Taking Court-Packing Off the Table

9/28/2019—It would be nice to be able to take Court-packing off the table. On Friday, I gave a talk at the Elon Law Review Symposium on Court-packing—“Saving Judicial Independence From Court-Packing’s Nihilism.” I argued that Court-packing—the addition of the number of Justices beyond the nine set in 1869—bespoke a kind of jurisprudential nihilism. Marbury v. Madison pronounced America a government of laws and not of men. But the proponents of Court-packing did not believe that. They need bodies and votes.

And the Republicans are just the same. That is why they are busy packing the courts in their own way. Mitch McConnell says he wants to have a permanent impact. But how can you know how judges will rule in the years to come—unless this is all party and partisan and not reason.

Akhil Amar of Yale Law School delivered the keynote address of the symposium. And he also condemned Court-packing. He added an additional objection to partisan Court-packing—that the other side, the Republicans in this case, would regain power and add even more Justices to the Court. It would spin out of control, he warned.

I was impressed that there was a feeling of agreement in the room. The kind of agreement that goes beyond politics.

I also criticized the AALS for having “Pillars of Democracy” as the theme for the January 2020 annual meeting, while refusing to raise the issue of Court-packing. Presidential candidates discuss it, but not law professors? Are they afraid to confront the progressive wing of the Democratic Party?

Now that I have heard a national figure like Amar weigh in, I believe the academy will not much longer be able to avoid the issue.