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.