This article is written by Dr. Joshua Braver, who is an Assistant Professor of Law at University of Wisconsin-Madison. For more information about Braver’s work, visit his website.
“Court-packing” weaponizes Congress’ power to change the size of the Supreme Court by statute. In the lead-up to the 2020 election, many progressives hoped that, if Democrats won both the Presidency and a majority in Congress, they would expand the size of the Supreme Court in order to fill these new seats with enough “left-wing” justices to give the Court a progressive majority. Given that Democrats will not have a substantial majority in the Senate, court-packing is not likely to be enacted anytime soon.
Nonetheless, partly through the misreading of history, the concept has been substantially normalized, leaving it as a possible option if Democrats gain enough power to use it in the future. Progressive pundits have argued that there is ample precedent for court-packing and on that basis that it is a safe tactic and an integral part of the American tradition. Court-packing has many merits and may even prove necessary, but, at least among academics and intellectuals, that case should not rely on this mistaken account of American history.
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. By contrast, “court-curbing” measures, such as jurisdiction-stripping or narrowly interpreting cases, do have a long and promising history. Because such tactics are reversible and seek to check rather than colonize the Court, they are less likely to cause a legitimacy crisis. In other words, attacks against the Court are a recurrent feature of American political life, but the specific tactic of court-packing would be an aberration that poses a greater threat to the continued viability of the Supreme Court. The distinct danger of packing is that it can unleash a tit-for-tat downward spiral. In other words, if progressives pack the Court, then conservatives will have every incentive to expand the Court again to regain their majority. This escalation will continue, ballooning the court’s size so large that its legitimacy pops.
Previous changes to the court’s size did not present these perils. As shown in the table below, the changes fall into two groups. The first group, which consist of three consecutive increases to the Supreme Court’s size in 1807, 1837, and 1863 were tied to and regulated by the practice of circuit-riding, a now obsolete system in which Supreme Court Justices also heard cases as intermediate federal court judges. The system required the addition of a new Supreme Court Justice whenever a new intermediate court was created for newly admitted states. These changes addressed a legitimate administrative need, had implicit rules and limits, and were either bi-partisan or did not align neatly with partisan incentives.
In 1807, the Court expanded from six to seven seats to accommodate the added states of Kentucky, Tennessee, and Ohio. This was a bi-partisan measure. Indeed, Thomas Jefferson was the president and thus Jeffersonians stood to benefit from the expansion. Yet, six of the seven dissenting votes against the expansion were members of Jefferson’s own party. In 1837, the Court expanded from seven to nine seats to accommodate nine new states, but, as I discuss in great detail in my article, the geographic and party alignments are inconsistent with a purely partisan explanation.
In 1863, the Court expanded from nine to 10 seats. Many new seats had become a part of the Union, but this was essential for accommodating for the far western states of California and Oregon. Abraham Lincoln was president, and he certainly had motive to pack the Court. This change in the Court’s size came in the midst of the Civil War, and Lincoln was facing off against a hostile Supreme Court. Pro-Dred Scott, pro-southern Justices are the majority, justices that Lincoln has condemned as allies of the slave power, as part of a southern “conspiracy to perpetuate and nationalize slavery.” The New York Tribune, Lincoln, and the judiciary chairman’s correspondents all advocated for adding two to four seats to the Court.
Yet, Lincoln added only one Justice. That was the bare minimum needed to accommodate the needs of the most far-western states of California and Oregon. Pro-Dred Scott Justices were the still the Court’s majority. Even more importantly, Lincoln, a Republican, appoints a Democrat to the seat. This was unprecedented at the time: In the first hundred years of the Supreme Court’s existence, a President appointed a member of the opposite party to the bench.
Certainly, partisanship entered into these circuit court related changes. Everyone knew that adding a circuit gave the president an additional appointment. Hence, often the president and his party would be especially eager to pass circuit court reform in order to appoint Supreme Court justices to the new seats. The minority party would oppose and obstruct it.
But despite these partisan machinations, the game had implicit rules and limits. No one thought you could increase the Supreme Court seats solely because you disagreed with its decisions. Nor did the parties consider retaliating against the other party’s increase. The dangers we associate with court-packing were mitigated and channeled by the performance and administrative motivations of these expansions. In 1869, Congress finally created a separate tier of intermediate appellate judges, ending this game of expansions.
The second group of changes were attempts to court-pack. Concerns about efficiency and good administration, so prominent in the changes related to circuit-riding, were largely irrelevant. What was at stake was the ideological composition of the Court. There are two episodes and in both a reduction in the Court’s size is followed by a subsequent restoration to or near the old baseline.
The first episode of 1801-802 is no precedent. It was a failure. John Adams and the Federalists failed to deny the incoming President Thomas Jefferson his chance to fill the next vacancy on the Supreme Court. In 1800, Jefferson and his party win the presidency and majorities in both Houses of Congress. But back then, there was an extended lame-duck period of more than three months. The Federalist are convinced that the Jeffersonians are enemies of the Constitution, that they will bring the radicalism of the French Revolution to American shores. So they, as Jefferson bemoaned “retired into the judiciary as a stronghold.”
