The Endgame of Court-Packing

44 Pages Posted: 28 Apr 2021 Last revised: 17 May 2021

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

Washington University in St. Louis - School of Law

Maya Sen

Harvard University - Harvard Kennedy School (HKS)

Date Written: April 27, 2021

Abstract

We estimate the size of the U.S. Supreme Court in a world in which the political parties engage in tit-for-tat court-packing. We do so by assuming that the Supreme Court is immediately expanded by four members and that future presidents who court-pack would add enough seats to ensure that a simple majority of justices were appointed by their party. In a series of simulations, we find that median result of repeated partisan court-packing would be to increase the size of the Court to 23 justices within 50 years and to 39 justices within 100 years. We also study the incentives for justices to retire strategically in a world with repeated partisan court-packing and the resulting effects of changes in strategic retirement on the size the Court. We find that court-packing would decrease the incentives for strategic retirement, but we also find that changes in justices’ retirement decisions would have little effect on the eventual size of the Court. By outlining the assumptions required to study this topic and estimating the impact different parameters would have on court expansion, we hope to generate more careful reflection on the potential consequences of this type of judicial reform.

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 (April 27, 2021). 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

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

Campus Box 1120
St. Louis, MO 63130
United States

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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