Court packing, in the usage of these episodes, means adding seats to the Supreme Court so that a president and Congress can change its political balance. Philip Hamburger, a professor of law at Columbia Law School, defines the danger as Congress creating new judicial positions for a president to fill, so that the result is to shift the court politically: instead of judges who aim to decide fairly, without bias, without political prejudice, there is candid, open politicization of the court, and the will of Congress and the president dictates results rather than the judgment of the judges Philip Hamburger on Court Packing (2021). The topic is treated across three episodes as a structural question about the separation of powers, not merely a partisan maneuver.
The mechanics and the historical record
Hamburger notes that the Court began with six justices — three circuits, Northern, Southern and Middle states, each needing two justices to ride circuit — and that the number was increased in the middle of the 19th century to nine as the country expanded and the number of circuits grew. He calls the closest thing to successful court packing the Civil War era, when Congress increased the size of the court under Lincoln and afterwards for fear that Southern sympathizers might dominate it; that example, he says, came in response to a civil war when the loyalties of the court were uncertain, whereas what he sees now is an attempt to pack the court in response to mere politics Philip Hamburger on Court Packing (2021).
David Kaplan, in an earlier episode, describes court packing as adding seats to the Court and notes that only an act of Congress is needed to do so. If the Democrats took the White House, retained the House and took the Senate, he says, they could pass a law increasing the size of the Supreme Court from nine to 11, appoint two liberals, control it 6-5, and undo the Gorsuch and Kavanaugh appointments Demystifying the Supreme Court (2019). He dates the device’s quick death to 1937, after FDR proposed it and liberals and Republicans both criticized it, and says it became unimportant because the Supreme Court began upholding New Deal laws as it had not in the early and mid-1930s. Bob Zadek interrupts to insist the Court did not simply happen to decide — a switch in time saved nine, and the Court wanted to save the institution and was intimidated by the threat. Kaplan replies that there is not a lot of evidence on why the Court changed and that many scholars disagree it changed because of FDR’s threat.
Hamburger adds a lesser-known precedent: Teddy Roosevelt, in defense of administrative power, threatened the courts, said he would reconfigure them and deprive judicial decisions of their binding effect, and made this a campaign promise. Hamburger says this introduced court packing as a political element in the 20th and 21st century, and that since 1912 the progressive party, under that name or under Roosevelt, or other Democratic Party since then, has always had court packing in the back of its mind — not because most of them wanted it, but because they want to intimidate the judges, which has worked Philip Hamburger on Court Packing (2021).
The threat as the operative weapon
Hamburger’s central claim is that the intimidation game is all that is needed to win. Rather than simply threaten court packing, he says, Biden established a commission to study the possibility and come up with recommendations — using the threat rather than the deed. That is how FDR won, and how Teddy Roosevelt before him won: you threaten court packing and you can corrupt the judges’ decisions by getting them to act out of fear rather than independent judgment. He says this has already begun to happen, citing the Fulton case, where judges altered how they decided in order to stave off actual court packing. He does not think Biden will actually pack the court; in a sense, he says, Biden has already won, because he has already got the Supreme Court to back away Philip Hamburger on Court Packing (2021).
Ilya Somin makes a parallel point: even where judicial review would not disappear completely, it would be far weaker, because a coalition that can pack the court whenever it controls both houses of Congress and the presidency would ensure there was no effective judicial review of policies it supports and considers important. There might still be effective review of minor policies and of some state laws, but in some cases there would not even need to be actual packing — the mere threat could keep the current justices from rocking the boat How to Create a Legitimacy Crisis (2019).
Judicial review and the Bill of Rights
Zadek frames the stakes for Somin as a direct line, not a dotted line, between court packing and diminished effectiveness of the Bill of Rights, asking who would be the guardian of the Bill of Rights if judicial review were weakened. Somin answers that some rights have historically been protected more effectively through judicial review than political majorities would protect them on their own, and that other safeguards — public opinion, the political norms of the elite — can be eroded. He draws an irony: some of the same people who rightly worry that Trump has undermined political norms also support court packing, even though a situation in which political leaders can undermine norms is also one in which, absent judicial review, they could undermine norms protecting rights How to Create a Legitimacy Crisis (2019).
