Neil Siegel from Duke Law School, an eminent liberal constitutional law scholar, has published “The Trouble With Court Packing”, a new article which is perhaps the most thorough and complete critique of court-packing calls so far. The fact that it was written by someone who has never supported either the conservative majority of the Court, or the procedures used to get there is also noteworthy. This is the summary:
A wide-ranging public conversation about U.S. Supreme Court restructuring has raised fundamental issues of Constitutional Policy, Law, and Norms. The Article will focus on Court-packing, the most serious threat to the independence and legitimacy of the judiciary. Although it seems that Court-packing has been prohibited by the Constitution for some time, its existence is not certain given Senate behavior since 2016. Although the Convention holds that Court-packing does not pose a constitutional problem, it maintains the Article’s position. The Article provides an analysis framework that allows us to think about Court-packing. It is based on a common ground: Courts perform critical functions, which most Americans would like them to do. Court-packing could damage or even destroy its independence and legitimacy, and this article helps to explain why. Court-packing should be used only in extreme circumstances. In these cases, adding seats could: (1) react proportionally in a prior instance of Court packing; (2) restore the Court’s legitimacy in America’s eyes; (3) address a national emergency to which the Court has contributed. Even in extreme situations, Congress must ask whether there are other options to solve pressing issues before packing the Court. The Article is a clear cut against current ideological debates by applying this framework. While progressives favor Court-packing while conservatives don’t, the Article shows that there is a solid reason to reject Court-packing. This applies even if you believe that Senate Republicans broke an important convention that required good-faith consideration when considering Supreme Court nominees. It also applies even if your concerns are deeply rooted in the ideology and assertiveness the Court currently displays.
Some points of this article are a recapitulation and build upon previous critiques of court-packing including the ones included in President Biden’s recent Supreme Court Commission report. The article also contains a number of similar criticisms that I have made (e.g. here). Siegel also makes important points that are not covered in the Balkinization blog post.
A prominent argument for Court-packing is the threat that Donald Trump’s Republican Party poses to American democracy. This will mean that the Democrats won’t be able change the Court’s composition through controlling elections or the judicial appointment process.
The greatest risk to American democracy in current times is indeed that lies about voter fraud or other asserted “legal irregularities” will enable the Republican presidential candidate in 2024—whether Trump or someone similarly anti-democratic—to steal the election through politicized state election officials who manipulate vote counting, or through Republican-led state legislatures that reject the popular vote in their states and submit alternative slates of presidential electors to the Electoral College…..
Recent research by Professor Richard Hasen shows that there is a way to keep such attempts at attacking American democracy from happening. It a broad-based coalition—including progressives, moderate liberals, independents, and democracy-defending Republicans—who are all prepared to put profound policy differences aside for the time being to protect American democracy by voting for, and otherwise supporting, the Democratic presidential candidate should the alternative be Trump or another candidate who is anti-democratic. Political scientist Daniel Ziblatt likewise has observed that this approach worked in the past in some European democracies….
Concerning Court-packing: It is worth asking whether the Democrats’ move to add four Court seats would increase or decrease the likelihood of such a coalition being formed. The answer is not known with 100% certainty. However, it will likely depend on the reaction of the democratic-defending Republicans towards Court-packing. These are likely to be the most alienated. They may view Court-packing incendiary and make it impossible for them to form a coalition.
Both Siegel and I are concerned about Trumpist/GOP’s threat to democratic transfer of power. Also, court-packing could undermine the coalition necessary to stop it. Trumpism’s centrist, conservative and libertarian opponents almost all oppose court-packing. Many people see court-packing as more than a policy matter. It is a grave threat to a fundamental liberal democracy institution. It could be an issue that ends in disaster for any anti-Trumpist broad coalition.
Two points would be added to Siegel’s discussion of the issue. The first is that even though Democratic court-packing might help stop the next Trumpist coup attempt in 2020, it’s unlikely to prevent them from trying again. A Trump-like next president might respond to Democratic court packing efforts by adding one of his own to counter the effort. He could do this if his party controls both houses and Congress. It would guarantee that there is a Supreme Court willing to cooperate with Trump’s attempts to remain in power even after his election loss. If one party packs the court it is much easier for the other side to reply in kind whenever they have the opportunity. Liberal democracy is better served by an independent judiciary. Court-packing could undermine that independence. According to Siegel in his article, court-packing was a well-known tactic for incipient autoritarians throughout the world.
The second is that Trumpists tried to steal the 2020 election by thwarting the Supreme Court majority. Many conservative lower-court judges also helped. It is possible that a weaker judiciary might be unable or unwilling to carry out this task in the future. Neil states in the article that Trump might have been accepted by a packed court.
Although I disagree with all points in this article, For example, I am more sympathetic than Siegel is to the idea of permanently banning court-packing by constitutional amendment. It is unlikely that such an amend will be adopted anytime soon.
This is the best and most thorough criticism of court-packing that I have seen. This is a must-read article for all those who are interested in this issue.