“Packing the Supreme Court Is a Terrible Idea”

“Democrats paid a political cost for decades after F.D.R. tried it in the 1930s. They probably would again.” [Julian E. Zelizer, New York Times]

Some writings on the left applauding or backing the idea: Ian Samuel, Guardian; E.J. Dionne, Washington Post; Mehdi Hasan/The Intercept; Jed Shugerman; Michael Klarman, Take Care Blog. Charlie Savage at the New York Times rounds up more pro and con. And as Josh Blackman noted in April 2017, similar ideas were already floating around then; see also Mark Tushnet later last year.

Critics of the idea: Megan McArdle (recalling “Impeach Earl Warren” billboards), Charles Cooke (“fringe fantasy”), Adam White, Ilya Somin. A constitutional amendment to prevent packing? [Jim Lindgren, Ilya Somin]


  • The argument by Zeliger that Roosevelt’s court packing scheme hurt the Democrats for decades is silly. The Democrats took heavy losses in the 1938 election but historians credit this to a) the severe relapse of the economy in 1937 and b) the inevitable bounce back of the Republicans after record low representation following the previous four elections.

    The Democrats continued to have heavy majorities in both houses but as he says in the article, the New Deal came to an end with conservative Democrats from the Solid South combined with Republicans to greatly limit FDR’s domestic agenda. As he also says, this was pretty much the case until the 1964 LBJ/Goldwater landslide. However, there is no reason to believe that the makeup of Congress was set by the court packing scheme in 1938, much less in all of the elections that followed.

    An interesting postscript to the Court packing controversy is that FDR got to make seven Supreme Court appointments in the four years following his failure to enact his proposal.

  • In theory, it’s a good idea. If there were more justices, then there would be less collective freakout every time one of them is replaced. There should be a way to do this without it becoming a partisan issue. For example, maybe add 8 more justices at the rate of one every 2 years, not starting until 2020?

    Or make a compromise where the President nominates an equal number of candidates recommended by both Dems and the GOP, and the confirmation vote is all done at once?

  • I can see a situation where whatever party is in power packs the court with more people until they have the majority. The result after a number of years will be a court with thousands of judges.

    It’s like “term limits”. The party not in control always loves them.