Pack the Court! Defense of Supreme Court Expansion

Feldman (law and political science, Univ. of Wyoming; The New Roberts Court, Donald Trump, and Our Failing Constitution) writes that the increasingly conservative bent of the U.S. Supreme Court has given rise to debate about packing the court (altering its tilt by increasing the number of justices). There are questions of the impact of such an expansion on the court’s preferred image as an apolitical institution. Understanding Feldman’s view of the debate requires an awareness of what he calls “the myth” that in judicial decision making, law and politics must remain separate and independent. In seven chapters, Feldman argues that law and politics have never been and can never be separate and independent in jurisprudence because a “law–politics dynamic” animates the court’s adjudication, and the justices’ political ideologies always influence how they read the law. He discusses the long history of changing the number of justices, based on Constitutional executive-legislative-judicial checks-and-balances and national politics. The Supreme Court has at various times had six, seven, or 10 justices; only for the past 150 years has it had nine. Feldman insists that adding justices wouldn’t lessen the court’s legitimacy, and that only outright court-packing can overcome the current conservative court’s legacy of thwarting progressive agendas.