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
Recently, there has been a lot of talk on the ideological left in the United States, including among certain Democratic presidential candidates, about the benefits of adding seats to the Supreme Court (that is, “Court expansion” or “Court-packing,” depending on one’s rhetorical objectives) when the Democrats again control the White House and both houses of Congress. I will call such a move Court-packing, which is the more common term and also the term that seems to me more honest. In this post, I will put aside whether it is a smart electoral strategy for Democrats to be talking about Court-packing at this time. Instead, I will first consider whether Court-packing would violate a longstanding norm of proper governmental conduct. I will then consider whether Court-packing would have harmful consequences for the American constitutional system.
In thinking through whether Court-packing would violate a longstanding norm, I will begin with a thought experiment in the form of two empirical questions.
First, in response to a Court-packing plan by the Democrats in 2022, would a material number of people who approve of the goal of securing less conservative decisions from the Supreme Court nonetheless disapprove of the method?
I think the answer is almost certainly yes. If I am right, views about Court-packing are not merely political in the sense of normal substantive debates—for example, whether Congress should pass health care reform, or whether one approves or disapproves of same-sex marriage.
Second, in expressing their disapproval, would liberals merely express strategic or political concerns (for example, that the “other side” might do it “to us” in return, or that the public would punish “us” for it in the next election)? Or would they also likely express concerns sounding in constitutional norms or conventions (for example, that Court-packing violates the “spirit” of the Constitution, violates longstanding norms of proper governance or judicial independence, is anti-constitutional, or is even unconstitutional)?
My expectation is that the answer is very likely the latter, and in fact many prominent politicians, lawyers, and law professors in 1937 spoke that way, even though they were very unhappy with the Court’s anti-New Deal decisions. For example, the Senate Judiciary Committee opposed President Franklin Delano Roosevelt’s Court-packing plan, and seven of its ten members were prominent Democrats. Its report argued that FDR’s plan was both an anti-constitutional and an unconstitutional attack on judicial independence. The report declared that the plan was “contrary to the spirit of the Constitution” and that “[u]nder the form of the Constitution it seeks to do that which is unconstitutional.” The Committee expanded upon the “constitutional impropriety” of the bill by describing how the American constitutional system functions, and is supposed to function, in practice:
For the protection of the people, for the preservation of the rights of the individual, for the maintenance of the liberties of minorities, for maintaining the checks and balances of our dual system, the three branches of the Government were so constituted that the independent expression of honest difference of opinion could never be restrained in the people’s servants and no one branch could overawe or subjugate the others. That is the American system.
The Committee concluded that “[c]onstitutionally, the bill can have no sanction. It is in violation of the organic law.” Other progressive Democrats agreed with FDR’s objective of enlarging the Court but opined that amending the Constitution was the constitutionally appropriate means of achieving it. That process concern seems difficult to dismiss as merely political.
Since 1937, there has been a lot of displeasure with the Supreme Court for various decisions or lines of decisions, and almost every time such displeasure has been expressed in Congress, there has been talk of Court-packing (as well as jurisdiction-stripping and, occasionally, impeaching). In each instance, the negative precedent of 1937 has been cited in response.
To be clear, nothing I have said so far suggests that concerns about norms or legality are always dispositive. Of course they are not. Having studied the events of 1937 with my colleague Curt Bradley, I find it difficult to know which factor or factors were decisive in the end given the overdetermined mix of norms, law, and politics that were in play. But to argue that concerns about constitutional norms or legality do not exist because there are conditions under which they will likely be overcome is a non sequitur.
One might respond that the present situation is importantly different from that of 1937. On this view, the current complaint is not primarily or only about the substance of the Court’s decisions. It is about the process by which the current Court has been constituted. Perhaps hardball tactics not justified in 1937 might be justified in response today.
I agree that Senate Republicans behaved very badly by, among other things, refusing even to consider President Obama’s nomination of Chief Judge Merrick Garland, who was supremely qualified, experienced, and ideologically moderate. But there are difficult line-drawing problems here. For example, if the full Senate had voted Garland down on the merits as insufficiently conservative (a deeply unfortunate but not norm-defying outcome, in my view), we would presumably have the same Court we have now, and yet Court-packing would not seem a justifiable response.
