The Volokh Conspiracy

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

Which outcome would forestall Court packing longer? A Trump victory or a Biden victory?

The Chief Justices's calculations are not so obvious.


The so-called "Switch in Time that Saved Nine" is a myth. Justice Owen Roberts cast his vote in West Coast Hotel v. Parrish before FDR's Court-packing scheme was announced. But the conventional wisdom endures to this day. And, consistent with this conventional wisdom, pressure is forming on Chief Justice Roberts to force another "switch" to avert court packing. This "switch" could take the form of Roberts's modifying his jurisprudence. Or, in a more extreme example, Roberts may resign if Biden wins to save the Court. Critically, however, the Chief should do everything in his power to ensure that the judgments of the Pennsylvania and North Carolina Supreme Courts stand. The specifics really aren't important.

Is this conventional wisdom correct? If Chief Justice Roberts's goal is to forestall Court packing, the most logical choice may be to rule for President Trump. (I generally presume that in controversial cases, the Chief casts votes based first on his idiosyncratic understanding of political equipoise; the best legal reasoning comes second, if at all). At least for the next 4 years, the Supreme and lower courts would be safe. And, perhaps, after four years of rulings that frustrate both sides of the aisle (Roberts is great at those!) the motivation for Court packing will fizzle out. Indeed, a four-year cooling off period may be just what the doctor ordered. In contrast, a ruling for Biden would accelerate the demand for Court packing. I still think some form of Court reform is inevitable, no matter what the commission recommends. Would anyone be willing to take a wager that there are still 9 Justices in the fourth year of a Biden presidency?

All things considered, perhaps the best way to keep the courts in their current form is with a Trump presidency, coupled with frustrating rulings. Deal with 2024 in four years.

Update: President Trump made this point in his own inimitable way: