The Endgame of Court-Packing

56 Pages Posted: 28 Apr 2021 Last revised: 8 May 2023

See all articles by Adam Chilton

Adam Chilton

University of Chicago - Law School

Daniel Epps

Washington University in St. Louis - School of Law

Kyle Rozema

Northwestern University - Pritzker School of Law

Maya Sen

Harvard University - Harvard Kennedy School (HKS)

Date Written: May 4, 2023

Abstract

At several points in history, politicians and commentators have proposed adding seats to the Supreme Court to accomplish partisan ends. We explore the incentives for a political party to initiate “court-packing” and what the Supreme Court would look like in a world where political parties engage in repeated partisan court- packing. To do so, we use an Agent-Based Model and different data sources to calibrate the behaviors of Presidents, Congresses, and Supreme Court justices. We then simulate the future composition of the Court in worlds with and without court-packing. The simulations suggest that a political party with an initial minority of seats on the Court would meaningfully increase the share of years it controls the Court if it were to initiate a cycle of repeated court-packing, especially early on. However, although the number of seats would likely quadruple within 100 years, the simulations suggest there would be only a modest expansion during the likely time horizons of politicians who initiate court-packing. By putting structure on what the Supreme Court would look like in a world with and without court- packing, we hope to generate more careful reflection on the incentives to court- pack and the potential consequences of it.

Keywords: Supreme Court, Judicial Behavior, Judicial Politics, Court-Packing

JEL Classification: K00, K40

Suggested Citation

Chilton, Adam and Epps, Daniel and Rozema, Kyle and Sen, Maya, The Endgame of Court-Packing (May 4, 2023). Available at SSRN: https://ssrn.com/abstract=3835502 or http://dx.doi.org/10.2139/ssrn.3835502

Adam Chilton (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

HOME PAGE: http://www.adamchilton.org

Daniel Epps

Washington University in St. Louis - School of Law ( email )

Anheuser-Busch Hall 573
1 Brookings Drive, Campus Box 1120
St. Louis, MO 63130
United States
(314) 935-3532 (Phone)

HOME PAGE: http://https://law.wustl.edu/faculty-staff-directory/profile/daniel-epps/

Kyle Rozema

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

HOME PAGE: http://www.kylerozema.com

Maya Sen

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

HOME PAGE: http://scholar.harvard.edu/msen

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