The Democrat-backed Judiciary Act of 2021 would increase the size of the U.S. Supreme Court from 9 to 13 justices. The recent popularity of court packing proposals is surprising, as they are traditionally condemned by both the left and the right as radical and dangerous. Yet many of the arguments both for and against such proposals look suspect when we subject them to careful scrutiny. I will show that many of the arguments pundits and politicians offer are unjustified. Nevertheless, I conclude that there are decisive non-partisan reasons to oppose court-packing, as implementing any such plan will undermine the perceived legitimacy of the Supreme Court.
To start, we should reject all partisan reliabilist arguments for court packing proposals. These arguments presume from the outset that specific judicial outcomes on controversial issues are correct. With the American legal system of judicial supremacy, the Supreme Court is the final arbiter on the constitutionality of existing law. A bare majority ruling of 5-4 can determine the law of the land regarding profoundly contested moral questions. Partisan reliabilist arguments in support of court packing hold that the number of sitting judges should be increased so that the court will be more likely to issue the correct verdict in future divided rulings.[i]
The arguments I am concerned with adopt a controversial, partisan stance on what the “correct” verdicts are and recommend changing the court membership to advance those partisan ends.[ii] Individual citizens are entitled to hold these partisan views and to defend them in print. But partisan reliabilist arguments provide a deeply undemocratic basis from which to argue for institutional reform. The Supreme Court functions as final adjudicator of reasonable disagreements among democratic citizens. For the court to perform this function, it must be seen as plausibly non-partisan by both sides of the relevant issues. Were court packing implemented for partisan reliabilist ends, fair adjudication on contested issues would not be possible, as the court’s votes would be skewed to one side.
Other arguments could also be deemed “reliabilist.” A citizen may regard current members of the court as technically incompetent as judges, or as “too old”, etc., to understand pressing social issues. Because members have lifelong tenure and are very difficult to impeach, it can seem that the only way to correct for the harmful effects of this incompetence is to appoint new members. Now, what counts as “legal incompetence” for a judge is subject to dispute. Absent overwhelming, bipartisan evidence from legal experts that specific judges are inept, any version of this charge is apt to disguise, or to be publicly interpreted as disguising, a partisan condemnation of judges for endorsing the “wrong” view about the law. So, packing the court to correct for so-called incompetence would have the same effect as packing for what I’ve called reliabilist aims: it would undermine the perceived impartiality of the court.
The Supreme Court functions as final adjudicator of reasonable disagreements among democratic citizens. For the court to perform this function, it must be seen as plausibly non-partisan by both sides of the relevant issues.
I now turn to arguments that take no stand on what the correct outcome in specific decisions should be. These arguments evaluate court packing proposals in terms of how they would affect the fairness, independence, or legitimacy of the judiciary’s decision-making procedures. They are the Ideological Balance argument, the Separation of Powers argument, and the Perceived Legitimacy argument. The first argument supports court packing, the latter two oppose it.
The Ideological Balance argument supports court packing as it would make judicial decision-making procedures fairer. According to this argument, a court with roughly equal numbers of liberal and conservative justices is more likely to be seen as impartial, in a way that contributes to democracy’s well-functioning, as those equal numbers “balance” or “cancel out” most of the effects of ideology on rulings. Daniel Epps and Ganesh Sitaraman defend a version of this proposal here. It is a vexed issue what, precisely, constitutes voting along ideological lines. According to Lawrence Baum, ideological voting in the Supreme Court is best understood as a complex disposition of individual justices to reason from specific values and principles, sympathize with the claims of certain litigants, and identify with a specific set of political elites.[iii] While ideology does not perfectly predict a justice’s voting behavior, there are certain infamous decisions—Bush v. Gore and Hobby Lobby are examples—where individual justices all voted along ideological lines. And there are periods where the court is seen as having a deep ideological bias: liberal, in the case of the Warren Court, or conservative, as with today’s Roberts Court.
Because ideology is regarded as sorting voters along a single dimension, it would seem possible to balance out its effects by having nearly equal numbers of liberal and conservative justices. Today, the possibility of achieving ideological balance would justify flooding the court with liberal appointments, given the current membership’s strong conservative leanings. According to the widely used Martin-Quinn metric, 5 of the sitting 9 justices are scored as conservative on the basis of their 2019 voting behavior. Available data exclude conservative Justice Amy Coney Barrett, appointed in October 2020 to replace liberal Justice Ruth Bader Ginsburg.
The Ideological Balance argument has what many would regard as an unappealing implication. If you accept the argument, then you should hold that there are always reasons (to be weighed against stare decisis) for a balanced court to re-assess decisions made by an unbalanced one. These reasons are based in the general skepticism toward decisions of ideologically unbalanced courts that the present argument presupposes. Unless one is a reliabilist, this stance should apply equally to conservative and liberal courts. Skeptics should therefore question key rulings made by both the Roberts Court and the Warren Court.
To the extent the skeptic regards the Roberts Court’s rulings with suspicion and the Warren Court rulings with approval, this suggests that the motivation is not skepticism of ideological imbalance per se, but rather partisan considerations. I suspect very few citizens are skeptical of ideological imbalance per se, opposing it only when it is the wrong kind of imbalance. This suggests the mere fact of imbalance is not by itself sufficient to undermine the court’s impartiality. And even if citizens regarded imbalance itself as a bad to be avoided, there would remain weighty reasons to oppose court packing. Specifically, doing so could undermine the perceived legitimacy of past, imbalanced courts—a point I return to below. So, we can conclude that considerations of imbalance alone do not give us decisive reason to support court packing. Such considerations must also be supplemented by an explanation of why imbalance is bad in itself, and why the benefits of addressing imbalance outweigh the costs. I cannot rule out there being such an explanation. But we lack the space to consider what it might look like here.
