The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For much of the period from 2017 to 2019, there was an active public debate over "court packing." The first round of that debate was kicked off by prominent conservative law professor Stephen Calabresi, who (along with Shams Hirji) drafted a plan for Republicans to increase the number of lower-court federal judges, so as to enable Donald Trump to tilt the balance of these courts to the right with new appointments (for the record, I strongly opposed their idea). With the 2018 nomination of Justice Brett Kavanaugh to the Supreme Court, it was the left's turn to advocate court-packing in order to offset what they viewed as the illegitimate GOP appointments of Kavanaugh and Neil Gorsuch; the latter's seat, they argued, was "stolen" as a result of the GOP-controlled Senate's refusal to hold hearings on Judge Merrick Garland, Barack Obama's nominee to fill the seat vacated by the death of Justice Antonin Scalia in 2016.
The conflict over court-packing seemed to abate after the Democratic Party chose a presidential nominee—Joe Biden—who has said he opposes the idea. In addition, court-packing has been pushed out of the news by the coronavirus pandemic, the death of George Floyd and resulting protests over police brutality, and other events. Now, however, some progressive activist groups are trying to get the idea back on the political agenda:
The movement on the left to pack the Supreme Court is gaining momentum.
A group of progressive organizations is for the first time supporting the proposal to add justices to the court in hopes of weakening the conservative majority, according to a memo provided to POLITICO. The move comes weeks before the Supreme Court is expected to hand down opinions on several hotly contested issues, including President Donald Trump's tax returns, abortion rights and the fate of "Dreamers."
The Progressive Change Institute, Be a Hero, Friends of the Earth, Presente and 350 are among those groups that are newly joining the call, according to organizers. Take Back the Court, Demand Justice and the Sunrise Movement, which previously backed the idea, also signed onto the open letter.
"Trump and the Republicans in Congress have used aggressive tactics, including eliminating the filibuster, to pack the courts with conservative ideologues and prevent the will of the people from being heard," said Erich Pica, president of the environmental group Friends of the Earth. "From the fight for racial justice to efforts to stop climate change and protect our clean air and water, the current configuration of the court has consistently stood in the way of progress. We simply do not have a generation's worth of time to replace judges."
The once-fringe idea of packing the court got a major boost during the Democratic presidential primary, when several candidates said they were open to the plan or supported it. Democrats have argued the hardball tactic is needed after Republicans blocked former President Barack Obama's Supreme Court nominee Merrick Garland and others on the lower courts.
Whether these groups succeed remains to be seen. During the court-packing debate in 2018-19, the idea found a number of influential supporters on the left, but also numerous notable critics, including Harvard law Professor Laurence Tribe, Senator Cory Booker, Obama White House Counsel Bob Bauer, and prominent constitutional law scholars Neil Siegel and Noah Feldman. For present purposes, the most important liberal critic of court-packing was Joe Biden. He explained its dangers well:
At a debate last year, he said, "I would not get into court packing. We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all."
If the Democrats pack the court, the GOP will respond in kind, as soon as they get the chance. The predictable result will not only be a loss of "credibility" for the Supreme Court, but also the elimination of judicial review as an effective check on the other branches of government. If the president can pack the court any time his or her party controla both houses of Congress, they can prevent the court from making decisions that curb unconstitutional policies they may wish to enact.
This dynamic is a key reason why court-packing is a standard tool of authoritarian populists seeking to undermine liberal democracy, recently used in such countries as Hungary, Turkey, and Venezuela. Comparative research indicates that judicial independence is a crucial safeguard for civil liberties and other individual rights. Court-packing, if it succeeds, is an obvious threat to that independence.
These types of concerns were a key factor in the demise of President Franklin D. Roosevelt's 1937 plan to pack the Court in order to break its resistance to his New Deal policies. As Democratic Senator Burton Wheeler put it in a speech opposing 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.
Neutering judicial review may seem like a feature rather than a bug, to those who oppose strong judicial review generally, or at least think that a neutered Court is better than one with a conservative majority. I have criticized such claims elsewhere, including here and here.
Today's liberal court-packing advocates claim their plan won't set a dangerous precedent because it is a response to the special circumstances caused by the bad behavior of the GOP in blocking the Garland nomination and confirming Kavanaugh in the face of a accusations of sexual assault. Liberal legal scholars Noah Feldman (Harvard) and Neil Siegel (Duke) have offered strong rebuttals to such claims, explaining why court-packing would be an escalation of the conflict over judicial nominations, not merely retaliation in kind. I expanded on their arguments here.
From the standpoint of preventing a court-packing spiral, the key factor is not the "objective" merit of the Democrats' critique of GOP behavior, but whether Republicans and conservative independents are likely to accept that critique, and thereby forego retaliation for Democratic court-packing. For reasons I summarize here, I think it's pretty obvious the answer to that question is "no." I have some sympathy for Democrats' complaints about the way the Kavanaugh nomination was handled—much less so for their critique of the "theft" of the seat that eventually went to Gorsuch. But, for present purposes, it doesn't matter much what I think. What matters is how Republicans are likely to react to a Democratic court-packing initiative. That reaction is unlikely to be a favorable one.
At this point, the odds are still against a successful liberal court-packing plan. In order for it to work, the Democrats would have to win the White House and both houses of Congress—an outcome which is entirely possible, but far from certain. In addition, Biden would likely have to reverse his position on the issue.
A court-packing plan is unlikely to succeed without strong presidential support. For the moment, Biden does not seem to have changed his mind. But, like many politicians, he has a history of shifting positions when doing so seems advantageous to him or his party. It has happened on other issues, and could potentially happen on this one, too. A high-profile confrontation between the Court and the executive branch could potentially persuade Biden (or another Democratic president) to promote court-packing even if that wasn't his initial plan.
Biden could also be tempted to adopt a proposal such as the "rotation" plan endorsed by Bernie Sanders during the Democratic primary, or the "court-balancing" plan proposed by Yale law professors Ian Ayres and John Fabian Witt in 2018. These ideas are slightly different from conventional court-packing, and thus could give Biden an opportunity to create a liberal majority on the Court without technically reversing his previous position. But for reasons I discussed here and here, such plans amount to a slightly different type of court-packing and have most of the same dangers.
If I had to guess, I would say Biden—should he become president—is unlikely to pursue either court-packing or other similar ideas. He would probably prefer to spend his limited political capital elsewhere. But I'm far from a perfect political prognosticator, and I could turn out to be wrong on this point.
Since the defeat of FDR's court-packing plan in 1937, the idea has been marginalized in mainstream political discourse. But the events of the last few years have at least weakened the taboo against it. Both Democrats and Republicans have done much to undermine it. Whether it breaks completely remains to be seen.
The only truly foolproof guarantee against court-packing is a constitutional amendment fixing the size of the Supreme Court at nine (or some other number). Prominent liberal political scientist Larry Diamond recently published a column endorsing such an idea, I too would be happy to see such an amendment enacted, but doubt it could happen without a deal under which Democrats got some sort of reciprocal concession from the GOP. Unless and until that happens, it is important that liberal Democratic opponents of court-packing prevail over the idea's supporters within their party.