Court-Packing: An American Tradition?

57 Pages Posted: 15 Nov 2019 Last revised: 31 Jul 2020

See all articles by Joshua Braver

Joshua Braver

University of Wisconsin Law School

Date Written: November 20, 2019

Abstract

This article provides the first comprehensive and conceptual account of all increases and decreases to the Supreme Court’s size. In today’s debate over court-packing, proponents cite and opponents concede that there is ample precedent for the tactic. Against this prevailing consensus, I argue that, although the Court’s size has changed seven times, court-packing is nearly novel in American history and that it would pose unprecedented dangers if enacted today. I define court-packing as manipulating the number of Supreme Court seats primarily in order to alter the ideological balance of the Supreme Court. Court-packing’s distinct danger is that it will lead to a tit-for-tat downward spiral of packing, ballooning the Court’s size so large that its legitimacy pops.

Previous changes to the court’s size fall into two groups. The first group was tied to the practice of circuit-riding, a now obsolete system that required the addition of Supreme Court Justices to staff newly created circuit courts. The circuit-riding justification created a set of norms regulating when and how the size of the Supreme Court could be changed, limiting the opportunities for partisan machinations. The second group were attempts at court-packing. While the 1801 court-packing attempt failed, the 1866/1869 attempt succeeded. However, this lone example of successful court-packing occurred in an extraordinarily low-risk situation in which there was less threat of partisan retaliation because the president at the time lacked the support of either major political party. In other words, previous changes to the court’s size presented little of the perils that packing poses today.

The article concludes by explaining why the elected branches have sought and how they have managed to successfully curb the Supreme Court without leaving a permanent taint on its legitimacy. In an age of rising populism, the next step for scholars of constitutional hardball and departmentalism is to set outer boundaries on the attacks on the Court that they encourage.

Keywords: Court-Packing, Court-Curbing, Supreme Court's Size, constitutional hardball, judicial appointments, judicial selection

Suggested Citation

Braver, Joshua, Court-Packing: An American Tradition? (November 20, 2019). Boston College Law Review, Forthcoming, Harvard Public Law Working Paper No. 19-44, Available at SSRN: https://ssrn.com/abstract=3483927 or http://dx.doi.org/10.2139/ssrn.3483927

Joshua Braver (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

HOME PAGE: http://https://law.wisc.edu/profiles/joshua.braver@wisc.edu

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