The Volokh Conspiracy
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The retirement of Justice Anthony Kennedy has stimulated renewed liberal interest in "court packing"—the idea of increasing the number of Supreme Court justices in order to get a majority more favorable to their views. Many on the left fear that this is the only way they can prevent a conservative majority from dominating the Court for a long time to come. While I can understand their distaste for conservative jurisprudence (and even agree with it on some points), court-packing is a cure far worse than any likely disease.
Last year, ironically, it was a conservative court-packing plan that made waves in legal circles—one offered by famed conservative legal scholar Steven Calabresi (in a paper coauthored with Shams Hirji), who hoped to pack the lower federal courts with Republican judges. Most of what I wrote in criticism of the Calabresi-Hirj plan applies equally to today's progressive versions of the idea:
If either the Republicans… or the Democrats…. succeed in packing the courts, the opposing party is sure to do exactly the same thing the next time they control the White House and both Houses of Congress. This is even more likely if court-packing can be enacted through the reconciliation process (as Calabresi and Hirj argue), and thus requires only a narrow Senate majority to pass.
Ending the norm against court-packing ensures that the judiciary will not serve as an effective check on the other branches of government at the very time when it is most likely to be needed: when one party holds both Congress and the presidency, and can thereby push through its agenda with relatively little opposition. Especially in a highly polarized era like our own, it is precisely at such times that the ruling party is [particularly] likely to violate constitutional constraints on its power in order to score victories against the hated opposition….
[T]he case against court-packing does not depend on the proclivities of any one president. As James Madison famously warned us: "Enlightened statesmen will not always be at the helm." Indeed, dangerously unenlightened politicians are all too common. The norm against court-packing is an important bulwark against their depredations – and those of the political majorities who put them in power.
I fully recognize that many Democrats regard court-packing as justified retaliation for the GOP's "theft" of the Supreme Court seat that went to Neil Gorsuch as a result of the Republican-controlled Senate's refusal to hold hearings and vote on Barack Obama nominee Merrick Garland. Republicans, in turn, argue that their treatment of Garland was justified by past Democratic misdeeds in the judicial nomination process (including refusal to hold hearings for a number of prominent GOP circuit court nominees), and that the Democrats themselves had signaled they would refuse to consider a GOP nominee in circumstances similar to those surrounding the Garland appointment. The truth is that, for a long time, both parties have shamelessly violated a variety of norms surrounding judicial nominations almost any time it seemed like they might gain an advantage to doing so. And both are equally shameless in shifting back and forth on procedural issues whenever the political winds dictate. The latest example is the contrast between GOP Senate leader Mitch NcConnell's insistence, in 2016, that the then-open Supreme Court seat should not be filled until after the November election, and his current claims that the present vacancy must be filled quickly, and certainly before the GOP might potentially lose its Senate majority in this fall's election.
But whatever we might think about the history of these shenanigans, court-packing is qualitatively different from any of them. Holding up nominees (as the GOP did with Garland), filibustering them (as the Democrats did with several Bush nominees, and as many—including Barack Obama—tried to do with Justice Samuel Alito), or "slow walking" them through the nomination process (many examples from both parties), are all potentially problematic. But all still leave the judiciary intact as a serious check on the power of the other branches of government. Court-packing, by contrast, would not. Once the norm against it is broken, both parties will resort to it whenever they have simultaneous control over Congress and the presidency, thereby foreclosing any significant judicial review of their policies.
When it was proposed last year, the Calabresi-Hirj plan sank like a stone. Even many on the right rejected it. That reaction showed the continued vitality of the norm against court-packing. But conservatives are likely to rethink their position if they believe liberal Democrats will pack the courts the first time they get a chance. And they will almost certainly do so (and retaliate in kind) if the Democrats actually do resort to court-packing the next time they get the chance.
