The Volokh Conspiracy

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The Eighth Rule of Court Packing is Win Large Majorities in Congress So You Can Pack the Court

I think we can safely postpone Court packing legislation till 2022, or more likely 2024.


As things stand now, the Democrats will have either 48, 49, or 50 votes in the Senate. In the best case scenario for President Biden, let's assume that the Senate splits 50-50. In that case, the Democrats would chair all the committees, and VP Harris would be able to break any tie votes. Practically speaking, legislation would still require some Republican votes to overcome a filibuster. And given this breakdown, the filibuster will almost certainly remain in effect. There are not enough votes to change the rule with the nuclear option. (Query if the VP could cast a vote to change a Senate rule; I think yes, but I'm not sure that it was done before). As result, the progressive trifecta is unlikely to occur till 2022, or 2024, at the earliest: D.C. and Puerto Rico will not become states, the lower courts will not be expanded, and the Supreme Court will not be "reformed." The states will remain at 50, and the Supreme Court will remain at 9.  Indeed, if Laurence Tribe is correct, then VP Harris would not even be able to cast the tie-breaking vote for any judicial nominees–or was his analysis limited to the Ginsburg vacancy?

Thankfully, I think I can put on hiatus my series of post on the rules of court-packing. (See Rules # 1, 2, 3, 4, 5, 6, 7). The eighth, and most important rule of Court packing is to win large majorities in Congress so you can pack the Court. Indeed, prematurely boasting about Court Packing may have prevented it from happening. Supporters of Court Packing have written that the incumbent Republicans in Iowa and North Carolina may have benefited from plans for Court Packing.

What comes next? President-Elect Biden said he would appoint his Court Packing commission "if elected." When does the 180 day clock start ticking? Today, when he accepted victory? When the electoral college meets? January 20? Stay tuned.