The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Sunday, I wrote that Court Packing is an inevitability when the Democrats win the White House, and majorities in both the House and the Senate. That post caused quite a stir, with 537 comments. (By way of comparison, the post on Reason-Volokh with the most comments has 556 comments). I appreciate that others have attempted to propose compromises and deals to forestall Court Packing. I am not sanguine. Politicians have very short time horizons. It is not feasible to strike a deal that may pay benefits years in the future. Any solution that requires collective action is, in my mind, off the table.
But there is one possible solution that does not require collective action. Of course, my proposal here is my proposal for all problems afflicting the Supreme Court. A resignation in time could save nine. Hear me out.
Imagine the Senate confirms Judge Barrett before election day and then three months later President Biden is sworn in with a Democratic-controlled Senate. At that point, the Court would have a 6-3 conservatish majority. There will be calls for Court packing.
At that point, in an act of selflessness, Chief Justice Roberts resigns. Then, President Biden follows the lead of President Reagan in 1986. Biden would elevate the de facto Chief Justice to become the de jure Chief Justice. With Chief Justice Elena Kagan in the middle seat, Biden would then be able to pick Justice Leondra Kruger, or someone else, to fill the Associate Justice seat. Biden would have two nominations in the span of a few months. Certainly those changes, in rapid succession, would quiet the waters for some time.
True, there would still be a 5-4 conservative majority. But, for the first time since Fred Vinson, there would be a Democratic-appointed Chief Justice. I think she could deftly guide the Court throughout these tumultuous times far more effectively than Roberts ever could. If she could manage Harvard Law School, she can manage the Supreme Court.
Think about it. Roberts would resign as the virtuous Cincinnatus–he resigned at the peak of his power for the sake of the republic. What better way to cement a legacy and foster bipartisanship? His place in history will be secure.
This post is written somewhat tongue-in-cheek, but I think it could possibly work if things get ugly after January.