The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Ilya Somin raises the issue of packing the Supreme Court.
To foreclose that possibility, I am proposing a constitutional amendment to prevent Congress from passing a statute to pack the US Supreme Court with more than nine members. If one party gains control of the White House and both houses of Congress, such a move is at least a possibility in the current degraded political atmosphere. If a party successfully packs the Court (as FDR tried to do during the New Deal), such an act would likely lead to yet more packing the next time that the other party controlled the White House and Congress.
To prevent such a tit-for-tat escalation, I propose that Congress should immediately pass and submit to the states for ratification a constitutional amendment to prevent increasing the size of the Supreme Court (and to undo any packing that happens before ratification).
I cannot predict how the politics of this would play out, but I would imagine that any member of Congress who refused to support such an amendment could be plausibly accused of refusing to support it because they hoped to pack the Supreme Court sometime in the future. Of course, that would not be the only reason that can be imagined to oppose the amendment—Glenn Reynolds claims to favor a large Supreme Court of several dozen members—but an inclination to pack would be the likeliest reason for opposition.
Though some Democrats would oppose the amendment because ideally they would like to pack the Court, I wonder how many Democrats trust the Republicans in the future to be less partisan than they would be. I don't sense much trust emanating from either side.
In the long run, to prevent one party controlling the Supreme Court decade after decade, to prevent politically strategic retirement, and to even out presidential opportunities to appoint justices to the Court, I have long favored an additional amendment providing for 18-year or 24-year terms for Supreme Court Justices.
Proposed Amendment Against Packing the Supreme Court
Section 1 [Size].
The size of the Supreme Court of the United States shall be nine members, consisting of one Chief Justice and eight Associate Justices, though from time to time one or more of these nine offices may be vacant.
Section 2 [Senior Status].
A Justice who has accepted senior status or another form of partial retirement from the Supreme Court shall not be counted as holding one of the nine judicial offices on that Court. Such a Justice is barred from participating as a Supreme Court Justice both in cases before the Supreme Court and in the adoption of judicial rules, but may be involved in cases before lower federal courts when properly assigned.
Section 3 [Repealing Any Increase].
If before this amendment is ratified by the States, the size of the Supreme Court has been increased by statute or constitutional amendment to more than nine members, once this amendment is ratified, those additional judicial offices beyond the nine in place in 2018 are void. The then current holders of those newer offices would be immediately removed from the Supreme Court, no matter whether they were appointed to the Supreme Court before or after any Justices sitting in the pre-existing nine offices. A Justice removed from the Supreme Court under this section may continue to serve as a federal judge during good behavior. On leaving the Supreme Court, such a removed Justice may choose to accept and fill any vacant Article III judgeship, without further nomination to that particular judgeship by the President and without the advice and consent of the Senate.
Section 4 [Enforcement].
The Congress shall have the power to enforce this article by appropriate legislation and the Supreme Court shall have the power to enforce this article by appropriate judicial rulemaking consistent with that legislation.