The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Dangers of Growing Support for Court-Packing

There is growing support for packing the Supreme Court among liberal Democrats, including some presidential candidates. It's a terrible idea that would severely damage the institution of judicial review, if ever implemented. Thoughtful liberals would do well to reject it.


The Supreme Court.

In recent weeks, there has been growing support for court-packing on the left. A number of prominent liberal Democrats, including several presidential candidates, have either endorsed the idea of expanding the size of the Supreme Court to reverse the current 5-4 conservative majority among the justices, or at least indicated they are open to it. Those expressing such views include presidential candidates Pete Buttigieg, Kamala Harris, Elizabeth Warren and Kirsten Gillibrand. Former Obama administration attorney General Eric Holder also argues that the idea should be "seriously" considered. Presidential candidate Beto O'Rourke has suggested a plan to increase the size of the court to fifteen justices: five Democrats, five Republicans, and five more justices selected by the other ten.

Liberal advocates of court-packing argue that it is a justifiable response to previous Republican bad behavior on judicial confirmations, most notably the GOP-controlled Senate's refusal to hold hearings on President Obama's nomination of Judge Merrick Garland in 2016, which eventually enabled to President Trump to fill the open seat with Justice Neil Gorsuch in 2017.

Both parties have engaged in skullduggery on judicial nominations in recent years, the GOP most certainly included. In my view, the refusal to consider Garland was understandable in light of previous Democratic actions (including their own refusal to hold hearings on a number of prominent Bush-era judicial nominees). But it is also true that it was a risky escalation of the judicial nomination wars.

Be that as it may, court-packing would be a dangerous step beyond previous judicial nomination shenanigans because, unlike them, it threatens to destroy the entire institution of judicial review, by creating a pattern of escalation under which each party would pack the court any time it simultaneously controls both Congress and the presidency. That would ensure that the Court would almost never rule against any significant initiative of the party in power, no matter how dangerous and unconstitutional. I discussed the flaws of court-packing in more detail here, here, and here. Prominent liberal Harvard Law School Professor Laurence Tribe summarizes the danger well:

Larry Tribe likewise argues against court-packing. "I'm not in favor of trying what FDR sought to do — and was rebuffed by the Democratic Senate for attempting," he tells me. "Obviously partisan Court-expansion to negate the votes of justices whose views a party detests and whose legitimacy the party doubts could trigger a tit-for-tat spiral that would endanger the Supreme Court's vital role in stabilizing the national political and legal system."

Similarly, Democratic Senator and presidential candidate Cory Booker "caution[s] people about doing things that become a tit for tat throughout history… So when the Democrats expand it to 11, 12 judges, when Republicans have it, they expand it to 15 judges." Booker and Tribe are right. And indeed these sorts of structural concerns are exactly what led a Democratic-controlled Congress to bury Franklin D. Roosevelt's 1937 court-packing plan—the last serious attempt to expand the size of the Court in order to shift its ideology. Critics rightly feared that court-packing would create a Supreme Court subservient to whatever party controlled the presidency and Congress at the time.

As Democratic Senator Burton Wheeler put it in a speech on 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.

For what it is worth, my opposition to court-packing is is not limited to plans put forward by liberal Democrats. I first wrote about the subject when prominent conservative law professor Steven Calabresi and his coauthor Shams Hirji put forward a plan for Republicans to pack the lower federal courts back in 2017. It was a bad idea when raised by some on the right two years ago, and it's no better now when it is gathering steam on the left.

Undermining judicial independence might be a feature of court-packing rather than a bug if you believe that judicial review does more harm than good, in any event (as do a few legal scholars on both the right and the left). Such people contend we would have a a freer and more just society if the courts let the political branches of government do as they please. I believe that is a dangerous delusion, for reasons I summarized here:

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.

Some liberals who value judicial review generally might believe that conservative judges will not act to curb the abuses of Trump and other Republican presidents. If so, it might be better to risk blowing up the judiciary than allow conservatives to continue to have a majority on the Supreme Court.

