My New UnPopulist Article on Why “Court-Packing is a Dangerous Gambit Best Avoided”

Today, the UnPopulist published my article “Court Packing is a Dangerous Gambit Best Avoided.” It responds to Andy Craig’s earlier article putting forward a novel plan that combines court-packing with a constitutional amendment imposing term limits on Supreme Court justices. While Craig’s proposal is better and more creative than traditional court-packing plans, I argue it is still a cure more dangerous than the disease it seeks to remedy.

Here is an excerpt that briefly summarizes the rest:

Court-packing has once again become a major focus of political contention, with many on the political left advocating it in response to what they believe are badly flawed and illegitimate decisions by the Supreme Court. In a recent article for The UnPopulist, Andy Craig provides reluctant support for court-packing, but with a twist he argues will minimize the danger: combining court-packing with a constitutional amendment imposing term limits on Supreme Court justices that would—if enacted—reverse the packing. The term-limit system would give every president two appointments per term, thereby potentially producing more ideological balance on the bench.

Craig’s proposal is clever and a cut above more conventional defenses of court-packing. But I remain unpersuaded. His argument falls short in multiple ways. He overrates the negative aspects of the current Supreme Court majority and underrates their positive contributions, including on the very issue of combating incipient authoritarianism, the main focus of his concerns. He also overestimates the supposed inevitability of future court-packing and the feasibility of his compromise plan. Finally, there are good alternative fixes for many of the problems that (rightly) concern Craig.

I previously criticized court-packing in a Lawfare article published last month, where I explained (among other things) why the Supreme Court’s recent decision in Louisiana v. Callais doesn’t justify packing. In another recent piece, I assessed “non-packing” rationales for increasing the size of the Supreme Court.