Court Packing as an Antidote

Abstract

Court packing is considered the nuclear weapon that may unleash total chaos on the American constitutional system. Even in the face of a highly controversial appointment process to the U.S. Supreme Court during the 2020 presidential election season, scholars caution against the wisdom and utility of resorting to court packing. This Essay makes three bold arguments: First, a President may nominate a candidate to the Supreme Court at any time, including their last year in office; this is true both empirically and normatively. It is the Senate’s responsibility to ensure the people’s will is not frustrated. Second, never since the American Civil War did the Senate confirm a Supreme Court Justice in a presidential election year without bipartisan support. In fact, except for the sensational appointment of Justice Peter Daniel in 1841, all appointments to the Supreme Court in presidential election years involved either bipartisan consent or confirmation by the incoming Senate with a fresh mandate. This is true even of appointments made after a President became a lame duck or lost a re-election bid and even when the President’s party controlled the Senate. Disregard of this embedded constitutional convention undermines fundamental principles of popular sovereignty. Third, the breach of this constitutional convention is not a matter for political repercussions alone. Well aware of the potential of court packing to rein in a Court, the Framers intentionally allowed its exercise in the Constitution. Further, they adopted life tenure for Justices while relying on the availability of court packing as a restraining mechanism to protect popular sovereignty. Court packing is, thus, the antidote by constitutional design to a partisan takeover of the Supreme Court during election time, as part of the inherent checks and balances of a popular sovereignty system. Senators must be aware that an appointment confirmed by a purely partisan vote during presidential election time legitimizes court packing as a countermeasure.

Keywords: court packing, life tenure, constitutional convention, judicial reform