Informal Constitutional Amendment as an Argument Against Court Packing

Abstract

This Article suggests the link between constitutional amendment and court packing gives us the only good reason we currently have not to pack the court. There are no excellent arguments against court packing, except that it will not get us constitutional rights. The claim is, at the outset, normative, but only in a bare-bones sense: Whatever constitutional change one seeks to accomplish by court packing, it is unlikely to happen unless it is structural rather than rights-based and therefore not worth any risks court packing would bring. This Article argues that informal constitutional change happens, perhaps even regularly, but is incomplete or short term when it is rights-based and only enduring when it is based in structural constitutional change.

Unlike other scholars, who are promoting ways to fix a damaged Supreme Court, this Article suggest that our solution lies not in the court, but in the Constitution, which Justices are sworn to uphold, and specifically in Article V. We have become unable to amend the Constitution and this must change.

Keywords: Supreme Court, Supreme Court of the United States of America, SCOTUS, Court Packing, Constitution, Constitutional Amendment, Justices, Legislative Branch, Judicial Branch, Executive Branch, Federalism, Change