or forgotten in the midst of other, more trifling questions. Subsequently, the president did not go ahead to try “to pack the Court.” This appeared to be the surprising beneficial effect of the commission for those of us, whether of liberal or conservative persuasion who hold views similar to those of Justices Ginsburg and Breyer (and countless others).President Biden’s brand new commission has 36 members, including a minority of individuals who notoriously hold views foreign to the agenda of the Democratic Party. This outstretched hand of bipartisanship should be commended. But the work of a commission with so many members will be unquestionably difficult, especially considering that they have just 180 days to submit a report to the President. In the light of my country’s experience, it is my hope that that report will change nothing with regard to the size of the Supreme Court. Stare decisis et quieta non movere — to stand by and adhere to decisions and not disturb what is settled — the very same principle that guides the daily work of the Supreme Court — should control this issue at a time when political interferences might distort otherwise valid institutional and structural analyses. Right now the Argentine Supreme Court should remain with five members; and I daresay, as a sympathetic, frequent visitor to the States, the U.S. Supreme Court should remain with nine.
Santiago Legarre is a Professor of Constitutional Law and Comparative Constitutional Law at Pontificia Universidad Católica Argentina and a Visiting Professor at Notre Dame Law School