The Trouble with Court-Packing

Wide-ranging public discussion of U.S. Supreme Court reform implicates fundamental questions of constitutional policy, norms, and law. This Article focuses on the reform proposal that poses the greatest threat to judicial legitimacy and independence: Court-packing. This 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. This 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, this 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 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 unjustified 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, this Article cuts against the ideological grain of current debates. As many progressives advocate Court-packing and many conservatives oppose it, this Article shows there are principled reasons to resist 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 then added hypocrisy to their norm violation, and even if one is deeply concerned about the ideological orientation and methodological assertiveness of the current Court