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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Geography of Public Conversations on Court Packing
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Sunday, May 01, 2022
The Geography of Public Conversations on Court Packing
Guest Blogger
This post was prepared for a
roundtable on Reforming the Supreme
Court of the United States, convened as part of LevinsonFest 2022—a
year-long series gathering scholars from diverse disciplines and viewpoints to
reflect on Sandy Levinson’s influential work in constitutional law. Jill M. Fraley Court
packing, as a term, lives in the public sphere separate and apart from academic
discourse. My current work-in-progress examines the geography and impacts of
public conversations throughout the twentieth century about court packing. Historians
tend to think of court packing temporally. The concept has enjoyed seasons of
popularity and seasons of inactivity. There have been proclamations of its
death, followed by vampirish returns. Because the famous history of court
packing speaks to the Supreme Court on a national stage, geography appears less
important. Indeed, when I previously critiqued the concept of court packing
(concluding that the most crucial drawback is that it is inexpedient with
respect to constitutional change), I admit I did not think much about
geography. There is, however, a definite geography to the public discourse of
court packing, as well as an evolution of the term reflecting public
perceptions of the judiciary. In
terms of methodology, I utilized databases of newspapers. Looking at both
repackaged syndicated columns and locally produced writing, I examined the
geography of talking about court packing. Going beyond reading more generally, I
experimented with tracking and examining texts generated during specific
periods of time that were likely to prompt strong feeling about the Supreme
Court from the public. For example, I examined the months directly after the
decision in Roe v. Wade and Kelo v. City of New London. I also
examined periods that might have otherwise prompted a constitutional crisis due
to friction between two branches such as the Watergate investigation. This
research demonstrates that while surely court packing has experienced more
realistic threats in some eras—certainly 1937 and arguably in the 2020s—the
concept was never absent in the intervening years. Just a few examples: In 1954
the Senate considered court packing enough of a realistic possibility to pass
the Butler Amendment, which was a constitutional amendment to prevent court
packing while establishing other parameters for the courts. In 1970, new
research on court packing and other confrontations between branches pointed to
the many ways that the Supreme Court depends on Congress, prompting public
concerns about the independence of the judiciary.[1]
In 1973, the court faced a less vociferous threat of court packing as an
immediate reaction to the decision in Roe v. Wade.[2]
The history continues, decade by decade. Court packing debates represent the
consistent and continuous public fears about having a functionally independent
judiciary and three balanced branches of government. As a result, court packing
is in the wind whenever there is a critical conflict between two branches—over
anything from executive privilege to the funding of war. The
most significant lesson of this work has been that there is a distinct
geography to the whispers and threats of court packing and that this geography
is not consistent, but instead shifts throughout the different constitutional
crises. In each era examined, a few states not only had far more articles about
court packing (often a very similar number of articles across 2-4 states), but
those states also had two to three times as many articles as the next state on
the list. For example, in 1937 two states (Pennsylvania and Indiana) each had
more than a thousand articles referencing court packing. The next state on the
list (California) drops to half as many articles. Court
packing is, of course, a partisan threat. As such, it should not be surprising
to us that it would have extremely strong geographical features. The important
difference, however, is that court packing is not just any political issue, but
rather one intimately connected with the legitimacy of the Supreme Court. It is
a different thing for Florida and Texas to have different perspective on
abortion than for those two states to be highly in doubt about the legitimacy
of the Supreme Court. This, in and of itself, is a reason to consider court
packing as a last resort, particularly when compared with more neutral
approaches to regulating the court such as limits on term length or a process
for ethics reviews. While
court packing has a narrow, specific meaning for specialists, it developed an
expanded meaning in the public text of newspapers. Consider the 1980s and
Reagan’s appointments. Articles in the Reagan era contained many references to
court packing, but an in-depth examination of these demonstrated that the
references are neither historical, nor a reference to a Reagan threat to expand
the number of seats on the Supreme Court. Reagan filled legitimate, open seats
on the Supreme Court. Yet, Reagan fielded numerous complaints that he was court
packing; it was the “hot topic” of the moment.[3]
The complaints stemmed from several combined issues. Reagan was able to choose
a Chief Justice, as well as make three other appointments. Reagan appointed, at
one point, more than half of the sitting federal judges in the lower courts—and
was known for picking young nominees who would be on the bench for decades.
Finally, Reagan, along with his Attorney General, endorsed a highly ideological
approach to choosing not only Supreme Court justices, but also lower court
members as well. None of this was court packing in the traditional, narrow
sense of the term, but the articles reflect a broader definition of court
packing evolving specifically to challenge Reagan’s approach. Like
traditional court packing, Reagan’s approach tasted not only of partisanship,
but also of power grabbing. The expansion of the term before and during the
Reagan era then underlines how the public more generally views the idea of
court packing—not only as a partisan attack, but also as a somewhat underhanded
approach. Moreover, specialists need not sneer at the softer use of the term.
Supreme Court Justice William O. Douglas used the term in a similar way when
President Ford considered a national court of appeals as a part of a commission
evaluating the federal appellate court system.[4]
Justice Douglas strongly opposed the idea, which he viewed as highly partisan
due to the more conservative tendencies of lower courts; he described the court
of appeals proposal as being itself a court packing plan.[5]
In 1984, Rehnquist gave a speech at the University of Missouri Law School,
prompting headlines such as: “Court-packing is OK, Rehnquist says.”[6]
Rehnquist, specifically said, that presidents are justified in choosing
justices who share their ideology and are likely to remain loyal to that
ideology and the president. Rehnquist spoke not to the specific idea of
expanding the Court’s size, but rather to the more general concept of being
partisan in selecting appointees. I
have dismissed some objections to court packing previously, but my recent
research raises two substantial concerns. First, the public expansion of the
term and the continuous nature of debates around court packing demonstrates a
consistent public worry about whether the judiciary is non-partisan and whether
the courts are a judicial rather than legislative operation. As a result, the
public views these court packing threats as intruding directly on the
structures of democracy. I believe it is no accident that one of the states
with the highest number of articles discussing court packing, switched from
1936 to 1940 to be one of the few states Roosevelt did not win. Second, the
response to court packing is not only partisan, but also geographically
distributed along state, not regional lines. To the degree that we have
concerns about distancing some states from the national consensus, talk about
court packing has a definite impact and should be taken into consideration. Jill M. Fraley is Professor of Law at Washington & Lee
University School of Law. You can contact her at fraleyj@wlu.edu. [1] Supreme Court in Difficulty as an
Institution: Researcher, The Gazette (Cedar Rapids, Iowa), Oct. 11, 1970, at
31. [2] Over Abortion Decision A
Court-Packing Threat, Fort Lauderdale News, Feb. 27, 1973, at 13. [3] Don O. Noel, Artificial Genteelness
Governs Political Talk on Judicial Selection, Hartford Courant, Oct. 26, 1984,
at 37. [4] Court-Packing Plan Denounced,
Press-Telegram, Sept. 27, 1975, at 11. [5] Id. [6] Court-Packing Is OK, Rehnquist Says,
The Fresno Bee, Oct. 20, 1984, at A4.
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