tended to make such moves.[127] For these opponents of expansion, it is important that the United States remain firmly in the ranks of democracies standing behind this commitment.
2. Safeguarding the Court’s Legitimacy
Opponents also cite a concern related to the threat to judicial independence, underscored by witnesses before the Commission: that Court packing would almost certainly undermine or destroy the Supreme Court’s legitimacy.[128] Some witnesses testified that the reform would be perceived by many as a partisan maneuver,[129] or a dangerous power grab by one political party—a move that would render the decisions of the resulting (larger) Supreme Court of questionable legitimacy to much of the public.[130] Critics argue that the public is less likely to treat the decisions of a packed Court as authoritative, diminishing the Court’s capacity to protect individual rights, equality, or constrain abuses of executive power.
Opponents of Court packing in this moment warn that it would also almost certainly generate a continuous cycle of future expansions. Expanding the Court would be on the agenda of every administration under unified government.[131] One (purportedly modest) estimate of the consequences of expansions as parties gain Senate majorities and add Justices concludes that the Supreme Court could expand to twenty-three or twenty-nine Justices in the next fifty years, and thirty-nine or possibly sixty-three Justices over the next century.[132] Critics worry that these repeated fights over the Court could lead the public to see the Court as a “political football”—a pawn in a continuing partisan game.[133]
Relatedly, critics of Court packing argue that it would further degrade the confirmation process—a process that has already become a partisan spectacle.[134] There would be significant battles over any Justice added by a Court-expansion measure. And past examples of Court packing would easily become an excuse for blocking the confirmation of any nominee.
Critics of Court packing emphasize that it is hard to predict which forces will find themselves at odds with the Court in the future. At some points in our history, the Court has faced resistance from progressive groups—as illustrated by President Roosevelt’s effort to pack the Court in 1937. By contrast, in the mid-to-late twentieth and early twenty-first centuries, the Court was repeatedly attacked by conservatives who objected to the Court’s jurisprudence on abortion, school prayer, desegregation, protections for criminal defendants, and other civil rights issues.[135] This uncertainty leads even some who fundamentally disagree with aspects of the current Supreme Court’s jurisprudence to believe it is better to preserve
