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Court Packing

5 min read

Part of The Constitution and the courts.

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Every episode (3)

Who argued it

Philip Hamburger · Josh Blackman · Ilya Somin

Supreme Court · Constitutional Law · Separation of Powers · Administrative State · Originalism · Judicial Review

Background

Definition and mechanics

Court packing, as defined by Philip Hamburger, is the practice by which Congress creates new judicial positions so that a president can make appointments that shift the court politically. The result, he said, is that the will of Congress and the president dictates results rather than the judgment of the judges. Philip Hamburger on Court Packing (2021)

David Kaplan offered a concrete illustration: court packing means adding seats to the Court, and only an act of Congress is required. If Democrats took the White House and both chambers of Congress, he said, they could pass a law increasing the size of the Supreme Court from nine to 11, appoint two liberals, and control it 6-5, undoing the Gorsuch and Kavanaugh appointments. Demystifying the Supreme Court (2019)

Hamburger noted that the number of justices has changed roughly five or six times in American history. The Court began with six because there were three circuits—Northern, Southern, and Middle states—each needing two justices. During the 19th century the number was increased to nine as the country expanded and circuits increased. Philip Hamburger on Court Packing (2021)

Historical precedents

Kaplan said court packing died a quick death in 1937 after FDR proposed it, with liberals and Republicans both criticizing it, and it became unimportant because the Supreme Court began upholding New Deal laws. Bob Zadek disputed the framing, saying the Court was intimidated by the threat and wanted to save the institution. Kaplan responded that scholars disagree that the Court changed because of FDR’s threat. Demystifying the Supreme Court (2019)

Hamburger identified the closest thing to successful court packing as occurring around the Civil War, when Congress increased the size of the court under Lincoln and afterward for fear that Southern sympathizers might dominate it. He called that the only clear successful example in American history and noted it came in response to a civil war, whereas current attempts respond to mere politics. Philip Hamburger on Court Packing (2021)

Hamburger also described Teddy Roosevelt as having campaigned on court packing, threatening to reconfigure the courts and deprive judicial decisions of binding effect in defense of administrative power. Since 1912, Hamburger said, the progressive party has always had court packing in the back of its mind—not because most wanted it, but to intimidate judges. Philip Hamburger on Court Packing (2021)

The intimidation mechanism

Hamburger argued that the threat of court packing is itself sufficient to influence judicial decisions. He said FDR and Teddy Roosevelt won through intimidation, and that judges may alter how they decide to stave off actual packing. He cited the Fulton case as an example where this had already begun to happen. Philip Hamburger on Court Packing (2021)

Ilya Somin made a similar point: even without actual packing, the mere threat could keep current justices from rocking the boat. He said judicial review would not disappear completely but would be far weaker, because a coalition controlling both Congress and the presidency could ensure no effective review of policies it supports. How to Create a Legitimacy Crisis (2019)

Somin also addressed the Bill of Rights directly. He said some rights have historically been protected more effectively through judicial review than political majorities would protect them, and that public opinion and elite norms might serve as safeguards—but those norms can be eroded. He noted the irony that people who worry about norm erosion under Trump may also support court packing. How to Create a Legitimacy Crisis (2019)

The Merrick Garland precedent

Kaplan said Senate Republicans stonewalled Merrick Garland, which he called legal but an outrageous violation of norms. He argued Democrats must fight fire with fire, saying you cannot bring a knife to a gunfight, and concluded that in the short term court packing is probably, regrettably, a good idea. He acknowledged it would make the Court seem more brazenly political and predicted Republicans would later add seats to create a 13-member court. Demystifying the Supreme Court (2019)

Somin characterized the Democratic argument as treating court packing as a special case justified by the Garland blockade, with a promise to return to business as usual afterward. He called that view at the very least naive, predicting Republicans would not accept the justification and would escalate in turn. How to Create a Legitimacy Crisis (2019)

Proposed alternatives

Kaplan said he would support an 18-year term limit for justices, calling life tenure outdated given that 50-year-olds may serve 30 more years. He noted it would require a constitutional amendment and will never happen because the party in power will never agree. Demystifying the Supreme Court (2019)

Hamburger did not propose term limits on the show but framed the stakes in constitutional terms, describing the tension between majority rule and the protection of minority rights. He said the question Biden has forced is who wins—the majority or the Constitution. Philip Hamburger on Court Packing (2021)

Across episodes: the argument develops

The topic appears in three episodes. In April 2019, Kaplan tentatively endorsed court packing as a response to the Garland blockade while Somin warned of escalation. By June 2021, Hamburger reframed the issue around intimidation rather than actual seat additions, arguing the threat alone had already succeeded. The later treatment shifts from whether packing is justified to whether the threat has already achieved its effect.

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