Against Expanding the Size of the Supreme Court

Today was Independence Day, to put it another way. After completing its work, the Presidential Commission on the Supreme Court of the United States submitted a report. It was not requested to provide recommendations and did not. This analysis will hopefully provide some insight into reform ideas surrounding the Court.

Individual commissioners can now express their opinions on the issues after the report is submitted.  Will Baude, co-blogger has also done this. Kermit Roosevelt (with Larry Tribe) and Nancy Gertner published arguments supporting packing the Court. It’s something I have done as well. My fellow commissioners are sure to have much more to share on these topics in the days ahead.

Today’s Wall Street Journal has a piece in which I argue that Court-packing is bad. It would accelerate the erosion of constitutional norms, and lead to a cycle of Court-packing by future legislative majority.

This is the link:

It would not be difficult to get widespread support from the political community if such an extreme action was necessary. The country’s problems are deeper than any misguided court if a small political majority believes that it is in this crisis.

Simple legislative majority can alter the court’s size to reverse unpopular constitutional rulings. The power of constitutional norms has helped to restrain lawmakers from destroying the court when they are unhappy with justices or when a new party takes office. This would result in long-term changes to the way the Constitution system functions and how efficient the court is at resolving constitutional problems.

The whole article is available here.