Once considered taboo, court packing is now a topic at presidential debates, the subject of numerous op-eds and a trending hashtag on Twitter. Proponents of expanding the Supreme Court point out that the Constitution leaves the number of justices to Congress’ discretion, and that Congress has altered the court’s size many times in the past. Critics argue that court packing violates longstanding norms of judicial independence, and that expanding the court’s size now would exacerbate politicization of the judiciary.
Several recent law review articles make thoughtful contributions to the court-packing debate. In “Packing and Unpacking State Courts,” Marin Levy draws lessons from the recent history of changing the size of state supreme courts to inform the debate over court packing at the federal level. Tara Leigh Grove’s “The Origins (and Fragility) of Judicial Independence” and Joshua Braver’s “Court Packing: An American Tradition?” each examine court packing from a historical perspective, but reach conflicting conclusions. All three professors seek to shed light while removing heat from what is likely to be a contentious political question for months and years to come.
As Levy explains, both sides of the court-packing debate have failed to notice that the rhetoric has become a reality in state courts. Over the last decade, 20% of state legislatures have introduced bills to alter the size of their state supreme courts, primarily for political or ideological purposes. In recent years, Florida, South Carolina, Louisiana, Montana, Oklahoma, Washington, Alabama and Pennsylvania all considered but rejected proposals to “pack” or “unpack” the state’s highest court. In two states, Republican legislatures succeeded in doing so: Arizona’s highest court was expanded from five to seven justices in 2016; that same year, Georgia’s state supreme court grew from seven to nine justices.
State judicial systems differ in important ways from each other and from federal courts, as Levy concedes, and so comparisons can be hard to draw. Most state judges do not have life tenure and salary protections equivalent to those of Article III judges, and a significant number are elected rather than appointed. Nonetheless, Levy observes that in many of the states considering court packing, the governor plays a significant role in selecting justices and the legislation was intended to give the sitting governor the power to change the ideological composition of the state’s highest court. Levy argues that all of this activity at the state level suggests that the “norm against court packing might be more vulnerable than some have thought.”
That said, Levy recognizes that the lessons from state courts are mixed. Attempts to change the size of a state’s highest court have failed far more often than they have succeeded, and so may be a “cautionary tale” suggesting that political capital is best spent in other areas. Alternatively, some proposals to expand the size of state high courts may have served as a shot across the bow, pressuring these courts to fall into line behind the political party with the power to change their composition. Likewise, the current debate over expanding the size of the U.S. Supreme Court may have an effect on the justices even if it does not become a reality.
Grove’s 2018 article argues that practices now considered out-of-bounds, including court packing, were once understood “not only as constitutionally permissible but also desirable (and politically viable) methods of ‘checking’ the judiciary.” Grove explains that Congress altered the Supreme Court’s size numerous times in the past, and argues that the practice was viewed as within the norms of mainstream political discourse until the 1950s. In a prescient conclusion, she declares that court packing and other challenges to judicial independence are dormant, but not dead, and cites this history as a “cautionary tale about the fragility of judicial independence.”
Taking issue with Grove, Braver examines the same history to conclude that court packing was never an accepted practice. He acknowledges that the court’s size changed seven times between 1801 and 1869. But he argues that court packing — which he defines as “manipulation of the Supreme Court’s size primarily to change the ideological composition of the Court” — succeeded only once.
According to Braver, the first few alterations of the court’s size were not primarily to change the ideological composition of the court, but rather were necessitated by circuit riding — the now defunct practice of requiring the justices to travel regions of the country to serve double duty as judges on newly created lower circuit courts. As new states were added to the union, new justices were added to the court to staff the expanded circuit courts.
Court packing, as Braver defines it, succeeded for the first time during Reconstruction, when Republicans reduced the size of the court to seven justices to deprive President Andrew Johnson of the chance to fill vacant seats, but then in 1869 restored it to nine after President Ulysses S. Grant took office. Infamously, President Franklin Delano Roosevelt tried and failed to expand the court from nine to 15 justices in 1937. Although resoundingly defeated, his efforts arguably influenced Justice Owen Roberts to vote to uphold Roosevelt’s New Deal legislation in what become known as “the switch in time that saved nine.” This effort marked the last attempt to change the size of the court through legislation. Braver concludes that altering the court’s size for political purposes is almost unprecedented, and so the practice should not be “normalize[ed]” today by reference to this misunderstood past.
Oddly, however, Braver does not include in his analysis the Senate’s refusal in 2016 to confirm any nominee to the Supreme Court during President Barack Obama’s final year in office. Like the Reconstruction-era example, that decision effectively reduced the court’s size for more than a year before re-expanding it with the confirmation of Justice Neil Gorsuch in April 2017, and would seem to satisfy Braver’s own definition of court packing as a change in the court’s size primarily for ideological purposes. If ideological court packing is as rare as Braver suggests, this recent example takes on even greater significance in the debate over its future.
Levy, Grove and Braver all agree that court packing is no longer “unthinkable,” as it was just a few years ago, and they are all concerned that court packing could undermine judicial independence. But the real significance of their scholarship is to show that at both the state and federal level, court packing is already back.