Saturday, February 05, 2022

The Trouble with Court-Packing

Guest Blogger

Neil Siegel

In a new article, I argue that Court-packing—that is, changing the size of the U.S. Supreme Court in order to change its decisionmaking going forward—is problematic from the perspectives of constitutional policy, constitutional norms, and even, potentially, constitutional law except in three genuinely extreme circumstances.

One prominent argument in favor of Court-packing now is that the Republican Party, under the leadership of Donald Trump, is threatening to end American democracy.  If this happens, the Democrats will not be able to change the Court’s composition over time through winning elections and controlling the judicial appointments process. 

The greatest risk to American democracy in current times is indeed that lies about voter fraud or other asserted “legal irregularities” will enable the Republican presidential candidate in 2024—whether Trump or someone similarly anti-democratic—to steal the election through politicized state election officials who manipulate vote counting, or through Republican-led state legislatures that reject the popular vote in their states and submit alternative slates of presidential electors to the Electoral College. This concern is not unique to the ideological left; rather, it is shared by legal experts associated with more conservative viewpoints.  For example, Professor William Baude argues in a new essay that “[t]he real enemies [of democracy] are those who resist the peaceful transfer of power, those who subvert the hardwired law of succession in office.” 

Professor Richard Hasen has recently identified what seems most likely to prevent such attacks on American democracy from succeeding.  It a broad-based coalition—including progressives, moderate liberals, independents, and democracy-defending Republicans—who are all prepared to put profound policy differences aside for the time being to protect American democracy by voting for, and otherwise supporting, the Democratic presidential candidate should the alternative be Trump or another candidate who is anti-democratic.  Political scientist Daniel Ziblatt likewise has observed that this approach worked in the past in some European democracies when parties that were not willing to play by democratic rules sought to gain power and undermine democracy. 

With respect to Court-packing, a key question worth asking is whether a move by Democrats to add four seats to the Court would make it more or less likely for such a coalition to form.  One cannot know the answer with certainty, but it would likely turn primarily on the reactions of democracy-defending Republicans to Court-packing, because they are the ones most likely to be alienated by it.  There is a real risk that they would regard Court-packing as so incendiary that it would render such a coalition impossible to form.

Some advocates of Court-packing may respond that such a coalition would be impossible to form anyway, given how few Republican politicians are willing to publicly reject Trump’s lies about the 2020 election.  But that counsel of despair leads nowhere worth going.  As Professor Hasen reminds us, “it took Republican election officials, elected officials, and judges to stand up against an attempted coup in 2020.”  “A coalition with the minority of Republicans willing to stand up for the rule of law is the best way to try to erect barriers to a stolen election in 2024,” he continues, “even if those Republicans do not stand with Democrats on voting rights or other issues.”

It is also questionable to say that the Democrats need to pack the Court now so that the Court can protect us against possible fraud or other anti-democratic maneuvers in the next presidential election.  It seems perilous to rely on a 7-6 packed liberal Court on the back end of the election to save American democracy.  Such a Court may not be in a position to solve the problem, and such a Court may be defied even if it is.  A major part of the trouble with Court-packing is that it risks non-compliance with, or non-enforcement of, Supreme Court decisions.  It might well be riskier for a Trumpian to defy the current 6-3 conservative Court.

I expand on this argument and others in the Article.  Here is the abstract:


Fundamental questions of constitutional policy, norms, and law are implicated by the wide-ranging public discussion of U.S. Supreme Court reform.  This Article focuses on the reform proposal that poses the greatest threat to judicial legitimacy and independence: Court-packing.  The Article contends that there has likely been a constitutional convention against Court-packing for a long time now, although it is uncertain whether the convention continues to exist given Senate conduct since 2016. The Article also maintains that Court-packing is not as free from constitutional difficulty as the conventional wisdom holds, even if the arguments for its constitutionality are stronger on balance.  Most importantly, the Article offers an analytical framework for thinking about Court-packing that rests upon a common-ground foundation: the Court performs critical functions that most Americans want it to perform; most of the time, it performs most of these functions better than the available governmental alternatives; and Court-packing would almost certainly damage, if not destroy, its ability to continue performing these functions by impairing its legitimacy and independence. Court-packing should therefore be reserved for extreme situations, in which adding seats would: (1) respond proportionally to a previous instance of Court-packing; (2) restore the Court’s legitimacy in the eyes of a large majority of Americans; or (3) meet a national crisis to which the Court was contributing. Moreover, even when an extreme situation exists, Congress should ask itself whether it can legislate in other ways to address pressing problems before packing the Court.  Applying this framework, the Article cuts against the ideological grain of current debates.  As many progressives advocate Court-packing and many conservatives oppose it, the Article shows that there are principled reasons to oppose Court-packing at this time even if one believes that Senate Republicans violated an important convention requiring good-faith consideration of Supreme Court nominees, and even if one is deeply concerned about the ideological orientation and methodological assertiveness of the current Court.

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