Posted Tue Dec 22nd 2020 10:30 am by Amanda Frost
Once considered a taboo, the packing of meals is now a topic of presidential debates that is the subject of numerous comments and a trending hashtag on Twitter. Proponents of the Supreme Court expansion point out that the constitution leaves the number of judges to the discretion of Congress and that Congress has changed the size of the court several times in the past. Critics argue that the packing of courts violates long-standing norms of judicial independence and that expanding the size of the court would exacerbate the politicization of the judiciary.
Several recent law review articles provide thoughtful contributions to the trial debate. In “Packing and Unpacking State Courts,” Marin Levy draws lessons from the recent history of changing the size of state supreme courts to inform the federal judge packing debate. Tara Leigh Groves, “The Origins (and Fragility) of the Independence of Justice” and Joshua Braver’s “Court Wrapping: An American Tradition?” Everyone studies court packaging from a historical perspective but comes to conflicting conclusions. All three professors are trying to shed light on the subject while removing the warmth from a likely controversial political issue for the months and years to come.
As Levy explains, both sides of the trial debate failed to realize that the rhetoric in state courts has become a reality. In the past decade, 20% of state lawmakers have introduced bills to change the size of their state supreme courts, mostly for political or ideological reasons. For the past several years, Florida, South Carolina, Louisiana, Montana, Oklahoma, Washington, Alabama, and Pennsylvania have all examined but declined proposals to “pack” or “unpack” the state’s highest court. Republican lawmakers succeeded in doing this in two states: Arizona’s highest court was expanded from five to seven judges in 2016; In the same year, the Georgian Supreme Court grew from seven to nine judges.
State justice systems differ in important ways from each other and federal courts, Levy admits, and comparisons can be difficult to make. Most state judges do not have lifelong protection and salary protection equivalent to Article III judges, and a significant number are elected rather than appointed. Still, Levy notes that in many states that are considering packing up courts, the governor plays an important role in the selection of judges and legislation should give the seated governor the power to determine the ideological makeup of the state’s highest court to change. Levy argues that all of this state-level activity suggests that the “norm against court packaging may be more vulnerable than some thought”.
Even so, Levy recognizes that the lessons of the state courts are mixed. Attempts to resize a state’s highest court have failed far more often than they have succeeded. This could be a “cautionary story” suggesting that political capital is best spent in other areas. Alternatively, some proposals to expand the size of state higher courts may have served as a shot over the bug, pressuring those courts to back the political party, which has the power to change its composition. Likewise, the current debate about expanding the US Supreme Court may have an impact on judges, even if it does not become a reality.
Grove’s 2018 article argues that practices now considered out of bounds, including court wrappings, were once considered “not only constitutionally permissible, but also desirable (and politically viable) methods of” control ” were understood by the judiciary “. Grove explains that Congress has resized the Supreme Court several times in the past, arguing that the practice was viewed as part of the norms of mainstream political discourse until the 1950s. In a forward-looking conclusion, she explains that court packing and other challenges to judicial independence are dormant but not dead, citing this story as a “cautionary story about the fragility of judicial independence”.
Braver goes into Grove and investigates the same story to conclude that court packing was never an accepted practice. He admits that the court’s size changed seven times between 1801 and 1869. However, he argues that court packaging – which he defines as “manipulating the size of the Supreme Court primarily to change the ideological makeup of the court” – was only successful once.
According to Braver, the first changes in the size of the court were not primarily due to changes in the ideological makeup of the court, but were required by circuit driving – the now-defunct practice of requiring judges to travel regions of the country to to fulfill the double duty as a judge at newly created lower district courts. As new states were added to the union, new judges were added to the court to fill the expanded county courts.
The packing of courts, as Braver defines it, was first successful during the Reconstruction, when the Republicans reduced the size of the court to seven just to prevent President Andrew Johnson from filling vacant seats, and then after 1869 Ulysses S. Grant, who was postponed to nine, has taken office. President Franklin Delano Roosevelt attempted and failed in 1937 to expand the court from nine to 15 judges. Though he was crushed, his efforts arguably influenced Judge Owen Roberts to vote to uphold Roosevelt’s New Deal legislation in what is known as the “clock change” that saved nine. “These efforts were the last attempt to change the size of the court through legislation. Braver concludes that changing the size of the court for political purposes is almost unprecedented and therefore the practice should not be” normalized “[ed]“Today referring to this misunderstood past.
Oddly, however, Braver fails to take into account the Senate’s 2016 refusal to validate a candidate for the Supreme Court during President Barack Obama’s final year in office. Like the Reconstruction-time example, this decision reduced the size of the court for more than a year before expanding again with the confirmation of Justice Neil Gorsuch in April 2017, and appears to meet Braver’s own definition of court packaging as a change in size of the court primarily for ideological purposes. If ideological court wrappings are as rare as Braver suggests, this latest example gains even greater significance in the debate about its future.
Levy, Grove and Braver all agree that court packaging is no longer “unthinkable” as it was a few years ago, and they are all concerned that court packaging could undermine the independence of the judiciary. The real meaning of their scholarship, however, is to show that court wrapping is already back at both the state and federal levels.
Amanda Frost, Academic Highlight: Past, Present and Future of Court Packaging,
SCOTUSblog (December 22, 2020, 10:30 a.m.), https://www.scotusblog.com/2020/12/academic-highlight-the-past-present-and-future-of-court-packing/