I’ve been part of a lot of conversations lately, both publicly and privately, in which folks behave as if expanding the Supreme Court is the only Court reform worth pursuing—or that it at least needs to take precedence over anything else. Public conversations about Court reform sometimes will also nod toward term limits and “enforceable ethics rules” (without getting into the hard part of how to make term limits retroactive or ethics rules enforceable), but it seems undeniable that there is a growing number of people, including plenty of lawyers and law professors, who see the Court reform discussion as “expansion or bust.”
As someone who regularly gets pilloried, whether on Substack, social media, or in my e-mail, for both (1) having lots of other reform ideas; and (2) having grave concerns about Court expansion, I find this framing deeply unhelpful and unfortunate. As I’ve explained in detail, there are countless other levers Congress used to pull to help keep the Court accountable, levers that ought to get far more serious discussion and consideration as part of contemporary Court reform discourse. And as I’ve also explained in detail, expansion not only won’t do anything to solve the underlying problem (the Court’s complete lack of accountability), but it will almost certainly produce some (to my mind) deeply undesirable, if not disastrous, medium- and long-term effects along the way.
Alas, a lot of us end up just talking past each other. So in an effort to get us all onto the same page, it seems to me that those who are fully onboard the expansion-or-bust train should have to do more than simply assert that having four new Democratic appointees on the Court in 2029 would be a self-evidently “good” thing. If nothing else, proponents of expansion should have to answer the following four questions:
How do we avoid touching off a race to the bottom, where each time one party controls the House, Senate, and presidency, it expands the Court to ensure an ideologically and politically sympathetic majority?
If a race to the bottom is unavoidable, how do we avoid further (and potentially fatal) erosion of public confidence in the Court—which will quite transparently be little more than a lever of power for whichever party last had such a trifecta?
If eroding public confidence in the Court is a feature, and not a bug, how do we insulate against the same erosion of public confidence in lower federal courts?
What is the case for why expansion is a better way to achieve the desired reforms than alternatives that would (or, at least, should) avoid many of these forward-looking concerns?
I’ll offer my own thoughts on each of these questions below the fold. But whether or not you read any further, the one point that ought to be clear is that the calls for expansion have thus far been substantially undertheorized. Regular readers of this newsletter know that I’m pretty cynical about the current Court. But it seems worth at least indulging the possibility that there are ways to fix the Court that are less likely to permanently undermine judicial review as an institution—and that recent events have underscored just how steep a price we would pay for four new justices in 2029.
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