Presidential Commission on the Supreme Court of the United States
and judicial overreaches—the legislature should still prevail.”); Ronald J. Krotoszynski, Jr., The Unitary Executive and the Plural Judiciary: On the Potential Virtues of Decentralized Judicial Power, 89 Notre Dame L. Rev. 1021, 1062–63 (2014); Keith E. Whittington, Yet Another Constitutional Crisis?, 43 Wm. & Mary L. Rev. 2093, 2134 (2002); Presidential Commission on the Supreme Court of the United States 19 (Aug. 9, 2021) (written testimony of Michael J. Gerhardt, University of North Carolina at Chapel Hill) (“There is little doubt about the constitutionality of the Congress’s authority to expand or contract the size of the Court.”); Presidential Commission on the Supreme Court of the United States 3 (Aug. 9, 2021) (written testimony of G. Edward White, University of Virginia School of Law) (“There is no question that Congress can constitutionally change the size of the Court … .”).
- ↑ But see Mike Rappaport, Is Court Packing Constitutional?, Originalism Blog (Nov. 9, 2020), https://originalismblog.typepad.com/the-originalism-blog/2020/11/is-court-packing-constitutionalmike-rappaport.html.
- ↑ The witness recognized this point but asserted that the political motives were “suppressed” in 1807 and 1837, such that these Court reforms were valId. Barnett Testimony, supra note 70, at 4 (asserting that though “political motives may have existed with each change to the number of justices” in 1807 and 1837, “these motives were suppressed and there was a demonstrable justification for altering the number of judges as the number of states expanded”).
- ↑ See Howard Gillman, Mark A. Graber, & Keith E. Whittington, 1 American Constitutionalism 191–92, 248–51 (2d ed. 2017); supra notes 2–10 and accompanying text.
- ↑ See, e.g., Jean Edward Smith, Stacking the Court, N.Y. Times (July 26, 2007), https://www.nytimes.com/2007/07/26/opinion/26smith.html (“If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective.”); Jonathan Turley, A Bigger, Better Supreme Court: The Case for Reform, Guardian (June 27, 2012), https://www.theguardian.com/commentisfree/2012/jun/27/bigger-better-supreme-court-reform; Mark Tushnet, “For a Generation”?, Balkanization (July 5, 2017), https://balkin.blogspot.com/2017/07/for-generation.html (“Suppose Democrats regain control of the Presidency and Congress after the 2020 elections. … One item on their legislative agenda might be expanding the Supreme Court to eleven (or more).”).
- ↑ Jeff Shesol, Would Trump Consider a Court-Packing Scheme?, New Yorker (Dec. 5, 2017), https://www.newyorker.com/news/news-desk/would-trump-consider-a-court-packing-scheme; see also Richard Primus, Rulebooks, Playgrounds, and Endgames: A Constitutional Analysis of the Calabresi–Hirji Judgeship Proposal, Harv. L. Rev. Blog (Nov. 24, 2017), https://blog.harvardlawreview.org/rulebooks-playgrounds-and-endgames-a-constitutional-analysis-of-the-calabresi-hirji-judgeship-proposal.
- ↑ Benjy Sarlin & Lauren Egan, The Hot New Dem Plan to Score Policy Wins: Change the Rules of the Game, NBC News (Mar. 16, 2019, 7:31 AM EDT), https://www.nbcnews.com/politics/2020-election/hot-new-dem-plan-score-policy-wins-change-rules-game-n983456.
- ↑ 2020 Democratic Party Platform, Democratic Party 58 (2020), https://democrats.org/where-we-stand/party-platform.
- ↑ Barbara Sprung, Biden Says He’s ‘Not A Fan’ of Expanding the Supreme Court, NPR (Oct. 13, 2020), https://www.npr.org/2020/10/13/923213582/biden-says-hes-not-a-fan-of-expanding-the-supreme-court (quoting then-candidate Biden as saying: “I’ve already spoken: I’m not a fan of court packing, but I don’t want to get off on that whole issue. I want to keep focused.”). Later, though he called the court system “out of whack,” he noted that “the last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want.” Sam Gringlas, Asked About Court Packing, Biden Says He Will Convene Commission to Study Reforms, NPR (Oct. 22, 2020), https://www.npr.org/2020/10/22/926607920/asked-about-court-packing-biden-says-he-will-convene-commission-to-study-reforms. In a tweet, then-President Trump said that court-packing would “permanently destroy the Court.” Donald J. Trump, Tweets of October 11, 2020, Am. Presidency Project, https://www.presidency.ucsb.edu/documents/tweets-october-11-2020 (last visited Sept. 19, 2021).
- ↑ See Presidential Commission on the Supreme Court of the United States 3 (July 20, 2021) (written testimony of Christopher Kang, Demand Justice) [hereinafter Kang Testimony], https://www.whitehouse.gov/wp-content/uploads/2021/07/Kang-Testimony.pdf (“In the past five years, Republicans have used their political
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