reflecting a principled approach to constitutional interpretation. Meanwhile, other critics of expansion, including some who take issue with the current Court and its jurisprudence and conclude that other reforms of the Court would be beneficial,[109] believe efforts to expand the Court or otherwise alter its structure at this moment would threaten the independence of the Court. Critics of Court expansion worry that such efforts would pose considerable risk to our constitutional system, including by spurring parties able to take control of the White House and Congress at the same time to routinely add Justices to bring the Court more into line with their ideological stances or partisan political aims. Court packing, in the critics’ view, would compromise the Court’s long-term capacity to perform its essential role of policing the excesses of the other branches and protecting individual rights. Opponents also conclude that packing the Court would not serve democratic values because such reforms would not address the Court’s power to resolve questions better left to the political process. Still other opponents argue that the reform would be contrary to rule of law principles and that what they see as an enduring bipartisan norm against Court packing should be reaffirmed and protected.
1. Protecting Judicial Independence
Opponents of Court packing contend that it would significantly undermine the Supreme Court’s independence. Courts cannot serve as effective checks on government officials if their personnel can be altered by those same government officials. In a system that permitted Court packing, any time the Supreme Court issued a decision that was at odds with the preferences of those in power—whether the matter related to the U.S. census,[110] immigration policy,[111] or the validity of a presidential election[112]—the party in power could respond by stacking the Court with loyalists. One witness before the Commission further explained: “Court-packing risks undermining the willingness of the Justices to maintain their independence” from “the very political forces they are supposed to police in the name of the Constitution.”[113]
Given these concerns, opponents underscore, it is crucial that for much of the past century, there has been a strong—and bipartisan—constitutional norm or convention treating Court packing as “something that just isn’t done.”[114] As one scholar wrote a few years ago, one could say confidently that “court packing is essentially considered a wholly illegitimate means of seeking to alter existing Supreme Court doctrine. No serious person, in either major political party, suggests court packing as a means of overturning disliked Supreme Court decisions, whether the decision in question is Roe v. Wade or Citizens United.”[115] Scholars could say, until very recently, that even as compared to other Court reform efforts, “‘Court packing’ is especially out of bounds. This is part of the convention of judicial independence.”[116]