Somin concedes that some people oppose judicial review in general as undemocratic and harmful, and that such people should welcome court packing. He describes the Democratic argument that the current situation is a special case: Republicans got away with something improper by blocking the nomination of Garland in 2016, enabling Trump to nominate Neil Gorsuch for that seat, so packing now would offset that norm-breaking and then stop. Somin calls that evaluation at the very least naive, because Republicans do not agree they did anything wrong in the Garland episode and will not accept the justification; escalation by one side is likely to generate further escalation by the other How to Create a Legitimacy Crisis (2019).
The case for and against
Kaplan states that in the short term court packing would be terrible for the Court, making it seem even more brazenly political than much of the public already thinks, and that when Republicans regained power they might add two seats to take back power and have a 13-member court, politicizing the institution completely. He agrees with the critics on that. Where he differs is the long haul — 10 years or 50 — where he hopes both parties and both ideologies would eventually disarm, lower the temperature and appoint justices differently. But because the Republicans stonewalled Merrick Garland, which he calls legal but an outrageous violation of norms, he concludes that the Democrats have to fight fire with fire: you can’t bring a knife to a gunfight, so in the short term court packing is probably, regrettably, a good idea Demystifying the Supreme Court (2019).
Somin, asked whether anything good can be said for court packing, answers that nothing sufficient outweighs the evil How to Create a Legitimacy Crisis (2019). Hamburger’s framing is that the whole point of a court with independent judges exercising their own independent judgment is non-political decisions about who violated the law and what the consequences are, and that court packing substitutes the will of Congress and the president for that judgment Philip Hamburger on Court Packing (2021).
Term limits as the alternative
Kaplan says that what he and others would support is term limits for justices, calling the idea that they should serve for life outdated: it was one thing to appoint them for life in the late 18th century, when life expectancy was barely 65, but appointing 50-year-olds to serve for life means 30 more years on the Court and makes the stakes even higher. He would support an 18-year term limit, but notes it would take a constitutional amendment, that it will never happen because the party in power will never agree to it, and that passing an amendment is really hard Demystifying the Supreme Court (2019). The 2019-04-18 episode is described as a deep dive into court packing and its implications, covering the FDR precedent, the potential for a legitimacy crisis within the Supreme Court, and alternative reforms such as judicial term limits How to Create a Legitimacy Crisis (2019).
Across episodes: the same question, and one changed position
All three episodes ask whether court packing is a legitimate response to a Court that is perceived as politically captured, and all three guests treat the device as dangerous to judicial independence. What changes is the position taken on whether it should nonetheless be used. In the April 2019 episode, Kaplan says he has come around tentatively to the view that the hard left’s position — that we ought to pack the Court — is probably right, and that in the short term it is probably, regrettably, a good idea, while hoping for eventual disarmament. In the later April 2019 episode, Somin rejects the special-case argument for packing after Garland as naive and says nothing sufficient outweighs the evil. In the 2021 episode, Hamburger shifts the analysis from whether packing should happen to whether it has already succeeded through intimidation, arguing that the threat alone has got the Supreme Court to back away. The excerpts thus show a movement from Kaplan’s reluctant short-term endorsement, through Somin’s rejection of the Garland justification, to Hamburger’s claim that the intimidation game is what wins.
What the sources do not cover
The excerpts do not state the current size of the Court beyond the nine justices named, nor the terms of any bill, the text of any proposed amendment, or the holdings of the cases mentioned beyond what the speakers say. They do not give the outcome of the Biden commission, the content of its recommendations, or any date for the Fulton decision. Several passages break off mid-sentence — Kaplan’s “It is not” and Zadek’s “Phil, in” — and nothing beyond those points is reported here.