Neil Siegel (Duke University School of Law) has posted The Trouble With Court-Packing on SSRN. Here is the abstract:
Fundamental questions of constitutional policy, norms, and law are implicated by the wide-ranging public discussion of U.S. Supreme Court reform. This Article focuses on the reform proposal that poses the greatest threat to judicial legitimacy and independence: Court-packing. The Article contends that there has likely been a constitutional convention against Court-packing for a long time now, although it is uncertain whether the convention continues to exist given Senate conduct since 2016. The Article also maintains that Court-packing is not as free from constitutional difficulty as the conventional wisdom holds, even if the arguments for its constitutionality are stronger on balance. Most importantly, the Article offers an analytical framework for thinking about Court-packing that rests upon a common ground foundation: the Court performs critical functions that most Americans want it to perform; most of the time, it performs most of these functions better than the available governmental alternatives; and Court-packing would almost certainly damage, if not destroy, its ability to continue performing these functions by impairing its legitimacy and independence. Court-packing should therefore be reserved for extreme situations, in which adding seats would: (1) respond proportionally to a previous instance of Court-packing; (2) restore the Court’s legitimacy in the eyes of a large majority of Americans; or (3) meet a national crisis to which the Court was contributing. Moreover, even when an extreme situation exists, Congress should ask itself whether it can legislate in other ways to address pressing problems before packing the Court. Applying this framework, the Article cuts against the ideological grain of current debates. As many progressives advocate Court-packing and many conservatives oppose it, the Article shows that there are principled reasons to oppose Court-packing at this time even if one believes that Senate Republicans violated an important convention requiring good-faith consideration of Supreme Court nominees, and even if one is deeply concerned about the ideological orientation and methodological assertiveness of the current
Court.
This is an important paper. Highly recommended. Download it while it's hot!