The Federalists reduced the size of the Supreme Court from six to five. When the next vacancy came, Jefferson would be unable to fill it. The Federalists were blocking Jefferson’s next Supreme Court appointment.
When the Jeffersonians come to power, Congress immediately debated what to do. Furious, the House Speaker, Nathanial Macon expressed his wish to “add two or three more judges to the Supreme Court.” Macon wanted to strike back by packing the court
The Federalist condemnation was fast and furious. What is more striking though is that no Jeffersonian rose to defend Macon against the Federalist onslaught. In fact, in a separate, but related section of the Congressional debate, Jeffersonian congressmen repeatedly condemned the idea of court packing. Even one of the most radical Jeffersonians, Congressman John Randolph of Roanoke, warned that, “by increasing the number of judges, any tone whatever may be given to the bench…that, at every change of administration, the number of your judges are probably to be doubled.”
It’s not just the Jeffersonians words, it’s the actions: rather than pack, they restored the Court’s size back to six seats. Adam’s packing attempt is not a precedent because it was repealed and repudiated.
Where Adams was thwarted, the Reconstruction Republicans succeeded. If there is any precedent for court-packing, this 1866-1869 example is it. Andrew Johnson and the Reconstruction Republicans fought fiercely over the meaning of Reconstruction. The Supreme Court leaned towards Johnson. Inch by inch, its rulings threw into question the constitutionality of a version of Reconstruction that depended upon loyalty oaths and military rule. In 1866, after Johnson announced his nominee to the Supreme Court, Congress passed a law reducing the Supreme Court’s size. Congress was effectively declaring to Johnson that they would not consider any of your nominees.
But the story does not end there. After Republicans wrested back the presidency in 1869, the Republican Congress restored the Court’s size and appointed one of their own to new seat.
In other words, Congress transferred an appointment from Johnson to the next Republican President.
Nonetheless, the partisan battle didn’t degenerate into repeated rounds of packing. Indeed, despite important and sudden Supreme Court over-rulings directly linked to the 1869 appointment, Democratic newspapers never denounced the appointment as “a stolen seat.” Why did the dog not bark?
The norm that during divided government the President and Senate will cooperate to fill a vacant Supreme Court seat did not apply because the 1869 controversy did not fall along partisan lines. Constitutional norms regulate contestation between political parties. They prevent these two long-standing teams from falling into cycles of escalation.
Let’s take an example to illustrate: What about a bi-partisan decision to pack the Court? Since both parties are on board, there is no risk of a downward spiral of retaliation. Similarly, the risk of partisan retaliation is low when the attack targets a president who has been deserted by both political parties. Indeed, twice with 19th century parties, Congress refused to confirm any nominees to the Supreme Court during a normal session, and both times because they came from a party-less president.
Johnson was the second time. Johnson had switched parties so many times and had alienated so many core constituencies that he effectively became a president without a party. In his last electoral contest, Johnson had run as vice-president on the same ticket as Lincoln, and since then, the Democrats had effectively rejected Johnson as their standard-bearer. What right then did the Democrats have to retaliate when the Republican Congress denied their own apostate President a Supreme Court seat? As contemporary journalist, George Clemenceau, commented, “Mr. Johnson…stands absolutely alone. He is own sole remaining friend. Unhappily, he does not suffice.”
Even though the elected branches never packed the court, they didn’t waive the white flag and then meekly submit to the Court’s dictates either. There is more than one way, indeed many ways, to fight the Supreme Court. For example, if Congress anticipates a hostile a Supreme Court decision, it can “strip” the Court of its power to hear the case. Most famously, three days after the Supreme Court heard oral arguments on the constitutionality of Congress’ imposing of temporary military rule on the South after the Civil War, Congress stripped the court of power to hear the case. The Court accepted that it had to proceed as if the case “never existed.” The elected branches have also fought back by changing the court’s schedule, narrowly interpreting court decisions, and by circumventing decisions through passing additional statutes. Indeed, often just raising the possibility of enacting these measures have been enough to cause the Court to retreat.
Unlike packing, all of these measures are reversible, perhaps lessening the dangers of a downward spiral. Furthermore, while packing infiltrates, and transforms the court, these measures attack the court from the outside, checking the court and causing it to retreat. It curbs rather than the colonizes the court. That means the traditional forms of retaliation may be more likely than packing to leave the Court’s legitimacy, bruised but not broken. These forms of court-curbing, not court-packing, are the hallowed American tradition.
Traditions do not bind. Nothing about past American constitutional history commands that we repeat it. An unprecedented tactic maybe a good one. If we want to break with history, perhaps to end judicial review or even create a new constitution, then court-packing may be a good idea. But one does not need to be a revolutionary to embrace court-packing. Perhaps, our moment is sufficiently different from past ones that the traditional and milder techniques of court-curbing will no longer be effective. Perhaps, today the Supreme Court is so sick that only a stronger medicine will suffice. Understanding history is a first and preliminary step to addressing these possibilities. Rather than mimic an imagined history, progressives can use it as a guide to do our own thinking about where we stand in the present and what tactics are necessary, desirable, and legitimate to achieve a more democratic future.