Some liberal Democrats might still conclude that it's better to blow up judicial review than to leave that power to be exercised by a Court with a conservative majority. This would be an understandable, but shortsighted reaction. For all their serious differences and very real flaws, mainstream liberal and mainstream conservative jurists still agree on many important questions, including protection of a wide range of freedom speech, basic civil liberties, and ensuring a modicum of separation of powers, among others. History shows that these are the sorts of restraints on government power that the executive (sometimes backed by Congress) is likely to break during times of crisis, or when they have much-desired partisan agendas to pursue. Such actions are especially likely if the president is a populist demagogue with authoritarian impulses. And, as the current occupant of the White House demonstrates, the safeguards against such people getting power are not nearly as strong as we might have thought before 2016. As specialists in comparative politics emphasize, it is no accident that court-packing is a standard tool of authoritarian populists seeking to undermine liberal democracy, recently used in such countries as Hungary, Turkey, and Venezuela.
As a libertarian, I have a long list of reservations about both conventional liberal judges and conventional conservative ones. But even if the judiciary is staffed by flawed jurists, it is still a valuable safeguard against illiberalism and authoritarianism.
While court-packing does not violate the Constitution, the norm against it has held for almost 150 years now, surviving even Franklin D. Roosevelt's 1937 effort to pack the Court, at a time when FDR was extremely popular and Democrats had large majorities in Congress. His plan was killed, in part, by congressional Democrats,who feared the negative long-term consequences of acceding to it. As Democratic Senator Burton Wheeler put it in a speech attacking FDR's plan:
Create now a political court to echo the ideas of the Executive and you have created a weapon. A weapon which, in the hands of another President in times of war or other hysteria, could well be an instrument of destruction. A weapon that can cut down those guaranties of liberty written into your great document by the blood of your forefathers and that can extinguish your right of liberty, of speech, of thought, of action, and of religion. A weapon whose use is only dictated by the conscience of the wielder.
That warning seems no less appropriate today than in the 1930s. Certainly, the current president and many of his likely successors don't strike me as the sorts of people in whose "conscience" we should put much faith.
It is also important to recognize that much of what liberals fear at the hands of a conservative Supreme Court majority is the undermining of judicial protection for rights of special importance to progressives, such as the right to abortion (imperiled by a possible overruling of Roe v. Wade) and the right to same-sex marriage (which would be undermined by an overruling of Obergefell v. Hodges). For reasons well summarized by Josh Barro, I think it's actually highly unlikely that Obergefell would be overruled. Roe v. Wade is, I believe, far more likely to be overturned, or at least seriously weakened.
But both these rights—and others valued by liberals—would be far more imperiled if the entire institution of judicial review is gutted by court-packing. That would ensure that these rights would never again get significant judicial protection—at least not if their adversaries control Congress and the White House. The same applies to a wide range of other constitutional rights, especially those that protect unpopular minorities, who are especially likely to face a hostile president and Congress, sooner or later. Like most liberals, I hated the Supreme Court's recent travel ban decision. But undermining judicial review through court-packing is a great way to ensure that future presidents will continue to be able to institute whatever discriminatory travel ban policies they want. A flawed Supreme Court decision can be overruled in the future, as many have been. It will be much harder to restore the institution of judicial review, once that is lost.
Court-packing might still be attractive to people who believe that it's more important to eliminate "bad" judicial review as an obstacle to beneficial policies, than to preserve the "good" kind as an obstacle to oppressive ones. That theory has advocates on both right and left. This longstanding issue cannot be fully settled in a blog post. But I believe the history of American government—and government elsewhere—shows we have more to fear from state oppression than from excessive exercise of judicial review. Given widespread voter ignorance and prejudice, majority public opinion—and the politicians it elects—often cannot be trusted to avoid deeply oppressive and unjust policies. Judicial review cannot prevent all such wrongs, but it has historically done a good deal to at least alleviate them.
Court-packing was a terrible idea when FDR advocated it in 1937 and when some conservatives pushed it last year. It remains a terrible idea today.
NOTE: I am unable to link to last year's original Calabresi-Hirj court-packing article because the authors took it down from the SSRN website, indicating that they would repost it after making revisions in response to criticism. But they have not posted a new version so far. When and if they do so, I will be happy to link to it here.
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