It is indeed true that conservative judges have sometimes let Trump get away with violations of the Constitution, most notably in the egregious travel ban case. But conservative Republican judicial appointees (along with liberal Democratic ones) have done much to curb the administration's excesses in other important cases. Notable examples include the numerous rulings against Trump's attempts to coerce sanctuary cities, the recent Ninth Circuit decision against the administration's efforts to severely restrict migrants' opportunities to apply for asylum (authored by prominent conservative judge Jay Bybee), and a variety of decisions on such important issues as DACA, the administration's family-separation policy (struck down by a Republican-appointed judge who ordered the administration to reunite the separated children with their families), and freedom of speech. If Trump had had a free hand to pack the courts as he likes, things would likely have been much worse. And the same goes for future presidents inclined to abuse their power.

Some on the left argue that the Democrats can expand the size of the Court without generating retaliation in kind by Republicans if they repackage court-packing as "court balancing" or some other similar euphemism. This is unlikely to work, for reasons I discussed here. Those attracted to such ideas should consider whether they themselves would forego retaliation if the GOP tried to pull a similar trick.

Fortunately, the left is far from monolithic when it comes to court-packing. As the above quotes by Laurence Tribe and Cory Booker reveal, some liberals do recognize the danger. Other notable liberal critics of court-packing include former Obama White House Counsel Bob Bauer, columnist Damon Linker (who calls it "the dumbest Democratic idea yet") and well-known legal scholar Richard Primus. Whether Democrats actually move forward with court-packing the next time they have a chance to do so depends in large part on who becomes the next Democratic president and whether he or she decides to make this an important part of the party's agenda.

Some Democrats are instead promoting other, far more defensible, reforms to the Supreme Court. For example, Cory Booker has called for imposing 18-year term limits on the justices. I have no problem with that idea, which enjoys widespread (though certainly not universal) support from legal scholars on different sides of the political spectrum, such as Sanford Levinson on the left, and Steve Calabresi on the right. It would limit the power of individual justices without giving the president and Congress a blank check to pack the Court as they like.

Beto O'Rourke's plan to increase the size of the court to 15 justices (mentioned above) is far less problematic than standard court-packing proposals. Because it would require a balance between five Democratic and five Republican justices, with five more chosen by the first ten, it would not enable either the president or Congress to simply pack the Court with their own minions. There are, however, many practical problems with the plan. For example, it is not clear how the Democratic and Republican justices would be selected. In addition, if independents or third parties ever gain a significant foothold in Congress, they would be shut out of the judicial selection process. O'Rourke's proposal would also require a constitutional amendment to enact, which I think is highly unlikely to happen.

On the other side of the political spectrum, GOP Senator Marco Rubio plans to propose a constitutional amendment limiting the Supreme Court's membership to nine justices, which would prevent future court-packing. I am happy to support any such amendment. But I doubt that it can get enacted without some sort of quid pro quo for the Democrats. If it were up to me, I would be willing to pay a price to remove the danger of court-packing forever. But most Republican politician probably think otherwise.

For the moment, therefore, the main barrier to court-packing is the longstanding political norm against it. It has lasted for almost 150 years, and survived an assault by Franklin D. Roosevelt, one of the most popular presidents in American history. The next Democratic president is unlikely to be as commanding a figure as FDR was. On the other hand, the Democratic Party is arguably more ideologically cohesive now than in the 1930s, and the relative youth of the conservative Supreme Court justices (combined with increased life expectancy) makes it less likely that the Democrats can quickly retake control of the Supreme Court by "natural" means in the near future, than was the case back in 1937. And we should not underestimate the risk that liberal anger over the Court could help generate a "crisis of legitimacy" at some point in the next few years, which in turn could pave the way for court-packing. Nonetheless, I am guardedly optimistic that court-packing can still be staved off. But that happy outcome is more likely the more people understand the gravity of the danger.