The Volokh Conspiracy

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Court Packing

Against Expanding the Size of the Supreme Court


Today was independence day, in a manner of speaking. The Presidential Commission on the Supreme Court of the United States has completed its work and submitted a report to the president. The Commission was not asked to make recommendations, and it did not. I hope it offers some helpful analysis of reform proposals surrounding the Court.

Now that the report has been submitted, individual commissioners are free to offer their own personal views on these issues.  Co-blogger Will Baude has done so at some length. Kermit Roosevelt, Larry Tribe and Nancy Gertner have published arguments in favor of packing the Court. I've done so as well. I'm sure my fellow commissioners will have more to say on these issues in coming days.

In today's Wall Street Journal, I have piece arguing that Court-packing is a bad idea that would speed the pace of the erosion of constitutional norms and likely lead a spiral of competing Court-packing by future legislative majorities.

From the piece:

If such a drastic action were truly necessary, there would be widespread political support for it. If a narrow political majority can convince itself that we are in such a crisis, then the problems facing the country are far deeper than a misguided court.

Altering the size of the court to reverse constitutional rulings that politicians don't like can be done by simple legislative majorities. Powerful constitutional norms have helped restrain legislators from blowing up the court when they were unhappy with the justices or a new party assumes power. The erosion of these norms would have long-term consequences for how the constitutional system works and how effective the court can be at remedying constitutional violations.

Read the whole thing here.