I suspect very few citizens are skeptical of ideological imbalance per se, opposing it only when it is the wrong kind of imbalance.
The Separation of Powers argument, which opposes court packing, views it as a way to undermine the judiciary’s independence from the executive and legislative branches. It presumes that court packing is a way to flood the court with the president’s cronies, or with judges who are—consciously or not—inclined to rule as the president wishes on key legal issues. This argument underlies much of the bipartisan condemnation of Franklin D. Roosevelt’s Judicial Procedures Reform Bill of 1937. That bill, which was never voted on, would have added a maximum of six justices to the Supreme Court, one for each justice over 70 who refused to retire. FDR supported the bill to flood the court with justices who would uphold the constitutionality of New Deal legislation. Critics fear the plan would have resulted in the executive branch exercising “imperious control,” to use the words of Federalist Paper No. 71, over the process of economic reform, undermining the separation of powers.
The Separation of Powers argument rests on an empirical claim that legislative and executive appointers can, and to some extent do, predict how individual justices will vote on specific issues, and that they can decide which justices to appoint on the basis of these predictions. Judges can be predictable out of adherence to legal principle, or predictable due to quid pro quo. Principled predictability is democratically desirable, as it indicates the judge’s decisions are consistent and fair, based on a commitment to underlying principles rather than specifics of a case. Quid pro quo predictability, on the other hand, is democratically undesirable, requiring that judges rule in a certain way as a favor to their appointers. We can set aside the question of whether FDR intended to pack the court with judges who were predictable in the principled or quid pro quo sense.[iv] In either case, according to the present argument, court packing is wrong because it weakens the separation of powers, making it easier for the executive to get its way.
Appointers can make general predictions regarding how individual justices will vote, but this doesn’t mean justices will generally rule as the appointers would wish—even on those issues most important to the appointers. To take a recent example, neither of Trump’s appointees to the Supreme Court voted in favor of hearing his challenges to the 2020 election. Nixon-appointed Justice Stevens dissented against key parts of the Citizens United ruling, seen as a watershed victory for conservatives. Or, consider Sandra Day O’Connor. She was appointed by Ronald Reagan, who made it a priority during his presidency to overturn Roe v. Wade. O’Connor would issue a decisive vote preserving the ruling in 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey.
These examples indicate that to whatever extent presidents gain control over the Supreme Court through judicial appointments, that control is tenuous at best. Justices do not serve at the beck and call of their appointers. Unrestricted terms leave them free to change their minds on matters of constitutional principle without fear of reprisal, meaning that in the long term their votes are not always predictable on the basis of past decisions. The Separation of Powers argument may give us strong reason to oppose court packing. Yet, I do not regard those reasons as decisive, for the evidence that qualified justices bend their rulings to advance the goals of their appointers is, at best, mixed.
Court packing would needlessly precipitate a crisis of trust in what is currently the most trustworthy branch of American government.
Finally, I turn to the argument I believe gives us decisive reason to oppose court packing. The Perceived Legitimacy argument says that no matter a citizen’s ideological orientation, court packing gives that citizen reason to regard the institution of the Supreme Court as illegitimate—that is, as failing to be an authoritative interpreter of the law. Assuming that court packing floods the court with justices of the same ideological orientation, a specific citizen, if of the opposite orientation, will have reason to regard future rulings as illegitimate. Or a citizen, if of the same orientation as the new justices, will have reason to regard past rulings, which continue to bind her today, as illegitimate. Rulings are “legitimate” and the court itself is viewed as “authoritative” when most individual citizens regard the fact that the court has ruled as a reason for compliance, even when those citizens disagree with the ruling. Legitimacy and authority are largely a function of how citizens perceive the court. According to this argument, court packing would change how individual citizens perceive the Supreme Court for the worse, giving all citizens, regardless of their ideological orientation, reason to distrust the institution.
Perhaps court packing, and the resulting erosion of trust, would be necessary if the Supreme Court were currently facing a legitimacy crisis. As this piece from The Atlantic shows, increasingly acrimonious confirmation hearings are sometimes cited as evidence of such a crisis. But the perceived legitimacy of the court has been remarkably stable over time. According to the General Social Survey, in 2018 approximately 31% of Americans indicated they have a “great deal of confidence” in the Supreme Court, this number being the same as it was in 1970 when data first became available. The Supreme Court fares far better on this metric than either Congress (6%) or the executive branch (12%). Court packing would needlessly precipitate a crisis of trust in what is currently the most trustworthy branch of American government. Therefore, I think all citizens—regardless of their partisan orientation—have reason to oppose it.
Acknowledgments
Thanks to Romy Eskens, Stephen G. Stich, and John Thrasher for helpful feedback.
Notes
[i] Reliabilist arguments can also be used to oppose court packing if the proposal would lead to fewer correct rulings.
[ii] This Bloomberg editorial opposes court packing. But it motivates the need for judiciary reform by claiming that it is “absurd” the future of the Affordable Health Care Act should “turn on legal technicalities.” The editorial exemplifies the partisan reliabilist stance by presupposing that a specific ruling would be correct in the (as of this writing) undecided case of California v. Texas. The editors may be correct that judges shouldn’t be deciding issues of health care reform. But insofar as that view is presently construed as both partisan and controversial, I argue it provides the wrong kind of basis for advocating reform.
[iii] Lawrence Baum, Ideology in the Supreme Court, Princeton University Press, 2017, 191.
[iv] This cartoon from 1937 views FDR’s plan as something like a quid pro quo exchange between him and the new justices.
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