In addition, and moving from the question of whether Court-packing is justified in response to flagrant norm violations by the Republicans to whether Court-packing would be wise, the Democrats can at some point retaliate in tit-for-tat fashion for the mistreatment of Garland by refusing to consider a Republican Supreme Court nominee. (And, by the way, I would not limit such retaliation to the last year of a Republican President’s term, which is a distinction without a relevant difference.) Proportionality is important to prevent conflict escalation and so to avoid fueling a race to the bottom.
Putting aside whether Court-packing would violate a longstanding norm, why might one be troubled about it? One possible reason is that packing the Court would substantially increase the public perception that the Court is partisan and political in just the way, and to the same extent, that Congress is, and so would risk jettisoning the significant amount of diffuse support that the Court retains. Even if there is less diffuse support than there used to be (and perhaps deservedly so), it is still more than Congress enjoys. Losing that diffuse support would come at the serious cost of no longer having a Court with the authority to stand up to a President or legislature or state government official who is abusing his or her power. (Those who want to see the institution of judicial review destroyed will obviously disagree on that point, and they may be especially likely to favor Court-packing.)
Of course, the reasons for the Court’s diffuse support probably sound at least as much in the public’s basic agreement with many of its decisions as it does in the public’s perception that it decides cases according to politically neutral law. Presumably, most of the informed public knows that the law/politics distinction can be “ragged and blurred” at the level of the Supreme Court; they know this from watching confirmation hearings and observing how the Court fractures in the most salient and divisive cases.
Even so, I am as concerned about what is going on in the minds of the Justices as I am about what is going on in the minds of the public. Notwithstanding all of the Court’s partisan warts and distressingly misguided decisions (see, e.g., Shelby County v. Holder and Trump v. Hawaii), I think there are meaningful differences in the kind of politics engaged in by, say, Chief Justice John Roberts and the kind engaged in by, say, Senate Majority Leader Mitch McConnell. The Affordable Care Act cases are two of a (so far limited) number of examples. I do not think one needs to delude oneself about how conservative the Chief Justice is to also recognize those differences—and to appreciate that he cares about the Court’s broad public legitimacy and not just its legitimacy in the eyes of the Republican Party and the Federalist Society, whose events—to his credit—he does not attend. I also think it is in everyone’s best interests to try to preserve those differences. I do not think we would be better off as a nation if the current conservative Republican majority on the Court were willing to push back against a Republican President in important cases only as often as a Republican Congress would. There are examples, both historically and today, of utterly politicized courts in other countries and they are not the envy of the world.
In other words, even if one is persuaded that the public perceives the Court as more political than legal, there is still reason over the mid-to-long term to try to preserve the possibility that partially independent Justices will push back against powerful political officials of the same political party at the national level and will police abuses of power at the state and local level. I worry that the impact of Court-packing on the Justices themselves would go far towards eliminating that possibility.
To be sure, it can be argued that it is useful to maintain a credible threat of Court-packing, which may have the salutary effect of causing the Court to self-moderate. The current five-Justice conservative majority is substantially more conservative than is a majority of the national population. How could that be, given that the Constitution makes the nomination and confirmation of federal judges a political process that reflects election outcomes? It is because the federal electoral process mandated by the Constitution does not comply with modern democratic norms. For the first time in American history, we have two Justices (Neil Gorsuch and Brett Kavanaugh) who were nominated by a President who lost the popular vote and who were confirmed by a Senate majority that represents a minority of the population. The Court very arguably lacks actual democratic legitimacy to move legal doctrine in a substantially more conservative direction, and a credible threat of packing may remind the majority of this sobering truth. But threatening packing and actually doing it are two very different things.
There is one situation, however, in which Court-packing might be justified and might do more good than harm: if there is clear and convincing evidence that a President who made one or more appointments to the Court was not legitimately elected, and adding Justices was the only feasible way to undo the likely decades-long impact of those appointments on the Court’s decisionmaking. That scenario, in my judgment, would fall outside the scope of the negative precedent of 1937 and the subsequent path of wise self-restraint by the political branches.
Absent that extraordinary circumstance, there is, of course, a legitimate way to “pack” the Court. It is what FDR ultimately managed to accomplish. It involves winning elections notwithstanding the democratic problems with our constitutional electoral process, and then nominating and confirming Justices to replace those who die or retire. Indeed, had most liberals been as focused on the Court in 2016 as some of them appear to be today, perhaps it is certain conservatives inside and outside Congress who would be talking about Court-packing now—just as they shamefully talked about holding Justice Antonin Scalia’s seat open for four years when it seemed obvious that Hillary Clinton would win.