Court Packing Is Not the Droid You Are Looking For

Court packing won't actually restore lost constitutional rights. It will, however, cause chaos and make things worse

Whenever the topic of reforming the federal courts comes up (it has been in the news again due to President Biden’s recent proposals) a large number of folks on the Left, including some significant intellectual figures, calls whatever proposals are on the table non-serious. The only serious way to change the Court, they say, is court expansion, which usually goes by its popular name (which it gained in a 1937 debate over the issue), “court packing”.

Anything short of court packing, these folks will tell you, doesn’t solve the fundamental problem, which is the six justice Republican Supreme Court majority is out of control, overruling important precedents, rewriting administrative law, and acting as partisans.

To be clear, the current Court gives its critics a lot of ammunition, whether it is by overturning 4 and 5 decade old precedents (Roe v. Wade, Chevron v. NRDC, Regents of the University of California v. Bakke) or by making obviously partisan rulings (such as making up a “major questions doctrine” and using it to strike down whatever Biden programs the Court wants to stop).

The problem, though, is that the solution has to actually work. Court packing has a superficial appeal— why not outvote all those conservatives on the Court with new justices?— but if you actually think about where it leads, it doesn’t get you where you want to go.

The basic problem is that either party, when it wins an election big and controls both the presidency and Congress (which happens on occasion for each side), can pack the Court. So lets say Harris wins and the Democrats control Congress and they vote to add 4 more Justices. The next time Republicans are in control they’ll just add 4 more Justices, or maybe 6, just to make an even bigger majority. (After all, they currently do lose some cases in the current Supreme Court; if you are going to pack, why not make sure you win all the cases and not just some of them?) The Democrats will turn around and add another 8. Round and round we go.

And when you think of it that way, court packing just makes constitutional interpretation basically statutory. The Democratic position on abortion, for instance, is that women’s rights should not be up for vote. But with court packing, they will be. When Democrats pack the Court, Roe will be restored. When Republicans re-pack, Dobbs will be restored. Basically it will be no different than if Democrats just passed a statute protecting abortion rights. (We’ll come back to that.) It won’t be a constitutional protection in the way we normally understand constitutional protections.

Some people actually say that’s all to the good. Judicial review is bad, they say, and we should have less of it. I would note that this isn’t what most Democrats were saying prior to Dobbs, and I don’t think it is what they really believe. Most Democrats want the courts as bulwark protecting such rights as abortion, gay marriage, free speech, the Establishment Clause, protections against unreasonable searches, etc. But even as a constraint on judicial review, court packing doesn’t work.

What will happen after we start packing the courts back and forth? Well, courts will strike down laws. Indeed, courts will be especially aggressive in striking down laws during times of split government. If Democrats control the White House and Republicans control the Congress, and the Court is packed by Republicans, the Court will have an immense incentive to intervene and strike down lots of initiatives in order to weaken the President. That’s similar to the situation now, but last time I checked, nobody on the Left thinks the situation now is very good. The same dynamic will happen during times of split government with a Democratic packed court. There will still be lots of judicial activism. It won’t decrease the power of the judiciary except in situations where one political party controls the White House and Congress and can just re-pack the Court if it needs to.

Moreover, there are actually tools available that actually can reduce the power of the courts, if that is what you are really after. Congress can strip the federal courts including the Supreme Court from hearing particular types of cases. This is not disputed- it is in the text of Article III. If your issue really is “I think the Court has too much power” rather than “I think Dobbs was wrongly decided”, your solution isn’t court packing, but jurisdiction stripping. Congress can expressly reduce the Court’s power.

So court packing won’t achieve its stated objectives. But it’s worse than that. Court packing will make the courts worse in a couple of ways. First, there’s all the cases (probably 99.8% of the work of the federal courts) that don’t concern politically salient issues like abortion. Partisans, of course, denigrate these cases as not important, but they are really important to the people involved. And the thing is, the legal system we have works on certainty. The idea is that higher courts decide cases and then follow rules of stare decisis that mean they are unlikely to be overturned for a long time, and lower courts then apply those cases to new facts and create a web of precedent. Then when you go hire a lawyer and ask “is this legal?”, the lawyer can read the cases and give you a pretty good answer.

But if the Court is being packed back and forth, all those cases will become up for grabs. For instance, we just had a 5-4 decision in the Supreme Court, not split on traditional ideological lines, about whether rich people like the Sacklers can get released in bankruptcy cases involving their companies. This is a really important issue. Billions of dollars were at stake. And if the Court were packed— well, why wouldn’t advocates start bringing cases up to the newly constituted court trying to get their ruling reversed. Court packing would put every 5-4 and 6-3 ruling at risk, not just the ideological ones. Which undermines the stability of the entire legal system. Your lawyer won’t be able to tell you with the same certainty what the law is, because so many of the cases would be up for grabs every time the composition of the Court dramatically shifted. And honestly, nobody would know how these new justices would rule on all the non-ideological issues. People will just be taking shots right and left, and lower courts will probably start disobeying the Court (this is already a problem in the Fifth Circuit) hoping to force the Supreme Court to take cases and overturn precedents.

So you will have utter chaos, and your lawyer may not be able to give you accurate advice anymore. But it gets worse. You see, despite what critics of the Court say, the current Court still rules for liberals sometimes and rejects movement conservative legal positions. For instance, the “independent state legislature” doctrine and Idaho’s attempt to ban even emergency life saving abortions fell by the wayside this year. Ever wonder why that is? Well, the basic reason is because as much as the six Justices in the Court majority may favor Republican political causes, they also plan to be on the Court a long time and want the law to work. And the reality is if you make lots of crazy decisions, lower courts will take them and apply them to other cases and the Supreme Court can only take so many cases and do so much to police that.

A good example of how this works is a favorite bugbear of the Left- the theory of some religious conservatives that the 14th Amendment actually bans abortion. The problem with that theory is that recognizing radical duties of states to protect human life would actually be a goldmine for liberals in the lower courts, as liberals start arguing that this or that pro-business or pro-police government policy kills people and thus violates this newly found duty to protect life.

But here’s the thing. What if the Justices on the Court are chosen solely to achieve political outcomes, and know they will be outvoted in a few years anyway. Then, will they care about the downstream consequences of their legal decisions? You won’t see the current Court hold that the Constitution requires a national abortion ban. But you could definitely see a Court packed by Republicans do it. Indeed, during periods of Republican packing, that Court is probably going to be far to the right of the current Court. They will be handpicked ideologues chosen solely to achieve particular results and with no concern about the legal system. What could go wrong?

Finally, the truth is that much of what court packers could do through court packing, they could do through statutes without all the risk. Any Congress that can pass court packing can pass a statute. Jurisdiction stripping creates its own set of problems, but can be useful in limited situations. And Congress can definitely pass a law protecting abortion rights. A lot of folks on the Left love to say “the Supreme Court will just strike it down”, but the Court upheld a federal abortion restriction (on partial birth abortions) and has also upheld various drug and medical regulations against constitutional challenges. Actually holding that health care is outside the power of Congress would call all sorts of other laws that conservatives like into question. And in any event, Congress has a powerful threat here— court packing could at least be held out as a possibility if the Court dared strike down a popular abortion rights statute. I doubt they ever would.

So court packing doesn’t solve the problem it is intended to solve, and will throw the legal system into chaos for no reason. It is simply a bad idea.