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 assert 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 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 is 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 consists of attempts to pack the Court. While the 1801 court-packing attempt failed, the 1869 one succeeded. This lone example of successful court-packing occurred, however, in an extraordinarily low-risk situation in which the President lacked the support of either major political party, thereby lessening the threat of any partisan retaliation. Previous changes to the Court’s size presented few of the perils that packing poses today.
The Article concludes by explaining why the elected branches have sought and how they have managed to curb the Supreme Court without permanently tainting the Court’s legitimacy. In an age of rising populism, the next step for scholars of constitutional hardball and departmentalism is to set outer boundaries for the attacks on the Court that they encourage.
Joshua Braver, Court-Packing: An American Tradition?, 61 B.C. L. Rev. 2747 (2020), https://lawdigitalcommons.bc.edu/bclr/vol61/iss8/2